Devinder Gupta, J.

1. The petitioner is seeking direction against the respondent to withdraw letter (Annexure-P) dated 13.10.1995 with further direction to allot to it C.S.C. Plot No. 6, Sector 15, Rohini, New Delhi at the auction rate i.e. taking the bid amount divided by the area of the plot announced at the time of auction.

2. The admitted facts are that in July, 1994, the respondent announced the auction of Convenient Shopping Centre Site No. 6, Sector 15, Rohini, New Delhi measuring 1285.51 sq. mts., which was to take place on 26.8.1994 at 11.30 a.m. at D.D.A. Auction Hall, Vikas Sadan, I.N.A. Market, New Delhi. The user prescribed was shop-cum-office. The auction took place on the specified date as per the terms and conditions of auction Annexure-B. The petitioner was declared the highest bidder at a premium of Rs. 24,35,000. Clause 2(vii) of the terms and conditions of auction inter alia provide that the size of the plot announced by the respondent was only approximate; and the highest bidder shall have to accept variation up to 15% either way in the area of the plot subject to the payment or refund as the casemay be of the amount of premium, for such varied area, at the auction rate. The auction, rate per sq. mt. for this purpose was to be calculated by dividing the amount of the premium offered as the highest bid by the area of the plot. The petitioner deposited a sum of Rs. 6,08,750 towards 25% of the bid money.

3. It is the petitioners case that as per the requirement of the terms and conditions petitioner No. 2 went to collect the demand notice after two days but the same was not ready. Again petitioner No. 2 visited the office of DDA on 6.9.1994 for the same purpose but he was informed that the demand letter had been sent by registered post to the petitioner. The same was received by the petitioner on 15.9.1994. On receipt of the demand notice (Annexure-D), the petitioner on the same day wrote letter (Annexure-E) to the respondent asking for the site plan along with) dimensions of the plot. The same were delivered to the petitioner by the respondent on 22.9.1994. It is stated by the petitioner that the plot are a depicted on the said site plan (Annexure-F) is 1285.57 sq. mts. and it also describes the boundary and other specifications. On receipt of the site plan, the petitioner got measured the area and was surprised to note that the actual area of the plot was 925 sq. fits. not 1285.51 sq. mts. and as such there was a difference of 28.2% in the area announced at the time of the bid and what was available on spot. Petitioner No. 2 thereafter visited the office of DDA. Officials of DDA informed petitioner No. 2 that the plot, which was actually meant for auction was a different plot with different boundaries and not plot No. 6, as per the site plan Anneuxre-F. Petitioner No. 2 was surprised at the stand taken by the respondents officials and on 29.9.1994 sent representation (Annexure-G) to Vice Chairman, D.D.A. informing that the petitioner was keen to make the balance payment although the plot was 925 sq. mts. and prayed for a fresh demand notice to be issued immediately. The petitioner had thereafter been pursuing the matter with the respondent by sending representations [(Annexures-I to O) dated 19.12.1994, 13.3.1995, 3.4.1995, 27.4.1995, 17.5.1995, 2.6.1995 and 23.6.1995] and personally contacting the concerned officials with a request to issue fresh demand notice as per the actual area of the plot and also emphasising that the respondent while retaining a sum of Rs. 6,08,750 time was not taking prompt steps to issue a fresh demand notice. After a long wait, the petitioner was surprised and shocked to receive letter (Annexure-P) dated 13.10.1995 informing that the area of the plot does not cover 15% variation, therefore, it had been decided to refund the earnest money. The petitioner was also informed that since the petitioner had failed to deposit the balance premium within the stipulated period, the auction bid had to be cancelled.

4. The aforementioned act of the respondent, as conveyed through letter dated 13.10.1995, in refunding the amount and cancelling the bid is under challenge as arbitrary, irrational and contrary to the terms and conditions of the bid.

5. The respondents in their reply dated 16.4.1996 filed on the affidavit of Shri D.P.S. Nagal, Director (CL), Delhi Development Authority, I.N.A., New Delhi have stated that as per terms and conditions of the auction, the petitioner had to deposit the balance premium of Rs. 18,26,300 within 45 days from the date of the issue of the demand letter, which was issued to the petitioner on 6.9.1994. The due date for payment of the balance premium as such was 20.10.1994. The conditions of auction provided that in the event of failure of the auction purchaser to deposit the balance premium, the auction bid was liable to be cancelled and earnest money forfeited. The petitioner instead of depositing the balance premium, raised the issue of the size of the plot. As demand-cum-allotment letter had already been issued to the petitioner on 6.9.1994, there was no question of issuing a fresh demand letter. It is further stated that the size of the plot announced at the time of auction was 1285.51 sq. mts. However, the actual area of the plot was 1081.92 sq. mts. at the site. As the variation of the plot size announced at the time of action and the actual area on the site was more than 15%, therefore, in terms of Clause 2(vii) of the terms and conditions of auction, it was decided to refund the earnest money deposited by the petitioner, though in terms of Clause 2(vi) of the auction conditions, the earnest money was liable to be forfeited, owing to the failure on the part of the petitioner to deposit the balance premium. As such it is stated that there is no arbitrariness or illegality in issuing the impugned letter.

6. We have heard learned Counsel for the parties and been taken through the record.

7. There is no manner of doubt that as per the conditions of auction, the balance amount of premium was payable within 45 days from the date of issue of the allotment-cum-demand letter and in the event of failure to deposit the balance amount of premium within the stipulated period, the amount of earnest money was liable to be forfeited. It is so provided in Clause 2(vi), which reads:

The highest bidder is required to collect the allotment-cum-demand letter not later than the second working day after the date of auction from the special counter, main Reception ground floor, Vikas Sad an, New Delhi between 4.00 p.m. to 5.00 p.m. The highest bidder is required to make the payment of the balance 75% amount demanded vide demand letter referred to above, within 45 days from the date of issue of the demand letter by bank draft only in the branches of Central Bank of India/State Bank of India, Vikas Sadan, New Delhi. In case the bidder fails to collect the demand letter as stipulated above, the earnest money shall stand forfeited and if the bid is not accepted, the earnest money will be refunded to the bidder without any interest.

Clause 2(vii) of the terms dealing with variation in the size of plot says:

The size of the plot announced by the DDA being only approximate, bidder whose bid if accepted shall have to accept variation up to 15% either way in the area of the plot for which the bid has been offered subject to payment or refund as the case may be, of the amount of premium for such varied area at the auction rate. The auction rate per sq. mtr. for this purpose shall be calculated by dividing the amount of premium offered as the highest bid by the area of the plot announced.

8. The narration of the aforesaid admitted facts makes it abundantly clear that the area of plot as announced by the respondent was 1285.51 sq. mts. and in terms of Clause 2(vii), on acceptance of the highest bid, the petitioner had to accept variation up to 15% either way in the area of the plot, subject to payment or refund.

9. On receipt of allotment-cum-demand letter (Annexure-D), which was issued for an area of 1285.51 sq. mts. immediately the petitioner on 15.9.1994requested the respondent to supply him the site plan with complete dimensions as there were lot of bushes on the said plot. The petitioner also informed that as per rules, it was ready to make payment. On receipt of the plan, the petitioner, much prior to expiry of 45 days, wrote letter (Annexure-G) on 29.9.1994, inter alia stating

That on the 15th Sept., 1994 we wrote to the Joint Director CL of the DDA requesting that the site plan with complete dimension be given to us and further informed that they are ready to make the balance payment. That on 22.9.94 the Junior Engineer concerned issued the site plan duly signed by him and we counter signed it and the same was duly delivered to us which showed the plot No. 6 which was auctioned on the 26.8.94 in Sector 15 being the Convenient Shopping Centre for an area of 1285.51 sq. mts. which was 33.39 x 38.50 mts. The plan showed that there was a path abutting pocket 10 and there was a road on the Eastern side abutting Pocket II.

That after the site plan was delivered to us, we got the plot inspected and found that the plot measure only 925 sq. mts. We have been visiting concerned department and were surprised to note that a different plot having different boundaries situated at a different site was being offered instead of what we had bid for.We wish to make it clear that we had bid for a particular plot as detailed by your department at the auction hall.

We wish to emphasis that we are very keen to make the proportionate balance payment although the plot size is as much (925 sq. meters instead of 1285.51 sq. mtr.).

[Emphasis supplied]

10. It is the petitioners case and is also not disputed by the respondent that similar request was reiterated orally from time to time by paying frequent visits to the office of the respondent coupled with sending as many as seven communications (Annexures-I to O) but there was no response from the respondent till the date when impugned letter dated 13.10.1995 (Annexure-P.) was sent.

11. The respondents case now is that the actual area on the spot was not 1285.51 sq. mts. but it is 1081.95 sq. mts though it is asserted by the petitioner and it has been so asserted eversince the petitioner submitted its representation (Annexure-G) that the plot area is 925 sq. mts. Thus the variation in any case is more than 15%. In case variation is more than 15%, Clause 2(vii) would not apply, which (vii) would apply only when variation is within 15%. The variation would have been apply within 15% had the respondents at the time of auction announced, as per their own stand the plot area .to be 1081.92 sq. mts. In view of these circumstances, the petitioner was perfectly justified in not making the payment when it found that the variation was more than 15% and for that reason, the respondent was not justified in having waited for such a long time till 13.10.95 to take decision in the matter. Under the circumstances, the respondent ought to have issued a fresh demand notice, after it was satisfied that at the time of auction wrong area was declared. The demand notice issued was with respect to an area of 1285.51 sq. mts. and not for 1081.92 sq. mts, After the case was examined and the respondent also was of the view that by mistake or otherwise the area announced was more than what ought to have been announced, it ought to have issued a fresh demand letter for 1081.92 sq. mts., may be at the auctioned rate.

12. The action of the respondent in issuing letter (Annexure-P. 10) for the sole reason that variation in area is more than 15% cannot be said to be rational one. Mentioning of incorrect area of the plot in auction notice was not due to any of the petitioners act but it has as a result of mistake committed by the respondent.

13. Thus the action of respondent not to accept the bid and to return the amount deposited by the petitioner being arbitrary and irrational is liable to be quashed. Respondent also failed to call upon the petitioners option before sending the impugned letter. The petitioner being the highest bidder and having deposited 25% of the bid amount had reasonable expectation of acceptance of its bid for the actual area, which was disclosed by the respondent, for the first time in the impugned letter. Learned Counsel for the petitioner frankly and rightly so stated that the petitioner is prepared to treat his highest bid of Rs. 24,35,000, not for 1285.51 sq. mts., but for 1081.02 sq. mts. and is also prepared to treat the demand notice relatable to plot area of 1081.92 sq. mts.

14. Consequently, the decision of the respondent as conveyed through the impugned letter is quashed and set aside and the writ petition is disposed of with a direction to the respondent to treat the demand notice (Annexure-D) as having been issued today, on acceptance of the petitioners highest bid with respect to plot area of 1081.92 sq. mts. For a total premium of Rs. 24,35,000. After deducting a sum of Rs. 6,08,750, the balance amount of Rs. 18.26,300 inclusive of documentation charges and miscellaneous expenses, and in addition to any other miscellaneous expenses will be deposited within a period of 45 days from today. On deposit of the said amount, the respondent will duly put the petitioner in possession of the plot in question and execute necessary documents on the petitioners complying With other usual requirements. It is made clear that the rights of the parties will be governed by the terms and conditions of sale on the assumption that the plot area, as notified by respondent was 1081.92 sq. mts. and not 1285.51 sq. mts., for which, the highest bid of Rs. 24,35,000 of the petitioner has been accepted with the condition that the petitioner has accepted the size of the plot as 1081.92 sq. mts. and will accept variation up to 15% either way in the area of the plot subject to payment or refund, as the case may be, of the amount of premium for the varied area at the auction rate. Petition stands disposed of.