Punjab-Haryana High Court
Ashwani Goyal (Since Deceased) Through ... vs Chief Administrator on 19 September, 2013
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
CWP No.3953 of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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CWP No.3953 of 2001
Decided on : 19.09.2013
Ashwani Goyal (since deceased) through LRs and another
...Petitioners
Versus
Chief Administrator, HUDA and others
...Respondents
CORAM : HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present : Mr.Sanjeev Sharma, Sr. Advocate with
Ms.Bhawna Joshi, Advocate
for the petitioners.
Mr.Gitish Bhardwaj, Advocate
for the respondents.
Mahavir S. Chauhan, J.
In an open auction held on 31.01.2001 pursuant to a public notice published in the newspapers, the petitioners, namely Ashwani Goyal (since deceased, now represented by his Lrs) and his brother Arvind Goyal, gave the highest bid of Rs.22,55,000/-, in respect of a booth site, measuring 2.75 X 8.25 mtrs, or say 22.68 sq.mtrs, in Sector 6, Panchkula. They deposited 10% of the bid money at the fall of the hammer and were required to deposit 15% within 30 days from the date of issue of allotment letter. The balance 75% was payable either in lump sum without interest within 60 days from the date of issue of letter of allotment or in 10 equated instalments with 15% interest. On 16.02.2001, letter of allotment Kumar Sudhir S 2013.09.19 17:44 I attest to the accuracy and integrity of this document chandigarh CWP No.3953 of 2001 2 (Annexure P/3) was signed and on that very day, the petitioners submitted an application (Annexure P-2) to revoke/withdraw offer of the above-stated site. However, letter of allotment was dispatched and the same was received by the petitioners in due course. Thereafter, vide application dated 09.03.2001, petitioners reiterated their demand for refund of Rs.2,25,500/- i.e. 10% of the total costs of the booth site, deposited by them at the time of auction. The request was not conceded to by the respondents and vide memorandum dated 12.03.2001, Estate Officer, Haryana Urban Development Authority (for short 'the HUDA') informed the petitioners that request made by them was meaningless and as they were to required to deposit the amount by 17.03.2001 as per letter of allotment else, in terms of condition No.4 of the letter of allotment, which was accepted by them, an amount equivalent to 10% of the deposited amount was liable to be forfeited and allotment of site to be cancelled.
To assail correctness of the memorandum dated 12.03.2001 (Annexure P/5) and for issuance of a writ of mandamus to direct the respondents to refund the amount of Rs.2,25,500/-, the instant writ petition has been brought by the petitioners under Articles 226/227 of the Constitution of India by alleging that on 15.02.2001, the petitiones visited the site and on its measurement found that the plot available on the site actually measured 13 sq.mtrs only, whereas petitioners had participated in the auction as dimensions of the site were mentioned as 2.75 X 8.25 mtrs. which suited their requirement of establishing a Chemist shop and, as such, they were left with no option but to withdraw the offer made by them.
In the counter filed on behalf of the respondents the allegations Kumar Sudhir S 2013.09.19 17:44 I attest to the accuracy and integrity of this document chandigarh CWP No.3953 of 2001 3 constituting the petition have been denied and it has been added that at the time of auction approved plan of the area was displayed on the notice board and it was clearly mentioned that size of the site was 2.75 mtrs X 8.25 mtrs. including public corridor, and the petitioners had participated in the auction after having gone through the site plan and satisfying themselves about the size of the plot and other necessary details. It has also been added that under the HUDA Act, there is no provision permitting successful bidder to withdraw after completion of auction and deposit of 10 % of the bid money.
We have heard learned counsel for the parties and have also perused the record.
It is vehemently argued by Shri Sanjeev Sharma, Senior Advocate representing the petitioners that the offer to purchase the plot was withdrawn by the petitioners before it was accepted by the respondents and that being so, the respondents cannot be heard to say that the offer could not be withdrawn by the petitioners.
The learned Senior counsel has painstakingly taken us through the provisions of Sections 3, 5 and 7 of the Contract Act, 1872 to stress that Section 7 of the Contract Act, lays down that acceptance has to be absolute and un-qualified but in the case in hand, the acceptance signified by the respondents was subject to two conditions i.e., subject to deposit of 10% of the auction money by the petitioners, and acceptance of the bid by the Chief Administrator, and under Section 3 of the Contract Act, the communication of proposals, the acceptance of proposals and the revocation of proposals and acceptance, respectively, are deemed to be made by any act or commission of the party proposing, accepting or revoking by which he Kumar Sudhir S 2013.09.19 17:44 I attest to the accuracy and integrity of this document chandigarh CWP No.3953 of 2001 4 intends to communicate such proposal, acceptance or revocation or which has the effect of communicating it, while according to section 4 of the said Act, communication of a proposal is complete when it comes to the knowledge of the person to whom it is made and communication of acceptance is complete as against the proposer when it is put in a course of transmission to him so as to be out of the power of the acceptor; as against the acceptor, when it comes to the knowledge of the proposer. Similarly, communication of a revocation is complete against the person who makes it when it is put in the course of transmission to the person to whom it is made so as to be out of the power of the person who makes it, and as against the person to whom it is made when it comes to his knowledge.
Learned Senior counsel also relies upon Dehli Development Authority Vs. Pushpendra Kumar Jain, 1994 (6) JT 292, to impress that right to a flat or site accrues only on communication of the letter of allotment to the intending purchaser and not on the date of draw of lots and that intending purchaser can decline the allotment if he is not willing to accept the rate before letter of allotment is issued; and on Tarsem Singh Vs. Sukhminder Singh, 1998 (3) PLR, 802, to show that an agreement comes into effect only on acceptance of proposal.
On the strength of the above cited provisions of the Contract Act, and the cited judgments, learned Senior Counsel has attempted to demonstrate that the proposal given by the petitioners for purchase of the site in question was withdrawn by them vide their application (Annexure P/2), before the proposal could be accepted by the Chief Administrator, HUDA and that being so, the petitioners are entitled to refund of the amount Kumar Sudhir S 2013.09.19 17:44 I attest to the accuracy and integrity of this document chandigarh CWP No.3953 of 2001 5 of Rs.2,25,000/- deposited by them as 10% of the bid money. To justify withdrawal of the aforesaid offer, learned Senior counsel reiterates that the booth site was intended to be purchased by the petitioners in view of the size of the site indicated in the advertisement but on the spot, size of the plot was found to be far below what was projected in the advertisement.
Per Contra, learned counsel for the respondents defends the action of the respondents in refusing to accept the prayer of the petitioners for withdrawal of the offer saying that in the HUDA Act and Rules and Regulations framed thereunder, there is no provision for withdrawal by a successful bidder after deposit of 10% of the bid money and, that the petitioners had participated in the auction with their eyes open, and after having gone through and understanding the layout plan which was displayed on the notice board at the time of the auction.
It is not in dispute that the petitioners were successful in the auction held on 31.01.2001 pursuant to a public notice published in the newspaper and that they deposited an amount of Rs.2.25 lacs being 10% of the bid money at the fall of hammer. It is also not in dispute that the letter of allotment (Exhibit P/3) was issued on 16.02.2001 and on that very day, the petitioners submitted an application (Annexure P/2) to withdraw their bid for purchase of the booth site. There is also no dispute with regard to what has been laid down in Sections 3, 5 and 7 of the Contract Act and the judgments cited on behalf of the petitioners. However, the contention that offer was withdrawn/revoked by the petitioners before it could be accepted by the respondents is found to be unacceptable.
As aforesaid, auction was held on 31.01.2001 on the basis of a Kumar Sudhir S 2013.09.19 17:44 I attest to the accuracy and integrity of this document chandigarh CWP No.3953 of 2001 6 public notice published in the newspapers and in that public notice, it was clearly mentioned that size of the booth site offered for allotment by way of auction was 2.75 X 8.25 sq. mtrs. It has also remained undisputed that at the time of the auction, layout plan of the area was displayed on the notice board and in that layout plan also size of the site was shown as 2.75 x 8.25 mtrs. including public corridor.
Presumably, the petitioners participated in the auction after going through the layout plan and after understanding the details of the site for which they gave a bid. It has also come on record that the auction was complete after 42 rounds wherein 05 bidders participated. This indicates that the petitioners were hot contenders for allotment of the booth site in question. From 31.01.2001 till 15.02.2001, the petitioners did not do anything to ascertain actual position/size of the site. In fact, there was no occasion for the petitioners to do so in view of size of the plot having been given in the advertisement and in the lay out plan displayed at the site of auction. As per plea of the petitioners, it occurred to them on 15.02.2001 to find out actual size of the plot which, on measurement, came out to be 13 sq. mtrs. and accordingly, on 16.02.2001 they submitted an application (Annexure P/2) for withdrawal of the offer. It cannot be accepted that it was sheer coincidence that the petitioners made a request for withdrawal of the offer on the very day on which letter of allotment was issued i.e. 16.02.2001. When the circumstances that letter of allotment (Annexure P/3) and request of withdrawal (Annexure P/2) originated on the same day are read in conjunction with each other and with the fact that the auction of the site in question could be completed after 42 rounds wherein 05 bidders, Kumar Sudhir S 2013.09.19 17:44 I attest to the accuracy and integrity of this document chandigarh CWP No.3953 of 2001 7 including petitioners, participated, it comes out that the petitioners were indulging in a speculative game either to raise price of the booth site to the highest possible level or to find out some purchasers for the same offering higher price than the auction price and then, after having failed to get such a buyer they coined a story and made application (Annexure P/2) for withdrawal of the offer after having come to know that the offer given by them to purchase the plot had been accepted and letter of allotment had been signed by the competent authority after acceptance of the bid given by the petitioners. Thus, we have no doubt in our mind that application (Annexure P/2) was made by the petitioners after the bid had been accepted and letter of allotment had been signed by the competent authority and after they (petitioners) had acquired knowledge thereof.
In this view of the situation, submissions put up on behalf of the petitioners that they had withdrawn their offer before it could be accepted and that the acceptance was not communicated to them before application for withdrawal of the offer was made are found to be meritless.
Even the plea that the size of the site was found to be less than what was projected in the advertisement is found to be factually incorrect insofar as vide letter of allotment dated 16.02.2001(Annexure P3) a plot of the size 22.68 sq. mtrs. i.e. 2.75 mtrs. X 8.25 mtrs. has been allotted to the petitioners and in view of the layout plan displayed at the time of the auction showing size of the plot as aforesaid, there was no occasion for the petitioners to undertake measurement of the site on the spot. No documentary proof of any such measurement has been placed on the file.
Be that as it may, learned Senior counsel representing the Kumar Sudhir S 2013.09.19 17:44 I attest to the accuracy and integrity of this document chandigarh CWP No.3953 of 2001 8 petitioners has not been able to show any provision in the Haryana Urban Development Authority, Act, 1977 and Rules and Regulations framed thereunder permitting withdrawal of offer after deposit of 10% of the bid money or to controvert a very specific plea put up on behalf of the respondents that there is no provision in the HUDA Act permitting a successful bidder to withdraw after the completion of the auction and deposit of 10% of the bid money.
Admittedly, not even single penny has been deposited by the petitioners after issuance of the letter of allotment dated 16.02.2001 and that being so, the amount of Rs.2.25 lacs deposited by them as 10% of the bid money has rightly been forfeited in terms of clause (4) of the letter of allotment.
Consequently, writ petition fails and is hereby dismissed. No costs.
[ Satish Kumar Mittal ] [ Mahavir S. Chauhan ]
Judge Judge
19.09.2013
sd
Kumar Sudhir S
2013.09.19 17:44
I attest to the accuracy and
integrity of this document
chandigarh