Punjab-Haryana High Court
Jitender Singh vs Haryana Urban Development Authority on 7 March, 2012
Author: Hemant Gupta
Bench: Hemant Gupta, A.N.Jindal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 7.3.2012
CWP No. 12753 of 2010
Jitender Singh ......Petitioner
vs.
Haryana Urban Development Authority
and others .....Respondents
Present: - Mr. C.B.Kaushik, Advocate for the petitioner.
Mr. Gitish Bhardwaj, Advocate for respondents.
CORAM: - HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE A.N.JINDAL
HEMANT GUPTA, J.
Petitioner claims a writ of certiorari for setting aside the return of a cheque amounting to Rs.3,85,000/-, deposited by the petitioner as 10% of the bid amount for the purchase of a shop cum office site.
An advertisement was published by respondents in respect of auction of commercial sites on 29.12.2005 at 11.A.M in its office at Rewari. The petitioner gave a bid of Commercial Premises No. SCO 25, Sector 6, Part-I, Dharuhera, Rewari and deposited 10% of the amount i.e. Rs. 3,85,000/- at the fall of hammer. The said amount was returned to the petitioner on 1.6.2006. Petitioner served a legal notice dated 27.6.2006 pointing out that since, the amount of 10% earnest money has been accepted, therefore, respondents are bound to issue letter of allotment. It was on 21.07.2009, petitioner was informed that the bid of the petitioner has not CWP No. 12753 of 2010 2 been confirmed. It is pointed out by the petitioner that the site in question is still lying vacant which is likely to be sold in future at a higher price so that the respondents may earn profit keeping in view the market price.
The information given to the petitioner under the Right to Information Act, 2005 (Annexure P-6) shows that the bid of the petitioner was not accepted whereas the bid of the other participants was from Rs. 40.00 lacs or Rs. 47.05 lacs. Since, the bid was of less than the market price, the same was not accepted.
Learned counsel for the petitioner relies upon a Single Bench judgment of this Court in M/s Orchid Infrastructure Developers Pvt. Ltd. Vs. Haryana Urban Development Authority and others 2011(2) PLR 816, wherein in a suit for mandatory and permanent injunction, it was found that the Chief Administrator is not competent in the absence of delegation by the State Government to cancel the bid offered by the highest bidder.
We do not find any merit in the argument raised by the learned counsel for the petitioner for more than one reason. In fact, the present writ petition suffers from gross delay and laches. The right to sue accrued to the petitioner in June 2006, when the bid money deposited by him was refunded. The present writ petition filed on 21.07.2010 i.e. after delay of more than 4 years. Such writ petition suffers from gross delay and laches and the petitioner cannot be permitted to dispute non-confirmation of bid at this stage.
The reliance of the petitioner on the judgment of this Court in M/s Orchid Infrastructure Developers Pvt. Ltd. case (supra) is not tenable. Firstly, it has not been brought to the notice of the Court that the acceptance of the highest bid offered by the plaintiff was not communicated, therefore, CWP No. 12753 of 2010 3 the basis of the judgment that the cancellation was by an unauthorized person will not arise for consideration. The question of cancellation will arise for consideration only after the confirmation of bid. In fact, Regulation 6(2) of the Haryana Urban Development (Disposal of Land and Buildings) Regulations, 1978 deals with confirmation of bids and communication of the acceptance through a letter of allotment. The said Regulation reads as under:
6. Sale or lease of land or building by auction - xxx xxx (2) 10 per cent of the highest bid shall be paid on the spot by the highest bidder in cash or by means of a demand draft in the manner specified in sub-regulation (2) of Regulation 5. The successful bidder shall be issued allotment letter in form 'CC' or C-II by registered post and another 15 per cent of the bid accepted shall be payable by the successful acceptance of the bid by the Chief Administrator; failing which the 10 per cent amount already deposited shall stand forfeited to the Authority and the successful bidder shall have no claim to the land or building auctioned.
A Full Bench of this Court in Surjit Singh v. State of Punjab (1979) 81 PLR 413, has held that mere submission of an application for allotment of the plot does not create any right in favour of the applicant. The submission of highest bid in an open auction stands on the same footing. It was held as under:-
"By filing an application in accordance with law, the applicant only gets a right of consideration of his application, but he does not get a vested right for allotment of the plot. The conditions laid down in the first scheme or the provisions of rule 5(3) do not give any right to the applicants to claim allotment of plots as a matter of right. There is nothing in the scheme or the Act or the Rules which requires the adoption of the principle of `first come first served' at the time of allotment, or debars the Government from adopting the method of drawing lots. The petitioners have not been able to lay foundation for establishing their right which could legally be enforced and the petitioners have completely failed to make out a case for the exercise of our extraordinary jurisdiction under Article 226 of the Constitution of India."CWP No. 12753 of 2010 4
In Chaman Lal Singhal Vs. Haryana Urban Development Authority & others 2009 (4) SCC 369, the Hon'ble Supreme Court held that letter of allotment is an offer, which is to be accepted. It was observed to the following effect:
"21. In our considered opinion, the appellant failed to comply with the aforesaid clauses of the letter of allotment and, therefore, his allotment stood cancelled and the earnest money deposited by him could be forfeited by the Authority. The order of cancellation came to be passed by the competent authority after 500 days. Be that as it may, the aforesaid allotment of plot of land in favour of the appellant came to be cancelled because of non-payment of the amount as stipulated in clause 5 and, therefore, the earnest money deposited by him could be forfeited by the Authority.
22. Since the case of the appellant comes within the ambit of clauses 4 and 5 of the allotment letter, the provisions of Section 17 of the Act would have no application and would not apply. It is thus established that there was no agreement/contract between the appellant and the respondent- Authority and there being no such agreement/contract and because of non- compliance of requirement of clause 5, the issue with regard to violation of principles of natural justice also would not arise. Therefore, the contentions that provisions of Section 17 of the Act are violated and that there is non compliance of the principles of natural justice have no merit."
A Division Bench of this Court in CWP No.2319 of 2012 titled "Shakuntla Devi Vs. Haryana Urban Development Authority & others"
decided on 09.02.2012 was seized of a matter, wherein challenge was to the reasons communicated for not accepting the highest bid of the petitioner. Referring to the provisions of Regulation 6 of the Haryana Urban Development (Disposal of Land and Buildings) Regulation, 1978, it was held that it is open not to confirm the highest bid, but reasons should be available on the records of the authority.
In the present case, the letter of allotment was not issued conveying acceptance of bid offered by the petitioner. In terms of letter of allotment so issued, it was open to the petitioner to accept the offer by CWP No. 12753 of 2010 5 depositing 15% of the amount or to suffer the consequences, as mentioned in the letter of allotment. No concluded contract can come into existence merely on submission of highest bid.
In Orchid Infrastructure's case (supra), the finding recorded that the Chief Administrator is the competent authority to take a final decision regarding cancellation of the highest bid submitted by the petitioner. But the question of cancellation will arise only if the bid is accepted and letter of allotment issued. Still further, the Full Bench judgments of this Court in Subhash Chand Vs. State of Haryana & others, AIR 2007 Punjab and Haryana 167 and Surja Ram Vs. State of Haryana and another AIR 1984 Punjab & Haryana 282 were not brought to the notice of the Court. It has been held therein that the highest bid offered by a bidder can be rejected, but the reasons for rejection should be available on file. Since such distinction has not been brought to the notice of the Court, therefore, the said judgment does not lay down correct law and is overruled.
It is the case of the petitioner himself in para 9 of the writ petition that the bid has not been confirmed for the reason that HUDA may earn profit keeping in view the market price. It, thus, transpires that the price offered by the petitioner was not the market price. Such reason is perfectly justified in not confirming the auction in favour of the petitioner. In the auction process conducted on 29.12.2005, the other similar situated buildings have been sold for a price of Rs.40.00 lacs to Rs.47.05 lacs. Therefore, the price offered by the petitioner is less than the market price. Such price has rightly not been accepted by the respondents.
In view of the above, we do not find any merit in the present writ petition. Consequently, the same is dismissed. CWP No. 12753 of 2010 6
(HEMANT GUPTA) JUDGE (A.N.JINDAL) JUDGE 7.3.2012 preeti/vimal