Col. A. K Arora v. Delhi Development Authority & Anr.

Rs.2,00,37,677/- i.e., the 100% EMD towards the subject plot, but failed to refund the interest of Rs. 2,21,700/- charged on late payment of 75% EMD, and the process fee of Rs.2,24,622/-. Thereafter, till 21.11.2020, the petitioner repeatedly requested the DDA not to cancel his allotment, and even requested for permission to deposit 25% amount within 7 days to maintain a lien.

(xi) The petitioner filed a petition, being W.P.(C) 1970/2021 before this Court, praying to restore the allotment and place a lien on the subject plot; or to allot an alternative plot of similar/smaller size in the same area; or refund the amount with 10% interest as charged by the DDA on late payments. This Court vide order dated 15.02.2021, passed in W.P.(C) 1970/2021, directed the DDA to treat the aforesaid petition of the petitioner as a representation, and hold a meeting with the petitioner on 24.02.2021 at 11 am. The DDA was also directed to pass appropriate orders within a period of two weeks thereafter, and the decision was to be communicated to the petitioner. As per the aforesaid directions of this Court, the DDA held a meeting with the petitioner on 24.02.2021, on the said date various options and possibilities are stated to have been discussed between the parties. The petitioner again made a representation dated 01.03.2021 to the DDA in reference to the aforementioned meeting, and evinced interest to pay 5% of the EMD in order to maintain his lien in the subject plot till the vacation of the said stay granted by this Court vide interim order dated 08.11.2019.

(xii) The aforesaid interim order dated 08.11.2019, directing the

DDA to maintain status quo on the 21 plots in Rohini, including the subject plot, was vacated by this Court vide order dated 16.03.2021, passed in W.P.(C) 11775/2021 titled Naharpur Yuva Shakti RWA (supra).

(xiii) Thereafter, the petitioner made a representation dated

19.03.2021 to the DDA, requesting that its representation be decided as directed by this Court vide order dated 15.02.2021, passed in W.P.(C) 1970/2021. The petitioner also expressed its willingness to pay the full amount towards the subject plot.

(xiv) The petitioner again made a representation dated 04.04.2021 to the DDA, requesting a decision on his representation as per the directions of this Court in W.P.(C) 1970/2021.

(xv) The petitioner filed a contempt petition, being CONT.CAS(C)

391/2021, alleging non-compliance with the order dated 15.02.2021, passed in W.P.(C) 1970/2021. It was during the hearing of the said contempt petition that the petitioner was informed by the DDA that it has decided to refund the money of the petitioner, along with the due interest. This Court in the aforesaid contempt petition, vide order dated 02.06.2021, directed DDA to supply a copy of the decision to the petitioner through an e-mail, within a week from the date of passing of the aforesaid order, and granted liberty to the petitioner to pursue his other remedies in accordance with law. Cost of Rs.10,000/was also imposed on the DDA for non-compliance of the order dated 15.02.2021, passed in W.P.(C) 1970/2021.

(xvi) Finally, the DDA passed the impugned speaking order dated

08.06.2021, denying the petitioner any lien on the subject plot, since the said plot had already been withdrawn from the e-auction, and also refusing to allocate an alternative plot of the same area to the petitioner. The DDA further stated in the said speaking order that the decision with regard to the payment of interest on delayed payment by the respondents to the petitioner, is under consideration and the same will be released at the earliest. The DDA, thereafter refunded an amount of Rs.10,04,819/- towards interest plus TDS of Rs. 87,025/on 06.12.2021 to the petitioner.

(xvii) Hence, being aggrieved by the aforesaid order dated

(xviii) Vide interim order dated 18.8.2021 passed in these proceedings, it was ordered as under:

6. However, the learned counsel for the petitioner submits that the first two reliefs sought in the writ petition were (i) the land for which all the monies had been paid, be handed over to the petitioner, (ii) if the first property was not available then an alternate land be given to the petitioner. It is contended that only in the event of the first 2 reliefs were not being available, the monies be returned, of course, along with interest, etc., as maybe payable thereon.

7. The petitioner is mystified that the principal amount was returned without addressing the first 2 reliefs sought in the writ petition. It is not as if the rerun of the monies would negate the first two reliefs or that they would be deemd o have been given up by the petitioner. The petitioner contends that DDA's action is arbitrary. Therefore, its impugned order dated 08.06.2021 be stayed.

8. The DDA contends that in terms of the petitioner's e-mail dated 19.03.2021, the monies have been returned. However, on perusal of the said document, it is evident that the petitioner was ready and willing to pay the remaining amounts and had stated inter alia as under: “…

3. The Hon'ble High Court of Delhi has since vacated the stay granted in writ filed vide number WP(c) 11775/2019 on 16th March, 2021. Factoring in the same in your awaited response, the management of land in question rests with DDA now. Therefore I wish to state that I am agreeable to make full payment and take over the said plot No 31, Pocket E 2, Sector 7, Rohini being HI Bidder. …”

9. The Court is, prima facie, of the view that the petitioner's contention is of substance and that the first relief which is still sought should have been considered. It was not open to the DDA to ignore the first two substantive reliefs sought. In any case, the refund of principal amount would be the inevitable corollary to the non-grant of the first two reliefs. But the first two reliefs ought to be considered.

10. In view of the above, the impugned order dated 08.06.2021 shall be stayed till further orders. No 3rd -party rights shall be created in it till further orders.

11. The petitioner is ready and willing to deposit the refunded amount in to the DDA's account and/or in this Court so that his readiness and willingness be proven. Let the monies refunded by the DDA be deposited by the petitioner with the Registrar General of this Court within two weeks, the same shall be kept in recurring interest-bearing FDR.

12. It will be open to the DDA to move an application for deposit of the said monies in its own account.

13. Reply and Rejoinder, if any, be filed in 4 weeks each, successively.

14. List on 21.01.2022.”

(xix) In LPA 443/2021 filed against the aforesaid order dated 18.08.2021, the Division Bench of this Court passed the following order dated 18.04.2022:-

CONTENTIONS OF THE PARTIES

3. In the context of the aforementioned facts, it is the contention of the petitioner that the actions of the DDA are wholly arbitrary. The petitioner has emphasized the depreciable conduct on the part of the DDA in demanding 100% payment from the petitioner despite the fact that the subject plot, with regard to which said demand letter had been issued to the petitioner was within the sweep of the said interim order dated 08.11.2019, passed in W.P.(C) No. 11775/2019, whereby DDA was directed to maintain status quo on the plots of land in Sector – 7, Rohini. It was contended that despite becoming aware of the aforesaid stay order, the petitioner confined its request for refund of only 75% of the amount, since it was interested in taking possession of the subject plot once the impediment created by the interim order was removed. It is further contended that once the petitioner‟s bid was accepted and the demand letter was issued to the petitioner, and the petitioner having made payment in terms thereof, it was not open for the DDA to invoke Clauses 1.[9] and 2.[6] of the „E-Auction Document‟, for the purpose of cancellation/annulment of the bidding process without assigning any reason. It is emphasized that once the interim order was vacated on 16.03.2021, there was no impediment in handing over possession of the subject plot to the petitioner after taking full payment for which the petitioner expressed his readiness and willingness vide representation dated 19.03.2021.

4. On the contrary, it is the contention of learned senior counsel appearing for the DDA that the refund that was made to the petitioner was in terms of the representations dated 31.03.2020, 20.04.2020 and 27.05.2020, addressed by the petitioner, whereby the petitioner sought 75% refund along with interest and simultaneously also sought a lien in respect of the subject plot. It has been contended on behalf of the DDA that the petitioner‟s stand was shifting from time to time, inasmuch as, at one stage the petitioner sought refund of 75% of the amount whereas, vide e-mail dated 01.03.2021, the petitioner expressed his willingness to deposit only 5% of the EMD for the subject plot, for the purpose of maintaining its lien on the same. Then again, vide e-mail dated 19.03.2021, the petitioner stated that he was agreeable to make full payment and take over the subject plot being the H-1 bidder.

5. The learned senior counsel for the DDA placed reliance on judgment of the Supreme Court in Mehboob-ur-Rehman v. Ahsanul Ghani, (2019) 19 SCC 415, wherein the Supreme Court observed that the continuous readiness and willingness to perform the contract is the threshold requirement to seek the relief of specific performance. The relevant paragraph relied upon by the DDA is reproduced hereunder:

6. Reliance has also been placed on Pukhraj D. Jain & Ors. v. G. Gopalakrishna, (2004) 7 SCC 251, wherein the Supreme Court has observed that there should be willingness to perform the terms of the contract on the part of the plaintiff, which should not only be supported by the averments in the plaint but the surrounding circumstances should also indicate the readiness to complete the contract. The Supreme Court observed as follows:

7. On the basis of the aforesaid, it is contended that the petitioner was not continuously ready and willing to take possession of the subject plot. On the contrary, the petitioner amended his offer multiple times, and the DDA was not bound to accept the revised offers of the petitioner. It is further submitted that the petitioner cannot be permitted to approbate and reprobate; and having exercised his option to seek a refund, he cannot be allowed to retract from the same, in accordance to the principle of “doctrine of election”.

8. The learned senior counsel for the DDA referred to a judgment of the Supreme Court in R.N. Gosain v. Yashpal Dhir, AIR 1993 SC 352, wherein it was noted that the „Doctrine of Election‟ means that a person cannot claim a transaction to be valid to obtain a benefit out of it, and later claim the same transaction to be void to obtain some other advantage. It was observed by the Supreme Court as under:

ANALYSIS AND CONCLUSION

9. Having considered the rival contentions of the parties, I find force in the contentions raised on behalf of the petitioner. The reasons are enumerated hereunder.

10. Admittedly, prior to receipt of 100% payment from the petitioner/bidder, the respondents/DDA never informed the petitioner about the status quo order dated 08.11.2019 passed in W.P.(C) 11775/2019 titled as Naharpur Yuva Shakti RWA (supra). Further, the DDA vide letter dated 02.12.2019, addressed to the petitioner, approved extension of time for payment of balance 75% amount, and called upon the petitioner to pay interest on the said amount. This communication was sent by the DDA after the interim order had been passed on 08.11.2019. It was most improper on the part of the DDA to keep the petitioner in the dark about the said interim order dated 08.11.2019 passed by this Court.

11. Importantly, in terms of Clause 13 of Section II of Chapter III of the „E-Auction Document‟, it is provided as under:-

12. From the aforesaid, it is evident that upon making payment of the balance 75% amount, on submission of all requisite documents and subject to verification of payment made by the auction purchaser/petitioner, the DDA was obliged to issue the possession letter to the petitioner. Clearly, in view of the interim order dated 08.11.2019, the DDA was in no position to issue the possession letter, yet, it proceeded to accept 75% payment from the petitioner, and even charged interest for the delay that had been occasioned.

13. In light of the aforesaid Clause 13 of Section II of Chapter III of the „E-Auction Document‟, the DDA was not entitled to demand 75% payment when it was in no position to hand over the possession of the subject plot to the petitioner. The said demand letter was issued on 04.09.2019, i.e., prior to the date on which this Court passed the interim stay order dated 08.11.2019. As such, upon passing of the said interim order, it was incumbent on the part of the DDA to not only inform the petitioner about the factum of the said interim order, but also to ensure that the due date of payment for the balance 75% amount, was in sync with the obligations of the DDA itself under the aforesaid auction conditions. This, admittedly, was not done by the respondents/DDA.

14. Although, during the course of the arguments, learned senior counsel appearing for the DDA contended that the petitioner has been shifting its stand, and therefore, the petitioner could not be said to have demonstrated continuous readiness and willingness; a perusal of the representations made by the petitioner leave no manner of doubt that at no stage did the petitioner withdraw his offer and/or express his unwillingness to take the plot in question at the agreed upon price. In this regard, it is noticed that vide representation dated 31.03.2020, it was specifically sought by the petitioner as under:- “5.In view of facts and circumstances above, I request DDA for the following options: (a) Option 1. Refund 75% of my total paid amount (Demand Letter amount) with interest and maintain allotment of my Plot against balance 25% then held with you. As and when your office is in a position to handover the allotted plot, based on vacation of the „stay order‟ from the court, the balance count of 75% may be demanded to be paid within 30 days by me and plot be handed over as per procedure. (b) Option 2. An alternate plot of same/similar size and at same rate in a society of my choice at Rohini may be allotted to facilitate my early resettlement on retirement as such I do not have any place to stay in Delhi post retirement.” Even on subsequent occasions, the stand of the petitioner was consistent with the above request.

15. In the facts and circumstances of the case, it cannot be said that there was any lack of readiness or willingness on the part of the petitioner. The petitioner‟s repeated requests/ representations to the DDA seeking that DDA should not insist on retaining 100% payment when it was not in a position to hand over possession of the subject plot, cannot be said to be unreasonable or construed as evincing any lack of readiness or willingness on the part of the petitioner.

16. Despite the fact that the petitioner never at any stage sought 100% refund, the DDA, on its own accord proceeded to refund an amount of Rs.2,00,37,777/- without even issuing any order in terms of Clause 1.[9] of the „E-Auction Document‟, annulling the bidding process. As mentioned, the petitioner was desirous that 75% payment should be taken from him only when the DDA was in a position to hand over the possession of the subject plot. Such a request was eminently reasonable and in line with Clause 13 of Section II of Chapter III of the „E-Auction Document‟ as noticed herein above.

17. It is also noticeable that vide order dated 15.02.2021, passed by this Court in W.P.(C) 1970/2021 filed by the petitioner, in which one of the prayers sought by the petitioner was for restoration of allotment in respect of the subject plot, this Court had specifically directed that the said writ petition would be treated as petitioner‟s representation, and decision should be taken thereon. Thereafter, the petitioner is stated to have been heard on 24.02.2021, and appropriate orders were to be passed within two weeks thereafter, in terms of the said order dated 15.02.2021 passed by this Court. The DDA, however, did not comply with the said directions and did not pass any order within the time granted by this Court. In the meantime, on 16.03.2021, there was a material change in the circumstances, inasmuch as, the interim order dated 08.11.2019 was vacated. No hearing was granted to the petitioner after this material change in circumstances. Further, the petitioner had sent a representation dated 19.03.2021, whereby he offered to immediately make full payment in respect of the subject plot. A perusal of the speaking order that came to be passed on 08.06.2021, discloses that the material change in circumstances and the petitioner‟s communication dated 19.03.2021, whereby the petitioner sought to make full payment for the entire subject plot, was not even taken into consideration.

18. The respondents/DDA cannot be permitted to take advantage of its own lapse in not even informing the petitioner about the factum of the interim order dated 08.11.2019. It would be wholly unreasonable and arbitrary for the DDA to insist that an auction purchaser must make 100% payment even when the DDA was in no position to issue the possession letter in favour of the said auction purchaser. Also, once the impediment created as a result of the interim order dated 08.11.2019 was removed on 16.03.2021 upon vacation of the interim order; there was no reason why the DDA should not have concluded the transaction with the petitioner by demanding the remaining payment.

19. It is true that normally this Court would be circumspect in interfering with a contractual matter, and it is only when the decision-making process is clearly vitiated on account of arbitrariness and irrationality, that this Court would be constrained to interfere. In the case of Jagdish Mandal v. State of Orissa & Ors., (2007) 14 SCC 517, it was observed by the Supreme Court as under:-

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.”

20. In the case of Rishi Kiran Logistics Private Limited v. Board of Trustees of Kandla Port Trust & Ors., (2015) 13 SCC 233, the Supreme Court has observed that “Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.”

21. In the present case, as is evident from the above narration, the manner in which the respondents have proceeded with the decision-making process is palpably unreasonable and arbitrary; the DDA has not adhered to the terms of the „E-Auction Document‟ as explained hereinabove. As such, this is a fit case warranting exercise of jurisdiction under Article 226 of the Constitution of India.

22. In the light of the above, the impugned communication/ order dated 8.6.2021 is set aside; DDA is directed to restore the allotment of the subject plot bearing no. 31, Block E[2], Sector-7, Rohini-110085, and to complete the allotment process thereof. The amount deposited by the petitioner with the 18.08.2021, be released to the respondents/ DDA, along with accrued interest. Upon receipt of the said amount, the respondents/DDA may proceed with concluding the allotment process, subject to compliance with all relevant formalities as per the tender conditions, and hand over possession of the subject plot to the petitioner.

23. The petition is allowed in the aforesaid terms. All pending applications stand disposed of.

SACHIN DATTA, J. OCTOBER 31, 2022