Rajesh Sharma And Another vs Union Territory Of J&K And Others
2022 Latest Caselaw 866 j&K

                                                                    Sr. No. 04
        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU
                            (Through Virtual Mode Srinagar)

                                               WP(C) No.1833/2021
                                               CM No. 6907/2021


Rajesh Sharma and another                            .....Appellant(s)/Petitioner(s)


                      Through: Mr. Vikram Sharma, Sr. Advocate with
                               Mr. Sachin Dev Singh, Advocate

                 Vs


Union Territory of J&K and others                              ..... Respondent(s)

                      Through:    Mr. K. D.S. Kotwal, Dy. AG for R-1 to 3.
                                  Mr. Pranav Kohli, Sr. Advocate with
                                  Mr. Rahul Sharma, Advocate for R-4 to 9.


Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                 JUDGMENT

1. The petitioners as well as the private respondents are the successful

bidders as per the result declared of the tender in pursuance to e-Auction

Notice No.08 of 2021 dated 29.07.2021 whereby the official respondents

invited tenders from Fish traders of the UT of J&K for leasing of the

wholesale shops and retail outlets. The petitioners allege that the private

respondents had participated in the bid though they were not eligible for

the same as they had participated in the tender by disguising themselves

as different entities though they were in fact not so as stated in the

petition. The respondents intend to allot corner shops to the petitioners in

an arbitrary manner and thus put the petitioners in dis-advantageous

position. The petitioners seek quashment of the successful bid of the

respondents in pursuance to list issued on 20.08.2021and also seek the

allotment of the shops amongst first four shops in the wholesale cum

retain fish market Narwal, Jammu.

2. The objections to the petition have been filed by the official respondents

as well as private respondents. The common stand of the respondents

through their objections is that the private respondents were eligible to

participate in the tender and they have been declared successful bidders as

per norms; that the private respondents were not barred from participating

in the tender on the basis that they for all practical purposes are one and

the same entities as alleged in the petition. The shops have been allotted in

pursuance to the bid accepted of the petitioners as well as the respondents

as per the norms. The bids of the petitioners were much lower to that of

the private respondents and therefore they cannot seek parity qua the

allotment of shops with the private respondents. The petitioners have no

case against the respondents and therefore the petition is liable to be

dismissed.

3. Heard learned counsel for the parties and perused the file.

4. It is suffice to mention that the fish operators in Kanji House Jammu,

were to be re-allocated from that place to Narwal Fish Market. The tender

in question therefore came to be issued so that the persons/entities having

their business at Kanji house are given opportunity to participate in the

tender and if successful bidders run their business at new place.

5. Mr. Vikram Sharma, learned senior counsel appearing on behalf of the

petitioners has vehemently argued that the private respondents were not

entitled to be declared as successful bidders and the shops which are to be

allotted to them in pursuance to the tender notice as they are for all

practical purposes one entity. As per the tender notice only one person

could apply for wholesale or retail shop. Mr. Pranav Kohli, learned senior

counsel appearing for the private respondents and Mr. K. D. S. Kotwal,

learned Dy. AG appearing on behalf of the official respondents have

argued that the petitioners have no ground to challenge the successful

biding of the shops by the private respondents as the terms and conditions

of the tender notice did not debar the private respondents from

participating in the tender. Moreover, the terms and conditions of the

tender notice are not questioned by the petitioners in the present petition.

6. As far as the objection of the petitioners regarding the participation of the

private respondents in the tender notice and their bid being accepted by

the official respondents is concerned, the petitioners cannot raise any

grievance with regard to the same as the petitioners are themselves the

successful bidders. They cannot raise any claim qua the bid participation

and the successful bidding in the tender of the private respondents. The

challenge to the allotment of shops to the private respondents is misplaced

and cannot be entertained. It appears that the actual grievance of the

petitioners is regarding the shops which are being allotted to them as they

consider those shops to be not beneficial as their business will not flourish

in those shops as compared to the shops which are being allotted to the

private respondents. The petitioners in the writ petition have shown

apprehension that they will be given the corner shops whereas the shops

having better locations are to be allotted to the private respondents. As per

the objections filed by the respondents the shops came to be allotted to the

petitioners as well as the private respondents. The submission of the

petitioners is that the tender notice does not specify the manner in which

shops are to be allotted to the successful bidders. The other side has taken

the stand that the shops have been allotted to the parties to the petition as

per the bid amount that is the highest bidders have been granted shop

Nos.1 to 9 and the lowest one has been allotted shop No.10. The

petitioners had participated in the meeting held on 17.08.2021 wherein it

was agreed to by all the participating members- the official respondents

and the private parties-that the shops will be allotted as per the merits of

the bidders. The minutes of the meeting of Auction Committee dated

17.08.2021 reveals that the same was held under the aegis of Director

Fisheries wherein it was decided that the allocation of wholesale shops

and retail shops will be done from shop No.1 onwards serially as per the

merit/offered bid amount. This assertion has been controverted on behalf

of the petitioners on the ground that the so called arrangement made in the

meeting is one sided and the attendance of the persons mentioned in the

attendance sheet only reveals that in fact the private parties had just

appeared in the meeting but not for the purpose to determine the manner

in which the shops are to be allotted to the successful bidders. The

contention is also raised on behalf of the petitioners that Akhtar Ali shown

as SPO to JD(C) in the attendance sheet is not signatory to the minutes of

17.08.2021 and thus shows that the minutes of meeting had no sanctity

and is a manufactured document. The court is not convinced with the plea

raised by the petitioners in this regard. The court cannot doubt the minutes

of the meeting held on 17.08.2021 which is headed by the Director

Fisheries and in which other officers of the department also participated.

The absence of Akhtar Ali in the Minutes of Meeting does not cast

shadow over the genuineness of the minutes of the meeting. Joint Director

Centre is signatory to the Minutes of the Meeting and presence of SPO to

Joint Director in the attendance sheet instead of Joint Director Central

cannot be considered such a circumstance as to cast suspicion on the

holding of the meeting and the decision taken in the meeting. Akhtar Ali

may have recorded his presence for the JD(C) Fisheries in the attendance

sheet. Another objection taken by the petitioners during arguments is that

the typed contents of the attendance sheets and the minutes of meeting

reflect that both the documents are not written at the same time but at

different times. The court again finds the argument of the petitioners in

this regard as specious one and cannot be entertained. The court should

not discredit the assertion of the respondents that the minutes of the

meeting is consequence of the meeting attended by the parties as

mentioned therein. The official act cannot be doubted unless there is an

apparent reason to hold otherwise. It cannot be presumed that the minutes

of meeting only reflects the decision to favour the private respondents as

it is not the specific case of the petitioners that the tender had been opened

by the time the decision as reflected in the minutes was taken. Otherwise

too the bid as given by the parties is not in dispute. It is also not in

dispute that the private respondents had given the bid for much higher

amount than the writ petitioners. The bid of the petitioners was to the tune

of Rs.28 lacs. whereas the bid of the private respondents was Rs.41 lacs.

and more and thus there is no parity in the bid amounts between the

petitioners and the respondents. In case the respondents have allotted the

shops in order of the bid amount offered by the parties, the court does not

find any flaw or arbitrariness in the action of the official respondents.

Moreover, the decision taken regarding the manner in which the

successful bidders are to be allotted shops has been taken prior to the

opening of the bids and therefore the petitioners cannot claim that the

official respondents have acted in prejudicial manner qua them.

7. In the light of the aforesaid discussion, the court does not find any merit

in the case of the petitioners and is, accordingly, dismissed.

(Puneet Gupta) Judge

Jammu 30.05.2022 Shammi