Ritnand Balved Education ... vs Dda
2009 Latest Caselaw 3878 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on:      22.09.2009

+     LPA 695/2008

RITNAND BALVED EDUCATION FOUNDATION                               ..... Appellant


                          - versus-


DDA                                                               ..... Respondent

Advocates who appeared in this case:

For the Petitioner : Mr. Rajesh Yadav with Mr. Rajan Chawla and Mr. A.P. Singh, Advocates.

For the Respondent : Mr. Rajiv Bansal, Advocate.

CORAM:-

HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in Digest?

BADAR DURREZ AHMED, J (oral)

1. The appellant is aggrieved by the judgment/order dated 02.09.2008

passed by a learned Single Judge of this court in W.P.(C) No. 6394/2008

whereby the petitioner‟s writ petition was dismissed on the ground of delay

and laches. The appellant had filed the said writ petition, inter alia, seeking

a writ, order or direction for quashing two letters both dated 03.04.2006

whereby the respondent-DDA had rejected the bids of the petitioner in

respect of two institutional plots at Sector-12 and Sector-17, Dwarka, New

Delhi, both measuring 12141 sq. mts.

2. The brief facts are that an auction notice was taken out by the DDA in

respect of 12 plots which were to be auctioned on 06.03.2006. The appellant

participated in the auction in respect of three plots which found mention at

serial nos. 4, 5 and 7 of the said auction notice. The reserve price in respect

of two plots both measuring 12141 sq. mts. at Sector-12 and Sector-17,

Dwarka was fixed at Rs 26,83,88,946/- each. The third plot was also in

Sector-17, Dwarka but was of a smaller size. It had an area of 2,000 sq. mts.

and the reserve price for the same was Rs 4,42,12,000/-. As per the

condition of the auction, the successful bidder was required to deposit, at the

fall of the hammer, 25% of the bid amount as Earnest Money Deposit

(EMD) through Demand Draft or Pay Order with the Central Bank of India

or State Bank of India, Vikas Sadan, INA, New Delhi. It is an admitted

position that insofar as the aforesaid three plots are concerned, the appellant

was the highest bidder. It is also an admitted position that immediately on

the conclusion of the auction on 06.03.2006, the appellant submitted a total

amount of Rs 19,07,25,000/- representing 25% of the bid amount in respect

of all the three plots. Insofar as the smaller plot at Sector-17, Dwarka is

concerned, the appellant gave a bid of Rs 14,28,00,000/- and submitted 25%

of the bid amount of Rs 3,57,00,000/-. Insofar as the Sector-12 plot at

Dwarka is concerned, the appellant‟s bid amount was Rs 33,01,00,000/- and

he furnished an EMD of Rs 8,25,25,000/-. With regard to the other Sector-

17 plot at Dwarka, the appellant made a bid of Rs 29,00,00,000/- for which

he deposited an EMD amounting to Rs 7,25,00,000/-.

3. By a letter dated 28.03.2006, the respondent-DDA confirmed the

appellant‟s bid in respect of the smaller plot at Sector-17, Dwarka. Through

the same letter, the respondent-DDA requested that the balance amount of

Rs 10,71,00,050/- be paid within 90 days from the date of issue of the said

demand-cum-allotment letter. We are told by the counsel for the parties that

the said balance amount has not yet been paid. Insofar as the other two plots

are concerned, the appellant received the two impugned letters, both dated

03.04.2006, informing the appellant that the competent authority, after due

examination, had rejected the bids for the said plots and that the earnest

money was being refunded at the earliest. It is an admitted position that

immediately thereafter, the entire earnest money deposited by the appellant

in respect of both plots was refunded to the appellant and the same had been

accepted by the appellant without any demur.

4. On 17.04.2006, a learned Single Judge of this court decided a batch of

writ petitions which included W.P.(C) No. 16691-92/2004 entitled Society

for Employment and Career Counselling vs. Chairman, DDA and Others.

Before the learned Single Judge, in the said batch of writ petitions, the main

issue that arose for consideration was whether the „policy decision‟ of

15.12.2003 taken by the DDA to allot land for establishing technical/higher

education institutes „only‟ through the process of tender/auction would apply

to societies also. The contention that was raised before the learned Single

Judge was that Rule 5 of the DDA (Disposal of Developed Nazul Lands)

Rules, 1981 as amended up to date did not include societies within its ambit

and, therefore, land to societies could be allotted by the DDA as per its

earlier policy of going through the institutional committee recommendation

and not through auction „alone‟.

5. The learned Single Judge accepted this plea. The operative portion

of the judgment dated 17.04.2006 in the said batch of writ petitions reads as

under:-

"46. Writ petitions stand disposed of declaring that the petitioners would be entitled to be considered for allotment of Nazul Land under Rule 5 of the DDA (Disposal of Developed Nazul Lands) Rules, 1981 for setting up higher/technical institutes at a premium determined by the Central Government. Policy decision dated 15.12.2003 in so far it requires allotment of Nazul land to societies for setting up higher/technical institutes at a premium determined through auction is quashed. Mandamus is issued to DDA to identify available plots for setting up higher/technical institutes and apportion the same for allotment to societies (falling in one class) and companies, firms and trusts (falling in second class); simultaneously, DDA would identify the societies whose entitlement has been cleared. If plots to be allotted to societies are more than the number of eligible societies, specific plot be allotted within a period of 3 months from today and premium charged as determined by the Central Government. If number of societies exceed the number of available plots, DDA is directed to evolve a reasonable criteria and as per criteria allot the specified listed plots to the eligible societies within 3 months."

6. Counsel for the parties inform us that cross Letters Patent Appeals

have been filed against the said judgment dated 17.04.2006 and are pending

before a Division Bench of this court.

7. Two days after the said decision dated 17.04.2006, the said Rules

were amended on 19.04.2006. By virtue of the amendment brought about on

19.04.2006, societies were also included insofar as disposal of lands through

auction are concerned. The appellant has challenged the said amendment by

way of a writ petition being W.P.(C) No. 2826/2008 which is pending before

a Division Bench of this court.

8. The learned counsel for the appellant submitted that on 05.06.2006,

the appellant had addressed a letter to the DDA seeking certain

clarifications. In particular, the appellant sought a clarification as to what

would be the fate of the auction dated 06.03.2006 in view of the "quashing

of the policy decision for allotment by auction dated 15.12.2003 by the

Hon'ble High Court in the aforesaid judgment." In response to this, the

DDA sent a letter dated 08.06.2006. The stand taken by the DDA was that

the directions given in the judgment dated 17.04.2006 were in respect of the

parties before the court in that batch of writ petitions. The DDA also took

the stand that subsequent to the said judgment, the Government of India had

issued a notification dated 19.04.2006 clearly notifying that the mode of

disposal of higher/technical institutions was through auctions. In the said

letter, the DDA also informed the appellant that the DDA had conducted the

auction with the permission of the High Court as per its order dated

03.03.2006 in the same batch of writ petitions. The DDA also took a clear

stand that the auction conducted was valid and that the judgment dated

17.04.2006 related only to the parties in those writ petitions and not to the

appellant.

9. Thereafter, there is no further correspondence till the filing of another

writ petition [W.P.(C) No. 10896/2006] by the appellant on 11.07.2006. The

main prayer in the said writ petition was as follows:-

"(a) a writ of Mandamus or any other appropriate writ, order or direction in the nature thereof thereby directing the Respondent to refund with interest at 12% per annum, the amount of Rs.3,57,00,000/- (Rupees Three Crores and Fifty Seven Lacs), deposited as an earnest money, in respect of the plot of land for construction of Technical and Higher Educational Institute at Sector-17, Dwarka,

measuring 2000 sq. meters, in the auction;"

10. It is clear from the said prayer that the appellant, in W.P.(C) No.

10896/2006, is seeking refund of the earnest money deposit of Rs

3,57,00,000/- in respect of the smaller plot, contending that the auction held

on 06.03.2006 was not valid. It also sought a declaration that the auction be

declared to be null and void in respect of the smaller plot measuring 2000 sq.

mts. in Sector-17, Dwarka. No prayer was made with respect to the two

plots which are the subject matter of the present appeal. The learned counsel

for the appellant drew our attention to three orders passed by the learned

Single Judge hearing W.P.(C) No. 10896/2006 on three dates - 01.09.2006,

04.10.2006 and 14.05.2008 in an attempt to submit that there was confusion

in the matter and it is for this reason that the appellant had not challenged the

rejection of the bids in respect of the two plots which form the subject matter

of the present appeal. It is clear upon reading the said orders that they

pertain only to the subject matter of W.P.(C) No. 10896/2006 and which, as

has been pointed out above, relates only to the smaller plot in Sector-17,

Dwarka, which had been confirmed in favour of the appellant but, in respect

of which, the appellant has, till date, not paid the balance amount.

11. The learned counsel for the appellant also drew our attention to a

letter dated 30.03.2007 which was addressed to the Union Minister for

Urban Development, Government of India in which the appellant raised all

issues with regard to the three plots including the two plots which are in

question in the present appeal.

12. We now return to the impugned order passed by the learned Single

Judge. The appellant‟s writ petition [W.P.(C) No. 6394/2008] was

dismissed by the learned Single Judge on the ground of delay and laches as

also on the ground that it was clear from the conduct of the petitioner itself

that it was not interested in securing the two plots in question. We have

gone through the entire impugned judgment and we may say straightaway

that we do not find any infirmity in the same. We have also given a detailed

resume of the facts to clearly indicate that when the appellant received the

two rejection letters both dated 03.04.2006, the appellant did not protest

against the same. On the contrary, the appellant accepted the rejection as

also the refund of the earnest money deposited by it in respect of the said

plots without any demur. We have also seen that from 03.04.2006 right up

to 30.03.2007 when the letter was written to the Union Minister, there is no

protest with regard to the rejection of the bids in respect of the two plots.

When the petitioner was able to file a petition on 11.07.2006 requesting for

refund of the earnest money deposited in respect of the smaller plot in

Sector-17, Dwarka, nothing prevented the appellant from also filing a writ

petition challenging the rejection of its bids in respect of the other two plots.

Perhaps the appellant felt that such a petition challenging the rejection of the

bids would be construed as being clearly contrary to W.P.(C) No.

10896/2006 in which the appellant sought a refund of the EMD of Rs 3.57

crores and also sought a declaration that the auction dated 06.03.2006 be

declared as null and void. In fact, if the prayers in the present writ petition

[W.P.(C) No. 6394/2008] were to be placed alongside the prayers in

W.P.(C) No. 10896/2006, it would be apparent that the same are

contradictory. The appellant, on the one hand, is requesting this court, by

way of the present appeal, for a direction accepting the bids made in respect

of the two plots in question held under the very same auction dated

06.03.2006 and, on the other hand, in W.P.(C) No. 10896/2006, the

petitioner is seeking a declaration that the auction held on 06.03.2006 be

declared as null and void.

13. Apart from the fact that the appellant is taking apparently

contradictory stands, the fact remains that the letters dated 03.04.2006

remained unchallenged by the petitioner till the filing of the present petition

(W.P.(C) No. 6394/2008) on 01.09.2008. Thus, we find that the impugned

order of the learned Single Judge does not call for any interference both on

the ground of delay and laches as well as on the ground that the appellant

had clearly by his conduct accepted the rejection of the bids and had also

accepted refund of the earnest money deposited, without any demur.

Consequently, the appeal is dismissed.

BADAR DURREZ AHMED, J

VEENA BIRBAL, J SEPTEMBER 22, 2009 kks