Manish Dabas v. Delhi Development Authority and Anr

12. First things first, let us have a grasp on the factual matrix of the instant matter. It is admitted fact that the notification of e-auction was issued on 13.03.2022 and the petitioner got himself registered as a bidder on payment of 5% of the reserved price of Rs. 1,98,58,070/upon which he got the necessary user ID and passwords for bidding in the auction. It is also an admitted fact that the bid of the petitioner was the highest one on 19.04.2022, who had bid for an amount of Rs. 2,07,08,070/-.

13. At this juncture it may be stated that the plea advanced by the learned counsel for the respondent that the petitioner was the only bidder on 19.04.2022 is not correct. As per Annexure-1A, which is filed along with an affidavit of Mr. Prashant Kumar Pandey, Deputy Director, Lab (Resdl.) on behalf of the respondent-DDA dated 19.05.2022, which is e-auction log record, it appears that on 19.04.2022 the bids were logged from 10:04:15 and as many as six persons logged in placing their bids at different intervals of time. In

1975 (3) SCR 333 order to appreciate the controversy, it would be expedient to reproduce the same, which is as under:

14. Thus, it is manifest that there were 15 bids, which spanned over from 10.00 a.m. to 01.00 p.m. on 19.04.2022. It is also manifest that four bids were made by the petitioner and eventually his bid was highest for Rs. 2,07,08,070/- logged in at 12:49:37 and automatically „accepted‟.

15. It is also pertinent to mention here that the auction login detail is also filed along with the reply supported by an affidavit of Mr. Pankaj Bhagat, Deputy Director, LAB (Residential) but this time the said list, which is Annexure A-1 does not contain the e-auction login detail of 19.04.2022. It is also borne out from the record that there was confirmation of the bid by the petitioner as „H-1‟ on the dashboard of the e-auction portal of the DDA as well (Annexure P-4) on the same day at 01:09:31 p.m.

16. That brings us to the corrigendum issued on 19.04.2022, which reads as under: Corrigendum “Due to technical issues, the scheduled e-Auction on 19-04-2022 (Residential, Institutional, Built up Shops and CNG sites) has been hereby rescheduled on 22-04-2022 (Residential & Institutional 10AM-01 PM and Built up Shops & CNG sites 02PM to 05PM). All the registered bidders who had deposited EMD within stipulated time are required to participate as per revised schedule, inconvenience caused due to it is deeply regretted” Note

1. The bidding will resume from the last recorded highest bid. (Applicable for Residential and Institutional Plot)

2. All other terms & conditions shall remain the same.”

17. At the outset, it must be stated that there is no iota of material to substantiate the plea advanced by the learned counsel for the respondent-DDA that there were technical glitches in the operation of the e-portal on 19.04.2022 that prevented many persons from placing/submitting bids. Further, the above referred Annexure-1A also records login details of the bids that took place on 22.04.2022, which would show that there were 12 bidders in all who made several bids at different points of time starting from 10:58:01 to 19:19:13. It is also manifest that the bidding time was extended on 22.04.2022 beyond 1 pm.

18. Faced with the above, learned counsel for the respondent in order to buttress his point that the Vice-Chairman, DDA reserved the right to accept or reject even the highest bid without assigning any reason referred to relevant disclaimers as well as the relevant clauses in auction paper (Annexure P-1), which read as under: “DISCLAIMER The information contained in this e-auction document or subsequently provided to Applicant(s), whether verbally or in documentary or any other form, by or on behalf of Delhi Development Authority (DDA in short) or any of their employees or advisors, is provided to Applicant(s) on the terms and conditions set out in this e- auction document and such other terms and conditions subject to which such information is provided. This e-auction document is not an agreement and is neither an offer nor invitation by DDA to the prospective Applicants or any other person. The purpose of this e- auction document is to provide interested parties with information that may be useful to them in the formulation of their application for expressing their interest pursuant to this e-auction (the "Application"). This e-auction document includes statements, which reflect various assumptions and assessments arrived at by DDA in relation to the Auction. Such assumptions, assessments and statements do not purport to contain all the information that each applicant may require. This e- auction document may not be appropriate for all persons, and it is not possible for DDA, its employees or advisors to consider the investment objectives, financial situation and particular needs of each party who reads or uses this e-auction document. The assumptions, assessments, statements and information contained in this e-auction document may not be complete, accurate, adequate or correct. Each Applicant should therefore, conduct its own investigations and analysis and should check the accuracy, adequacy, correctness, reliability and completeness of the assumptions, assessments, statements and information contained in this e-auction document and obtain independent advice from appropriate sources. Information provided in this e-auction document to the Applicant(s) is on a wide range of matters, some of which depends upon interpretation of law. The information given is not an exhaustive account of statutory requirements and should not be regarded as a complete or authoritative statement of law. DDA accepts no responsibility for the accuracy or otherwise for any interpretation or opinion on law expressed herein. DDA, its employees and advisors make no representation or warranty and shall have no liability to any person, including any Applicant, under any law, statute, rules or regulations or tort, principles of restitution or unjust enrichment or otherwise for any loss, damages, cost or expense which may arise from or be incurred or suffered on account of anything contained in this e-auction document or otherwise, including the accuracy, adequacy, correctness, completeness or reliability of the eauction document and any assessment, assumption, statement or information contained herein or deemed to form part of this eauction document. DDA also accepts no liability of any nature whether resulting from negligence or otherwise howsoever caused arising from reliance of any Applicant upon the statements contained in this e-auction document. DDA may, in its absolute discretion but without being under any obligation to do so, update, amend or supplement the information, assessment or assumptions contained in this e-auction document. {bold portion emphasized}

19. It would be expedient to reproduce the relevant terms and conditions of the e-auction that stipulated as under: “1.[9] DDA’s Right to Accept or Reject Proposal: DDA reserves the right to accept or reject any or all of the Proposals/e-bids without assigning any reason whatsoever and to take any measure as it may deem fit, including annulment of the bidding process, at any time prior to confirmation of bid, without liability or any obligation for such acceptance, rejection or annulment.” x x x x x x x x 2.[2] Earnest Money Deposit: To be able to participate in e-auction, the prescribed EMD amounting to 25% of the bid premium is to be submitted in two stages as follows: a) 5% of the Reserve price at first stage by all Bidders i.e. before participation in the e-auction programme (to be called as 1st stage EMD). b) 25% of the Bid Premium minus 1st Stage EMD already paid (to be called 2nd Stage EMD) is to be submitted by successful bidder (H-1 Bidder) within seven days from the issue of LOI after acceptance of their bid by the Competent Authority. c) Issuance of LOI: "LOI shall be issued online through BHOOMI Portal only. User Manual of Bhoomi Portal is also available on BHOOMI Portal. URL of BHOOMI Portal is https://eservices.dda.org.in/user. Further, it is clarified that no formal LOI shall be issued through either offline mode or through e-Auction Portal i.e. www.ddaeauction.co.in. Intimation of issuance of LOI will be communicated to bidder only through system generated email ddaeauction@dda.org.in to those bidders whose H[1] bid will be accepted by Competent Authority. The bidder is also requested to kindly check the spam folder” d) Process for making LOI payment (second stage EMD) and acceptance: - The Successful H-1 Bidders (new users/users whose PAN No. is not registered) will require to login on BHOOMI Portal (URL https://eservices.dda.org.in//users) using login details provided via registered email ID registered for e-auction. The existing BHOOMI/AWAS user whose PAN number is registered can use their existing user ID and password as login credentials. For more details clarification dt. 17.12.2021 may be referred. The same is available on BHOOMI portal and also enclosed as Annexure VI. e) If full amount of 2nd stage EMD is received within 2(two) working days of the expiry date mentioned in the LOI, then, the delay period in the payment of 2nd stage EMD shall be automatically regularized on deposit of token penalty as follows: In case the H[1] Bid amount is - (1) less than or equals to Rs. 1 Crore - penalty shall be 5000/- (2) more than Rs. 1 Crore but less than or equals to Rs. 10 Crores - penalty shall be Rs. 10,000/- (3) more than Rs. 10 Crores - penalty shall be Rs. 20,000/f) No case where full amount (excluding penalty as above) of 2nd stage EMD is deposited after the regularizable delay period shall be considered for regularization. g) The penalty should be deposited alongwith the 2nd stage EMD amount by the applicant. However, in cases where the bidder fails to deposit penalty (but makes full payment of 2nd stage EMD within the regularizable period), the Penalty amount shall be included in the Letter of Demand and would be required to be paid along with the balance 75% premium. h) If the successful bidder fails to deposit 2nd Stage EMD in stipulated period then 1st stage EMD (5% of Reserve Amount) submitted along the Bid shall be forfeited. i) No offer/bid shall be accepted without successful payment of Earnest Money Deposit. j) The Earnest Money Deposit will be adjusted in the payment against the premium of bid payable to the Authority by the successful Bidder (H-1 Bidder). k) The Earnest Money Deposit paid by the bidders, whose offers have not been accepted shall be returned to them without any interest. The same shall be refunded electronically in their Bank account of the unsuccessful bidders generally within 15 days of the completion of auction process. The advance deposit shall not be adjusted against any other scheme. i) Only the Bidders making payments of first stage EMD, will be allowed to participate in the e-Auction process. x x x x x x x x 2.[4] Evaluation of Bid 2.4.[1] The accepting officer, subject to confirmation of the VC, DDA, normally accept the highest Bid for a plot, provided that it is above the reserve price and found to be competitive enough to reflect the market value of the plot auctioned for. 2.4.[2] The confirmation of the highest Bid shall be in the sole discretion of the Vice Chairman, DDA who does not bind himself to confirm the highest bid and reserve to himself the right to reject all or any of the bid without assigning any reasons. Any Bid not fulfilling any of the prescribed conditions or incomplete in any respect shall be rejected. 2.4.[3] After the bids are confirmed/accepted by the Competent Authority, a communication shall be sent to the successful bidder and the second stage EMD to be submitted within 7 days from the Date of issue of LOI through online payment. In case the second stage EMD is not submitted within the stipulated period, the first stage EMD (5% of the reserve price) submitted along the Bid shall be forfeited. 2.4.[4] After deposit of second stage EMD, the DDA shall issue a Demand- cum- Allotment Letter for the plot to the bidder whose bid has been accepted through BHOOMI Portal calling upon him to remit the balance 75% amount/premium of the bid offered within 90 (ninety) days of issue of this Letter. 2.4.[5] In case the payment of balance premium is not received within the stipulated period as indicated above and in the Demandcum-Allotment Letter, the bid shall automatically stand cancelled and the entire EMD (25% of premium offered) shall stand forfeited without any notice. In that eventuality, DDA shall at liberty to reauction the plot. 2.4.[6] The VC or the Accepting Officer shall generally within 15 days of the date of completion of e-auction process, communicates to all other bidders, non-acceptance of their bids and return the earnest money received from them without any interest. 2.4.[7] The bidder after submission of Bid shall not be permitted to withdraw, surrender or modify his bid on any ground whatsoever. If he withdraws or surrenders the Bid, the entire amount of earnest money shall be forfeited which shall be without prejudice to other rights or remedies available to DDA x x x x x x x 2.[6] Right to reject bid i) Delhi Development Authority reserves the right to reject any/all bids without assigning any reason. ii) The confirmation of the highest bid shall be at the sole discretion of the Vice Chairman, DDA who does not bind himself to confirm the highest bid and reserves to himself the right to reject all or any of the bids without assigning any reason. The decision of Vice Chairman of DDA shall be final and binding. iii) The EMD paid by the bidders, whose bids are not accept by the Competent Authority, shall be returned to them without any interest. The same shall be refunded electronically to their Bank account of the unsuccessful bidders generally without 15 days of the completion of auction process. The advance deposit shall not be adjusted against any other scheme.”

20. It is also pertinent to mention that Rule 30 of the Delhi Development Authority (Disposal and Developed Nazul Land) Rules, 1981 provides as under:

21. In view of the admitted factual matrix explained above as also the terms and conditions of the e-auction referred hereinabove, the question that merits consideration is: whether the respondent/DDA had the right to reject even the highest bidder, who happened to be the petitioner on 19.04.2022 and thereby put the subject property for reauction on 22.04.2022 so as to fetch a higher price? At the cost of repetition, though the case of the respondent/DDA that there were technical glitches experienced during the time slot for e-auction on 19.04.2022 is not inspiring confidence, unhesitatingly, the respondent/DDA by virtue of „Disclaimer Clause‟ referred to hereinabove as also Clause 1.[9] read with clause 2.[6] of the auction notice (Annexure P-1) had the absolute right to accept or reject any or all of the proposals/e-bids without assigning any reason.

22. A careful examination of Clause 1.[9] reveals that the respondent/DDA explicitly reserved the right to annul the bidding process at any stage, either before or after bid confirmation, without incurring any liability or obligation for accepting, rejecting, or annulling the bid. There is merit in the plea by the learned counsel for the respondent/DDA that the bidding time on 19.04.2022 was from

10.00 a.m. to 01.00 p.m. whereas on 22.04.2022 it was allowed to go beyond 01.00 p.m. so as to fetch higher value for the subject property and eventually a bid by respondent no. 3 at Rs. 4,41,58,070/-, came to be accepted. There is no gainsaying that the underlying objective of fetching a higher price for the subject property by the DDA cannot be termed as unfair, lacking transparency or arbitrary.

23. The essence of the matter is that being the highest bidder on 19.04.2022 didn't automatically grant the petitioner any rights or interests in the property. This is because the second stage of the process, which involved issuing a Letter of Intent (LOI) through the Bhoomi Portal, never happened. In this second stage, the petitioner would have been required to pay 25% of the bid premium, minus the initial earnest money deposit (EMD) that had already been paid. However, since this stage never materialized, the petitioner's bid, although the highest, didn't translate into a vested right.

24. Reference can be invited to decision by a Coordinate Bench of this Court in the case of Amit Sharma v. DDA (supra) wherein the terms and conditions of the e-auction document, which were similar to the e-auction documents in the present case (Annexure P-1) came for consideration. It was a case where the highest bid in respect of the plot at Bagdola, Dwarka was not accepted. Referring to Clause 2.4.[1] and 2.4.[2] of the e-auction document, which was in pari materia with the eauction document in the instant case, it was held that there was no privity of contract between the petitioner and the respondent on mere placement or submission of the highest bid since the LOI had not been issued to the highest bidder.

25. At this stage, we may refer to the seminal decision in the case of Tata Cellular v. Union of India (supra), wherein while examining the issue of power of judicial review in the matters where contractual obligations are performed by the government bodies, it was held as under:-

26. Similarly in the case of Directorate of Education v. Educomp Datamatics Ltd. (supra), the decision by the government to introduce the criterion of turn-over of Rs. 20 crores to enable the companies with real competence having financial stability and capacity to participate in the tender came to be challenged by those entities which as per the earlier norms were required to show a turn-over of only upto Rs. 2 crores for grant of various projects in almost 300 schools in Delhi. It is in the said context it was held as under:

27. In light of the aforementioned legal proposition, the right to reject a bid is sufficiently broad, as per Clause 1.[9] read with Clause

2.6. Clearly, the cancellation of the bid process on 19.04.2022 and the rescheduling of the re-auction on 22.04.2022 resulted in a better financial outcome for the DDA. Therefore, the respondent/DDA's decision to cancel the tendering process on 19.04.2022 cannot be deemed grossly arbitrary, harsh, or in violation of the e-auction document's terms and conditions.

28. In conclusion, it is essential to note that the grant of relief in writ jurisdiction is discretionary. Considering that the respondent/DDA fetched a higher price in the re-scheduled auction than the petitioner's quoted price, and the petitioner was eligible to participate in the re-auction on 22.04.2022 but chose not to, this Court is disinclined to grant relief to the petitioner.

29. In view of the foregoing discussion, the present writ petition is dismissed.

30. The pending applications also stand disposed of.

DHARMESH SHARMA, J. NOVEMBER 25, 2024