Sadulla Shakur Sonde vs The Collector, Dist. Raigad ...
2003 Latest Caselaw 577 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Both these petitions have been filed by the petitioners for quashing and setting aside Notification dated March 11, 2003 and a public auction held in pursuance of the said Notification on March 19, 2003 and an Order/Agreement issued in favour of respondent No. 5 by directing the respondent-authorities to hold fresh auction in accordance with law.

2. The case of the petitioner in the first petition (Writ Petition No. 2612 of 2003) is that a Notification was issued on March 11, 2003 by the authorities for holding public auction for excavating sand from Savitri River and Bankot Khadi. Illegal auction was held and with a view to oblige respondent No. 5, his bid was accepted by the State Authorities in contravention of provisions of law and the petitioner and similarly situated persons were illegally deprived from participating at the auction. Several conditions which ought to have been observed before holding public auction were totally disregarded and ignoring public interest, final bid of Rs. 15,60,01,000/- of the fifth respondent has been accepted by the second respondent. The petitioner has stated that he is prepared to pay Rs. 17 crores. It is, therefore, prayed that the auction be set aside and fresh auction may be ordered.

3. Several contentions have been raised by the learned counsel for the petitioners. It was submitted that the Notification was issued on March 11, 2003, and the auction was held on March 19, 2003. Under Rule 39A of the Bombay Minor Mineral Extraction Rules, 1955 ("the Rules", for short), no public auction can be held,except in accordance with the Rules, which provide for fifteen days' notice. It was also contended that 3% of the upset price was required to be paid at the initial stage. Since it was not paid by the fifth respondent, the action was not in conformity with the conditions of auction. The auction was held for two districts, which was not according to the Rules. Respondent No. 2 cannot be said to be "Competent Officer" as defined in the Rules, and he could not have exercised the power. The action is mala fide and has been taken in colourable exercise of power with a view to favour respondent No. 5; and, hence, the action is vitiated. It has also caused prejudice to public exchequer. It was given for Rs. 15,60,01,000/-. The petitioner is prepared to pay Rs. 17,00,00,000/-. The counsel stated at the Bar that if this Court allows the petition and directs the authorities to hold fresh auction, the petitioner is prepared to accept it for Rs. 17,00,00,000/-. It was also stated that if the fresh auction would not fetch that amount, the petitioner will pay the said amount, and the respondents may directed to give contract to the petitioners. On all these grounds, it was submitted that the action of the respondent-authorities is clearly illegal,unlawful and liable to be set aside.

4. An affidavit similar to one filed in PII No. 22 of 2003 is filed in this case also. In PIL 22 of 2003, it was stated as to why the auction could be said to be legal and valid. It was also stated that normal practice was to hold auction for different districts separately. By holding a public auction for two districts, the Government has been substantially benefited. Figures have also been given in the affidavit-in-reply. Regarding fifteen days' notice, it was stated that the contract for the year 2002-03 was to expire on March 27, 2003, and keeping in mind that the Sate would lose revenue due to delay in auction-proceedings, ten days' notice was given in the leading newspapers on March 9, 2003. Wide publicity was given and all persons were aware of such an auction. The petitioner, however, did not turn out and take part in auction-sale. It was only respondent No. 5 who remained present and participated in the auction. In accordance with the terms and conditions of the auction, he had deposited the amount. Since he was the highest bidder, his bid was accepted. It was also stated in the counter that the contract has been awarded to respondent No. 5, and he had started excavation from April 14, 2003, after disposal of P.I.L. No. 22 of 2003. The petitioner is, hence, not entitled to any relief, and the petition deserves to be dismissed.

5. The learned counsel for respondent No. 5 Mr. A.A. Kumbhakoni, also supported the State authorities. He also stated that the petitioners have approached this Court after long delay, inasmuch as the auction was held on March 19, 2003, whereas Writ Petition No. 2612 of 2003 was filed on April 10, 2003 and Writ Petition [Stamp] No. 14862 of 2003 was filed on April 19, 2003. He also stated that the petitioner in Writ Petition No. 2612 of 2003 had approached civil Court by filing Reg. Civil Suit No. 55 of 2003 in the Court of Civil Judge (S.D.), Alibaug. Along with the plaint, he filed an application for interim relief, which came to be rejected by an order dated April 10, 2003. The suit was thereafter withdrawn by him and he has approached this Court by filing Writ Petition No. 2612 of 2003. It was, therefore, submitted that the petitioner has not come with clean hands. When he did not participate in the auction, he cannot make complaint as to why the bid of respondent No. 5 was accepted and contract was given to him.

6. Having heard the learned counsel for the parties, in our opinion, both the petitions are liable to be dismissed. Contentions which have been advanced before us were also advanced in P.I.L. No. 22 of 2003. Considering the affidavit-in-reply filed on behalf of the authorities, as also after hearing the learned counsel for the parties, we had held that the action taken by the authorities was legal, valid, in consonance with law and it benefited public exchequer. Keeping in mind all facts, we had dismissed the petition with costs.

7. In the instant case also, the petitioners are not entitled to any relief. Moreover, the petitioner of Writ Petition No. 2612 of 2003 did not take part at the auction-sale and did not remain present. It does not lie in his mouth to contend that the bid of respondent No. 5 ought not to have been accepted. This is not a case wherein a person, who was otherwise qualified and eligible, who was ready and willing to bid at the time of public auction, was prevented from bidding.

8. The Learned Additional Government Pleader, Mrs. J.S. Pawar, submitted that as stated in the affidavit-in-reply, only one person, respondent No. 5, remained present at the time of public auction. At the time of auction, sale terms were read out for the benefit of participants and auction-sale had started with upset price. It was denied that the auction took place by raising hands and not by calling tenders. Due publicity was given in local newspapers. Respondent No. 5 had deposited the requisite amount of 3% as Earnest Money. Since he was the only bidder who fulfilled the condition of Earnest Money, he was allowed to bid and as his bid was the highest, it was accepted by the authorities. The said action cannot be said to be illegal or contrary to law.

9. Reliance on a decision of the Supreme Court in Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation and Ors., does not support the case of the petitioners. In that case, one of the conditions of eligibility was deleted after the expiry of time-limit for submission of tenders but before opening them. In the circumstances, award of contract to a tenderer who, at the time of submission of tender, did not satisfy such condition, was set aside by this court, and the action was upheld by the Apex Court. The ratio laid down in the said case, therefore, does not apply to the facts of the case. Ramanna Dayaram Shetty v. The International Airport Authority of India and Ors., , is also on a similar point.

10. When a condition is relaxed, and similar consideration is not shown to all the bidders or proposed bidders, the action cannot be said to be in consonance with Article 14. But, when all the terms and conditions had been made clear, all eligible and qualified bidders were allowed to bid and thereafter, a decision was taken by the authorities, normally, in absence of mala fide or colourable exercise of power, such auction-sale cannot be set aside.

11. So far as mala fide exercise of power is concerned,there is nothing on record to show as to how the action an be said to be malicious or motivated. When respondent No. 5 alone was eligible and qualified to bid, when he alone remained present at the time of auction, when his bid was the highest bid, when he had paid Earnest Money as per the terms and conditions of the public notice, and when his bid was accepted, the said action, in our opinion, cannot be held to be in colourable exercise of power. It, therefore, cannot successfully be contended that with a view to award contract to respondent No. 5, the authorities had taken the decision impugned in these petitions. The said contention also has no force, and must be negatived.

12. For the foregoing reasons, in our opinion, both the petitions deserve to be dismissed, and are accordingly dismissed. In the facts and circumstances, however, there shall be no order as to costs.