Delhi High Court
Anis-Ur-Rehman & Anr. vs Delhi Development Authority on 30 October, 2000
Equivalent citations: 2001IAD(DELHI)70, 88(2000)DLT814, 2000(57)DRJ101
ORDER Vijender Jain, J.
1. Rule.
2. The present petition has been filed aggrieved by the non-action on the part of the respondent to hand over the possession of shop No. 7 measuring five square meters situated at Convenient Shopping Centre, Sector-C, Pocket-9, Vasant Kunj, Delhi for which the petitioner gave its bid for Rs. 1,89,000/- in the year 1989 which was duly accepted by the respondent and petitioner deposited a sum of Rs. 47,250/- then and there and the bid was duly confirmed. In the alternative, the petitioner has prayed that if DDA is not in a position to hand over the shop measuring five square meters then the amount deposited by the petitioners with DDA be returned along with interest @ 24% p.a.
3. One of the main grievances of the petitioner is that at the time when the bid was accepted, the shop was described as general shop/vegetable shop having an area of five square meters. Same was shown in the Lay Out Plan and also detailed in the Bid Form. It is the case of the petitioner that even on the demand letter dt.12.10.89 the area was shown as five square meters. It is the case of the petitioner that respondent had displayed the area of the said shop No.7 as 4.58 square meter and on further verification it was confirmed that the shop in question was 3.48 square meters.
4. The petitioner wrote to the respondent vide his letter dated 24.10.89, inter alia, seeking modification/clarification that in the Site Plan the location of the shop has been shown in Pocket 8 instead of Pocket 9 Sector-C, Vasant Kunj and, therefore, same may be amended accordingly. In para 3 of the said letter, the petitioner again pointed out that he had made the highest bid for a shop measuring 5 square meters in the open auction held on 11.10.1989 whereas area of the shop at site is only as 3.48 square meters. No reply of the aforesaid letter was given by the DDA. Again, petitioner wrote and represented to the respondent but of no avail. A legal notice was also served by the petitioner on the respondent, inter-alia, stating that the petitioner has suffered on account of allotment of small size shop in comparison to what was represented to him at the time of auction. However, no reply was received of the legal notice sent on behalf of the petitioner to the respondent. Fed up with the lethargy of respondent, the petitioner in July 1998 wrote to the respondent that as the case has already been delayed and he has been writing to the respondent with no reply, he withdrew his objections and agreed to take shop in question even of smaller dimension. Instead of allotting the shop realising its mistake on the part of the department, DDA by its letter of 9.2.1999 cancelled the allotment of the shop in question to the petitioner thereby forfeiting the earnest money on the ground that the petitioner failed to deposit the balance amount of the shop within stipulated period.
5. Argument has been advanced on behalf of DDA that shop in question was cancelled as total amount was not paid in consonance with the terms and conditions of the allotment. I find this argument to be without any basis. Petitioner has deposited 25% of the bid amount amounting to Rs. 47,250/- at the first instance. Thereafter, a demand letter was sent to the petitioner for an amount of Rs. 1,48,190/-. In the meanwhile, the petitioner represented to the Vice Chairman of DDA who granted time to petitioner to deposit the amount but the petitioner deposited the amount of Rs. 1,01,890/- on 16.11.90 itself. Before deposit made by the petitioner of the aforesaid amount, the petitioner represented on 24.10.1989 itself to the respondent for rectification as well as for modification of the demand letter in view of the small size of shop in view of wrong representation made to the petitioner at the time of auction. From 1989 till 1998 about nine years lapsed but nothing was heard from the respondent. It was only in 1999 when petitioner had made representation to the respondent authority for allotting the small size shop, instead of allotting the shop, on 22.2.1999 the allotment of shop was cancelled, earnest money forfeited. It amounts to colourable exercise of powers vested in the respondent authority which enjoys the monopoly in the National Capital Territory of Delhi regarding land. It tantamounts to harassment to a citizen by the respondent authority by wearing the hat of the Government. If a private builder would have induced a person to make an offer for a different size of shop to what he was actually getting it would have invited penal consequences but as the respondent is an authority wearing the hat of the Government its officials feel that they have no obligation to be fair and just. I have repeatedly asked the counsel for DDA who has got the relevant record in the Court as to whether any letter was written from 1989 to 1998 by the DDA to the petitioner either informing him about the size of the shop in question or about any interest which he has to pay on any outstanding balance, the answer is in negative. From the perusal of the record it is found that it was only when the petitioner had approached the DDA with his letter in July 1998 to allot him the shop in question that the respondent/DDA invented the letter of 22.2.99 thereby cancelling the allotment, forfeiting the earnest money on flimsy grounds. Petitioner No.1 who appeared in person on the last date of hearing as well had stated that when he represented DDA that he is no more interested to deal with the respondent, the DDA promptly deducted an amount of Rs. 40,000/- towards earnest money stated to be an amount which has to be deducted in terms of Terms and Conditions of the bid. This Court on the last date of hearing directed the respondent that when it had deducted a sum of Rs. 40,000/- on account of earnest money whether it was justifiable that amount of Rs.1,40,000/- which was lying with the respondent be not refunded back to the petitioner which has been utilised by the DDA. Answer in the counter affidavit of the DDA is that as the petitioner failed to deposit the total amount in terms of Terms and Conditions of DDA, respondent was within its right to deduct the earnest money as well as not to pay any interest to the petitioner. I find this argument, in the facts and circumstances of this case, to be totally arbitrary and illegal.
6. A representation was made to the DDA inviting public to participate in a bid for a plot of the size of 5 square meters. The petitioner gave its bid for the same size of plot, although it has been stated in Court by counsel for the respondents that plinth area of the shop is 5 square meters. In para-11 of the counter affidavit, this is how the respondent has dealt with the controversy:-
".........It is submitted that shop put for auction was measuring 5.00 sq.mtr. As per the auction schedule the area of 5.00 sq.mtr. was the plinth area of the shop and 3.48 sq.mtr.was the carpet area of the shop......."
7. No lay out plan or any other document was filed by the respondent to show that it was represented to the petitioner at the time of inviting bids that the actual carpet area of the shop would be 3.48 square meters. The stand of the respondent is highly belated. If it was so what stopped the respondent from writing to the petitioner way back in the year 1989 itself when the petitioner had represented for modification of the demand in view of the smaller size of the shop. Merely stating in the counter affidavit will not help the respondent. Respondent was duty bound to give reply to the petitioner satisfying him that the plot size was not 3.48 square meters but five square meters or vice versa. It is possible that on personal verification when a person goes to the site and finds that the area in question is less than what has been stated by the respondent, Respondent is obliged to give correct position of the area. As an instrumentality of state respondent cannot shed its obligation towards the citizen who happens to be a consumer. Taking the problem from any angle no fault could be found with the petitioner. It is a case of total indifference that a citizen keeps on writing to the respondent but the respondent do not bother to give reply to the representations, letters and even notice sent by lawyer.
8. Allotment of shop could not be made by the respondent as there was discrepancy in the size of the offer of allotment and actual existence of smaller size shop. It was the duty of the respondent to have responded to the letter of the petitioner dated 24.10.1989 to set at rest the controversy. The arguments advanced by the learned counsel for the respondent that the payment of balance amount was deposited in installment much later by the petitioner does not hold any ground. From the perusal of the record no demand was ever raised by the respondent after 1989. After the demand was raised the petitioner had written on 24.10.1989 about the discrepancy in the size of the shop. Having taken no action the respondent cannot be given premium on their inaction. Therefore, respondent is not entitled to deduct any earnest money from the petitioner. As the DDA has utilised the amount of the petitioner from the date when the petitioner deposited money, petitioner shall be entitled to interest @ Rs.18% from the respondent. As I have held that the petitioner is entitled to recover interest from the respondent, ordinarily, the interest if paid by the respondent which is a public authority, is again a burden on the public at large, therefore, I feel it just and proper in view of the method and manner in which the case of the petitioner has been dealt with in the office of the respondent, the liability to pay interest on the authority should be recovered by fixing responsibility on the officers/officials, who have dealt with the case of the petitioner in such a negligent manner. I direct Vice Chairman of DDA to recover the interest to be paid to the petitioner from the officers/officials who have dealt with this file and made the present case for cancellation of allotment thereby forfeiting the earnest money. For the reasons stated above no fault could be found with the petitioner and it was a total apathy, negligence of the respondent in considering the case of the petitioner, respondent is not entitled to deduct any amount of earnest money. Let the earnest money and other amount deposited by the petitioner with the respondent be returned to petitioner along with the interest in terms of the order passed above be paid to the petitioner by the respondent within four weeks.
9. Rule is made absolute.
10. Petition is allowed.