Ashish Jain v. Delhi Development Authority

15. Since nothing was happening, petitioners were constrained to file Writ Petition (Civil) No. 4799 of 2017 praying for mandamus to respondent to grant sanction of the building plan. Vide order dated 29.05.2017, this court directed the respondent to decide the petitioner‟s representation dated 14.08.2015 and reminder dated 24.01.2017 within six weeks and if the building plans are not sanctioned, then to pass a speaking order so that petitioners may avail of the remedies as available to them in law, if so advised.

16. On 09.10.2017, respondent rejected the request for sanction of the building plan on the said plot. Petitioners being aggrieved by the rejection have filed the present writ petition.

17. On 29.11.2017, notice was issued to the respondent and thereafter counter affidavit was filed by the respondent stating that commercial component was permitted qua multi-level parking. The plot in question was meant for two level parking and in the advertisement, there was no mention of any commercial component or the plot could be used for the community center as per MPD 2021. Thus, qua the plot in question, the plot was auctioned with the clear understanding that it could only be used for the construction of a two level parking without any commercial component.

18. It was further stated that as per the advertisement, the multi-level parking with commercial component had many fold higher reserve price than the reserved price for the plot of a two level parking. The petitioners thus by attempting to set up a plea that they are entitled to use 25% of the plot for commercial purposes, are attempting to illegally and wrongfully take undue advantage of a bonafide mistake.

19. After realizing their mistake/typographical error in the conveyance deed, respondent issued a letter dated 29.01.2015, wherein the respondent enclosed the drafts of the rectification deed whereby respondent wanted to rectify the error (i.e. mentioning of commercial component and the MPD 2021) which had been committed.

20. Respondent issued a show cause notice dated 16.05.2018 calling the petitioners to come for rectification of the conveyance deed as also to start the construction of the two-level parking.

21. On 05.07.2018, this court was pleased to stay the operation of show cause notice dated 16.05.2018.

22. It is pertinent to note that during the pendency of the instant petition, petitioners moved an application bearing CM APPL. No. 47828 of 2018 seeking amendment of the writ petition and add a prayer challenging the notice dated 16.05.2018.

23. Vide order dated 22.11.2018, the above application was allowed and the amended writ petition with additional prayer was taken on record.

24. The additional prayer in the amended writ petition reads as under:- (ia) quash the impugned order dated 09.10.2017 and show cause notice bearing No. F.87(03)2014/CL/155 dated 16.05.2018 issued by respondent DDA in view of the facts and grounds mentioned in the writ petition.

25. Ms. Marwaha, learned senior counsel for the petitioners argues that the act of the respondent rejecting the sanction of the building plan is illegal and an impermissible executive action which is contrary to the MPD 2021. The reasons given by the Deputy Director while rejecting the plan cannot undermine the provisions of the MPD 2021 which is the legal sanction and is mandatory in nature, having statutory force.

26. Learned senior counsel has drawn my attention to the conveyance deed dated 23.07.2014 executed between the petitioners and the respondent which clearly shows that the description of the property categorically mentions “two level parking with commercial component as per MPD-2021”. The relevant extract is reproduced as under:- “THE

SCHEDULE ABOVE REFERRED TO All that area 2212 Sqm. in the layout plan of and consisting of 2212 sq. mtrs. (Courtyard Area) Two Level parking with commercial component as per MPD 2021.”

27. She further points out that the site plan annexed with the conveyance deed also shows that the commercial usage as per the MPD 2021.

28. She further argues that MPD 2021 is applicable to all allotments including petitioners plot. Even in the public notice, the heading mentions “all uses as per MPD 2021”. Further, in the MPD 2021, there is no mention of two level, three level, four level parking etc., there is mention of only multi-level meaning thereby that anything above single is multi level parking and there is one rule for parking spaces in the MPD 2021 i.e. Rule 12.13.7. In this context, she argues that the reference to two level parking with commercial component as per MPD 2021 has been inserted twice in the Conveyance Deed as well as in the site plan indicating that the same was done with the clear application of mind and cannot be said to have been a typographical or bonafide error.

29. She submits that if the petitioners construct and operate the parking without having a commercial use of 25% of the gross floor area, the petitioners would be at huge loss and even the cost of construction would never be recovered.

30. She further submits that petitioners had only proposed to pay additional fee that may be required for sanction of the plan for two level parking with commercial component as per MPD 2021 and had never offered to pay additional sale consideration towards purchase of the said plot.

31. Learned senior counsel urges that the conveyance deed is the sale deed and in terms of the provisions of section 54 and 55 of Transfer of Property Act, 1882, (in short “TP Act”) the title, ownership and rights in the property stood transferred in the name of petitioners. She further relies upon Section 22 of the Indian Contract Act, 1872 (in short “Contract Act”) which clearly provides that a contract is not voidable merely because it was caused by one of the parties to it being under a mistake of a fact. Thus, even assuming, without conceding or admitting that respondent had made a mistake, that still would not render the conveyance deed voidable and shall bind the respondent as a final and concluded contract.

32. She further states that once a contract has been executed between a party, it is not open for the respondent to unilaterally change/vary the terms thereof.

33. To buttress her submissions, she relies upon the following judgments:a) RK Mittal and Ors. vs. State of U.P. and Ors., (2012) 2 SCC 232. b) MG. Ramachandran and Anr. vs. Municipal Corporation of Delhi and Ors., 2014 SCC Online Del 1325: (2014) 213 DLT 14. c) Rattan Lal Aggarwal vs. Municipal Corporation of Delhi and Ors., 2011 (124) DRJ 610. d) Joseph John Peter Sandy vs. Veronica Thomas Rajkumar, (2013) 3 SCC 801. e) TC Subramanian vs. The Sub Registrar, WP 3275/2011 and MP 2/2011. (On behalf of the respondent/DDA)

34. To refute her submissions, Mr. Vachher, learned Standing Counsel for DDA states that a bare perusal of the advertisement of the respondent shows that the “two level parking” plot was different from “multi level parking” plot with commercial component”. Hence, the plot in question was auctioned only for two level parking. Therefore, the instant writ petition is not maintainable as it raises disputed questions of fact. Reliance is placed on Joshi Technology International Inc vs. Union of India, (2015) 7 SCC 728 and Twenty First Century Media Private Limited vs. New India Assurance Co. Ltd., 2017 SCC OnLine Del 10933.

35. He further argues that since there is an arbitration clause being clause 3.[8] in the tender document, writ petition is not maintainable. Any disputes between the parties can only be referred to Arbitration under the Arbitration & Conciliation Act, 1996, as contemplated in the tender document itself. Reliance is placed on Joshi Technology (supra).

36. Learned counsel for the respondent heavily relying upon Tata Cellular vs. Union of India, (1994) 6 SCC 651, wherein the Hon‟ble Supreme Court in para 94 observed that the terms of invitation of a tender cannot be open to judicial scrutiny because invitation of tender is in the realm of a contract. In the facts of the present case, the petitioners have not challenged the terms of the tender document wherein commercial component was not permitted for a two level parking plot allotted to the petitioners. The petitioners were well aware of the terms of the tender document that plots were auctioned on „as is where is‟ basis and it was with open eyes that the petitioners participated in the tender process for two level parking plot only.

37. The reserve price for a two level parking plot which did not have commercial component was only Rs.1.49 crores having area of 2212 sq. mtrs. whereas a multi level parking plot with commercial component had a reserve price of almost same area plot to the tune of Rs. 44.80 Crores which was far higher than the one which was for two level parking. The petitioners were aware of all these facts and out of their own volition they bid only for two level parking plot knowing fully well that commercial component was not permissible for a two level parking plot.

38. He further argues that a bare perusal of the said Rule 12.13.[7] (ii) clearly shows that the words used are “may be utilized as commercial/office space”. Thus, Rule 12.13.[7] (ii) contemplates that to compensate the cost of multi-level parking, a maximum of 25% of gross floor area may be utilized as commercial/office space. Rule 12.13.[7] only contemplates that for a multi level parking 25% of the gross area “may” be used for commercial purpose. The word „may‟ itself contemplates that multi level parking may or may not be used for commercial purpose. Therefore, the tender document is not violative of MPD-2021 if DDA had all the powers to restrict the use of two level parking only for parking purposes and not allowing commercial use.

39. He further points out that it is apparent and evident from documents filed by petitioner himself vide letters requesting for conveyance deed to be executed which do not mention “commercial component” and/or “parking with commercial components as per MPD 2021”. All these documents including the letters of the petitioners which are prior to the execution of the conveyance deed, show that there was neither any “commercial component” mentioned in any of them nor was there any mention of the use of plot auctioned for two level parking to be put to use as “parking with commercial components permitted under the MPD 2021”. It is only after the execution of conveyance deed with the accidental error/typographical mistake where two level parking plot inadvertently got mentioned as “Parking with commercial component as per MPD 2021”.

40. Mr. Vachher places reliance on Monnet Power Company Ltd vs. Union of India & Others, 2017 SCC OnLine Del 7399 and states that the rules of the game cannot be changed midway once the bidding process is over and the contract is completed. The Hon‟ble High Court upheld the sanctity of the tender process and observed that the bidders were fully aware of the terms and conditions of the tender / auction at the time of bidding for the same and were aware of the restrictions imposed thereof. The Hon‟ble Court also held that the bidders obviously calculated their costs and benefits whilst bidding for the same.

41. He further states that any change subsequent to execution of a concluded contract after the bidding process is complete and successful would be morally, ethically wrong and would tantamount to playing fraud with the public at large by denying them a level playing field and an opportunity to participate in the bidding process, whereby many other bidders could have been interested to participate in the same and the bid process would have fetched a much higher price to the tenderer.

42. He further states that immediately after the conveyance deed, the respondent realized its mistake that there was an typographical error in the conveyance deed and addressed the letter dated 29.01.2015 to the petitioners seeking execution of the rectification deed. He further states that the mistake if not permitted to be rectified will cause huge loss to the public exchequer. (Rejoinder on behalf of the petitioners)

43. Ms. Marwaha, learned senior counsel for the petitioners in rejoinder has drawn my attention to para 24C of the amended writ petition and states that the huge premium charged for other plot is because the respondent has permitted more than 200% of commercial usage of the FAR whereas in the petitioners‟ plot, it is only 25% of FAR for commercial use.

ANALYSIS AND FINDINGS

44. I have heard the rival contentions raised by the learned counsels for the parties and perused the pleadings available on record.

45. Admittedly, petitioners were the successful and highest bidder in the tender process conducted by the respondent on 16.12.2013 with respect to the “two level parking”. After completion of all the formalities, possession of the plot was handed over to the petitioners and conveyance deed 23.07.2014 was signed between the petitioners and the respondent. On bare perusal of the conveyance deed, it is clearly mentioned that “two level parking with commercial component as per MPD 2021”. This fact is admitted by the respondent who urges that this was a typographical error. In furtherance of the conveyance deed, petitioners submitted the building plan to the respondent for grant of sanction. Respondent rejected the building plan on the ground that there is a typographical error in the conveyance deed and the tender notice did not allow any commercial usage. (Maintainability of Writ Petition)

46. At the outset, learned counsel for the respondent has raised the issue of maintainability of the writ petition on the ground that questions of fact are raised and since there is an arbitration clause, the present writ petition is not maintainable. He strongly relied upon the judgment of Joshi Technology (supra).

47. The Hon‟ble Supreme Court in Joshi Technology (supra) has laid down certain parameters to entertain the writ petition which reads under:-

48. Further the distinction between the public law and private law has also been explained in subsequent paragraphs in Joshi Technology (supra). Relevant extract reads as under:- “70.9. The distinction between public law and private law element in the contract with the State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable. The dichotomy between public law and private law rights and remedies would depend on the factual matrix of each case and the distinction between the public law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision-making process or that the decision is not arbitrary.

70.10. Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of nonarbitrariness.”

49. From the aforesaid, it is clear that there is no embargo on entertaining the writ petition in contractual matters. Even on the factual conspectus of the case, there are no disputes between the parties. The respondent only alleges that there was typographical error in the conveyance deed and that is the only question which is to be adjudicated in the present writ petition. Hence to my mind, the present writ petition does not involve any disputed question of facts. In addition, as per Joshi Technologies (supra), this court can entertain the writ petition as in the present case, the executive action of the respondent is unsupported by law and is arbitrary and whimsical.

50. As regards to the arbitration clause i.e. para 3.[8] in the tender is concerned, the same reads as under:- “3.[8] Provision for Settlement of Disputes In case of any dispute between the parties in respect of interpretation of this agreement, such disputes shall be referred to the Vice-Chairman of the Authority. The Vice- Chairman, DDA shall be empowered to adjudicate and decide the disputes, if any, between the parties and his decision shall be final, conclusive and binding on both the parties. The venue of the arbitration shall be in Delhi.”

51. The arbitration clause is to be invoked in the cases where there are disputes with regard to the interpretation of the agreement. In the present case, the petitioners and the respondent are not disputing either the agreement between the parties or its execution or any of the terms contained therein. The case of the respondent is that the “Two level parking with commercial component as per MPD 2021” appearing in the conveyance deed is a typographical error.

52. The admitted facts between the parties are as follows:-

53. Hence there is no dispute as to the factual matrix or the terms of the agreement.

54. The notice inviting tender is only an invitation to offer, the bid is the offer and once the bid is accepted, a concluded contract comes into existence. The concluded contract may be in the form of conveyance deed, letter of intent or such similar nature. In the present case, the terms relied upon by the respondent namely two level and multi level parking are all contained in the notice inviting tender. The invitation to offer was acted upon by the petitioners by participating in the tender process. Thereafter, the offer of the petitioner was accepted by the respondent and a concluded contract came into being by virtue of conveyance deed. It is the conveyance deed that is now the concluded contract between the petitioners and the respondent which is to be looked into by this court.

55. Respondent placed reliance on Tata Cellular (supra) to contest that the terms of the tender are not open to judicial scrutiny and petitioners participated in the tender process for two level parking only. I am in full agreement with the above cited judgement and in the present case, none of the parties are disputing the terms of the tender, it is the conveyance deed which mentions the phrase “two level parking with commercial component as per MPD 2021” which is sought to be rescinded by the respondent. (Relevancy of MPD 2021)

56. It is pertinent to note down the relevancy of MPD 2021. This court in numerous judgements including Rattan Lal Aggarwal vs. Municipal Corporation of Delhi, 2011 SCC OnLine Del 2649 has held that MPD 2021 is statutory in character and the provisions of MPD 2021 have statutory force. Therefore the provisions mentioned in the MPD 2021 are to be complied in its full letter, spirit and intent. Respondent has a bounden duty to uphold the provision of MPD 2021 and cannot act in contrary to what is laid in MPD 2021. In R.K. Mittal vs. State of U.P., (2012) 2 SCC 232, the Hon‟ble Supreme Court has observed as under:-

57. The respondent acting as a development authority is obliged to follow the mandate of law. Their role is to ensure that the schemes and policies of the State are implemented in its true spirit. The respondent is bound to follow the provision of MPD 2021. Relevant clause of the MPD 2021 reads as under:- “12.13.[7] MULTI LEVEL PARKING Multi level parking should preferably be developed in the designated parking spaces or in the residential, public-semipublic facilities, commercial, transport node, DTC depot, etc. with the following Development Controls: i. Minimum Plot Size-1000 sqm. ii. In order to compensate the cost of Multi-level parking and also to fulfill the growing need of parking spaces within urban area, a maximum of 25 % of gross floor area may be utilized as commercial/ office space iii. In addition to the permissible parking spaces on max. FAR, 3 times additional space for parking component shall be provided. iv. Maximum FAR permissible shall be 100 (excluding parking area) or as per the comprehensive scheme. However, no FAR shall be permissible in plots / existing buildings where 5% addl. ground coverage is permissible (Refer para 8 (4) i) Parking standards, Chapter 17.0 Development Code”

58. On perusing the above rules, there is no mention of the word “Two level parking”, the only word used is “Multi level parking”. In the absence of the word “two level”, it can only be assumed that two level parking falls into the category of “Multi Level Parking”. Even assuming that the phrase “two level parking with commercial component as per MPD 2021” is a typographical error, the said typographical error is the mandate of law and deletion of the same would be an error and contrary to MPD 2021.

59. With regard to the other properties mentioned in the tender which are auctioned, the explanation offered by the petitioners seems to be plausible that in other properties, the commercial component permitted by the respondent is more than 25%. The details of the properties with their commercial component reads as under:- “COMMUNITY CENTRE, MOTIA KHAN:

┌─────────────────────────────────────────────────────────────────────────────────────────────────────┐
│                                      Serial No.1: Parking area 9936 square meter and the            │
│                                      commercial component is 3726 square meters which is            │
│                                      approximately   37% (more      than   maximum       of   25%   │
│                                      permissible in terms of Rule 12.13.7 of MPD 2021)              │
│                                      DISTRICT CENTRE MAYUR PLACE                                    │
│                                      approximately 227% (more than maximum of 25%                   │
│                                      permissible in terms of Rule 12.13.7 of MPD 2021).             │
│                                      approximately 201% (more than maximum of 25%                   │
│                                      permissible in terms of Rule 12.13.7 of MPD 2021).”            │
│                                (Conveyance Deed and its nature)                                     │
└─────────────────────────────────────────────────────────────────────────────────────────────────────┘

60. The word “conveyance” is defined under The Indian Stamp Act, 1899 which reads as under: - “2(10) “Conveyance”. — “conveyance” includes a conveyance on sale every instrument by which property, whether moveable or immovable, is transferred inter vivos and which is not otherwise specifically provided for by schedule I”

61. Further, The Black Law Dictionary has defined the term conveyance as “the transfer of an interest in real property from one living person to another, by means of an instrument such as a deed”.

62. The Hon‟ble Supreme Court in Suraj Lamp & Industries (P) Ltd. (2) vs. State of Haryana, (2012) 1 SCC 656 has held as under:-

63. Perusal of the conveyance deed dated 23.07.2014 shows that it is registered before the Sub Registrar VII and the stamp duty of Rs. 24,30,000/- has been paid. Hence, the conveyance deed is a registered instrument as required in law and the parties thereto have to abide by the terms which are stated in the deed until and unless it is cancelled by a judicial decision. The execution of the conveyance deed is the conclusion of the acceptance of the offer by the respondent and the same being a registered instrument is a binding contract between the petitioners and the respondent.

64. As per the conveyance deed where the description of the plot is mentioned, it is written as “two level parking with commercial component as MPD 2021”. Also, on the site plan annexed with the conveyance deed, it is mentioned “commercial MPD 2021”. Further the above said rule i.e. 12.13.[7] permits to use maximum 25% of area as commercial component and is applicable on minimum plot size 1000 sq. mtrs.

65. The respondent rejected the sanctioning of the building plan vide order dated 09.10.2017 on the following grounds:-

66. The said rejection order is devoid of any reasons as to why the commercial component is not permitted when the MPD 2021 categorically permits the same, as in the present case, the plot size is 2212 sq. mtrs. The merely stating that the Architect Wing and Planning Wing of the respondent do not permit commercial component is not sufficient reason according to me. (Unilateral mistake of fact not permissible)

67. It is apposite to refer to the relevant sections of the Contract Act which reads as under:-

68. In a contract between the parties, parties thereto are expected to enter into the contract after reading and understanding the terms and conditions. Once a contract has come into existence, it is not open to either of the contracting parties to rescind from its obligation merely on the fact that there was a typographical error. If such a situation is permitted then there will be no sanctity to any of the terms and conditions of the contract and the business dealings will collapse. Section 22 of the Contract Act envisages such a situation which clearly holds that a contract is not voidable merely because the either party (i.e. the respondent herein) was under a mistaken impression. Bilateral mistake renders a contract void but the unilateral mistake of fact would not.

69. In context with section 62 of the Contract Act, the Hon‟ble Supreme Court in Satya Pal Anand vs. State of M.P., (2016) 10 SCC 767 has observed as under:-

70. Perusal of the above clearly mandates that a registered contract cannot be unilaterally rescinded or altered, it can only be done bilaterally or with consent of both the parties thereto. The purpose of a registered document is to bind the parties to the terms and conditions contained therein. Once a concluded contract has been duly signed by the parties, the only option available is to have it set aside in accordance with law.

71. The arguments of the respondent are bereft of any merits as the conveyance deed is registered document and if the respondent is allowed to resile from the same by stating that there was a typographical error, then there will be no sanctity to the documents executed by any party to the contract. This plea of the respondent cannot be permitted or act as a defense while enforcing a duly concluded contract. The terms of the concluded contract are final and a party cannot unilaterally resile from the same by stating some of the terms to be typographical error.

72. Further, the respondent has not challenged the conveyance deed dated 23.07.2014 in a court of law. It is not the case of the respondent that petitioners have contributed to the mistake or the contract was executed by any misrepresentation by the petitioners. Even if the respondent realized their mistake that it was a typographical error, there is nothing on record to show what action has been initiated against officers responsible for the mistake. Furthermore, after a lapse of more than 5 months, the rectification deed was sent to the petitioner on 29.01.2015 and no explanation has been furnished by the respondent for the inordinate delay of more than 5 months. The respondent cannot unilaterally come to a finding that there was a typographical error in a concluded contract, thereafter rescind the contract and force the petitioners to sign a rectification deed.

73. As a result, I am of the view that the reasons assigned by the respondent while rejecting the sanctioning of the building plan are wholly erroneous as it lacks statutory backing and in the absence of any challenge to the conveyance deed, the respondent cannot unilaterally rescind the contract. It is also pertinent to mention here that the phrase “two level parking with commercial component as per MPD 2021” and “commercial MPD 2021” used in the conveyance deed and in the site plan respectively is not typed but is written by hand.

74. The Hon‟ble Supreme Court in Vice Chairman, City and Industrial Development Corporation of Maharashtra Ltd. vs. Shishir Realty (P) Ltd., 2021 SCC OnLine SC 1141 has observed as under:-

75. In the present case, the respondent has acted as a commercial party, floated tender and thereafter on the petitioners being declared as the successful bidder, entered into a concluded contract. To permit the respondent to rescind from its obligations mentioned in the conveyance deed merely on the averment that there was a typographical error, it was under a mistaken belief and due to oversight, the same would fall under the category of arbitrariness and unfairness. If a party has made a mistake with regard to a fact, then the party should bear the consequences. The argument of loss being caused to public exchequer cannot be a ground to set aside a concluded contract.

76. The rejection order dated 09.10.2017 does not render any persuasive reasons and in view of the discussion above, the same is liable to be set aside.

CONCLUSION

77. For the foregoing reasons noted above, the instant writ petition is allowed and impugned order dated 09.10.2017 and show cause notice bearing No. F.87(03)2014/CL/155 dated 16.05.2018 is quashed. Further, a writ of mandamus is issued in favour of the petitioners and against the respondent directing the respondent/DDA to sanction the building plan with respect to the plot no. „B‟, measuring 2212 sq. mtrs. Block CC, Road No. 44, Pitampura, Delhi, i.e. two level parking with 25% commercial component within four weeks from today.

78. Pending application(s), if any, are disposed of accordingly.

JANUARY 08th, 2024/(MSQ) JASMEET SINGH, J