Rajasthan High Court - Jodhpur
Municipal Council, Hanumangarh vs Sweta Mareja on 12 March, 2019
Equivalent citations: AIR 2019 RAJASTHAN 84, AIRONLINE 2019 RAJ 599, (2019) 201 ALLINDCAS 403, (2019) 3 WLC (RAJ) 727, 2019 WLC(RAJ)(UC) 1 615
Author: Sangeet Lodha
Bench: Sangeet Lodha, Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 68/2019
Municipal Council, Hanumangarh, Through Its Commissioner.
----Appellant
Versus
1. Sweta Mareja W/o Jagdish Kumar, Aged About 52 Years,
By Caste Arora, R/o Gali No.7, Gurunanak Colony, Nai
Abadi, Ward No.-24, Hanumangarh Town.
2. State of Rajasthan, Through The Secretary, Department
of Local Self, Government of Rajasthan, Secretariat,
Jaipur.
3. The Director and Joint Secretary, Local Self Government
Department, G-3, Rajmahal, Residency Area, Civil Lines,
Phatak, C- Scheme, Jaipur.
----Respondents
Connected With
D.B. Spl. Appl. Writ No. 1371/2018
Municipal Council, Hanumangarh, through its Commissioner.
----Appellant
Versus
1. Santosh Agarwal W/o Sanjay Agarwal, Aged About 47
Years, By Caste Agarwal, R/o 609, General Market, Opp.
Icici Bank Ltd, Hanumangarh Town.
2. State of Rajasthan, through the Secretary, Department of
Local Self, Government Of Rajasthan, Secretariat, Jaipur.
3. The Director and Joint Secretarry, Local Self Government
Department, G-3, Rajmahal, Resident Area, Civil Lines,
Phatak, C-Scheme, Jaipur.
----Respondents
D.B. Spl. Appl. Writ No. 1372/2018
Municipal Council, Hanumangarh, Through Its Commissioner.
----Appellant
Versus
1. Kamla Devi W/o Raj Kumar, Aged About 59 Years, B/c
Brahmin, R/o Main Bazar, Hanumangarh Town.
2. State Of Rajasthan, Through The Secretary, Department
(2 of 18) [SAW-68/2019]
Of Local Self, Government Of Rajasthan, Secretariat,
Jaipur
3. The Director And Joint Secretary, Local Self Government
Department, G-3, Rajmahal, Residency Area, Civil Lines,
Phatak, C-Scheme, Jaipur.
----Respondents
D.B. Spl. Appl. Writ No. 1373/2018
Municipal Council Hanumangarh, Through Its Commissioner.
----Appellant
Versus
1. Udai Pal S/o Ram Jas, Aged About 46 Years, By Caste Jat,
R/o C/o Bastiram Saharan, Dhan Mandi, Hanumangarh
Town.
2. State Of Rajasthan, Through The Secretary, Department
Of Local Self, Government Of Rajasthan, Secretariat,
Jaipur.
3. The Director And Joint Secretary, Local Self Government
Department, G-3, Rajmahal, Resident Area, Civil Lines,
Phatak, C-Scheme, Jaipur.
----Respondents
D.B. Spl. Appl. Writ No. 1374/2018
Municipal Council Hanumangarh, Through Its Commissioner.
----Appellant
Versus
1. Hanuman Prasad S/o Mani Ram, Aged About 67 Years, By
Caste Soni, R/o Gali No. O9, Nai Abadi, Hanumangarh
Town.
2. State Of Rajasthan, Through The Secretary, Department
Of Local Self, Government Of Rajasthan, Secretariat,
Jaipur.
3. The Director And Joint Secretary, Local Self Government
Department, G-3, Rajmahal, Resident Area, Civil Lines,
Phatak, C-Scheme, Jaipur.
----Respondents
D.B. Spl. Appl. Writ No. 71/2019
Municipal Council Hanumangarh, Through Its Commissioner.
----Appellant
(3 of 18) [SAW-68/2019]
Versus
1. Lrs Of Vimla Devi W/o Brij Mohan, By Caste Arora (Since
Deceased) Through The Legal Representatives-
1/1 Brij Mohan @ Brij Lal S/o Gurditta Ram, Aged About 74
Years, Through His Power Of Attorney Holder Ashok
Kumar S/o Brij Mohan, By Caste Arora, Aged About 42
Years.
1/2. Raj Kumar S/o Brij Moha,, Aged About 52 Years, By Caste
Arora, Through His Power Of Attorney Holder Ashok
Kumar S/o Brij Mohan, By Caste Arora, Aged About 42
Years.
1/3. Shyam Lal S/o Brij Mohan, Aged About 47 Years, By
Caste Arora, Through His Power Of Attorney Holder Ashok
Kumar S/o Brij Mohan, By Caste Arora, Aged About 42
Years.
1/4. Rajiv Kumar S/o Brij Mohan, Aged About 46 Years, By
Caste Arora, Through His Power Of Attorney Holder Ashok
Kumar S/o Brij Mohan, By Caste Arora, Aged About 42
Years.
1/5. Usha @ Renu D/o Brij Mohan, Aged About 44 Years, By
Caste Arora, Through His Power Of Attorney Holder Ashok
Kumar S/o Brij Mohan, By Caste Arora, Aged About 42
Years.
1/6. Ashok Kumar S/o Brij Mohan,, Aged About 40 Years, By
Caste Arora, Through His Power Of Attorney Holder Ashok
Kumar S/o Brij Mohan, By Caste Arora, Aged About 42
Years.
All 1/1 to 1/6 resident of Ward No.19, Hanumangarh
Town.
2. State Of Rajasthan, Through The Secretary, Department
Of Local Self, Government Of Rajasthan, Secretariat,
Jaipur.
3. The Director And Joint Secretary, Local Self Government
Department, G-3, Rajmahal Residency Area, Civil Lines,
Phatak, C- Scheme, Jaipur. ...Respondents
D.B. Spl. Appl. Writ No. 76/2019
Municipal Council Hanumangarh, Through Its Commissioner.
----Appellant
(4 of 18) [SAW-68/2019]
Versus
1. Kusum W/o Sehdev, Aged About 50 Years, By Caste
Agarwal, R/o 508, Sanjay Chowk, No.10, Tehsil- Bhadra,
Hanumangarh Town.
2. State Of Rajasthan, Through The Secretary, Department
Of Local Self, Government Of Rajasthan, Secretariat,
Jaipur.
3. The Director And Joint Secretary, Local Self Government
Department, G-3, Rajmahal Residency Area, Civil Lines,
Phatak, C- Scheme, Jaipur.
----Respondents
D.B. Spl. Appl. Writ No. 88/2019
Municipal Council Hanumangarh, Through Its Commissioner.
----Appellant
Versus
1. Jagdish Kumar Mareja S/o Ram Kishan, Aged About 56
Years, By caste Arora, R/o Gali No.7, Gurunanak Colony,
Nai Abadi, Ward No. 24, Hanumangarh Town.
2. State Of Rajasthan, Through The Secretary, Department
Of Local Self, Government Of Rajasthan, Secretariat,
Jaipur.
3. The Director And Joint Secretary, Local Self Government
Departmen, G-3, Rajmahal, Residency Area, Civil Lines,
Phatak, C- Scheme, Jaipur.
----Respondents
D.B. Spl. Appl. Writ No. 141/2019
Municipal Council, Hanumangarh, Through Its Commissioner.
----Appellant
Versus
1. Rakesh Kumar S/o Subhash Chandra, By Caste Agarwal,
R/o 93-A, Nai Mandi, Hanumangarh
2. State Of Rajasthan, Through The Secretary, Department
Of Local Self, Government Of Rajasthan, Secretariat,
Jaipur.
3. The Director And Joint Secretary, Local Self Government
Department, G-3, Rajmahal, Residency Area, Civil Lines,
Phatak, C-Scheme, Jaipur.
----Respondents
(5 of 18) [SAW-68/2019]
D.B. Spl. Appl. Writ No. 143/2019
Municipal Council, Hanumangarh Through Its Commissioner.
----Appellant
Versus
1. Nechan Bai W/o Gehimal, By Caste Sindhi, Aged About 71
Years, R/o Ward No. 22, Sindhi Dharamshala Ke Samne,
Hanumangarh Town.
2. State Of Rajasthan, Through The Secretary, Department
Of Local Self Government Of Rajasthan, Secretariat,
Jaipur.
3. The Director And Joint Secretary, Local Self Government
Department, G-3, Rajmahal, Residency Area, Civil Line,
Phatak, C-Scheme, Jaipur.
----Respondents
D.B. Spl. Appl. Writ No. 146/2019
Municipal Council, Hanumangarh, Through Its Commissioner.
----Appellant
Versus
1. Gagan Deep S/o Kalu Ram, Aged About 41 Years, R/o M/s
Madan Lal Narayan Das, Opposite Dr. Zakir Hussain Park,
Hanumangarh Town.
2. State Of Rajasthan Through The Secretary, Department
Of Local Self, Government Of Rajasthan, Secretariat,
Jaipur.
3. The Director And Joint Secretary, Local Self Government
Department, G-3, Rajmahal, Residency Area, Civil Lines,
Phatak, C-Scheme, Jaipur.
----Respondents
D.B. Spl. Appl. Writ No. 148/2019
Municipal Council, Hanumangarh, Through Its Commissioner.
----Appellant
Versus
1. Sushil Kumar S/o Dwarka Das, Aged About 67 Years, B/c
Agarwal, 119, Bank Colony, Ward No. 19, Hanumangarh
Town.
2. State Of Rajasthan, Through The Secretary, Department
Of Local Self, Government Of Rajasthan, Secretariat,
Jaipur.
(6 of 18) [SAW-68/2019]
3. The Director And Joint Secretary, Local Self Government
Department, G-3, Rajmahal, Residency Area, Civil Lines,
Phatak, C-Scheme, Jaipur.
----Respondents
D.B. Spl. Appl. Writ No. 177/2019
Municipal Council, Hanumangarh Through Its Commissioner.
----Appellant
Versus
1. Mahendra S/o Hanuman Prasad, By Caste Soni, aged
abouat 43 years, R/o Gali No. 09, Nai Abadi,
Hanumangarh Town.
2. State Of Rajasthan, Through The Secretary, Department
Of Local Self, Government Of Rajasthan, Secretariat,
Jaipur.
3. The Director And Joint Secretary, Local Self Government
Department, G-3, Rajmahal, Residency Area, Civil Lines,
Phatak, C-Scheme, Jaipur.
----Respondents
For Appellant(s) : Mr. B.S.Sandhu with
Mr.M.S.Champawat
For Respondent(s) : Ms. Rekha Borana, Additional
Advocate General
Mr. RDSS Kharlia
Mr. Dron Kaushik in Appeal
No.1371/18
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE DINESH MEHTA Judgment Per Hon'ble Mr.Sangeet Lodha, J.
12th March, 2019
1. These special appeals are directed against a common judgment dated 9.5.18 passed by the learned Single Judge of this court, whereby the writ petitions preferred by the private respondents questioning the legality of the demand of 15% (7 of 18) [SAW-68/2019] interest on the balance bid amount payable in respect of the commercial plots purchased by them in open auction, have been allowed and the amount of interest deposited by them under protest, is directed to be reimbursed within a period of four months. It is further directed that on failure of the appellant herein in refunding the amount within the aforesaid period, the private respondents shall be entitled to interest on the amount @ 9% per annum.
2. The facts relevant are that the appellant-Municipal Council, Hanumangarh, issued an auction notice dated 25.11.08 for inter alia sale of 38 commercial plots in Gulmandi Extension Commercial Scheme, Hanumangarh Town, under the provisions of Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 (for short "the Rules of 1974"). The auction was scheduled to be held on 18.12.08. The private respondents herein participated in the auction and being highest bidder, the auction was knocked down in their favour. As per the terms and conditions of the auction, 1/4th of the auction amount was required to be deposited at the conclusion of the auction and the remaining 3/4th amount was required to be deposited after confirmation of the bid within 30 days from the date of receipt of the notice in this regard. The private respondents herein who were successful bidders for different plots, deposited 1/4 of the bid amount. As a matter of fact, the plots auctioned were under encroachment and therefore, according to the private respondents, a decision was taken by the Municipal Council, Hanumangarh that auction made was subject to the condition that the remaining 3/4 of the bid amount shall be deposited only after removal of encroachments and if the encroachments are not removed, 1/4 of the bid amount deposited (8 of 18) [SAW-68/2019] by the auction bidders shall be refunded to them with interest @ 18%. According to the respondents, they made representation and offered to deposit the remaining bid amount but the same was not accepted inasmuch as, the encroachments were not removed. Later, the Municipal Council, Hanumangarh, in its meeting held on 25.7.15 keeping in view the provisions of clause (f) (iii) of Annexure A appended to the Rules of 1974, resolved to refer the matter to the State Government seeking permission for regularisation of the auction on payment by the bidder. It was clarified that in respect of three plots in compliance of the directions of the court, the remaining amount of the bid has already been deposited by the successful bidders.
3. The State Government in its turn after due consideration vide order dated 18.11.15 while waiving the amount of penalty, issued sanction for regularisation of the auction sale on the successful bidders depositing 3/4 of the bid amount alongwith simple interest @ 15%. Accordingly, the Commissioner, Municipal Council, Hanumangarh, issued notice to the successful bidders, the private respondents herein, to deposit the 3/4 amount of the bid alongwith interest @ 15%.
4. Aggrieved by the action of the appellant in demanding interest @ 15%, the private respondents preferred the writ petitions before this court, wherein by way of interim order, the respondents were permitted to deposit the requisite amount pursuant to the demand notice issued subject to decision of the writ petitions.
5. Precisely, the case of the private respondents before the learned Single Judge was that the endeavour of the appellant herein in charging interest for their own indifference/inaction in (9 of 18) [SAW-68/2019] providing vacant possession of the plots in question and in failing to timely notify the respondents to deposit the balance sale price is absolutely unjust and arbitrary. It was contended that admittedly, the plots in question were under encroachment even before the same were put to auction and it was decided that remaining 3/4 of the bid amount shall be deposited by the successful bidders only after removal of the encroachment. It was urged that the appellant herein having failed to perform lawful obligation in handing over vacant possession of the plots to the auction purchasers, who kept on making representations, the interest amount claimed for delayed deposit of the amount is unjustified.
6. A perusal of the impugned judgment reveals that during the course of hearing, the counsel appearing for the private respondents had produced copies of two judgments rendered by the civil court in favour of two auction purchasers directing the appellant to execute the lease deed in their favour on their depositing remaining amount of sale price without any interest.
7. The learned Single Judge after due consideration of the rival submissions, arrived at the conclusion that as per the provisions of the Rules of 1974, the successful bidder would be liable to deposit the balance 3/4 amount of sale price only upon receiving notice thereof from the Municipality and therefore, the appellant having failed to provide vacant possession of the plots in question for nearly 8 years from the date of the auction, the equities weigh heavily in favour of the private respondents. Accordingly, while allowing the writ petitions, it is held that the liability for interest on the remaining bid amount shall be only after 30 days from the (10 of 18) [SAW-68/2019] date of issuance of the demand notice. Hence, these special appeals.
8. Learned counsel appearing for the appellant contended that the acceptance of the 1/4 amount of the bid was subject to confirmation by the competent authority and therefore, the same does not create any right in favour of the auction bidder. The bid offered by the bidders were subject to confirmation and accordingly, it was laid down that the remaining amount of the bid shall be deposited within 30 days from the receipt of the notice to be issued after confirmation of the bid. Learned counsel submitted that in view of the long lapse of time, as per the provisions of the Rules of 1974, the Municipal Council was not empowered to confirm/regularise the sale and therefore, the matter was referred to the State Government. Learned counsel would submit that keeping in view the long lapse of time when there was huge escalation in the price of the plot, balancing the equities, the decision taken by the Government in confirming the bid subject to payment of interest @ 15% on the remaining amount of the bid, is absolutely justified. Learned counsel urged that if the condition of payment of interest put by the State Government for regularisation of the auction sale, after a lapse of about 8 years is not acceptable to the private respondents, it was always open for them to claim the refund of the 1/4 amount deposited by them at the time of auction sale, in accordance with the provisions of Rules of 1974. Learned counsel submitted that it is true that at the time of auction there were encroachments on the plots in question and therefore, the possession could not be handed over to the respondents and thus, it was open for the appellant to cancel the auction sale and refund the amount deposited by the auction (11 of 18) [SAW-68/2019] bidders in accordance with the provisions of the Rules of 1974, inasmuch as no concluded contract had come into existence and thus, the auction bidders had no indefeasible right to claim the confirmation of sale. Learned counsel submitted that the increase in the cost of the land over the years is also a relevant consideration and in the auction sale of the land by the public body, which are commercial transaction, the larger public interest has to be kept in view.
9. On the other hand, learned counsel appearing for the private respondents while reiterating the stand taken before the learned Single Judge, submitted that the private respondents cannot be penalised for no fault on their part. Relying upon the decisions of the Supreme Court in the matters of "Ashok Kapil vs. Sana Ullah (Dead) & Ors.", (1996) SCC 342 and "Kusheshwar Prasad Singh vs. State of Bihar & Ors.", (2007) 11 SCC 447, learned counsel submitted that it is well settled that a wrong doer cannot be permitted to take advantage of his wrong and thus, on the facts and in the circumstances of the case, the conclusion arrived at by the learned Single Judge in this regard does not warrant any interference by this court in exercise of intra court appeal jurisdiction. Learned counsel submitted that the Municipal Council having taken a decision not to permit the deposit of the 3/4 bid amount till the encroachments over the plots auctioned are removed, there was no occasion for the private respondents to deposit the remaining bid amount. Learned counsel submitted that the appellant has already executed the lease deed in favour of some of the auction bidders in compliance of the decrees passed by the civil court of competent jurisdiction in their favour and therefore, now the private respondents herein cannot be (12 of 18) [SAW-68/2019] differently treated. Learned counsel submitted that since the possession was offered by the appellant to the auction bidders after a lapse of about 8 years, they cannot be permitted to claim interest on remaining bid amount. In this regard, learned counsel relied upon a decision of the Supreme Court in the matter of "Haryana Urban Development Authority vs. Jeewan Asha Garg", AIR 2005 SC 1397.
10. We have considered the rival submissions and perused the material on record.
11. Indisputably, as per the auction notice dated 25.11.08, 1/4 of the bid amount was required to be deposited by the successful bidder immediately after conclusion of the auction and the remaining 3/4 amount was required to be deposited within 30 days from the date of receipt of the notice after confirmation of the sale. It is settled law that highest auction bidder has no indefeasible right to claim the confirmation of sale as a matter of right. The authority vested with the power to confirm the sale is well within its rights to refuse the confirmation for valid reasons. Further, if the sale is subject to confirmation then no concluded contract comes into existence till the sale is confirmed by the competent authority. In this regard, the reliance may be placed on decision of the Supreme Court in the matter of "Bombay Salt & Chemical Industries vs. L.J.Jhonson": AIR 1958 SC 289, wherein a Constitution Bench held that the declaration of highest bid at auction does not amount to completed sale and transfer of property. The auction purchaser gets a right only on confirmation of sale and till then his right is nebulous and has only right to consideration for confirmation of sale. [vide Deshbandhu Gupta vs. N.L.Anand and Rajendra Singh: (1994) 1 SCC 131].
(13 of 18) [SAW-68/2019]
12. It is common ground between the parties that as the plots auctioned were under encroachment, the appellant-Municipal Council could not finalise the auction. After lapse of about 7 years, encroachments were removed by the Municipal Council, however, keeping in view the provision of clause (f) of Annexure A appended to the Rules of 1974, governing the allotment and sale of non residential land in municipal areas, after lapse of 10 months, the Municipal Council was not competent to confirm the sale and therefore, vide resolution dated 25.5.15, it resolved to refer the matter to the State Government for sanction to regularise the auction sale on successful bidders depositing remaining 3/ 4 of the bid amount alongwith interest @ 15%. The State Government in its turn after consideration of the recommendations made by the Municipal Council permitted regularisation of sale on payment of remaining bid amount by the successful bidder alongwith interest @ 15% and decided not to impose any penalty inasmuch as, the plots auctioned were in unauthorised occupation.
13. It is true that the private respondents being successful bidders, deposited 1/4 of the bid amount within the stipulated period but could not deposit the remaining bid amount on account of the plots auctioned being in unauthorised occupation and the Municipal Council deciding not to issue notice for deposit of the remaining amount till the encroachments are removed. But the fact remains that the fact regarding the plots being under encroachment was well within the knowledge of the respondents.
14. As noticed above, in terms of provisions of Rules of 1974, since the auction was not finalised within the stipulated period, the matter was referred to the State Government with the (14 of 18) [SAW-68/2019] recommendations for regularisation/confirmation of sale. Obviously, after a lapse of about more than 7 years, while considering the matter for confirmation of sale/regularisation, the State Government was not under an obligation to confirm the sale and it was open for it not to accept the recommendation and direct fresh auction of the plots. As a matter of fact, the scheme underlying the provisions incorporated governing auction of the non residential plots, reveals that the said provision with regard to the reference of the matter to the State Government after lapse of specified period is incorporated to protect the larger interest of municipal revenue so that the public property may not be transferred at the meagre price while keeping the auction proceedings pending for indefinite period, ignoring the escalation of the prices in the meantime. Thus, on the facts and in the circumstances of the case, where more than 7 years had lapsed since the date of auction and the remaining 3/4th amount could not be deposited on account of there being unauthorised occupation over the plots in question, it was open for the State Government not to accept the highest bids not representing the market price as on the date of the confirmation of sale. But, taking into consideration the facts and circumstances of the case in its entirety and objectivity, the decision of the State Government in directing regularisation of the auction sale subject to the condition that successful bidders deposit the remaining bid amount alongwith interest @ 15%, in our considered opinion, cannot be said to be illegal or arbitrary.
15. In 'Rajasthan Housing Board vs. G.S.Investments': (2007) 1 SCC 477, where the auction sale was subject to confirmation by the Chairman, Housing Board, the Supreme Court categorically (15 of 18) [SAW-68/2019] held that a person who had made highest bid in auction did not acquire any right to have the auction concluded in his favour until the Chairman of the Housing Board had passed an order to that effect. Considering the scope of judicial review in contractual matters, the Supreme Court relied upon its earlier decision in Tata Cellular vs. Union of India : AIR 1996 SC 11, wherein it was observed that "principle of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government".
16. In 'D.D.A. vs. Ravindra Mohan Agarwal': AIR 1999 SC 1256, where the bid of the successful bidder was accepted at a public auction and he deposited 25% of the bid amount, the court held that it do not constitute a transfer of the property and the DDA could not be compelled to finalise and deliver possession to the bidder after a lapse of 14 years or in the alternative to allot another plot in the same locality and at the same price after a lapse of 14 years from the date of auction.
17. Similar view was taken by the Supreme Court in the matter of 'U.P.Avas Avam Vikas Parishad vs. Om Prakash Sharma' : JT 2013 (5) SC 548.
18. In view of the discussion above, in the instant case, where admittedly, the auction bids were not confirmed and no concluded contract had come into existence, may be for the reason that the encroachments made by the unscrupulous persons over the plots (16 of 18) [SAW-68/2019] in question could not be removed, the appellant cannot be compelled to confirm the auction sale at the price offered 7 years back, ignoring the increase in the value of the property over the years and consequently, the interest of public revenue. In this view of the matter, merely because, the delay in confirmation of sale is not attributed to the private respondents herein, it would not be appropriate to direct the refund of the amount of interest levied by the appellant pursuant to the decision of the State Government in confirming the auction sale subject to condition of payment of interest @ 15% on 3/4 of the bid amount. If the conditional confirmation/ regularisation of auction sale is not acceptable to the auction bidders, the State Government is not precluded from taking a decision not to confirm the auction sale and permit the appellant herein to take the appropriate proceedings for fresh auction. Obviously, in that case, the private respondents shall be entitled to refund of 1/4 amount deposited by them alongwith interest.
19. At this stage, it would be appropriate to refer to the decisions cited by the learned counsel appearing for the private respondents in support of the contentions raised.
20. It is settled principle of law that a man cannot be permitted to take advantage of his own wrong. But then, in the instant case, the factum of the disputed plots being under encroachment was well within the knowledge of the successful bidders, who participated in the auction and it was made plain that if the encroachments are not removed, they will be entitled for refund of 1/4 amount deposited by them alongwith interest. On the facts and in the circumstances of the case, admittedly, the encroachments could not be removed for about 7 years and thus, (17 of 18) [SAW-68/2019] in terms of the conditions of the auction, the bids were not confirmed and no concluded contract between the parties came into existence. As discussed above, on the facts and in the circumstances of the case, ignoring the interest of the public revenue, after a lapse of about 7 years, the appellant cannot be compelled to confirm the auction sale at the meagre price and thus, in no manner, it can be said to be a case where the appellant is taking advantage of its own wrong, moreso when, if the conditional acceptance of the auction sale in terms of the sanction issued by the State Government is not acceptable to the successful bidders, they are free to claim refund of 1/4 amount deposited by them at the time of auction alongwith interest. Thus, the decisions of the Supreme Court Ashok Kapil's and Kusheshwar Prasad Singh's cases (supra), do not help the private respondents in any manner.
21. Coming to the decision of the Apex Court in Haryana Urban Development Authority's case (supra), it is noticed that it was a case wherein the respondent was allotted a plot, he deposited the substantial amount and the remaining amount was payable in installments, however, possession of the plot was not handed over to him, the court held that the interest on delayed payment of the installments by the allottee is not justified. Suffice it to say that in the instant case, the allotment made was conclusive and only installments remain to be paid. In other words, the allotment made was not subject to any confirmation and the concluded contract had come into existence. In this view of the matter, the said decision also does not help the private respondents in any manner.
(18 of 18) [SAW-68/2019]
22. For the aforementioned reasons, we are not agreeable to the view taken by the learned Single Judge. The impugned judgment therefore, deserves to be set aside.
23. Accordingly, these special appeals are allowed. The judgment under appeal dated 9.5.18 passed by the learned Single Judge of this court is set aside. The writ petitions preferred by the private respondents herein are dismissed. No order as to costs.
(DINESH MEHTA),J (SANGEET LODHA),J
Aditya/-
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