ORDER
1. Against the common order dated 28th August, 2002 made by the learned Single Judge, deciding a common question in the writ petitions the present appeals are preferred.
2. There was refusal on the part of the respondent-DDA to allot shops to the appellants, who were the highest bidders in the auction held by the respondent.
3. It transpires that in the month of March, 2000 advertisement was issued by the respondent, the copy of which is placed on record at page 29 for mega sale of shops/offices on freehold basis through tender. The last date for submitting the tender was 18th April, 2000. We have considered question of one shop out of all these appeals to decide these appeals as the case of other shops are similar.
4. In LPA No. 769/2002 the shop No. 19 is the subject matter which is situated at CSC-6, Sector-7, Rohini, Phase-I, Delhi-110085. The shop was at ground floor admeasuring 15 sq. meters of area. The reserved price was Rs. 1,47,500/-. The appellant and some other bidders submitted their tenders. Before the last date, corngendum was issued by the respondent-DDA, copy of which is placed on record at page 40. There is no reference of the shop of the appellant. The corrigendum indicates changes in the shop i.e. its size and the amount, i.e. reserved price. So far as the present appellants are concerned, their shops were not included in the corrigendum. The appellant deposited 25% of the tender amount, i.e. Rs. 46,000/-. On opening of the bids he was found to be the highest bidder and, therefore, his bid was accepted and he was called upon to pay remaining amount of Rs. 1,39,885/-. The communication is produced on record at Annexure A4 in this behalf. The appellant deposited the said amount on 8th June, 2000. After the aforesaid amount was deposited with the respondent the appellant requested the authorities to hand over possession of the shop.
5. However, in the month of August, 2000 appellant was served with a letter giving three options, namely:
(1) To pay difference in the cost of the unit based on tender rate. (2) To opt for a shop on the basis of the area as tendered for the same in adjoining market, if available. (3) If none of the aforesaid options were acceptable, the unit would be withdrawn and the entire money will be refunded with earnest money deposited. 6. The appellants have challenged this communication, inter alia, praying that the tender was accepted and it was admittedly as per the guidelines "As is where is basis". The guidelines are prpduced at page 31. Para 4A of the said guideline is required to be quoted hereunder: "4A. Sale is on free hold basis and is on As is where is basis'. Before filling the tender form the tenderer is advised to see the concerned kiosk/shop/office and satisfy himself. It will be deemed that the tenderer has filled in the tender after seeing the kiosk/shop/office in question." 7. Thus, after visiting the site, namely, the shop herein the appellant submitted his tender which was accepted by the respondent and ultimately the amount was also accepted.
8. However, it appears that later on a question was raised that as in the shop, mezzanine floor is provided and, therefore, the appellant will be required to pay the cost of that mezzanine floor also. The appellant submitted that in the original tender notice published in the newspaper area was indicated with amount to be charged on the basis of the area indicated in the public notice. Had it been the intention of the respondent to charge for the mezzanine floor, the respondent would have indicated the change in size of the shop or change in price indicating the provision for mezzanine floor, in the corrigendum. It was submitted that in the instant case though corrigendum has been issued, but in the corrigendum so far as shop of the appellant is concerned, no reference is made. It was on this basis, learned Counsel for the appellant submitted that appellant was required to pay on the basis of the measurements indicated in the public notice. He gave his offer on “As is where is basis”.
9. Learned Counsel for the appellant submitted that before acceptance of tender if the appellant was made aware, possibly he would not have participated or he might have exercised his option for other shop. It may be noted that the option is given after the acceptance of the entire amount and not before. After the amount is received in toto there is no question of writing letters to call upon the appellants to make the payment. Once the contract is concluded it is not open for one party to change it unilaterally. It is required to be noted that the respondent has huge staff, including legal advisers, expert engineers. It was for the respondent before issuance of notice to be more careful and vigilant. Even at the time of corrigendum it was not thought fit to include the shops of the appellant(s) so as to indicate that the area is more with additional facility, i.e. mezzanine floor and the price will be more.
10. Learned Single Judge has observed as under:
“It is rather unfortunate that the respondent-authority should have been so negligent in doing the needful prior to the auction. If the mezzanine had to be counted and total floor area had to be taken, the respondent should have taken due care before bid. This they did not do.”
11. Thus, because of the negligent act on the part of the respondent the appellants are required to suffer. We would say that the respondent is paying handsome salary and perquisites to its officers. It is their duty to protect the interest of the respondent. As averred, after completion of transaction that they were entitled to claim the amount, then it was their duty to be more careful in discharging their duties. In our opinion, learned Single Judge has rightly pointed out that they acted negligently.
12. From the action initiated by the respondent, it is clear that the respondent wanted to recover higher price which can be claimed legitimately. It is suggested that because of more area i.e. to say mezzanine floor being provided, the respondent should not suffer more particularly when it is an authority under the Act. No doubt the respondent has to work for the benefit of the people and has to collect the amount from public in accordance with law. If the officers of the respondent, who are qualified, would have taken care and would have remained diligent, they would have indicated at the initial stage about the provision of mezzanine floor and would have calculated accordingly. If some care was taken at the time of corrigendum, then they would have brought to the notice of the people about the provision of mezzanine floor and higher charges, but they remained negligent and realized their mistake much later after the contract was concluded and, therefore, called upon the appellants to pay the difference in price and in alternative to opt for other shop if available or to take money and walk out. This negligent act of the officers amounts to loss to the DDA. The question is why DDA should suffer loss.
13. These officers must act in such a way to set an example to citizens and they should act in such a manner that on account of their act or omission, the DDA should not suffer.
14. In case of Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Ors., reported in (1997) SCC 35, the Apex Court observed as under in paragraph 11 of the judgment:
“The Minister holds public office though he gets constitutional status and performs functions under the Constitution, law or executive policy. The acts done and duties performed are public acts or duties as the holder of public office. Therefore, he owes certain accountability for the acts done or duties performed. In a democratic society governed by rule of law, power is conferred on the holder of the public office or the authority concerned by the Constitution by virtue of appointment. The holder of the office, therefore, gets opportunity to abuse or misuse the office. The politician who holds public office must perform public duties with the sense of purpose, and a sense of direction, under rules or sense of priorities. The purpose must be genuine in a free democratic society governed by the rule of law to further socio-economic democracy. The Executive Government should frame its policies to maintain the social order, stability, progress and morality. All actions of the Government are performed through/by individual persons in collective or joint or individual capacity. Therefore, they should morally be responsible for their actions.”
15. In case of Lucknow Development Authority v. M.K. Gupta, reported in III (1993) CPJ 7 (SC)=(1994) SCC 243, the Apex Court in paragraph 8 pointed out that the administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has taken may strides. In any case, the law has always maintained that the public authorities, who are entrusted with statutory functions cannot act negligently. Under our Constitution sovereignty vests in the people.
16. Public office is permitted to be occupied by the Public Officer-Public Servant keeping faith in them that they will act legally, intelligently and diligently so as to see that the public may not suffer. What is to be done when it is found that the officer has acted negligently, as a result of which public at large are suffering loss, as in the instant case, according to the respondent higher amount was to be charged but was not charged and after the contract was concluded it was realized that they are required to charge more. It is not a case of misrepresentation, fraud, or mistake of fact. On “As is where is basis” the property was to be dealt with. Thus, with an open eye tenders were invited after the construction was completed and the same was finalized. Therefore, there is no question of mistake of fact. It is a case where the officer(s) concerned has acted negligently and, therefore, such officer must suffer and must pay the loss suffered by the respondent/DDA. The public functionary should be duty conscious rather than power charged.
17. The concept of authority and power exercised by a public functionaries has many dimensions. The authority empowered to function under a statute while exercising power discharges public duty. It has to act to sub-serve general welfare and common good, in discharging this duty honestly and bona-fide. If in discharging his duties he has acted negligently and the public sector is required to suffer, the question is whether the negligent officer should be asked to pay or the public exchequer should suffer. There is battalion of officers including Civil Engineers, Planners, Architects and Legal Advisors. Was it not the duty of the respondent before making offer to the public at large to verify the area offered and the amount to be charged for such an offer? In a modern society no public officer can arrogate to itself the power to act in a manner negligently. He is required to act intelligently and diligently so as to see that public exchequer may not suffer. In the instant case, DDA is required to suffer as the officer concerned has not discharged duties, as required. Therefore, in a case like this, it is the bounded duty of the respondent authority to make a detailed inquiry and on the material placed before it should come to the conclusion whether department is required to suffer on account of negligent act of a particular officer or officers or not and it must find out by taking proper care as to who is the officer responsible and, thereafter, must recover the amount. This exercise must be done by the respondent within a reasonable period and according to us three months’ period is sufficient to make an inquiry and to make report to this Court about the action taken in the matter.
18. It is in view of this we direct the Vice-Chairman, DDA, to immediately conduct an inquiry and to recover the amount of loss which DDA is likely to suffer from the erring officers. We further direct that within a period of three months inquiry shall be completed and report shall be placed before the Court indicating whether amount has been recovered or not and if not, why?
19. Learned Single Judge held that the respondent would have taken due care before the bid. However, after coming to this conclusion the learned Single Judge observed that in the counter affidavit as it is pointed out that the consistent decision had been taken in respect of similarly situated persons by giving them options, respondent should not be compelled to allot a shop of a higher floor area than the floor area sold. In our opinion, this approach is not proper because there is a concluded contract and consistently respondent has come out that the area indicated in earlier tender notice was required to be offered. It may be noted that area would remain the same but because of the mezzanine floor the shopkeeper may have additional advantage of the mezzanine floor. But so far as the size of the shop is concerned that would remain the same. It is in view of this we allow these appeals with the aforesaid directions.
20. Obviously the writ petitions stand allowed. Order dated 14th August, 2000 is quashed and the respondent is directed to handover possession within a period of six weeks. The applications also stand disposed of accordingly.
Report as indicated to be filed.