Uday Singh vs Executive Officer Muncipal ...
2023 Latest Caselaw 13156 HP

                                                 1


        IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA


                                     LPA No.209 of 2022
                                     Date of Decision: September 8, 2023




                                                                            .

    Uday Singh                                                                  ...Appellant.





                                              Versus

    Executive Officer Muncipal Council                                         .Respondent.



    Coram:


    The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.

    The Hon'ble Mr. Justice Bipin Chander Negi, Judge.

    Whether approved for reporting?1
    For the Appellant:               Mr.D.N. Sharma, Advocate.
    For the Respondent:              Ms.Archna Dutt, Advocate.



    Vivek Singh Thakur, J (Oral)

Present appeal has been directed against the order

dated 10.11.2022 passed by learned Single Judge, in CWP

No.5649 of 2011, titled as Uday Singh vs. Executive Officer,

Municipal Council, Theog.

2. We have heard learned counsel for the parties and

have also gone through the record.

3. Learned Single Judge has dismissed the petition with

following observations.

"6. In the present case, the tender was floated in the year, 2004. The tender was cancelled in the year, 2011

1 Whether reporters of the local papers may be allowed to see the judgment?

and here we are in the year, 2022. Whether or not, the conditions of the tender were complied with by the petitioner or were violated by him, in the considered view of this Court are highly disputed question of fact which cannot be adjudicated by the Court in exercise of its

.

jurisdiction under Article 226 of the Constitution of India, as adjudication of this issue obviously would require leading of evidence. Besides this, this Court is of the

considered view that otherwise also, as considerable time had elapsed in between the floating of the tender and issuance of Annexure P-5 and as it is an admitted position that the purpose for which the tender were flouted was

not yet accomplished even in the year, 2011. This Court is of the considered view that cancellation of the tender by the respondent cannot be faulted with.

r Therefore, in view of the above discussion, as this

Court is of the considered view that the controversy raised herein cannot be adjudicated upon by this Court in exercise of its jurisdiction under Article 226 of the

Constitution of India, accordingly, the petition is dismissed, but with a direction that money deposited by the petitioner with the respondent-Council be refunded to

him forthwith alongwith simple interest @ 6% per annum as from the date of deposit till issuance of Annexure P-5.

Pending application(s), if any, stand disposed of."

4. It has been argued on behalf of the appellant that

the construction was not raised by respondent for non-

availability of technical staff and appellant had been

continuously approaching the respondent. Appellant has also

placed on record copies of Resolution of the Municipal Council.

One of such Resolutions is dated 10.08.2007. Perusal of the said

Resolution indicates that there was technical staff available with

the Municipal Council and the option was given to the petitioner

to raise construction over the lintel for running a Coffee House

with further condition that amount so spent by him and

deposited with the Municipal Council, shall be adjusted against

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the rent payable for the area of Municipal Council, which was to

be used by the appellant and, in this regard, it was unanimously

decided that in case the said condition was acceptable to the

appellant, he should file an affidavit to that extent. It has also

been stated in the Resolution that copy of Resolution be sent to

the appellant for information and necessary action, with further

condition that on giving such undertaking by entering into the

agreement with the Municipal Council, no objection for granting

electricity and water connection shall also be issued in favour of

the appellant. There is nothing on record indicating any action

taken by the appellant, either before passing of Resolution or

thereafter till filing of the petition, for execution of work as

proposed by the Municipal Council.

5. It is noticeable that in the impugned communication

dated 30.06.2011 (Annexure P-5) to the writ petition, it has been

categorically stated that tender was cancelled for failure on the

part of appellant to comply with and adhere to the formalities of

the auction as desired by the Municipal Council. Reasons

assigned in the aforesaid cancellation, are substantiated by the

documents placed on record by the appellant himself.

6. Considering material available on record we do not

find any illegality, irregularity and perversity in the impugned

order passed by learned Single Judge, warranting interference by

exercising jurisdiction under Letters Patent Appeal.

7. Accordingly, appeal is dismissed being devoid of

.

merit, alongwith pending application(s), if any.

(Vivek Singh Thakur), Judge.

(Bipin Chander Negi), Judge.

September 8, 2023 (Purohit)