Vivek Singhal vs State Of H. P. & Ors
2024 Latest Caselaw 13827 HP

Himachal Pradesh High Court

Vivek Singhal vs State Of H. P. & Ors on 13 September, 2024

Author: M. S. Ramachandra Rao

Bench: M. S. Ramachandra Rao

( 2024:HHC:8526 )

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CWP No. 10786 of 2023.

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Reserved on : 3rd September, 2024.

Date of Decision :13th September, 2024.

    Vivek Singhal                                             ....Petitioner.

                             Versus
    State of H. P. & Ors.                                     ....Respondents.

    Coram:

The Hon'ble Mr. Justice M. S. Ramachandra Rao, Chief Justice.

The Hon'ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting? Yes.

For the Petitioner: Mr. Sanjeev Bushan, Senior Advocate

with Mr. Arun Kaushal, Advocate.

For the Respondents: Mr. Gobind Korla, Addl. Advocate General.

Satyen Vaidya, Judge.

By way of instant petition, the petitioner has prayed for

quashing of communication dated 07.11.2023 (Annexure P-4) issued by

4th respondent whereby the tender awarded in favour of petitioner on

17.01.2023 was cancelled. The petitioner has also sought directions for

revival of award dated 17.01.2023 (Annexure P-3) in his favour.

2. Brief facts necessary for adjudication of petition are that

respondent No.4 invited bids for grant of a shop in District Ayurvedic

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Hospital, Una for sale of medicines. The last date for submission of

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bids was 16.01.2023 and bids were to be opened on 17.01.2023 at 2.30

P.M. Petitioner participated in the aforesaid process. His offer to pay

rent @ Rs.1,65,500/- per month was accepted vide letter dated

17.01.2023 (Annexure P-3).

3. One Shri Sandeep Kashyap challenged the award of tender

in favour of petitioner by way of CWP No. 602 of 2023 before this

Court inter alia on the ground that the petitioner was a defaulter and had

been black listed.

4. During the pendency of CWP No. 602 of 2023 the 4 th

respondent issued impugned communication Annexure P-4 dated

07.11.2023, on the basis of said communication learned Single Judge

disposed of CWP No. 602 of 2023 vide order dated 08.11.2023 in

following terms:-

"4. Taking into consideration the fact that the auction process/tender, which was the subject matter of the present writ petition, now stands rescinded, this petition has lost its efficacy and the same is according closed.

5. It is goes without saying that in case respondent- Department intends to auction the shop in issue, afresh, then the same be done expeditiously. Needless to say that the private respondent is at liberty to challenge the order of rescinding the process, if so advised."

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5. Thereafter, the petitioner has filed this petition for the

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reliefs as noticed above.

6. The petitioner has assailed the impugned communication

dated 07.11.2023 on the ground being arbitrary and illegal. It has been

contended that the impugned communication dated 07.11.2023 did not

reflect any adverse circumstance against the petitioner and thus, the

vested rights of the petitioner have been prejudiced that too without

adherence to the principle of natural justice.

7. The respondents have filed their reply and have admitted

that the tender was awarded in favour of petitioner on 17.01.2023 and

the petitioner had deposited an amount of Rs.1,98,600/- on 20.01.2023.

It is submitted that on 21.01.2023 one Shri Sandeep Kashayap had

submitted a complaint to 5th respondent alleging that the petitioner had

been declared defaulter by SDO (Civil), Una and was not eligible to

submit his bid in pursuance to the offer inviting bids floated by 4 th

respondent. It is further submitted that in pursuance to said complaint,

clarification was sought from 3rd respondent, who vide communication

dated 31.01.2023 had confirmed that the petitioner had been black

listed.

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8. We have heard learned counsel for the parties and have also

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gone through the entire record carefully.

9. The notice inviting tender Annexure P-1 and the award of

tender in favour of petitioner vide Annexure P-3 stood cancelled vide

impugned communicated dated 07.11.2023, Annexure P-4, on the

following grounds:-

(i) Due to pendency of CWP No. 602 of 2023 in this Court;

and

(ii) The shop had previously been let out to M/s Anand

Medical Store @ Rs.14,000/- per month where as by way of new tender the shop had been allotted @ Rs.1,65,000/- per month and in this manner Rogi Kalyan Samiti, District

Ayurvedic Hospital, Una was suffering loss of Rs.1,50,000/- per month.

10. Evidently, the cancellation of the tender was not for the

reason that the petitioner allegedly was a defaulter or had been black

listed. It being so, it does not lie in the mouth of the respondents to

contest the claim of the petitioner by terming him as black listed, when

such ground was not the reason for cancellation of tender. Reference

can be made to the celebrated judgment of Hon'ble Supreme Court in

the case of Mohinder Singh Gill & Anr. vs. The Chief Electoral

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Commissioner, New Delhi and others, (1978)1 SCC 405 of which the

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following paragraphs deserve extraction:-

"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its

validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the

time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji, AIR 1952 SC 16:-

"Public orders, publicly made, in exercise of a statutory

authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do.

Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed

objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older.

A Caveat.

9. We must, in limine, state that-anticipating our decision on the blanket ban on litigative interference during the process of the election, clamped down by Article 329(b) of the Constitution-we do not propose to enquire into or pronounce upon the factual complex or the (1) A.I.T. 1952 S.C. 16. lesser legal tangles, but only narrate the necessary circumstances of the case to get a hang of the major issues which we intend adjudicating. Moreover, the scope of any actual investigation in the event of controversion in any petition under Article 226 is ordinarily limited and we have before us an appeal from the High Court dismissing a petition under Article 226 on the score that such a

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proceeding is constitutionally out of bounds for any court, having

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regard to the mandatory embargo. in Article329(b). We should

not,except in exceptional circumstances, breach the recognised, though not inflexible, boundaries of Article 226 sitting in appeal, even assuming the maintainability of such a petition. Indeed, we should have

expected the High Court to have considered the basic jurisdictional issue first, and not last as it did, and avoided sallying forth into a discussion and decision on the merits, self-contra- dicting its own holding that it had no jurisdiction even to entertain the petition. The

learned Judges observed :

"It is true that the submission at serial No. 3 above in fact relates to the preliminary objection urged on behalf of

respondents 1 and 3 and should normally have been dealt with

& St but since the contentions of the parties on submission No. 1 are inter-mixed with the interpretation of Article 329(b) of the Constitution, we thought it proper to deal with them in the order in which they have been made."

This is hardly a convincing alibi for the extensive per incuriam examination of facts and law gratuitously made by the Division Bench

of the High Court, thereby generating apprehensions in the appellant's mind that not only is his petition not maintainable but he has been

damned by damaging findings on the merits. We make it unmistakably plain that the election court hearing the dispute on the same subject under section 98 of the R.P. Act, 1951 (for short, the Act) shall not be

moved by expressions of opinion on the merits made by the Delhi High Court while dismissing the writ petition. An obiter binds none, not even the author, and obliteration of findings rendered in supererogation must alley the appellant's apprehensions. This Court is in a better position than the High Court, being competent, under certain circumstances, to declare the law by virtue of its position under Article

141. But, absent such authority or duty, the High Court should have abstained from its generosity. Lest there should be any confusion about possible slants inferred from our synoptic statements, we clarify that nothing projected in this judgment is intended to be an expression of

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our opinion even indirectly. The facts have been set out only to serve as

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a peg to hang three primary constitutional issues which we will

formulate a little later."

11. Even otherwise, the respondents have not been able to

substantiate their plea that the petitioner had been black listed. Though,

reliance has been placed on document Annexure R-1, however, from

perusal of the contents thereof, no inference in support of such

contention can be drawn.

r Rather, the specific stand of the third

respondent in CWP No. 602 of 2023 was that the petitioner had neither

been declared defaulter nor black listed as claimed by the petitioner in

the said petition.

12. In light of what has been discussed above, we have no

hesitation to hold that the impugned communication, Annexure P-4, was

arbitrarily issued. It did not mention any reason adverse to the

petitioner. Petitioner could not be punished for a writ petition filed by a

third person. Similarly, the loss suffered by the respondents by not

being able to let out the shop to the petitioner was on account of their

own defaults and the petitioner again could not be blamed for the same.

13. Thus, we allow the petition and quash the communication

dated 07.11.2023, Annexure P-4, being arbitrary and hence violative of

Articles 14 of the Constitution. The bids invited vide Annexure P-1

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were for the year 2023-24 only, with a stipulation that the period could

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be extended by two years at the option of the respondents. The

condition of extension of period being contingent cannot be taken into

consideration, therefore, the period for which the bids were invited has

already elapsed and for such reason second relief as prayed by the

petitioner cannot be granted. We, however, find it to be a fit case to

burden the respondents with costs of Rs.2,00,000/- (Rupees Two Lacs

only) to be paid to the petitioner for compensating him for the loss

caused to him without justifiable reason.

14. Accordingly, the instant petition is disposed of in above

terms. Pending applications, if any, also stand disposed of.

(M.S. Ramachandra Rao)

Chief Justice.

(Satyen Vaidya) Judge 13th September, 2024.

(jai)