Delhi High Court
Ravi Shankar Garg vs Delhi Development Auhority And Ors. on 11 October, 1996
Equivalent citations: 65(1997)DLT102
Author: S.N. Kapoor
Bench: R.C. Lahoti, S.N. Kapoor
JUDGMENT S.N. Kapoor, J.
(1) The petitioner has challenged the order dated 20th July, 1994 cancelling public auction of certain plots bearing No. B-7/106-A, No. B-5/1A situated in Safdarjung Enclave and B-104, B-105, B-106 East of Kailash, New Delhi. He has also sought writ quashing the provisions of Section 41(3) of Delhi Development Authority Act (hereinafter called the 'DDA Act'), the provision allegedly being ultra vires of the Constitution. The petitioner further seeks that directions be issued restraining allotment and handing over of possession of the said plots, particularly, plot No. B-7/106A Safdarjung Enclave, New Delhi to respondent No. 4 Smt. Saraswati Devi.
(2) According to the petitioner Dda issued a public notice for auction of residential plots on 8th, 10th and 11th August, 1994 vide Annexure 'A'. The petitioner being interested in purchasing the residential plots in East of Kailash and in Safdarjung Enclave went to the office of Dda in the last week of July, 1994 in order to collect more details and came to know that there was an administrative order dated 20th July, 1994 of Uoi not to auction the aforesaid plots in Safdarjung Enclave and two plots in East of Kailash till further orders. The petitioner made a representation vide letter dated 30th July, 1994 to the Lt. Governor about the illegal and capricious order submitting that the withdrawal of auction was against the public interest and policy adopted by the respondent in giving alternative plots to those whose land had been acquired, and urging the respondent to carry out the open auction. Vide letter dated 30.7.1994 (Annexure 'D'). The petitioner got three pay orders in all for Rs. 2 lacs dated 9.8.1994 prepared in favour of Dda in order to purchase a plot either in East of Kailash or in Safdarjung Enclave. He sent another representation dated 13.8.1994. The only reason for canceling the public auction was the direction of respondent U.O.I, in exercise of powers under Section 41(3) of Dda Act and direction to Dda not to allot aforesaid plots as alternative plots vide Annexure 'F' The allotment of alternative plot in South Zone was contrary to the policy of the Dda and to allot alternative plots in Dwarka and the Pappankala Residential Scheme due to the paucity of space in South Zone. On account of the said policy for allotment of plots in South Zone several writs have been dismissed by the High Court as well as by the Supreme Court. The action of the Dda to cancel the auction was void and ultra vires and against the principles of natural justice. The allotment of exclusive Dwarka and Pappankala Residential Scheme was against the principles of public policy, arbitrary and discriminatory in nature. The direction was a misuse of Section 41(3) of the Dda Act and the allotment of alternative plot amounted to "individual largess" for the allotment of alternative plots is not a right but merely an additional facility. The writ has been filed as there was no efficacious alternative remedy.
(3) The respondent No. 1-DDA contested the claim of the petitioner inter alia on the grounds that there was no infringement of any fundamental right or legal right of the petitioner. As per Clause 2(a) of the terms and conditions of the auction the Dda has reserved the right to withdraw any plot from the auction vide Annexure R-I. The withdrawal from public auction was duly announced. The petitioner was very well aware of the withdrawal. He has never made a bid nor paid any amount towards the same. The proposed allotment of plot in favour of respondent No. 4 Smt. Saraswati Devi was contemplated under the directions of Central Government dated 20.7.1994 and 4.8.1994 issued under Section 41(3) of Dda Act. The petitioner could not claim to have any particular plot put to auction and as such the petition is not maintainable. The petitioner could have participated in the auction of other plots held on 10 and 11.8.1994.
(4) Smt. Saraswati Devi respondent No. 4 in her counter has stated that the land of her predecessor-in-interest located in Village Shahpur was acquired. A plot measuring 200 sq. yards was sanctioned vide letter dated 16.10.1982 for allotment as an alternative plot. The persons who were junior to her predecessor-in-interest in the seniority list were allotted plots in East of Kailash and Safdarjung Enclave and Kalkaji in South Zone but no plot was allotted to the petitioner. Letter dated 24.10.1988 from the Dda indicated an offer of plot in Kalkaji Extension and Pt Block. In terms of the said letter a sum of Rs. 3,000.00 were deposited as earnest money on 3.11.1988 vide annexure 'A'. The Dda issued a letter dated 7.6.1989 offering a residential plot in East of Kailash and Safdarjung Enclave Residential Scheme and consent was sought by the Dda by 15.6.1989 vide Annexure 'B'. Draw of lots was to be held on 3.7.1989 at 11 a.m. vide Annexure 'C. Further draw of lots was postponed. Despite several representations no plot was allotted. Having failed in all her efforts respondent No. 4 made representation to U.O.I, as the answering respondent was already offered a plot in the East of Kailash and Safdarjung Enclave and earnest money of the same was accepted by the respondent DDA. In such circumstances, allotment of plot in Safdarjung Enclave to respondent No. 4 could not be objected to. The Dda has auctioned many plots which were to be included in draw of lots on 3.7.1989. The petition is moved with a mala fide intention. The petitioner has neither any right to challenge the allotment in her favour, nor locus standi to file the present petition. The action of the petitioner in getting three drafts prepared even after coming to know in the last week of July, 1994 itself that no auction of the said plot would take place clearly proves the malafide intention of , the petitioner. Dda has a right to withdraw and not to auction any plot without assigning any reason in terms of the auction notice itself.
(5) We have heard the learned Counsel for the parties. So far as the first question of withdrawal of the plot from the auction is concerned, it is notable that while an auctioneer presents ah article for sale and asks for bids, what he was doing was asking for offers to be made to him and the bids made in response to that asking for offers, would be accepted or rejected by auctioneer. In the present case, before any bid could be made, as the auction of the concerned plots itself was dropped there was neither an offer nor any acceptance thereof. Consequently, it is difficult to accept that the petitioner has got any right, title or interest in the concerned plot. The facts of the present case are such where the petitioner himself had alleged in the petition that he had come to know that before 30th July, 1994 that there was an administrative order of the Union of India directing respondent No. 1-DDA from not-auctioning the plots in Safdarjung Enclave area and two plots in East of Kailash till further orders and he could obtain a copy (Annexure C) thereof also. He faxed detailed representation to the Lt. Governor dated 30th July, 1994. In such circumstances, getting pay orders dated 9th August, 1994 prepared for a sum of Rs. 2 lakhs is of no consequence. If he was genuinely interested in purchasing a plot, he could have very well participated in purchasing other plots which were auctioned in the same auction. The petition is slightly unusual in the sense that the petitioner wants to force a sale of particular plots in auction by the Dda despite withdrawal of the plot from the auction in compliance of the direction of the Union of India. It may be mentioned that in Ghanshyam Dass Aggarwal v. Delhi Development Authority, , a Division Bench has rejected the similar contention in a case where the auction had taken place and the Dda had refused to accept the highest bid. The Vice Chairman Dda in exercise of his discretion refused to accept each of the three bids for some justifiable reasons. The present case where even the auction has not taken place, is worse than the case of Ghanshyam Dass (supra). The learned Counsel for the respondent relied upon a case of Arun K. Saraf v. L.G. of Delhi, , but the facts of that case were totally different. There the sale had been virtually confirmed. It was not a case where auction had not taken place at all in view of the direction of the Union of India.
(6) Consequently, we feel that the contention of the petitioner that the auction of this plot could not be dropped, has got no force.
(7) As regards the plea of arbitrary, illegal and discriminatory and unilateral exercise of powers under Section 41(3) and using the powers for the purpose of individual largess, we have to consider two questions: first, relating to the propriety of passing an order dated 20th July 1994; and second, relating to the vires of Section 41(3) of the Delhi Development Authority Act.
(8) It appears from perusal of Annexure 'C' that the Urban Development Minister had ordered that the plots in Safdarjung and two plots in East of Kailash should not be auctioned by Dda till further orders. This order did not indicate that this was a final order. A question arises: "whether Udm is entitled to issue directions staying the auction of the concerned plots or not? In this connection, Section 41 of the Dda Act, being the only source of authority for the Central Government to issue directions, may be seen. It reads as under : "(1)CONTROLby Central Government.-(1) The authority shall carry out such directions as may be issued to it from time to time by the Central Government for the efficient administration of this Act. (2) If in, or in connection with, the exercise of its powers and discharge of its functions by the Authority under this Act, any dispute arises between the Authority and the Central Government the decision of the Central Government on such dispute shall be final. (3) The Central Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the Authority for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit: Provided that the Central Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard."
(9) One of the questions raised is: "whether the petitioner was required to be given any opportunity of being heard before passing such an order or not?" It may be mentioned that if the plot was to be allotted to such person whose land has been acquired and for that reason, it was not to be put to auction, it may not be open to any serious objection. Besides, it was not decided finally to withhold the auction at that stage. It was evident that the auction for these plots was withheld "till further orders". Neither it was essential, nor any time was available for the purpose of giving any hearing. Moreover, it was virtually impossible to imagine and identify the persons who would be interested in participating in auction. The proviso did not require that in such circumstances, such an impossible act was required to be performed by the Central Government, especially when the order of the Central Government is not prejudicial to the interest of the petitioner, as would be evident hereinafter.
(10) The term "prejudice" and "prejudicial" presume an existing right, title or interest in a matter. Where no interest, title or right has been created, as has been observed earlier, neither any question of any prejudice would arise nor the impugned letter withholding the auction could be said to be prejudicial to the right of the petitioner. He was not a highest bidder who had made an offer and whose offer had been accepted earlier and thereafter rejected. He was not even a bidder in the auction. Consequently, he was not entitled to any opportunity of being heard.
(11) It appears that in regard to the representation made by Smt. Saraswati Devi to the Minister of Urban Development, an order was passed by the then Minister of Urban Development quoted at p.3 of the note sheet dated 9th February, 1994 as under : "I find the plot was acquired in 1982. As such the policy of the 1989 for not allotting alternative plot in South Delhi will not be applicable in this case. The applicant may be allotted one of the following plots : B-5/1B, B-2/120 Safdarjung Enclave, or B-7, Extension/106 A, Safdarjung Enclave, or M-80 Saket. Compliance may be reported within one month. Sd/- Udm 11.11.93"
(12) Certain difficulties were expressed in compliance of the said order by the DDA. A detailed note was sent on 20th January, 1994 by the Vice Chairman, Dda mentioning these difficulties in complying with the orders of the Minister. On 28th March, 1994, the Urban Development Minister passed following orders: "1.I have gone through the case. 2. The matter is sub-judice because the applicant did not get justice inasmuch as her plot in South Zone was acquired and alternate was being given elsewhere. 3. To my mind it appears that when the applicant was being offered plot in South Zone (2.11.1988) and the deal could not be completed due to administrative reasons, she should be given alternative plot in South Zone, despite the internal ban which came into effect subsequently (1989). In fact, all the three persons senior to her also should be accommodated in the same zone. 4. I am told that two plots in Safdarjung Enclave and some plots in Kalkaji are available. Dda be directed to allot B-7-Ext/106A, Safdarjung Enclave, as already ordered, to Smt. Saraswati and one each from among the remaining plots to other three persons senior to Smt. Saraswati. Sd/- Udm 28.3.94"
(13) On 31st March 1994, the Secretary Urban Development, probably being cautious of possible administrative difficulties likely to arise, passed following orders: , "The above noting of the Minister proceeds on the presumption that there are only three persons senior to Smt. Saraswati. The facts may be checked up and correct the Minister's orders may be implemented. If, however, there are only three persons senior to her 'A' at page 7/N would be exaggeration. Sd/- Secretary, Urban Development 31.3.94"
(14) The office note dated 9th June, 1994 clarified that there were six similarly situated persons. The relevant portion of the note reads as under : "In the light of the above, it is respectfully submitted that Hon'ble UDM's order at page 8/N would not only have the effect of the Dda acceding to the demands of prospective allottees at Sl. Nos. 3,5,6 and 7 but could also cause cases No. 1 and 2 to be re-opened through judicial intervention".
(15) The Secretary, Urban Development put the following note on 13th June, 1994: "UDM may kindly see her minutes on p.8/N and may see the note from pre- page for orders,"
(16) On 18th June 1994, the Minister passed the following order : "All six may be allotted". Sd/- Udm 18.6.1994 (17) Some further clarification was sought and in this regard a note of Secretary (UD) dated 20th July, 1994 is relevant which reads as under : "UDM called me yesterday and gave me the enclosed copy of the Dda Auction's Notice. She ordered that the plots in East of Kailash and Safdarjung Enclave should not be auctioned till further orders. I have further discussed the cases of other five senior persons for which she said that all the six may be allotted plots. She agreed that one plot for Smt. Jallo Devi may be given and the rest may remain pending, as they have gone to Court.