1. - This appeal impugns the decision of learned Single Judge dated November 17, 1997 allowing the writ petition of M/s. Anokhi Builders Pvt. Ltd., respondent herein (for short Builder’), quashing the auction of plot held on August 5, 1996 by Jaipur Development Authority Jaipur, appellant herein, (for short ’JDA’) and directing JDA to refund sum of Rs. 18 lacs (the amount forfeited by JDA) to the Builder with interest.Contextual Facts :

2. Plot No. 7 situated at Indra Palace, Malviya Nagar Jaipur was to be auctioned by JDA for commercial purposes and building was allowed to be raised upto height of 30 mtrs. A brochure containing terms and conditions of the auction was distributed amongst all the persons participating in auction. Every participant was required to deposit Rs, 3 lacs as earnest money. The highest bidder had to deposit 5% of the total amount at the spot and 10% of the total amount within 24 hours from the tentative acceptance of the bid. It was clearly stated in the terms and conditions of auction that in case amount of 10% was not deposited within 24 hours, the amount already deposited by the bidder shall stand forfeited.

3. The Builder participated in the auction held on August 5, 1996 The Builder’s bid was RS; 15,000/- per square meter and being the highest bidder, the Builder deposited by demand draft a sum of Rs. 15 lacs. The matter : thereafter was placed before Commissioner JDA who accepted the bid and the Builder was required to deposit 10% of the total amount within 24 hours i.e. upto August 6, 1996. However on August 6, 1996 at 1.45 PM the Builder served a letter on JDA stating therein that since Air Port Authority could raise objection in regard to raising 30 meter height of the building, the JDA was : required to inform the Builder upto 3 PM as to whether No Objection Certificate in regard to raising the height upto 30 meter was obtained from Air Port Authority. In case the information regarding NOC was supplied by JDA by 3 PM, the Builder would deposit the balance amount on the same day. In the garb of this letter the Builder did not deposit 10% of he total amount. :

4. On August 8, 1996 Controller of Air Port wrote a letter to JDA that for construction of any building upto 35 meter of height, NOC would not be a problem. The JDA sent a telegram on August 8, 1996 to the Builder informing about said letter of Controller Air Port and asked the Builder to deposit the required amount upto August 9, 1996. Confirmatory letter was also sent but : the Builder refused to accept the letter.

5. On August 20, 1996 a notice was published by JDA in Daily News Paper that since despite the opportunity to deposit the amount upto August 9, 1996 the Builder had not deposited the required amount, the amount earlier deposited by the Builder stood forfeited. A letter dated August 20, 1 1996 was thereafter sent by the Builder informing the JDA that since JDA did not produce NOC from Air Port Authority, the offer of the Builder was to be treated as withdrawn. On September 2, 1996 JDA informed the Builder that his bid was cancelled and amount deposited by him stood forfeited.Submissions of Jda :

6. It was contended on behalf of JDA that Builder participated in the auction with open eyes and knowing fully well all the conditions of auction. The height of 30 meter was never a problem and it was clearly indicated in the brochure that Building of 30 mtrs. height could be raised over the plot. Ignoring this factual position learned Single Judge came to the conclusion that NOC will not be issued by the Air Port Authority for construction upto the height of 30 meters. Learned Single Judge even failed to consider the letter of Controller of Aerodrome Jaipur which indicated that issuance of NOC upto the height of 35 meters would not be a problem. Therefore the hypothetical situation created by the Builder was baseless. It was further urged that there was concluded contract between the JDA and the Builder which was accepted by the C