PERMOD KOHLI,J. - (1.) RESPONDENT No. 1 proposed to construct a Bazar Complex at Main Road, Ranchi for commercial purposes. It issued a brochure giving the salient features of the proposed complex. As many as 29 shops were proposed to be constructed. Out of 29 shops, 23 shops were reserved for General Category, 3 shops numbering 3, 10 and 13 for Scheduled Tribe, 1 shop No. 26 for Scheduled Caste, 1 shop No. 6 for Physically disabled person and 1 shop No. 27 for woman. The shops were allotted by drawing lottery from the names of the applicants preferring allotment of the same. The period of allotment was on long lease of 66 years renewable thereafter at the discretion of Corporation with fresh terms and conditions. The Salami amount of lease for each shop was fixed at the rate of Rs. 1,000/ - for each sq. ft. area of the shop. The annual ground rent of the shop was fixed at the rate of Re. 1/ - per sq. ft. Interested persons/firms/institutions were required to apply in the prescribed form attached to the brochure giving preference for 3 shops. Some of the important conditions, regarding the payment of Salami amount and consequences on failure, incorporated in the brochure, being condition Nos. 14 and 16, which are relevant for purposes of this petition are noticed hereunder: 14. Out of the total Salami deposit amount, 1st installment of 25% amount will he payable within one month time as 1st installment the 2nd installment of 50% within four months lime and the last and 3rd installment of 25% within 6 month's time from the date of issue of allotment letter to candidates through a crossed Bank Draft in favour of B.S.T.D.C. payable at Patna. However, the possession of the shop shall be given to party only after the payment of 2nd installment i.e. after payment of 3/4th amount of Salami. 16. If the allottee fails to deposit 1st installment within stipulated 2 months after issue of allotment letter, his earnest money shall be forfeited. If allottee fails to deposit 2nd installment after depositing 1st installment within stipulated 6 months of allotment letter; his first installment deposit shall be forfeited. And if the allottee fails to deposit last installment of 25% within 2 months of taking possession or six months of issue of allotment letter which ever a later and/or does not start business withing this period. His allotment shall be cancelled and 1st installment of 25% paid by him shall be forfeited. The last date of submission of application form was 20.6.1989 till 5 P.M. Petitioner applied for allotment of shop and gave his preference for shop No. 1 and also got himself registered by paying Rs. 250/ - and also deposited earnest money of Rs. 5000/ - for participating in the draw of lottery as per the requirement of brochure. Lottery was drawn on 6.8.1989 and petitioner was found successful in draw of lottery in respect to shop No. 1. Vide letter No. 1331/89 dated 5.9.89 petitioner was communicated about draw of lottery in his favour in respect to shop. He was asked to deposit 1/4th amount through Bank Draft within one month and also to convey his consent within one month. Petitioner conveyed his consent on receipt of the said communication. On the basis of rates fixed in the brochure, the total amount payable by the petitioner for the shop was determined at Rs. 2,61,970/ - as the area of the shop No. 1 was 261.97 sq. ft. The amount of Salami was payable by the petitioner in three installments -1st installment being for Rs. 65,492.50/ -, 2nd installment for Rs. 1,30,985/ - and 3rd installment for Rs. 65,492.50/ -. Sum of Rs. 66,000/ - being the 1st installment was paid by the petitioner vide bank draft dated 25.9.1989. Petitioner paid further amount in the following manner: Rs. 40,000/ - vide bank draft dated 2.2.1990, Rs. 66,000/ - vide bank draft dated 3.2.1990 and Rs. 50,000/ - vide bank draft dated 9.4.1990. Petitioner vide letter dated 3.2.1990, requested the respondents to hand over the key of the shop. Vide another letter dated 9.4.1990, accompanied with the draft of Rs. 50,000/ -, petitioner again requested to make arrangement for handing over the shop to him and also stated that the balance amount shall be paid within one month from handing over the possession of the shop. It is alleged by the petitioner that the construction of shops was completed by the respondents in the year 1991 -92 and thus respondents did not hand over the possession to the petitioner and other allottees. It is also alleged by the petitioner that vide letter dated 16.8.1991 petitioner was asked to appear in the office of respondent No. 1 and to execute the agreement. When the petitioner approached the office of respondent No. 1, he was handed over a copy of the agreement. It was found that the Salami amount was fixed at Rs. 1400/ - per sq. ft. as against Rs. 1000/ - fixed in the brochure per sq. ft. Similarly, the ground rent payable at the rate of Re. 1/ - per sq. ft. per year was also changed to Re. 1/ - per sq. ft per month. Similarly, maintenance charge fixed at the rate of Re. 1/ - per sq. ft. of each shop per month under Clause 19 of the brochure was also enhanced to Rs. 1.50/ - per sq. ft. per month. Petitioner protested this unilateral enhancement but respondents did not bother. Petitioner again approached the respondents, vide letter dated 6.5.1997, along with bank draft of Rs. 64,750/ -, drawn on State Bank of India, but the respondents refused to accept the amount. Petitioner has placed on record copy of this letter as also the Xerox copy of the bank draft. He also filed an application dated 6.5.1997 stating therein that he has been visiting the office of respondent No. 1 and asking for handing over the possession of the shop and also to accept the money but nothing has been done. He again requested to hand over the possession of the shop, execute the agreement and receive the amount. It is stated that petitioner came to know that the shop allotted to the petitioner has been illegally allotted to respondent No. 4. On coming to know this fact, petitioner approached for issuance of copy of cancellation of his allotment and also for copy of allotment made in favour of respondent No. 4. He filed a detailed application dated 6.4.1998 to the Managing Director of respondent No. 1 protesting the allotment of shop No. 1 to respondent No. 4 and also asked for the copy of cancellation of his allotment and allotment of respondent No. 4. In this letter, petitioner has specifically mentioned about the amounts paid by him. It is under these circumstances petitioner has filed this petition seeking a direction in the nature of mandamus commanding upon respondent Nos. 1 to 3 to hand over the possession of the shop No. 1 to the petitioner and restraining the respondents from allotting/handing over the shop to respondent No. 4 and other relief.
(2.) THE main contentions of the petitioner are: that in terms of Clause 14 of the brochure, respondents were bound to hand over the possession of shop to the allottee on payment of 2nd installment and since the shops had not been constructed till 1990 -91, the possession was not handed over even though the petitioner had paid 1st and 2nd installments. It is further slated that in the year 1991, respondents arbitrarily enhanced the amount of Salami, ground rent and maintenance charges. It is further stated that allotment made in favour of respondent No. 4 in respect of shop No. 1 is totally illegal and arbitrary and the possession of the shop is required to be handed over to the petitioner. It has also been mentioned that under the brochure a person is entitled to only one shop whereas respondent No. 4 has been allotted four shops i.e. shop Nos. 1, 14, 15, and 16. Respondent Nos. 1 to 3 and 4 have filed their separate counter -affidavits besides challenging the maintainability of the writ application on the ground that it involves contractual obligations. It is stated that the installments were not paid by the petitioner as per the criteria/condition laid down i.e. within the time stipulated. It is also stated that the petitioner was asked a number of times to pay the balance amount and for that reliance is placed upon letter dated 26.3.1990, letter dated 27.2.1991, letter dated 16.8.1991 and letter dated 28.12.1991 which are annexed as Annexure -C series with the counter -affidavit of respondent Nos. 1 to 3. In paragraph -6 of the counter -affidavit, filed by respondent Nos. 1 to 3, it is mentioned that possession of the shop was to be given only after the payment of 2nd installment i.e. 3/4th of the total amount which comes to Rs. 1,96,477.50/ -. It is further mentioned that petitioner was required to deposit the 2nd installment being Rs. 1,30,985/ - by 4.1.1990 and the 3rd installment of Rs. 65,492/ - by 4.3.1990. However, petitioner failed to deposit the installment and committed default. Various letters referred to above are said to have been issued for depositing the balance amount. In paragraph 10 of the counter -affidavit, it is mentioned that since the petitioner did not deposit the full amount of settlement and consequently deposit made by the petitioner was forfeited and allotment had been cancelled as per Clause 16 and a decision was taken for a fresh settlement of the shop. In paragraph 11, it is further mentioned that fresh advertisement was published in newspaper inviting offers and ultimately the said shop has been allotted to respondent No. 4 on 29.3.1998. Respondents have further stated that action of Corporation in forfeiting the deposits of the petitioner and canceling the allotment and subsequent allotment of the same to the respondent No. 4 is proper and justified. Respondent No. 4, who is the beneficiary of the shop, while reiterating the ground of default, committed by the petitioner in payment of installments, stated that this respondent entered into an agreement with respondent No. 1 on 27.1.1998 and he paid Rs. 5,62,960/ - by way of 1st installment. It is further stated that respondent No. 1, vide its letter dated 29.3.1998, has asked this respondent to complete the payment of entire amount i.e. Rs. 14,06,600/ - for shop Nos. 1, 14, 15, and 16. Since he had paid Rs. 5,62,960/ -, he was to pay an amount of Rs. 8,43,960/ - by way of 12 equal installments of Rs. 70,330/ - in compliance to the letter of the Corporation dated 29.3.1998. According to this respondent, the amount was paid by 12 post -dated cheques for which receipt was issued to him and sent vide letter dated 20.4.1998. This respondent was asked vide letter dated 24.4.1998 to take possession of the shops in question and vide letter dated 6.5.1998, he was asked to execute the agreement. It is further stated that respondent No. 4 was again asked vide letter dated 26.2.1999 to appear before the Corporation on 8.3.1999 and execute the agreement. This respondent has also relied upon lease deed dated 12.3.1999, executed between the Corporation and respondent No. 4, in respect to four shops numbering 1, 14, 15, and 16. Further case of respondent No. 4 is that since the agreement between the petitioner and the Corporation stood terminated in the year 1990 itself, negotiation was held between the respondent No. 4 and the Corporation and accordingly shop was allotted to respondent No. 4.
(3.) I have heard learned Counsel for the parties at length.;