R.L.ANAND, J. - (1.) M /s. R.S.B. Project Limited has filed the present Civil Writ Petition under Articles 226/227 of the Constitution of India for issuance of a writ in the nature of mandamus against respondent No. 3 directing it to refund a sum of Rs. 98,90,500/- being 25% of the bid amount along with interest @ 24%. The case set up by the petitioner is that on 15.4.1999, in an advertisement, appearing in the newspaper, issued by respondent No. 3 it was averred that certain land would be put to auction. The petitioner participated in that auction which took place on 21.4.1999. He was declared as the highest bidder. The land measuring 1.31 acres bearing plot No. 2 was put to auction for a sum of Rs. 3.2 crores per acre. The petitioner deposited a sum of Rs. 39,56,200/- being 10% of the bid amount and the remaining 15% was deposited by the petitioner within 30 days of the auction. A sum of Rs. 59,34,300/- was deposited on that date. The auction proceedings were approved by the Government of Haryana on 21.9.1999. On 1.10.1999, respondent- Corporation issued a letter of allotment in favour of the petitioner. According to the petitioner, he made a prayer for the delivery of the possession on 8.10.1999. It also undertook the exercise of appointing architects for the project of the Housing Society. Further petitioner paid a sum of Rs. 1 lac to the architect as advance payment. It is the case of the petitioner that respondent No. 3 deputed a Surveyor from Town Planning Department to demarcate the land and after demarcation it came to notice that entire area of the plot No. 2 was covered with trees. It came to the notice of the Corporation that the plantation was carried out by the Forest Department in the year 1996. On 4.11.199, the petitioner requested for the removal of the trees to facilitate early possession of the plot. On 14.12.1999, respondent-Corporation wrote to the Forest Authorities for the removal of the trees so that possession could be delivered to the petitioner. The Forest Department expressed its inability to remove the plantation as the plantation was carried out under the directions of the Hon'ble Supreme Court. On 13.1.2000, the petitioner again made a request for the early delivery of the possession and when the repeated requests of the petitioner did not bear fruit, he wrote a letter on 24.2.2000 for the refund of the amount of Rs. 98,90,500/- along with interest being failure of the consideration of the contract. Request for refund of amount was again repeated on 23.3.2000 but to no effect and finally on 18.5.2000, the petitioner served a legal notice calling upon the respondent-Corporation for the refund of the amount along with interest. On these premises, petitioner has made a prayer for the refund of the amount along with interest.
(2.) NOTICE of the writ petition was given to the respondents and the main contest is by respondent No. 3, which also filed written statement and denied the allegations. As per the letter of allotment, it could deliver the possession within three years from the date of the issuance of the allotment letter and since the possession was offered to the petitioner and he was not ready and willing, therefore, respondent-Corporation has the right to forfeit the money. In these circumstances, the relief cannot be granted to the petitioner. We have heard Shri Sanjiv Bansal, Advocate on behalf of the petitioner, Shri Arun Walia, Advocate for respondent No. 3 and with their assistance have gone through the records of the case. Some facts are not in dispute. In the auction held on 21.4.1999, the petitioner was the highest bidder and it had deposited a sum of Rs. 98,90,500/- with respondent No. 3. The only point of difference between the parties is as to whether the respondent No. 3 has backed out from the terms of the auction or that respondent No. 3 was obliged to deliver the possession of the plot either on the date or within a reasonable time from the date of auction and whether now the petitioner is bound to take the possession after a lapse of nearly 2 years. Certain documents were also filed by the parties along with the writ petition and in this regard we will like to refer to document annexure P-1, the auction notice, which would indicate that at the time of the auction it was never revealed by respondent No. 3 that the Corporation can deliver the possession within three years from the date of the issuance of the allotment letter. Annexure P-2 is a copy of the terms and conditions of the grand auction and as per clause No. 13, it has been inter alia stipulated that the sale of the site shall be subject to general terms and conditions as contained in the form of allotment letter under the Haryana Municipal Corporation Act, 1994. This letter annexure P-2 was also not read over at the time of the auction, meaning thereby that intending bidders were never aware about the possible terms and conditions which could be imposed and laid down by respondent No. 3 for the purpose of auction proceedings. The letter of allotment was issued on 1.10.1999 as per clause No. 1-(i), wherein it is mentioned : "The possession of Group Housing Site/plot No. 2 will be offered within 3 years from the date of issue of this letter or as soon as prescribed development works are completed whichever is earlier." This letter definitely was issued on 1.10.1999 and there is no dispute about it. Clause No. 1-(i), which is being relied upon by the learned Counsel appearing on behalf of respondent No. 3, was never read out. It cannot become integral part of any condition of bid at the time of the auction. There is also no cause and proof at all to establish that the terms regarding the delivery of the possession were ever announced or pronounced at the time of the auction. In these circumstances, the petitioner was never aware that the Corporation has the right to deliver the possession within a span of three years. Had it so, the petitioner would not have participated in the auction itself.
(3.) LET us see what was the conduct of the parties. The case set up by respondent No. 3 is that the petitioner was made aware about terms regarding delivery of the possession and that the petitioner has introduced a false letter dated 8.10.1999. The learned Counsel submitted that on 8.10.1999 only one letter was issued and that the second letter Annexure A-1 No. 9040 is a fabricated affair. We are not convinced with the submission. The letter annexure P-9 was issued by the Commissioner Municipal Corporation, Faridabad to the District Forest Officer, Ferozepur Jhirka in which there is a clear indication that the petitioner was crying for the possession and that respondent No. 3 was helpless in delivering the possession to the petitioner. The relevant contents of Annexure P-9 can be reproduced in the following manner :- "Since these plots are main sources of income for Municipal Corporation, Faridabad and the cost of each plot in auction has fetched between 2.5 and 3 crores rupees each. It is natural that the buyer was asking for clear possession of land. However, it has come to our knowledge that forest department has planted certain trees on these sites without our knowledge or permission and this has created problems for M.C.F. regarding handing over of clear possession of the sites to the parties." ;