Bombay High Court
Aurangabad Zilha Krushi & ... vs The State Of Maharashtra on 29 November, 2011
Bench: B.R. Gavai, M.T. Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4266 OF 2011
Aurangabad Zilha Krushi & Auddhugik
Bauuddeshiya Sarva Seva Sahakari
Sansthancha Sahakari Sangha Maryadit,
Aurangabad, having its registered
office at 31, Shivjyoti Colony,
N-6, CIDCO, Aurangabad, through its
Chairman Mr. Ambadas s/o Aabaji
Mankape PETITIONER
VERSUS
1. The State of Maharashtra,
through the Principal Secretary,
Co-operative Department,
Mantralaya, Mumbai.
2. The Commissioner of Co-operation
(Marketing) @ Registrar,
Cooperative Societies, Maharashtra
State, Pune, 3rd Floor, New
Administrative Building, Pune.
3. The Director (Marketing),
Cooperative Societies,
Maharashtra State, 3rd Floor,
New Administrative Building, Pune.
4. District Deputy Registrar,
Cooperative Societies, Aurangabad.
5. Aurangabad District Agriculture
Industrial All Services Cooperative
Societies Limited, Aurangabad
(De-registered), through its
Government Assignee @ Assistant
Registrar, Cooperative Societies,
Aurangabad.
6. M/s Abbas Transport Company,
through its partner Shri Ajaj Khan
s/o Abbas Khan, R/o Motiwalanagar,
Opp. M.G.M. Hospital, CIDCO, N-7,
Aurangabad. RESPONDENTS
::: Downloaded on - 09/06/2013 17:57:58 :::
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....
Mr. V.J. Dixit, Senior Advocate, instructed by
Mr. V.B. Garud, advocate for the Petitioner.
Mr. K.M. Suryawanshi, A.G.P. for
the Respondent/State.
Mr. Deelip Bankar-Patil, advocate for
the Respondent No.5.
Mr. P.V. Mandlik, Senior Advocate, instructed by
Mr. Amol Gandhi, advocate for the Respondent No. 6.
....
CORAM : B.R. GAVAI AND
M.T. JOSHI, JJ.
DATED : 29th NOVEMBER, 2011
ORAL JUDGEMENT (PER : B.R. GAVAI, J.) :
1. Rule. Rule made returnable forthwith and
heard finally, by consent.
2. The petitioner had initially approached this
Court for a direction in the nature of a writ of
mandamus, directing the respondents to withdraw the
Public Tender Notice, published in Daily Sakal,
Aurangabad dated 27th May, 2011, for the property
bearing CTS No. 9233, admeasuring 685.75 sq. mtr. and
963.80 sq. mtr., situated at Jinsi Market Yard,
Aurangabad, owned and possessed by the Respondent No.
5 Society, which is under liquidation.
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3. This Court, vide order dated 17th June,
2011, had issued notice before admission. The matter
was thereafter listed before this Court (i.e. the
Bench consisting of Hon'ble Shri Justice D.B. Bhosale
and Hon'ble Shri Justice S.B. Deshmukh) on 15th July,
2011. It appears from record that when the matter
was heard on 15th July, 2011, a statement was made on
behalf of respondent No. 6 - M/s Abbas Transport
Company that their offer of Rs. 73 lakhs and some odd
amount had been accepted and they had deposited part
of the amount with Respondent No. 5. On that day,
learned Senior Counsel appearing for the petitioner
sought leave to add M/s Abbas Transport i.e. present
Respondent No. 6 as party-respondent. A statement
was also made on behalf of the petitioner that the
petitioner shall deposit an amount of Rs. 75 lakhs in
this Court before the next date to show their
bonafides. Said statement on behalf of the
petitioner was accepted. In view of said statement
on behalf of the petitioner, the Respondent No. 5 was
directed not to confirm the sale till the next date.
It is not in dispute that accordingly, the petitioner
has deposited an amount of Rs. 75 lakhs in this
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Court.
4. After the change of roster, the matter was
listed before this Bench. When the matter came up
before this Court on 20th October, 2011, noticing
that the learned Senior Counsel appearing for the
petitioner had made a statement that valuation of the
property in question was not less than
Rs.1,11,00,000/-, we had asked learned Senior Counsel
for the petitioner as to whether the petitioner was
willing to file an undertaking to that effect. On
20th October, 2011, Shri Dixit, learned Senior
Counsel, on behalf of the petitioner, made a
categorical statement that the petitioner was willing
to give an offer of Rs. 1,11,00,000/-. On the said
date, we had asked Shri Mandlik, learned Senior
Counsel, appearing for Respondent No. 6, as to
whether the Respondent No. 6 is willing to give a
better offer than the petitioner. Shri Mandlik
informed us that the main partner of Respondent No. 6
Company, namely, Mr. Fayyaz Khan was undergoing a
major operation and as such, he could not make the
offer on the said date and sought an adjournment.
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Since, we had substantially heard the matter on
various dates and as the matter was being adjourned
only because Shri Mandlik, learned Senior Counsel for
the Respondent No. 6, could not make the statement on
the ground of the partner of his client being ill
and since the assignment was likely to change
immediately, the matter was directed to be treated as
part-heard, at the request of the counsel for the
parties. Accordingly, the matter was directed to be
listed after Diwali Vacations i.e. on 9th November,
2011.
5. On 9th November, 2011, when the matter was
listed before the Bench, presided over by Hon'ble
Shri Justice Naresh H. Patil, noticing that this
Bench had, on earlier date, directed the matter to be
treated as part-heard, the Court directed the
Registry to place the matter before this Bench.
Accordingly, on 14th November, 2011, the matter was
listed before us. We found that in the interest of
justice, it would be appropriate that both the
parties are permitted to give their bids before this
Court. We had, therefore, taken offers from both the
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parties in the open Court and both - the petitioner
as well as Respondent No. 6 - had progressively
increased their offers and had finally agreed to give
an offer of Rs. 1 Crore 50 Lakhs. A statement was
also made by Shri Dixit, learned Senior Counsel, that
since the petitioner is a Society, the petitioner was
also willing to give a better offer, however, subject
to approval by the Managing Committee of the
petitioner and therefore sought an adjournment.
6. We found that any further delay may not be
in the interest of the Respondent No. 5 and had,
therefore, dictated an order on 14th November, 2011,
thereby dismissing the petition subject to the
Respondent No. 6 giving an undertaking that he shall
pay an amount of Rs. 1 Crore 50 Lakhs, which
undertaking was given on behalf of Respondent No. 6.
7. However, after the order was dictated, we
found that certain issues which were raised in the
petition were not considered by us while dictating
the order. In that view of the matter, the interest
of justice demanded that the matter be posted for re-
hearing for considering all the issues and as such,
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the matter was directed to be posted for re-hearing
on 18th November, 2011. On the said date, Shri
Dixit, learned Senior Counsel appearing for the
petitioner, made a statement that the petitioner was
willing to submit a resolution of the petitioner
Society before this Court within a period of one week
from that day to the effect that the petitioner was
willing to give minimum offer of Rs. 1 Crore 51
Lakhs. We, therefore, found that when the petitioner
and the respondent No. 6 had increased their
respective offer from Rs. 73 Lakhs to Rs. 1 Crore 51
Lakhs, if the wide publicity was given, there was a
possibility of fetching a much higher price. We are
of the considered view that in such sort of
litigation, what was paramount was the public
interest which demands that a property belonging to a
Public Body should fetch the best possible price. We
found that this could be done by directing the fresh
auction process to be undertaken and putting a
condition on the party who has sought interference of
this Court that he will bid a minimum price of Rs. 1
Crore 51 Lakhs. We had noticed that the petitioner
has already deposited an amount of Rs. 75 Lakhs in
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this Court. We were, therefore, of the prima facie
view that the interest of the Respondent No. 5 was
squarely safeguarded. However, we were of the view
that before any such course was adopted, it was
necessary to give complete and full-fledged hearing
to the Respondent No. 6, who was to ultimately lose
his rights in the event, such an order was passed.
Accordingly, we had directed the matter to be posted
for hearing today i.e. 29th November, 2011,
specifically at 2.30 P.M., with the consent of the
learned counsel for the parties.
8. We have extensively heard Shri V.J. Dixit,
learned Senior Counsel appearing for the petitioner,
Shri P.V. Mandlik, learned Senior Counsel appearing
for the Respondent No. 6, Shri Deelip Bankar-Patil,
learned counsel for the Respondent No. 5 and the
learned A.G.P. appearing for the Respondent Nos. 1 to
4.
9. Shri Dixit, learned Senior Counsel appearing
for the petitioner, submits that in view of Section
105 of the Maharashtra Cooperative Societies Act,
1960 (hereinafter referred to as "the MCS Act", for
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brevity), the petitioner had a preferential right.
It is submitted that since the petitioner had already
communicated to the Respondent Nos. 4 and 5 regarding
their preferential rights and requested for transfer
of the assets of the Respondent No. 5 to them, as the
petitioner Society was a Society registered with the
similar objects as those of the Respondent No. 5, it
had approached this Court immediately after the
tender notice was published. He further submits that
in view of the provisions of Section 110 of the MCS
Act, the Respondent - Registrar is duty-bound to
invest the surplus funds available with it after
liquidation of Respondent No. 5 as the petitioner is
a Society registered with similar objects with those
of the Respondent No. 5. The learned Senior Counsel
relies on various judgements of the Apex Court which
refer to permissibility of interference by this Court
in its jurisdiction under Article 226 of the
Constitution of India in such matters.
10. Per contra, Shri Mandlik, learned Senior
Counsel appearing on behalf of the Respondent No.6,
submit that the petitioner has no locus at all to
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approach this Court. It is submitted that the
petitioner having purchased the tender form and
having not participated in the tender process is
estopped from approaching this Court. It is submitted
that the petitioner, who has taken godown on rent
from Respondent No. 5, has not even paid the rent and
has not submitted audited balance-sheet for last
three years. It is further submitted that there is no
violation of any fundamental right of the petitioner
and hence, the petition under Article 226 of the
Constitution would not be at all maintainable. Shri
Mandlik relies on following judgements of the Apex
Court;
(i) Directorate of Education and others vs.
Educomp Datamatics Ltd. and others
(2004) 4 S.C.C. 19
(ii) B.S.N. Joshi and Sons Ltd. vs.
Nair Coal Services Ltd. and others
(2006) 11 S.C.C. 548
(iii) Nizam Sugar Factory vs.
Collector of Central Excise, A.P.
(2006) 11 S.C.C. 573
(iv) Tata Cellular vs. Union of India
AIR 1996 S.C. 11
(v) Sterling Computers Ltd. vs.
M/s M. & N. Publications
AIR 1996 SC 51
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(vi) B.S.N.L. vs. Telephone Cables Ltd.
(2010 (6) SCC 756
(vii) K.D. Sharma vs.
Steel Authority of India Ltd. & others
2008 (12) SCC 481
(viii) Forward Construction Company, etc. vs.
Prabhat Mandal (Regd.), etc.
1986 (1) SCC 100
in support of his proposition that scope of judicial
review by this Court under Article 226 of the
Constitution is very limited and this Court would not
be permitted to interfere unless it is found that in
the decision-making process there is illegality,
irrationality, arbitrariness or malafides. Shri
Mandlik submits that in the present case, none of
these factors are available and for no reason, the
Respondent No. 6 who was the only bidder, is being
penalized, by taking away the rights those were
crystallized in favour of the Respondent No. 6.
11. For considering the rival submissions, we
will have to consider the provisions of Section 105
and Section 110 of the MCS Act. Section 105 deals
with the powers of the Liquidator. No doubt that
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Clause (c-i) of the said Section, which deals with
one of the modes by which the property of the
Society, which is under liquidation, can be sold,
permits a transfer by sale of assets valued at market
price to a society registered with similar objects or
to Government undertaking which carries on the same
business as of the society under liquidation.
However, the said provision does not mandate that a
preferential right has to be given to a Society
registered with the similar objects. In that view of
the matter, we are not inclined to accept the
contention raised on behalf of the petitioner that
the property in question ought to have been first
offered to them for sale before inviting the tenders.
However, we find that the said provision would be
relevant while considering the locus of the
petitioner which is strongly agitated by the learned
counsel appearing for the Respondent No. 6.
12. The perusal of the documents placed on
record alongwith the petition, would reveal that
there is continuous correspondence between the
petitioner on one hand and the respondent Nos. 4 and
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5 on the other hand, regarding the transfer of the
property in question to the petitioner Society. It
can also be seen that the said proposal was also
inasmuch as certain information was sought by the
Respondent No. 4 for considering the proposal of the
petitioner. It is thus clear that it is not as if
that the petitioner's request for transfer of the
assets of the Respondent No. 5 was not at all under
consideration of the official assignee of Respondent
No. 5 Society. It is further pertinent to be noted
that the petitioner had approached this Court seeking
a relief in that regard immediately after noticing
that the tender notice was issued and this Court had
issued notice before admission, before the tender
process was finalized. In that view of the matter,
the contention of the learned Senior Counsel
appearing for Respondent No. 6 that the petitioner
has no locus to file the present petition, cannot be
accepted.
13. Insofar as the next contention raised on
behalf of the Respondent No. 6 that there is no
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violation of fundamental rights to permit the
petitioner to approach this Court is concerned, we
are unable to accept the said contention. The
limitation on a citizen to invoke the extraordinary
remedy in case of violation of fundamental rights is
only when an aggrieved party seeks redressal of his
grievance under Article 32 of the Constitution by
directly approaching the Apex Court. By now, it is
settled position that such a restriction is not
applicable when a party approaches the High Court for
redressal of its grievance under Article 226 of the
Constitution. The very wording of Article 226 would
reveal that a party can approach this Court under
Article 226 of the Constitution not only for
redressal of its grievance regarding violation of
fundamental rights, but also for violation of other
rights and also for other purposes. In that view of
the matter, we are not inclined to accept the
contention in that regard.
14. Insofar as the reliance placed by the
learned Senior Counsel on behalf of the petitioner,
on the decisions of the Apex Court, in respect of the
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powers of judicial review by this Court while
reviewing an administrative action is concerned, no
doubt that the learned Senior Counsel is right in
relying on the aforesaid judgements. We do not wish
to refer to all those judgements inasmuch as the
ratio laid down has to be applied to the facts of
each of the case. The legal position pertaining to
permissibility of interference by this Court by
taking recourse to powers of judicial review under
Article 226 of the Constitution is very well
crystallized in the judgement of the Apex Court in
the case of "Tata Cellular Ltd. vs. Union of India
and others", reported in (1994) 6 SCC 651. The Apex
Court in para. No. 77 of the said judgement, has
observed thus :
"The duty of the court is to confine itself to
the question of legality. Its concern should
be :
1. Whether a decision-making authority
exceeded its powers?
2. committed an error of law,
3. committed a breach of the rules of natural
justice,
4. reached a decision which no reasonable
tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine
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whether a particular policy or particular
decision taken in the fulfillment of that policy
is fair. It is only concerned with the manner in
which those decisions have been taken. The
extent of the duty to act fairly will vary from
case to case. Shortly put, the grounds upon
which an administrative action is subject to
control by judicial review can be classified as
under:
(i) Illegality : This means the decision- maker
must understand correctly the law that
regulates his decision-making power and
must give effect to it.
(ii) Irrationality, namely, Wednesday
unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it
does not rule out addition of further grounds
in course of time. As a matter of fact, in R.
v. Secretary of State for the Home Department,
ex Brind28, Lord Diplock refers specifically to
one development, namely, the possible
recognition of the principle of
proportionality. In all these cases the test to
be adopted is that the court should, "consider
whether something has gone wrong of a nature
and degree which requires its intervention".
15. However, the question that we will have to
put to ourself, is as to whether while exercising the
powers of judicial review under Article 226 of the
Constitution of India, can we keep ourself aloof from
the public interest that demands the best price to be
fetched/secured while a Public Body is disposing of
its property.
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16. No doubt that the petitioner had not
initially submitted its bid. However, we have
already observed hereinabove that the petitioner had
very much approached this Court immediately after the
tender notice was issued and this Court had also
taken cognizance of the petition before the tenders
were finalized. Not only that, on the very next
date, the petitioner had established his bonafides by
way of showing the readiness to deposit an amount of
Rs. 75 Lakhs and also deposited the same in this
Court. As stated already by us hereinabove that on
20th October, 2011 itself, the petitioner had given
an undertaking that it was willing to give an offer
of Rs. 1 Crore 11 Lakhs. It could well be seen that
within a short span of time, the bid had increased
from Rs. 73 Lakhs and odd amount to Rs. 1 Crore 11
Lakhs. We may further note that on 14th November,
2011, when this Court had asked the learned counsel
for the petitioner to give their bids, within a short
span of 15 to 20 minutes in the presence of lawyers
present in this Court, both the petitioner and the
Respondent No. 6 had increased their bids from Rs. 1
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Crore 11 Lakhs to Rs. 1 Crore 50 Lakhs. When we kept
the matter for re-hearing, on 18th November, 2011,
the petitioner expressed its willingness to file an
undertaking that in the case the tenders are invited
afresh, it (petitioner) will submit a bid of minimum
amount of Rs. 1 Crore 51 Lakhs, if not more. The
petitioner had, however, sought time to file a
resolution of the petitioner Society, on record.
Accordingly, a resolution alongwith the undertaking
of the Chairman of the petitioner Society is already
placed on record. If the petitioner gives its bid of
minimum amount of Rs. 1 Crore 51 Lakhs in the event
the bids are invited afresh, it can be seen that on
account of judicial intervention, the Respondent No.
5 which was getting an amount of Rs. 73 Lakhs and
odd, will be now getting the offer of Rs. 1 Crore 51
Lakhs, if not more. While sitting as a Constitutional
Court, should we not be alive to take into
consideration the public interest of a Public Body
getting an amount more than twice, the one which was
offered initially by the Respondent No. 6. We are at
pains to state that if we fail to do so, we will be
failing in our duties as the Constitutional Court.
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By now, it is settled position of law that the power
under Article 226 of the Constitution is a power
coupled with duty to do justice. In any event, the
course which we are adopting now is not unknown to
the legal precedence.
17. As way back as in 1985, the Apex Court in
the case of "Ram and Shyam Company vs. State of
Haryana and others" (1985) 3 S.C.C. 267, had
permitted the parties to offer their bids in the open
Court. It will be relevant to refer to what was
observed by Their Lordships of the Apex Court after
considering the offers which were given in the Court.
In para 6 of the judgement in the said case, the Apex
Court observed thus :
"Shock and surprise was visible on the face
of each one in the Court. Shock was induced
by the fact that public property was
squandered away for a song by persons in
power who hold the position of trust.
Surprise was that how judicial intervention
can serve larger public interest. One would
require multi-layered blind-fold to reject
the appeal of the appellant on any tenuous
ground so that the respondent may enjoy and
aggrandize his unjust enrichment. On this
point, we say no more." (emphasis supplied)
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The aforesaid observations are aptly applicable to
the facts of the present case.
18. Again in the case of "M/s Rajshila vs. State
of U.P. and others" 1993 Supp (1) S.C.C. 477, the
Apex Court has followed the same practice. However,
while directing the re-tendering, the Apex Court had
ensured the interest of the Body who had invited the
tenders by directing the appellant before the Apex
Court to deposit a sum of Rs. 25 Lakhs by a crossed
Demand Draft. The Apex Court had also observed that
in the fresh auction, the minimum bid would be of Rs.
86 Lakhs which was the bid that was being offered by
the appellant before the Apex Court. No doubt that
in the case of "State of Punjab v. Yoginder Sharma
Onkar Rai & Co. and others" (1996) 6 S.C.C. 173, the
Apex Court had deprecated the judgement of the High
Court wherein the High Court had set aside the
auction and directed the re-auction to be done.
However, that was done by the Apex Court noticing
that while doing so, the High Court had not ensured
to safeguard the interest of the tenderer - the State
Government. It has been specifically observed by the
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Apex Court in the said case as under :
"18. The Division Bench was, in the
circumstances, in error in reaching the
conclusion that the auction was not fairly
and properly held with the result that the
State exchequer had ben subjected to a huge
loss. In any event, loss to the exchequer is
a factor which may be taken in to account in
genuine cases, as it was in the case of M/s.
Rajshila cited by learned counsel for the
first respondent. At the same time, the
finality of auctions must also be recognised
to be in the interests of the exchequer. If
auctions are set aside and re-auctions
ordered in less than satisfactory material,
the loss of the exchequer would be far
greater.
19. This brings us to the form of the order
that the Division Bench passed. We have
quoted it above in extenso. It quashes the
auction. It directs re-auction for the
balance of the term. It directs that for
Group no. 108 the first bid "shall be deemed
to be Rs.4.21 crores" as offered by the
first respondent, and for Group no. 111 the
first bid "shall be deemed to be Rs.3.50
crores" as offered by it. The order then
directs that in case the first respondent
opts not to participate in the fresh auction
and no other bidder offers a bid of the
amount equivalent to the earlier successful
bid, "this petition shall be to have been
dismissed".
20. It is a very difficult order to
appreciate. If at the fresh auction the first
respondent does not bid and no other bidder
offers a bid equivalent to the earlier
successful bid and the writ petition is to
stand dismissed, what is the State Government's
authority for holding the fresh auction?
Whether or not the first respondent bids or
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somebody else bids an amount equivalent to the
earlier successful bid can be known only after
the fresh auction is held. If at that stage the
petition is to stand dismissed, there is no
authority for holding the fresh auction.
Secondly, if at the fresh auction the first
respondent does not bid and no other bidder
offers a bid equivalent to the earlier
successful bid, it must mean that the earlier
successful bidder is no longer interested; but,
by reason of the dismissal of the writ
petition, he remains bound by his earlier bid.
This not a workable or well thought out order.
21. In cases where there is real need to set
aside an auction, he who challenges it mist be
required to prove his bona fides before the
auction is set aside by depositing a
substantial portion of what he says he will
bid. It is only if the deposit is made that the
auction should be set aside and a re-auction
ordered." (emphasis supplied)
19. As a matter of fact, the Apex Court in the
said judgement has approved the course adopted by it
in the case of "M/s Rajshila vs. State of U.P. and
others" (supra) and has held that the loss to the
exchequer is a factor which may be taken into account
in genuine cases, as it was in the case of Rajshila.
The Apex Court held that the order of the Division
Bench was very difficult to appreciate. If the fresh
auction was done and the respondent who had succeeded
before the High Court does not bid and no other
bidder offers a bid equivalent to the earlier
successful bid and the writ petition is to stand
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dismissed, there would have been a great loss to the
public exchequer. It can further be seen that the
Apex Court itself in the said case has observed that
when an auction is set aside and the re-auction
ordered, the party approaching the Court should be
required to prove its bonafides by depositing a
substantial portion of what he says he will bid.
20. In the present case, the course that we are
adopting totally safeguards the interest of the
respondent No. 5. Not only that, such a course
ensures that the respondent No. 5 would get a minimum
amount of Rs. 1 Crore 51 Lakhs for the property which
the Respondent No. 6 was to get at an amount of Rs.
73 Lakhs. In that view of the matter, in our
considered view, the course that we are adopting
safeguards the public interest for getting the best
price for the property of a Public Body. As such, we
do not find it necessary to go into the other
questions raised by the petitioner. In any case, the
Respondent No. 5, in its affidavit, has clearly
stated that after the funds are received, it will
follow the provisions of Section 110 of the MCS Act
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in accordance with the spirit of the said Section.
In that view of the matter, we do not find it
necessary to go into that aspect of the matter.
21. Considering the totality of the
circumstances and in view of the facts narrated by us
hereinabove, we find that the impugned award of
tender in favour of Respondent No. 6 is not in the
public interest. We are, therefore, inclined to
allow the petition and pass the following order in
the interest of justice.
in favour of the Respondent No. 6 shall stand
cancelled.
(b) The Respondent No. 5 shall publish an
advertisement within three days from today in Daily
Sakal (Marathi) and Daily Lokmat Times, Aurangabad
Editions, which are un-disputedly widely circulated
newspapers in English and vernacular languages in
this area, inviting fresh tenders. In the said
advertisement, the upset price of the tender will be
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of Rs. 1 Crore 51 Lakhs.
(c) The Respondent No. 5 shall finalize the work
of allotment of tender to the successful bidder
within a period of fifteen (15) days from today.
Needless to state, the tender of highest bidder shall
be accepted.
(d) As undertaken by the petitioner, the
petitioner shall submit a minimum bid of Rs. 1 Crore
51 Lakhs. Needless to say, the petitioner would be
at liberty to raise its bid, if it so desires.
(e) In the event the petitioner fails to give a
bid of Rs. 1 Crore 51 Lakhs, the amount of Rs. 75
Lakhs which is deposited in this Court by the
petitioner, shall stand forfeited. The said amount
of Rs. 75 Lakhs which is deposited in this Court
shall be credited/transferred to the account of
Respondent No. 5 within a period of one week from
today.
(f) In the event the petitioner is a successful
bidder, the petitioner would be entitled to set-off
of amount of Rs. 75 Lakhs, which is deposited by the
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petitioner in this Court. In the event the bid of
the petitioner is not highest and bid of some other
participant is accepted, the amount of Rs. 75 Lakhs
would be returned to the petitioner.
(g) It is further made clear that in the event
the petitioner fails to give bid of Rs. 1 Crore 51
Lakhs, apart from the amount of Rs. 75 Lakhs being
forfeited, the Chairman of the petitioner Society,
who has given an undertaking, would also be liable
for an action of committing breach of the undertaking
given to this Court.
(h) In the event the Respondent No. 6 desires to
participate in the tender process, he would also be
at liberty to give his bid which will not be less
than an amount of Rs. 1 Crore 51 Lakhs. However, at
the request of learned Senior Counsel appearing for
Respondent No. 6, the undertaking which was given by
the respondent No. 6 that he will be giving a bid of
Rs. 1 Crore 50 Lakhs, is permitted to be withdrawn.
(i) In the event the Respondent No. 6 desires to
submit his bid for more than Rs. 1 Crore 51 Lakhs, he
(27) wp4266-11
would also be entitled for adjustment of the amount
of Rs. 32,78,700/- which is already deposited by it
with the Respondent No. 5.
(j) In the event the Respondent No. 6 does not
intend to submit his bid, he would be entitled to
withdraw the amount which is already deposited by it
with the Respondent No. 5 and if the Respondent No. 6
requests for withdrawal of the same, the same shall
be returned by the Respondent No. 5 within three (3)
days of making such an application.
(k) In the event the petitioner or Respondent
No. 6 submit their respective bids and in the event
the respondent No. 5 imposes any condition of
depositing certain amount alongwith the bid, the said
condition shall not be applicable in case of the
petitioner and the Respondent No. 6 since the
substantial amount of both the petitioner and the
Respondent No.6 is already with the Respondent No. 5.
22. With the above directions, the Rule is made
absolute in terms thereof.
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23. At this stage, Shri Mandlik, learned Senior
Counsel appearing for the Respondent No. 6, requests
for stay of the above order for a period of eight
weeks. Shri Dixit, learned Senior Counsel appearing
for the petitioner vehemently opposes the said
prayer. It may be noted that we have passed the
aforesaid order in the public interest of securing
the best price for the property of the Public Body
i.e. Respondent No. 5, which price has now been
increased to Rs. 1 Crore 51 Lakhs from Rs. 75 Lakhs.
It is further to be noted that the Respondent No. 5
Society is under liquidation for a period of last
thirteen years. For one or the reason reason, the
liquidation proceedings could not be completed and
the dues of the eligible persons could not be
satisfied. In that view of the matter, we are not
inclined to consider the said prayer of learned
Senior Counsel appearing for the Respondent No. 6 for
stay of the above order, passed by us. The prayer is
rejected.
[M.T. JOSHI, J.] [B.R. GAVAI, J.]
npj/wp4266-11
(29) wp4266-11
