M/S Ideas Plus Ink Construction ... vs Delhi Development Authority & Anr
2012 Latest Caselaw 2048 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) No.720/2012

                                          Decided on: 26th March, 2012

IN THE MATTER OF:
M/S IDEAS PLUS INK CONSTRUCTION PVT LTD           ..... Petitioner
                    Through : Mr. J.P. Sengh, Sr. Adv. with
                    Ms. Sana Ansari, Mr. Sumeet Batra and
                    Ms. Ankita Gupta, Advs.

                   versus


DELHI DEVELOPMENT AUTHORITY & ANR                 ..... Respondents

Through : Mr. Arun Birbal, Adv.

for R-1/DDA.

Mr. Asit Tiwari, Adv. for R-2/UOI.

CORAM:

HON'BLE MS. JUSTICE HIMA KOHLI

HIMA KOHLI, J (Oral)

1. The present petition is filed by the petitioner praying inter

alia for quashing the order dated 23.11.2011, passed by the

respondent No.1/DDA, cancelling the allotment of a plot bearing

No.132, Pocket 2, Jasola, New Delhi, measuring 250.14 sq. mtrs. in

violation of the terms and conditions of auction and forfeiting the

earnest money of 25% of the bid amount deposited by the petitioner

in an auction held on 25.3.2008.

2. Briefly stated, the facts of the case are that in the year

2008, respondent No.1/DDA had issued advertisements to auction

plots in Jasola Pocket 2, New Delhi. In response, the petitioner had

submitted an application form for the subject plot. The reserve price

of the subject plot was fixed by the respondent No.1/DDA as

`3,57,70,735/-. On 25.3.2008, when the petitioner participated in the

auction proceedings, it was declared as a successful bidder and it

proceeded to deposit a sum of `90.00 lacs with the respondent/DDA as

25% of the bid amount.

3. On 25.4.2008, respondent No.1/DDA had issued a demand

letter to the petitioner for the balance 75% of the bid amount, totaling

to `2,70,00,016/-. Though the aforesaid amount was required to be

deposited by the petitioner by 21.7.2008, it failed to do so within the

stipulated time. On 12.6.2008, the petitioner requested the

respondent No.1/DDA for extension of time of six months to deposit

the balance 75% payment. The said request was however turned

down by the respondent No.1/DDA on 17.7.2008. On 10.10.2008, the

petitioner again approached the respondent No.1/DDA for extension of

time to deposit the balance payment. This time, respondent No.1/DDA

extended the time, upto 17.1.2009 to enable the petitioner to deposit

the balance 75% of the bid amount.

4. Despite the above relaxation granted to it, the petitioner

did not deposit the balance bid amount with the respondent No.1/DDA.

Instead, it preferred a writ petition in this Court, registered as

WP(C)No.477/2010 entitled 'M/s. Ideal Plus Ink Constructions (P)

Ltd. vs. DDA & Ors.' praying inter alia for quashing of a notice dated

30.10.2009 issued by the respondent No.1/DDA informing it that the

Authority proposed to forfeit the earnest money deposited by the

petitioner. Counsel for respondent No.1/DDA entered appearance in

the above proceedings and opposed the aforesaid writ petition. After

considering the rival submissions of both sides, vide judgment dated

22.2.2010, the aforesaid writ petition was dismissed while observing

that the terms of payment were a matter of contract between the

petitioner and the DDA, and the same could not be varied or altered

by the Court. At that stage, counsel for the petitioner had submitted

that the petitioner wished to make a representation to the DDA for

extension of time for making the balance payment. In view of the

aforesaid submission made on behalf of the petitioner, the Court

directed that in case any representation would be made by the

petitioner, DDA would consider the same in accordance with law.

5. Pertinently, the petitioner did not make any representation

to the respondent No.1/DDA for a period of eight months, till as late as

22.10.2010. In its representation, the petitioner sought extension of

time upto 31.8.2011 to deposit the balance bid amount. A perusal of

the aforesaid request letter made by the petitioner to the respondent

No.1/DDA reveals that the petitioner had not furnished any reasons for

seeking further extension of time to deposit the balance payment

(Annexure P-11). Thereafter, on 5.1.2011, the petitioner unilaterally

deposited a sum of `1.00 crore with the respondent No.1/DDA and it

proceeded to deposit the balance amount of `1,70,00,016/- on

17.11.2011.

6. On 23.11.2011, respondent No.1/DDA issued the

impugned cancellation letter informing the petitioner that it had failed

to fulfill the terms and conditions of the auction by depositing the

balance 75% of the bid amount within the stipulated period. As a

result, the representation dated 7.7.2011 submitted by the petitioner

was rejected by the competent authority and the allotment of the

subject plot was cancelled due to violation of the terms and conditions

of the auction and the petitioner was informed that the earnest money

of 25% of the bid amount deposited during the auction, stood

forfeited. Aggrieved by the aforesaid cancellation letter dated

23.11.2011, the petitioner preferred the present petition on 1.2.2012.

7. On 6.2.2012, learned Senior Advocate appearing for the

petitioner had sought an adjournment to enable the petitioner to place

on record certain documents stated to have been obtained by it upon

filing an application under the Right to Information Act, 2005. The

said documents were sought to be placed on record to demonstrate

that the petitioner's case had been recommended for approval by the

competent authority, i.e., Vice Chairman, DDA, for reference to the

Ministry of Urban Development for regularization of the belated

payment of the bid amount by the petitioner. As a result, the case

was renotified for today, i.e., on 26.3.2012.

8. In the meantime, the petitioner filed an application for stay

of the auction of the subject plot announced by the respondent

No.1/DDA in a public notice and fixed for 28.3.2012, and sought an

early hearing of the writ petition. The said request was however

declined and the date fixed in the matter was maintained.

9. A short affidavit dated 23.3.2012 has been filed by

respondent No.1/DDA opposing the present petition and stating inter

alia that the competent authority, i.e., Vice Chairman, DDA, had

cancelled the allotment of the subject plot in view of the non-payment

of 75% premium within the stipulated period or even within the

extended period of 180 days. It was also conveyed to the petitioner

that the amount lying deposited with the respondent No.1/DDA was

being refunded to it after deduction of the earnest money. Further, it

is averred in the affidavit that the deposit of premium by the petitioner

prior to the issuance of the cancellation letter did not amount to

regularization of the delayed payment and that respondent No.1/DDA

had not called upon the petitioner to make the payment. Rather, the

petitioner had made the payment on its own.

10. As regards the reference made by the petitioner to certain

other cases of auction and belated payment wherein it was claimed

that the same had been referred by the Vice Chairman, DDA to the

Ministry of Urban Development for extension of time, it is averred by

the DDA in its affidavit that the facts of the case of the petitioner

herein are not comparable to the facts of those cases and in any

event, the petitioner does not have a vested right to claim that its case

must be referred to the Ministry for extension of time, as each case is

required to be considered by the competent authority on its own

merits.

11. Lastly, it is stated by learned counsel for respondent

No.1/DDA that a bare perusal of the advertisement circulated by DDA

inviting bids for a number of plots including the subject plot reveals

that as against the reserve price of the plot fixed in the year 2008 at

`3,57,70,735/-, the same has now been virtually doubled to

`6,87,89,875/- and there is no reason for respondent No.1/DDA to not

to put the subject plot to a fresh auction in view of the enhanced

amount, that the plot is likely to fetch in the fresh auction that is now

slated for 28.3.2012, i.e., day after tomorrow.

12. The Court has heard the counsels for the parties and

considered their rival submissions. The scope of the present petition is

fairly limited in view of the judgment dated 22.2.2010 passed in the

earlier writ petition filed by the petitioner, i.e. WP(C)No.477/2010,

wherein the petitioner had prayed for quashing of the notice dated

30.10.2009 addressed by respondent No.1/DDA to it deciding to forfeit

the earnest money deposited by it. After examining the case of the

petitioner, the Single Judge had clearly observed in its decision that

the terms of payment were a matter of contract between the petitioner

and the DDA, and the same could not be varied or altered by the

Court. It was also observed that the earnest money deposited by the

petitioner with respondent No.1/DDA had been forfeited due to non-

payment of the balance bid amount despite extension of time granted

to it by the respondent No.1/DDA. Consequently, the said petition was

dismissed. Admittedly, the petitioner has not filed any appeal against

the aforesaid decision, which has thus attained finality. Therefore, the

merits of the aforesaid case cannot be re-examined by this Court in

the present proceedings.

13. As regards the prayer for extension of time that had been

made on behalf of the petitioner in the earlier writ petition, the same

was not a matter of right that the petitioner could claim, but was

purely a matter of discretion to be exercised by respondent No.1/DDA

and the said discretion was not exercised by the DDA in the facts of

the present case, as is apparent from a perusal of the impugned

cancellation order dated 23.11.2011.

14. For the petitioner to contend that the competent authority

ought to have referred its case to the Ministry of Urban Development

for regularization of the belated payment of the bid amount, deposited

beyond a period of 180 days in terms of Section 45(2)(b) of DDA

(Disposal of Developed Nazul Land), 1981, subject to payment of

interest @ 15% per annum is unjustified. This Court finds force in the

submission made by learned counsel for respondent No.1/DDA that

such a discretion vests in the Vice Chairman, DDA, and that it is only

in cases where there is sufficient ground available to justify

condonation of such a long delay could such a discretion be exercised

by the Competent Authority and the facts of the present case were not

such that the said Authority was inclined to exercise the discretion

vested in it in favour of the petitioner.

15. It is also pertinent to note that the impugned cancellation

order dated 23.11.2011 ultimately came to be passed by respondent

No.1/DDA not on its own, but on account of orders passed by this

Court in another litigation initiated by the successful bidder of the

adjoining plot, i.e., plot no.131, that had been auctioned by the

respondent No.1/DDA contemporaneously. Just as the petitioner

herein defaulted in depositing the balance 75% of the bid amount

within the stipulated time, the successful bidder of the aforesaid plot,

namely, M/s Trinity Colonizers Pvt. Ltd., had also defaulted in making

the payment of the balance 75% of the bid amount and when the

respondent No.1/DDA decided to forfeit the earnest money deposited

by the said petitioner, it approached this Court by filing a writ petition,

registered as WP(C)No.8034/2011 entitled 'M/s Trinity Colonizers

Pvt. Ltd. vs. DDA'.

16. In the course of arguments addressed in the aforesaid writ

petition, the petitioner therein claimed that it was being discriminated

against a similarly placed party, i.e., the petitioner herein, who had

also defaulted in depositing the balance 75% of the bid amount for an

adjoining plot, and had still not suffered the penalty of forfeiture and

rather, the said plot had not even been put on the block for re-auction

by the DDA. In view of the aforesaid stand taken by the counsel for

the petitioner therein, counsel for the respondent/DDA was directed to

obtain instructions from the Department as to the fate of the

representation that had been made by the aforesaid party pursuant to

the liberty granted to it, vide order dated 22.2.2010 passed in

WP(C)No.477/2010. It so transpired that the party being adverted to

by M/s Trinity Colonizers (P) Ltd. in WP(C)No.8034/2011 happens to

be the petitioner herein, who had filed an earlier writ petition,

registered as WP(C)No.477/2011, wherein, it was given the liberty to

make a representation to the DDA for seeking extension of time to

deposit the balance bid amount.

17. In view of the clear directions issued to respondent

No.1/DDA in the aforesaid writ petition that it give a response to the

pending representation of the petitioner herein, counsel for respondent

No.1/DDA had informed the Court in the course of the proceedings in

WP(C) No.8034/2011 that it had been decided by the Competent

Authority to reject the application of the petitioner herein and the

subject plot was proposed to be re-auctioned. In the light of the

aforesaid submission made by the counsel for respondent No.1/DDA

therein and having regard to the merits of the said case,

WP(C)No.8034/2011 was dismissed in limine vide order dated

18.11.2011, as being devoid of merits. Pertinently, the aforesaid

dismissal order dated 18.11.2011 was challenged in an intra court

appeal, registered as LPA No.17/2012 entitled 'M/s Trinity Colonizers

Pvt. Ltd. vs. DDA', which was dismissed as withdrawn with liberty

granted to the appellant therein to file a civil suit, if permissible in law.

It is in the light of the aforesaid background that the impugned

cancellation order dated 23.11.2011 came to be passed by the

respondent No.1/DDA in respect of the petitioner herein.

18. Counsel for respondent No.1/DDA seeks to explain the

delay in passing the aforesaid order by submitting that an officer in the

department, who was dealing with the matter, had wrongly retained

the file for a period of about 1½ years without putting it up for the

consideration of the appropriate authority. However, this fact came to

the notice of the Department only when the said file was called for by

the Deputy Director (Land & Building) on 15.11.2011, pursuant to the

directions issued in the proceedings in WP(C) No.8034/2011. He

further states that immediately after the facts of the present case were

perused, the request of the petitioner herein seeking condonation of

delay in depositing 75% of the bid amount was declined and

simultaneously, the Principal Commissioner, DDA made a

recommendation that appropriate action be taken against the

concerned officer who had caused the undue delay in putting up the

case of the petitioner for consideration. In support of his submission,

learned counsel for respondent No.1/DDA hands over a photocopy of

the noting file of the case, wherein the note of Mr. V.K. Sandhu,

Principal Commissioner, DDA dated 28.11.2011, appears at page 38.

19. Having perused the records and in view of the aforesaid

factual matrix, this Court declines to engage itself once again on the

merits of the case which have already been considered in

WP(C)No.477/2010 and adjudicated upon on 22.2.2010. As regards

the representation made by the petitioner to the respondent No.1/DDA

for extension of time to deposit the balance payment, it is apparent

from the record that the petitioner has been dragging its feet for

reasons best known to it. This fact is also borne out by the manner in

which the petitioner chose to remain dormant for eight months

pursuant to the order dated 22.02.2010 and approached respondent

No.1/DDA only on 26.10.2010 by making a representation for

extension of time to deposit the balance payment. Again, in the said

representation also there was no cogent reason offered by the

petitioner as to why such an indulgence be shown to it. In fact, the

representation is completely silent in this regard. Rather, it is a terse

two-line letter, wherein, all that the petitioner had stated was that it

was not in a position to deposit the balance amount in time.

Pertinently, even at that time, the petitioner had not deposited any

amount with the respondent/DDA and instead, it had proceeded to

unilaterally deposit less than 50% of the balance bid amount in

January 2011 and the remaining amount in November 2011.

20. It is relevant to note that in this duration spanning over

four years, the prices of the land have escalated, which is also

apparent from the fact that the reserve price of the subject plot has

almost doubled as compared to the reserve price fixed by the DDA in

the earlier auction in respect of the same plot. Thus, there is no good

reason for this Court to exercise its discretion in favour of the

petitioner by calling upon respondent No.1/DDA to accept the balance

amount deposited with it by the petitioner on its own in January and

November 2011 and be deprived of an opportunity of earning a

handsome profit on the sale by auction of the subject plot.

21. In view of the above facts and circumstances, the present

petition is dismissed. Needless to state that the petitioner shall be

entitled to claim refund of the balance amount beyond 25% of the bid

amount that has been unilaterally deposited by it with the respondent

No.1/DDA towards the auction of the subject plot held on 25.3.2008,

upon completion of all the necessary formalities in that regard.

(HIMA KOHLI) Judge MARCH 26, 2012 sk/rkb