PRADEEP NANDRAJOG, J.
(1) ON 8. 8. 2001 DDA conducted an auction of commercial plots. One such plot being No. 10 (CS) Sector-7, Pocket E-I, Rohini, admeasuring 1717 sq. mtrs. was put to auction. Terms and conditions notified to the bidders, the following:-2. Bidding at auction and submission of application (i). . . . . . . . (ii) The bid shall be for the amount of the premium offered for the perpetual lease hold rights in the plot. The plot is being auctioned on 'as is where is basis'. It is presumed that the intending purchaser has inspected the site and familiarised himself with the prevalent site conditions in all respects before giving the bid. (iii). . . . . . . . . (iv). . . . . . . . . (v). . . . . . . . . (vi). . . . . . . . . (vii). . . . . . . . . (viii) In case the payment is not received within the stipulated period indicated in the demand letter, the auction bid shall automatically stand cancelled and the 25% earnest money shall stand forfeited, without any notice.
(2) AS per the terms of the auction, highest bidder was to deposit as earnest money a sum equivalent to 25% of his bid at the fall of the hammer. Remaining 75% was to be paid within 90 days of intimation of the bid confirmation coupled with the issuance of a demand letter. Further, this time period of 90 days was extendable up to a maximum of 180 days subject to payment of interest on the balance amount at the rate of 18% p. a. where the delay was 30 days or less and 25% p. a. where the delay exceed 30 days.
(3) PETITIONER submitted its bid at the auction held on 8. 8. 2001. Petitioner's bid was the highest. It was in the sum of Rs. 5,72,01,000/ -. 25% of the bid amount towards earnest money as per the terms of the auction in the sum of Rs. 1,43,00,250/- was deposited by the petitioner on the same day.
(4) BID confirmation letter was issued to the petitioner on 14. 8. 2001. Petitioner was required to deposit the balance sum of Rs. 4,29,00,500/- within 90 days as per the terms of auction.
(5) SITE plan displayed in the auction hall indicated the frontage of the plot abutting a 30 mtr. wide road.
(6) WITHIN the 90 days stipulated period in which petitioner had to submit the balance sum, on 13. 10. 2001 petitioner wrote a letter, to the Delhi Development authority. In the said letter petitioner communicated to the DDA as under:-
"to, dy. Director (Commercial Land)1st Floor, A-Block, vikas Sadan, new Delhi.
Sub: Time extension for plot No. CS-site, Block-E-1, Sector-7, Rohini, Delhi
Reference your demand Letter No. F92 (14)01/dda/cl/2088 dt. 14. 08. 2001, We are not able to deposit rs. 4,29,00,800/- in full as demanded in the said letter on or before the stipulated date i. e. , 11. 11. 2001 due to acute shortage of fund. We would also like to draw your kind attention that one huge H. T. Electrical structure (unwired) is existing on the main front of plot reason yet not known. You are requested to grant us an extension of 180 days time. We are ready to deposit interest on delayed period.
Yours sincerely, for Basant Projects Limited s/d (GOVIND AGGARWAL) Director"
(7) DDA responded to the petitioner's letter aforesaid on 11. 1. 2002. Following was communicated:-
"reference to your letter No. dated 30. 10. 2001 on the subject noted above, I am directed to inform you that Hon'ble Vice-Chairman, DDA has been pleased to grant extension of time up to 10. 5. 2002 subject to payment of interest @ 25% per annum for belated period of requisite payment with reference to demand letter dated 4. 8. 01. You are therefore requested to please deposit the requisite payment up to extended period with interest. Further, no extension of time will be granted under any circumstances. "
(8) RESPONSE of the petitioner to letter dated 11. 1. 2002 written to it by DDA was under cover of letter dated 14. 1. 2002. Same reads as under:-
Dy. Director (Commercial Land)1st Floor, A-Block, vikas Sadan, new Delhi.
Sub: CS. Site, Block-E. 1,sector-7, Rohini, Delhi ref. : F92 (14)01/dda/cc/2088 dt:14. 08. 2001
Your kind attention is invited on our previous letter dt:30. 10. 2001. wherein an extension of time for making the payment was sought due to shortage of fund. We have received the confirmation from your kind office for granting extension of time up to 10. 05. 2002 vide your's letter dt:11. 01. 02. but it is most unfortunate that status of H. T. Electrical structure erected on main front of the plot in question is still not resolved. In this regard we again emphasised here that.
i) At the time of auction the layout plan made available to us did not show any existence of H. T. Electrical structure right on main front of the aforesaid commercial plot thus we bid for Rs. 5,72,01,000/- against a reserve price of Rs. 1,58,00,000/-, under the belief that the commercial plot offered by you is having a nice front of 49 mtrs. on main 30 mtrs. road (copy of Plan enclosed). This was definitely an attraction which promp us to bid such a huge premium. Had we known that there would be a 18' x 18', very huge, high tension electric poles structure (Photograph enclosed) on the main front of the said plot, we would never opted such a huge premium.
(ii) Before the matter was clarified by D. D. A. as well as D. V. B. we requested for an extension of payment time to avoid any unforeseen circumstances.
(iii) It is now told by the Exe. Engineer (transmission line) D. V. B. , Mayapuri, that this structure can not be removed and going to be energised by 66000 volts electricity very soon. Keeping in view the above facts we request you to clarify the status of this structure which ultimately tantamount to concealment of facts, on the site plan appended with the auction form and serious alteration in the condition of the bid-form. In the above factual position or till the removal of said h. T. Structure, which itself invited alternative to defer the payment abeyance, though the D. D. A. has extended the period up to 180 days but the obstruction will definitely curtail the commercial value of the project. DDA is known for fair deal and it is expected that you will give us what you have assured us. We will clear the payment immediately after removal of these electric structure, therefore, kindly take steps either to clear this H. T. electrical structure or refund the amount deposited along with the interest and damages. You kind response is invited on the amicable solution with best Co-operation.
Yours Sincerely, for BASANT PROJECTS LIMITED s/d govind Aggarwal director/authorised Signatory. "
(9) PETITIONER did not receive any response to its letter dated 14. 2. 2002. It wrote a letter dated 20. 2. 2002 to the Delhi Vidyut Board requesting for shifting of the tower. On 5. 3. 2002 DDA wrote a letter to delhi Vidyut Board. Same reads as under:-
To, The Commercial Officer-III, Delhi Vidyut Board, IP Estate, New Delhi.
Sub Request for shifting of 66 KV tower in front of CSC, Sector-7, Pkt. E-1, Rohini, Delhi.
This has reference to representation made by basant Project Ltd. (copy enclosed) which is self explanatory. In this regard, I am to inform you that CS plot no. 10, measuring 1717 sqm. situated at Rohini, sector 7, Pkt. E-I, was purchased by M/s Basant Project ltd. in an open auction held on 08. 08. 2001. At the time of open auction, the site plan of the CSC site was displayed on the notice board of auction, wherein no steel tower height up to 30 mtr. was indicated on the R/w road 30 mtr. Moreover, as per Zonal development, no such provisions are mentioned on the road-facing plot in question. During inspection, it was revealed that this steel tower is unwired at present. This office has also made contact to the Ex. Engineer (Constn.) DVB, for the status of this Tower and they confirmed that there is some proposal for electrifying this tower by providing in looping and looping out 66 KV double circuit overhead line between Pitampura I and II at rg-I and Sector 3, Rohini. As per available Zonal Development Plan, no such type of tower shown on the right of way of Road 30 meter. If this steel tower is electrified then it will effect the frontal of CSC site to be constructed by the agency concerned and may pose hazard to the commuters/space buyers. You are, therefore, requested to please explore the possibility for shifting/ removing this steel tower on suitable place without affecting the frontage of CSC plot.
Yours faithfully, (SURAJIT ROY) DIRECTOR (CL)"
(10) TOWER continued to exist. Petitioner filed the present petition, inter alia, contending that the plot was a commercial plot. Site plan indicated that its frontage was abutting a 30 mtr. wide road. Site plan did not indicate existence of any such tower in front of the plot. Petitioner was lured by the location of the plot and consequently made a very high bid. Existence of the tower would considerably reduced the commercial importance of the plot. Prayer made in the writ petition is as under:-
a) Issue writ order or direction, in the nature of mandamus thereby directing the respondents to remove/shift the HT electricity pole (unwired) from the front portion of the plot bearing CS No. 10 admeasuring 1717 sq. mtr. situated at Sector-7, Pocket-E-1, Rohini, delhi.
b) Issue Writ order or direction in the nature of prohibition thereby restraining the respondent No. 1 from canceling the allotment of the aforesaid plot, made in favour of petitioner, for non payment of balance amount of Rs. 4,29,00,800/- till such time the respondent no. 2 either did not remove the aforesaid electricity pole or shift the same to some other suitable place. "
(11) RESPONSE of the DDA is that while auctioning the plot it was made clear that the plot is being auctioned on 'as is where is basis'. It was thus the duty of the petitioner to inspect the site before submitting the bid. Law requires it to be presumed that the petitioner had inspected the site. It is further the case of DDA that the existence of the tower was a mere ruse. Real reason is to be found in petitioner's letter dated 30. 10. 2001. Petitioner had clearly stated in the letter that due to acute shortage of funds it was unable to deposit rs. 4,29,00,800/-the balance bid amount. Petitioner had requested that time for payment be extended by 180 days. Petitioner undertook to deposit interest for delayed period. Reference in the letter to the high tension electrical structure was a passing reference.
(12) AS per the DDA, it wrote a letter dated 5. 3. 2002 to Delhi Vidyut Board to explore the possibility of shifting the tower. Response of Delhi Vidyut Board was under cover of its letter dated 22. 5. 2002. Delhi Vidyut board wrote back to the DDA as under:-Director (CL)D. D. A. , Vikas Sadan, n. Delhi.
(13) PETITIONER responded to the defence of DDA by stating in the rejoinder that no terms and conditions of auction were displayed. Petitioner learnt about the auction as per an advertisement published in the Delhi edition of the Times of India dated 10. 7. 2001 that 26 commercial plots would be auctioned on 8. 8. 2001. Advertisement indicated detailed terms and conditions of the auction could be obtained on payment of Rs. 200/- from the sales counter of DDA w. e. f. 19. 7. 2001. Petitioner approached DDA and purchased the terms and conditions of the auction on 8. 8. 2001 itself. It hardly gave any time to the petitioner to go through the terms of the auction much less time to inspect the property physically.
(14) BY the time, petitioner filed the present writ petition, distribution of electricity in the area was taken over by New Delhi Power Ltd. Petitioner impleaded said company as respondent No. 2. Response of the NDPL was that the area was developed by DDA which is the land owning agency as well as sponsoring agency. The tower in question was erected by the erstwhile Delhi Vidyut Board for feeding the 66 kv supply to 66 kv grid No. 1, Rohini. It was stated that the tower could not be relocated.
(15) DURING the course of the hearing of the writ petition, to find an alternative solution to the problem, at the hearing held on 29. 9. 2003, petitioner made an offer that it would be willing to bear the charges for shifting of the tower. Respondent No. 2 NDPL stated that it may be possible to shift the tower in case the petitioner was willing to pay for the same.
(16) NDPL filed an affidavit on 12. 12. 2003 stating that the only way in which electric supply was not interrupted and tower was removed was to dismantle the tower and lay underground cables. Cost likely to be incurred was indicated in the sum of Rs. 11,88,467. 50. Necessary details as to how such sum was arrived at was indicated in the affidavit. Finding shifting cost too excessive, petitioner left the issue.
(17) ON 13. 8. 2004, petitioner filed an additional affidavit. It was stated in the additional affidavit that a double circuit tower line is already existing as on date of filing of the said affidavit on the opposite side of the road. The line has been energised. It was stated that the electrical tower in question was rendered useless. It had lost utility as there was no other tower in line with the tower in question either on left or on right.
(18) RESPONDENT No. 2 filed its response to the additional affidavit filed by the petitioner on 13. 8. 2004, vide its affidavit dated 31. 8. 2004. Following was explained in the said additional affidavit. 3. The contents of para 3 are factually incorrect and misleading, hence denied. As submitted in the counter Affidavit to the Petition, the tower of which removal has been sought by the Petitioner was erected by the erstwhile DVB for feeding the 66 KV supply to 66 KV grid-I Rohini by providing looping in and looping out 66 kv double circuit overhead line between Pitampura-I and ii at Rohini Grid-I; Sector III Rohini. The contention of the petitioner that as of today the Tower has lost its utility and that there is no other tower in line with this tower so that the said tower can be put to use is totally incorrect and baseless, hence denied. It is submitted that there are stubs existing to the left of the tower (opposite grid-I) and also another tower is already existing to the right of the said tower in deepali Chowk, Opposite DDA office, which is presently being used for T-off arrangement of the circuit. The said tower will be used for "loop in and loop out" circuit as originally planned.
(19) MR. RAVINDER Sethi, learned senior counsel appearing for the petitioner at the hearing held on 3. 9. 2004 submitted that DDA never indicated existence of the tower when the auction was held. That DDA must take to its logical conclusion what it wrote to Delhi Vidyut board under cover of its letter dated 5. 3. 2002. That the tower has been erected without necessary permission from the competent authority. That the tower has lost utility as the area has been electrified. That till the tower was removed, balance sum could not be demanded from the petitioner.
(20) MS. SANGITA Chandra learned counsel for DDA urged that even as per the pleadings of the petitioner, it could obtain terms and conditions of the auction w. e. f. 19. 7. 2001 as per the advertisement published in the Delhi edition of the Times of India on 10. 7. 2001. If the petitioner chose to purchase the terms and conditions of the auction at the date of auction itself and did not inspect the site, it was the petitioner who was at fault. As far as DDA was concerned, term of the auction was on 'as is where is basis'. Counsel contended that the hon'ble Supreme Court in its decision dated 28. 7. 2004 in civil Appeal No. 2314/1998 M/s. Aggarwal Associates (Promoters) Ltd. Vs. DDA and Anr. had held that where a plot is sold on as is where is basis it has to be presumed that the intending purchaser had inspected the site and had familiarized himself with the prevalent site conditions. Counsel further contended that the real reason for non-payment was to be found in petitioner's letter dated 30. 10. 2001. Ms. Loveleen Bounthital contended that the tower had to be used for loop in and loop out, which was communicated by Delhi Vidyut Board under cover of its letter dated 22. 5. 2002. She further contended that the location of the tower was in conformity with the Indian Electricity Rules, 1956, in that, the minimum distance to be maintained from the boundary of the plot and the electric tower as specified in Rule 80 was maintained.
(21) ON a court query to counsel for respondent No. 2 whether her client was in possession of any sanction or whether, when Delhi Vidyut Board erected the tower necessary sanction was obtained, counsel contended that the approved circuit as per drawings showed that service line had to be erected. She however stated that the relevant drawings had got misplaced when Delhi Vidyut board was bifurcated into various statutory corporations.
(22) INDIAN Electricity Act, 1910, inter alia regulates the supply and use of electrical energy. Section 18 mandates:-Section 18 (1) Overhead lines: Save as provided in section 13, sub Section (3), nothing in this part shall be deemed to authorize or empower a licensee to play any overhead line along or across any street, railway, tramway, canal or water way unless and until the State government has communicated to him a general approval in writing all the methods of construction which he proposes of adopt:-Provided that the communication of such approval shall in no way relieve the licensee of his obligations with respect to any other consent required by or under this act. (2). . . . . . . (3). . . . . . . (4). . . . . . .
(23) SUB Section (3) of Section 13 deals with a case of emergency due to the break-down of an underground electric power line and empowers the licensee to carry out emergency work without prior approval.
(24) THE Indian Electricity Rules, 1956, inter alia regulate, installation of voltage lines. The said rule requires a horizontal clearance, minimum 2. 3 mtrs from the boundaries of a building to the place where the voltage lines have to pass.
(25) ISSUE has to be dealt with in two separate compartments. Firstly, whether the petitioner has a right to delay making payment to the DDA due to existence of the tower. Secondly, whether the tower can exist at the site.
(26) THE undisputed facts are that DDA published in the daily edition of the Times of India a public notice on 10. 7. 2001 informing the general public that various plots, including the plot in question, would be put to auction on 8. 8. 2001. The said public notice clearly indicated that the detailed terms and conditions of auction and the details of the plots to be auctioned can be obtained on payment of Rs. 200/- from the 'form Sales counter' w. e. f. 19. 7. 2001. Petitioner had enough time to obtain the detailed terms and conditions of the auction and the details of the plot by purchasing the necessary forms. Petitioner chose not to do so till the very last moment. Petitioner purchased the terms of the auction on 8. 8. 2001. Petitioner cannot predicate a stand that it had insufficient time to apprise itself of the terms and conditions of the auction. No party can take advantage of his own wrong. DDA gave sufficient time to the intending purchasers to not only apprise themselves of the terms and conditions of the auction but even obtain details of the plots to be auctioned. Petitioner cannot cry for its negligence.
(27) IT is the further undisputed position that the terms and conditions of auction, inter alia stipulated that the plot is being auctioned on 'as is where is basis'. The Hon'ble Supreme Court in its decision dated 28. 7. 2004 in Civil Appeal No. 2314/1998 M/s. Aggarwal associates Promoters Ltd. Vs. D. D. A. held:-
"the plot was sold to him on 'as is where is basis'. It had been made clear in the terms of the auction that it would be presumed that the intending purchaser has inspected the site and had familiarized himself with the prevalent site conditions in all respects before giving the bid. The appellant cannot be heard to say that he did not familiarize himself with the prevalent conditions which existed on the site. "
(28) SAID case related to where a well existed at the site of the plot and a drain ran throughout the plot. In spite of the fact that the site was encumbered, their lordships of the Hon'ble Supreme Court held that since the auction was on as is where is basis, appellant could not delay making payment to the DDA. It was a case where the appellant after submitting the bid which was accepted, sought to delay making payment by raising issues, one being that the site was encumbered.
(29) LEARNED counsel for the respondent is correct when she contends that the real reason why balance payment was not tendered is to be found in the letter dated 30. 10. 2001 written by the petitioner. In the said letter, petitioner sought extension of time for making payment stating that due to acute shortage of funds it could not tender the balance sum. Extension of time was sought. Petitioner made a passing reference in the said letter to the electric tower in question. What is worthwhile to be noted is that the petitioner never put it to be a condition of the payment of the balance sum that the tower had to be removed. In the said letter, petitioner unequivocally stated that due to acute shortage of funds it was unable to pay the balance sum and sought extension of time up to 180 days. Further petitioner unequivocally stated that it would pay the interest for delayed period.
(30) UNDER no circumstances could petitioner delay making payment to the Delhi Development Authority. It be noted that petitioner's request for extension of time was acceded to by DDA vide its letter dated 11. 1. 2002. Petitioner has not paid as per the extended time. Having obtained extension of time and having bound itself to pay the balance sum along with interest in the extended period, petitioner raked up the issue of existence of the tower. Petitione
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r attempted to shift the burden to DDA. (31) EXISTENCE of the tower had no concern with tendering of balance payment of the petitioner keeping in view the terms and conditions of the auction and the petitioner's letter dated 30. 10. 2001. (32) ON the second issue, it has to be noted that the tower was in existence when the auction was held. Further it is the undisputed position that the distance required to be maintained from the site and the tower and the plot in question as per Rule 80 of the Indian electricity Rules, 1956 is within the permissible norms. It is nowhere the case of the petitioner in the pleadings that the requisite clearances to be maintained as per law have been violated. (33) THE only thing wanting is the sanction from the state Government as per the mandate of Section 18 (1) of the Indian Electricity Act, 1910. (34) RESPONDENT No. 2 states that the tower has to be utilized for a loop in and loop out. Respondent No. 2 states that the approved drawings show that a H. T. line has to be led with the aid of the tower in question. Respondent No. 2 states that with the unbundling of Delhi vidyut Board relevant record has been misplaced. (35) SINCE as per the mandate of law, necessary approval of the State Government has to be obtained and since the alleged approval has not been shown to this court, petitioner would at best be entitled to a declaration that the tower cannot be utilized for laying high tension line in case it does not have the necessary approval of the State Government under section 18 of the indian Electricity Act, 1910. (36) WRIT petition is accordingly disposed of rejecting prayers A and B. However, declaratory relief as per para 35 above is granted in favour of the petitioner. (37) ON 15. 4. 2002, while issuing notice to show cause in the writ petition an interim order was passed in favour of the petitioner restraining DDA from canceling the bid. The said stay has continued to operate. Time for payment has elapsed. Keeping in view the fact that the writ petition has remained pending in this court for 2 years and 5 months and stay has endured, 30 days time is granted to the petitioner to tender the balance payment to the DDA along with the stipulated interest at the rate of 18% for 30 days delay beyond the initial 90 days period available to the petitioner for making payment and thereafter at the rate of 25% p. a. (38) NO costs.