CIVIL WRIT PETITION NO.2684 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 27, 2011 M/s D.P.Towers Private Limited, New Delhi .....Petitioner VERSUS Government of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Ms. Reeta Kohli, Advocate, for the petitioner. Ms. Shruti Jain, AAG, Haryana, for the State. Mr. Rameshwar Malik, Advocate, for respondent Nos.4 and 5. **** RANJIT SINGH, J. Long ago, on 27.3.1989, Administrator, Municipality, Gurgaon published an advertisement for auction of a 3 Star Hotel site in Vyapar Sadan Shopping Complex on Gurgaon-Delhi/Mehrauli Road, Gurgaon. Terms and conditions of the auction were usual and the successful bidder was required to deposit 10% of the bid amount at the fall of hammer. Additional 15% of the bid amount was required CIVIL WRIT PETITION NO.2684 OF 2008 :{ 2 }: to be deposited within 30 days from the date of issue of acceptance of bid/allotment letter. Remaining 75% was payable either in lump- sum or in 9 half yearly equal instalments with 10% interest. Petitioner-M/s D.P.Towers Private Limited was the successful bidder and, thus, was required to deposit 15% of the bid amount i.e. `22,81,500/- within 30 days, failing which allotment in its favour was liable to be cancelled. The petitioner failed to deposit the 15% of the bid amount within the stipulated period. In fact, immediately after the bid, the petitioner wrote to Deputy Commissioner, for allowing adjoining parking space and green area for hotel on long term basis. Simultaneously, the petitioner also wrote to the Deputy Commissioner for accepting their bid for which they also wrote to the Administrator, Gurgaon Municipality. On 7.6.1989, Deputy Commissioner, Gurgaon, wrote to the petitioner, confirming acceptance of their bid. Allotment letter was accordingly issued on 27.6.1989, containing a condition of deposit of 15% bid amount within 30 days and remaining 75% within 60 days. Once the petitioner did not deposit the 15% of the bid amount, the allotment in its favour was cancelled on 22.12.1989. An amount of `15,21,000/- was ordered to be forfeited. Then followed, the process of filing various representations by the petitioner. The grievance of the petitioner has been that the allotment letter was not in consonance with the terms and condition of the auction and the amenities and services were not provided at the site on the date of auction and that scheme could not be executed for 20 years. Reference in this regard is made to noting CIVIL WRIT PETITION NO.2684 OF 2008 :{ 3 }: annexed with the petition as Annexure P-22. Noting sheet by Principal Secretary, Urban Development is also referred to plead that there had been procedural lapses on the part of Municipal Committee, Gurgaon. The petitioner had made some application under the Right to Information Act and accordingly had pleaded that the land was required to be restored to him ultimately. The petitioner has filed this writ petition in the year 2008 to challenge the order dated 22.12.1989 (Annexure P-9), cancelling the allotment and order dated 22.1.2007 (Annexure P-21), whereby representation filed by the petitioner to restore the allotment in its favour was declined. When this writ petition came up for hearing before the Division Bench of this Court on 25.2.2008, the Court clearly noticed that such type of writ petitions are only filed to have property on the rates prevalent in the year 1989. The court noticed that the total scenario has changed in Gurgaon and the land prices have become sky-high. Counsel for the petitioner accordingly was asked if the petitioner was willing to pay the market price as of date, then the Court may ask the authorities to consider the claim. The order passed by the Division Bench is as under:- “The sale of the hotel site in question was held on 27.3.1989. As per terms of the auction, the bidder was required to deposit 10% of the auction amount at the fall of hammer and further an amount of 15% of the bid amount within a period of 30 days so as to make the payment equal to 25% of the bid amount as per terms and conditions of the CIVIL WRIT PETITION NO.2684 OF 2008 :{ 4 }: bid. Admittedly, in this case, the petitioner has not deposited 15% of the bid amount till today. Ms.Kohli, learned counsel appearing for the petitioner contended that the petitioner had applied for extension of time for deposit of the amount but the same was not granted. She further states that while issuing letter of allotment, the respondents deviated from the terms and conditions pronounced at the time of holding auction. To our mind, these kinds of writ petitions are only to have the property on the rates prevalent in the year 1989. Now the total scenario has changed in Gurgaon and land prices have become sky high. Therefore, if the petitioner is willing to pay the market price as it is today of the hotel site in question, we may ask the authorities concerned to consider its claim. At this stage, Ms.Kohli says that she will seek instructions in this regard. Re-notify for hearing on 17.3.2008.” The counsel for the petitioner then appeared before the Court on 17.3.2008 with the instructions that the petitioner is willing to pay the market price of the hotel site in question, as is prevalent today. Notice of motion was then issued and the case was thereafter fixed on number of dates for filing of written statement and completion of proceedings. Thereafter, some effective proceedings appear to have taken place only on 21.7.2010, when Mr.Malik, CIVIL WRIT PETITION NO.2684 OF 2008 :{ 5 }: counsel appearing for respondent Nos.4 and 5, had placed on record a communication dated 16.7.2010 issued by Commissioner, M.C., Gurgaon, to Financial Commissioner, Local Bodies, showing that the matter has been referred to Government for consideration. While adjourning the case on 12.8.2010, this Court asked the respondents to take into consideration the order passed by the Hon'ble Supreme Court in SLP No.5679 of 2009. This order of the Supreme Court is as under:- “When the matter was called and was taken up for consideration, learned counsel appearing for the petitioner states that he has received instructions from the petitioner to inform this Court that the petitioner is agreeable to pay the amount at the rate demanded by the respondent No.3. We are informed by the counsel for the respondent that for allotment of the said plot being Plot No.313, Sector 8, IMT Manesar, the respondent No.3 is demanding a payment of an amount of Rs.3700/- per square metre with a statement that if amount, at the said rate, is paid by the petitioner, the said plot would be allotted in favour of the petitioner. Learned counsel appearing for respondent No.3 reiterates the position in view of the aforesaid statement of the counsel appearing for the parties. We accordingly direct that in the event, the petitioner makes payment of an amount of Rs.3,700/- per square metre for allotment of plot No.313, Sector 8, IMT,Manesar, within four weeks from today, the said plot CIVIL WRIT PETITION NO.2684 OF 2008 :{ 6 }: shall be allotted in favour of the petitioner in terms of this order as also in terms of the observation of the High Court which is under challenge in this petition. In terms of the aforesaid order, the petition stands disposed of.” The matter remained under consideration and on 24.9.2010, this Court was informed that after considering the issue at Government level it was decided that if the petitioner was ready to pay `80,000/- per square yard, then the Department has no objection in allotting the site. The counsel for the petitioner did raise a mild objection by pointing out that the State was increasing the rate day by day and made reference to a letter dated 5.8.2010, where Deputy Commissioner had communicated that the D.C rate prevalent in July 2008 was `50,000/- per sq. yard and on 3.8.2010, the rates were `60,000/- per square yard. This Court also had a doubt in this regard, as can be seen from the order where it is noticed that it is beyond imagination that within month the rates have increased from `60,000/- to `80,000/- per square yard. Still, the Court issued some directions for the petitioner to deposit the cost of the plot at the rate of `80,000/- per Sq.Yard, in terms of the decision of the Government within a period not later than three months. The detailed order passed by this Court on 24.9.2010 is as under:- “On 21.7.2010 Mr.Rameshwar Malik, Advocate placed on record communication dated 16.7.2010 issued by the Municipal Commissioner, Gurgaon to the Financial Commissioner & Principal Secretary to Govt., Haryana, CIVIL WRIT PETITION NO.2684 OF 2008 :{ 7 }: Department of Urban Local Bodies & Principal Secretary to Govt. Haryana, Department of Urban Local Bodies, whereby the matter was referred to the Govt. for consideration. The Govt. was, accordingly, asked to file an affidavit regarding the decision taken by the Govt. within two weeks. It seems that the Govt. could not take decision within the prescribed period and further opportunity was sought for taking decision. In the meantime, on 12.8.2010 the petitioner placed on record copy of an order dated 26.7.2010 passed by the Hon'ble Supreme Court in S.L.P. No.5679 of 2009 and the Govt. was directed to take into consideration the order of the Hon'ble Supreme Court while taking a decision. Despite this direction no decision was taken. When the matter was taken up on 6.9.2010 last opportunity was granted to the respondents to take a decision. Today Mr.Sharma has placed on record copy of a communication dated 24.9.2010 addressed from the office of Financial Commissioner & Principal Secretary to Govt. Haryana, Urban Local Bodies Department, Chandigarh to the Advocate General, Haryana. It has been conveyed that after considering the issue at the Govt. level, it has been decided that if, the petitioner is ready to pay Rs.80,000/- per sq. yard, the department has no objection in allotting the site. Ms.Kohli, learned counsel for the petitioner submits that the State is CIVIL WRIT PETITION NO.2684 OF 2008 :{ 8 }: increasing the rates day by day. To substantiate her contention, reference is made to letter dated 5.8.2010 which was produced by Mr.Rameshwar Malik on record of this Court. In the aforesaid letter the Deputy Commissioner had communicated that the D.C rates prevalent in July, 2008 was Rs.50,000/- per sq. yard and on 3.8.2010 it was Rs.60,000/- per sq.yard. It is beyond imagination that within a period of one month the rates have increased from Rs.60,000/- to Rs.80,000/- per sq.Yard. The matter is required to be considered. However, in view of the letter and offer of the Govt. for Rs.80,000/- per sq. yard, the following interim directions are issued:- 1. The petitioner shall deposit cost of the plot @ Rs.80,000/- per Sq.Yard as per the Govt. decision within a period of not later than 3 months. 2. On receipt of the entire amount the respondents will execute the conveyance deed in favour of the petitioner and grant all necessary sanctions/permissions to enable the petitioner to establish the hotel. 3. The amount deposited by the petitioner shall remain subject to the outcome of the writ petition. In the event of default of deposit of the amount, in view of the above directions, respondents shall be at liberty to deal with the property. List this matter for final disposal on 19.1.2011.” CIVIL WRIT PETITION NO.2684 OF 2008 :{ 9 }: From the above, it is clear that in the event of default, the respondents were given liberty to deal with the property in the manner it liked. Instead of availing this opportunity, the petitioner, not only failed to deposit the amount but has taken one evasive action or the other to avoid payment and to gain time. A miscellaneous application was moved before this Court for directing the respondents to inform the petitioner about the exact size, FAR as well as height of the building to be erected and the prayer to count the 3 months time for deposit of the requisite amount from the date of handing over of the information as prayed for in this application. Notice of this application was issued to the respondents, who filed reply and then the said application was listed for consideration. The writ petition was heard at some length on 20.1.2011, when the Court viewed that the decision by the Government to make an offer at the rate of `80,000/- per Sq.Yard of this Hotel site as was made to the petitioner was done in a reasonable and fair manner. Though not needed, the Court still gave option to the petitioner to accept the allotment of site at `80,000/- per Sq.Yard. The counsel after obtaining proper instructions submitted before the Court that the petitioner was ready to accept this offer. The petitioner had been doing so and has been able to gain time from 1989 onwards. When the case was taken up after short adjournment, the counsel for the petitioner submitted that the petitioner would pay 15% of the total amount calculated on the basis of rate as noticed above immediately and that he would clear the entire payment within CIVIL WRIT PETITION NO.2684 OF 2008 :{ 10 }: a period of 6 months from the date of allotment, if the allotment letter is issued upon deposit of 15% of the costs. This was so recorded in the order passed on 20.1.2011 and this reads as under:- “The case has been heard at some length. I have perused the Minutes, which have been placed before me by the counsel appearing for respondent Nos.4 & 5. Prima facie, I am of the view that the decision to make an offer at the rate of Rs.80,000/- per sq.yard of this hotel site to the petitioner was done in a reasonable and fair manner. There seems to be no ill will involved while taking this decision. Accordingly, offer was made to the counsel for the petitioner, if the petitioner is prepared to accept the allotment of the site at the rate of 80,000/- per sq.yard. After obtaining instructions, counsel submits that the petitioner is ready to accept this offer. After a short adjournment, the counsel submits that the petitioner would pay 15% of the total amount calculated on the basis of the rate as noticed above immediately and that the petitioner would clear the entire payment within a period of six months from the date of allotment, if issued upon deposit of 15% of the cost. Let the counsel for the respondents have instructions in this regard if the State is prepared to agree to the terms as offered by the counsel for the petitioner . Adjourned to 28.1.2011.” In fact, there was hardly any need to consider the prayer CIVIL WRIT PETITION NO.2684 OF 2008 :{ 11 }: of the petitioner as it was in violation of the directions given by the Court on 24.9.2010. The petitioner, thus, was able to circumvent the directions and succeeded in gaining further time in this clever manner. It is, thus, clear that the petitioner has not availed the opportunities given to it in plenty and has not complied with any directions issued by the Court or its commitments made before the Court, requiring the petitioner to deposit the cost within a period of three months from 24.9.2010. The matter had, thus, been dragged to January 2011 without paying even a paisa. The petitioner, thus, was not required to be shown any consideration. Still, the counsel for the respondents were required to have instructions in case the proposal submitted by the petitioner was acceptable or not. On few occasions, the counsel for the respondents prayed for adjournment on the ground that the proposal as given by the petitioner was under consideration. The Court was finally informed on 28.3.2011 that the proposal as given by the petitioner was not acceptable. The case was accordingly adjourned for hearing to 27.4.2011. The counsel for the parties have been heard. The counsel for the petitioner then has made an attempt to advance submissions on merits to challenge the cancellation order passed in 1989. By doing so, the counsel apparently was making an attempt to ignore what all had transpired in this case ever since the date of filing of this petition. To mind the challenge on merits has been foreclosed on the very first day, when writ came up for hearing. Counsel could not have been ignorant about this position. The CIVIL WRIT PETITION NO.2684 OF 2008 :{ 12 }: attention of the counsel was accordingly drawn to the background but she would still insist on making submissions on merits to challenge cancellation order passed in 1989. This approach may not sound fair and the Court can expect fair and proper assistance from the counsel. The counsel perhaps got a bit blurred in responsibility towards the Court. Even before issuance of notice of motion, the petitioner was put to terms and was clearly given to understand that petitioner's claim could be considered if the petitioner was willing to pay the market price. It is on this basis and the willingness expressed by the petitioner that notice of motion was issued by the Division Bench. Insistence on making submission by ignoring these facts and making an attempt to make submissions on merits may not receive appreciative nod. The counsel are expected to be fair and assist the Court in administration of justice. Not only that, the counsel for the petitioner, by insisting on making submission on merits, was wishing to give go-bye to various transactions and proceedings that had taken place before the Court. The petitioner does not appear to be sincere in making any payment and has only been wasting the time of Court by moving one application or another or by raising one submission or another without achieving anything. The petitioner was required to deposit an amount, which it could not do in the year 1989. Having waited for over two decades, the petitioner had been successful to revive its claim by filing this writ petition. It is due to the generosity shown that the petitioner is still being heard, though it has failed at every step. The petitioner is noticed to be not sincere in making the present approach. So much so that in between, the CIVIL WRIT PETITION NO.2684 OF 2008 :{ 13 }: petitioner had filed L.P.A against the interim order passed by this Court on 24.9.2010. Notice in the LPA as well as application seeking condonation of delay was issued and the period of 3 months for depositing the amount at the rate of `80,000/- per Sq.Yard. was extended upto 22.1.2011, which was the date fixed in the LPA. This LPA was finally withdrawn on 4.4.2011 without making any effort to deposit any amount. The petitioner is, thus, not sincere at all in making any payment despite various opportunities. There is no case on merit, equity or otherwise in favour of the petitioner. The writ petition is totally devoid of merit and, therefore, is dismissed. April 27, 2011 ( RANJIT SINGH ) khurmi JUDGE