Telangana High Court

Mr. Jitender vs The State Of Telangana And 2Others on 11 August, 2022

Bench: Ujjal Bhuyan, C.V. Bhaskar Reddy

          THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
                                             AND
             THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
                                   W.A.No. 518 of 2022
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)

        Heard Mr. Kiran Palakurthy, learned counsel for the

appellant; Mr. Srinivas Srikanth, learned Government Pleader for

Municipal Administration and Urban Development appearing for

respondent No.1; Mr. N.Praveen Kumar, learned Standing Counsel

for respondent No.2- Kalwakurthy Municipality; and

Mr. N.Bhujanga Rao, learned counsel for respondent No.3

2. Appellant is aggrieved by final order dated 22.07.2022 passed

by the learned Single Judge allowing W.P.No.17539 of 2022 filed by

respondent No.3 as the writ petitioner.

3. Respondent No.3 had filed the related writ petition to declare

the proceedings dated 01.04.2021 of respondent No.2-Kalwakurthy

Municipality as illegal and arbitrary. Consequential direction was

sought to respondent No.2 to enter into lease agreement with

respondent No.3 for operation of the cattle market at Kalwakurthy

town (briefly 'the cattle market' hereinafter) in terms of the ::2::

notification dated 17.03.2022 by cancelling the allotment made in

favour of the appellant.

4. Respondent No.2 had issued tender notice on 17.03.2022

inviting bids from the public for allotment of the cattle market etc.,

on lease for the period from 01.04.2022 to 31.03.2023. Both

appellant and respondent No.3 participated in the bid in respect of

the cattle market. Bid amount of respondent No.3 was

Rs.1,11,22,000.00 whereas the bid amount of the appellant was

Rs.1,11,21,000.00. Thus, respondent No.3 was the highest bidder.

However, on 01.04.2022, respondent No.3 received a proceeding

by whatsapp message that the cattle market was leased out to the

appellant on the ground that respondent No.3 did not turn up for

payment of 1/4th of the bid amount towards lease agreement.

5. Aggrieved thereby, respondent No.3 preferred the related

writ petition.

6. Both respondent No.2- Kalwakurthy Municipality and the

appellant contested the writ proceedings by filing counter-affidavit.

::3::

7. After hearing learned counsel for the parties and considering

the materials on record, learned Single Judge came to the

conclusion that action of respondent No.2 in not giving adequate

time and opportunity to respondent No.3 to make payment

of 1/4th of the bid amount was not fair. Accordingly, proceeding

dated 01.04.2022 was set aside and respondent No.2 was directed

to entrust the work to respondent No.3.

7. Learned counsel for the appellant submits that appellant had

in the meanwhile operated the cattle market for more than four

months. Learned Single Judge was not justified in interfering with

the lease granted in favour of the appellant and directing

respondent No.2 to entrust the work to respondent No.3.

8. We have considered the submissions made.

9. Learned Single Judge considered the rival contentions and

thereafter held as follows;

The 2nd respondent has issued the auction notification to lease out cattle market, thai bazaar and slaughter house. There is no dispute about the fact ::4::

that the petitioner has become the highest bidder. According to the Municipality, the petitioner has to pay one-fourth of the amount first and as the petitioner failed to pay the same even though reminders were issued on 01.04.2022, the 2nd respondent has allotted the contract in favour of the unofficial respondent. Learned counsel for the petitioner along with the Writ Petition filed the auction notification. In Clause 4, it is mentioned that 'as per Telangana Municipalities Act, 2019, one-fourth of the money can be paid and rest of the money can be paid on monthly basis. To avail the monthly basis they have to deposit collateral mortgage or bank guarantee under the "Commissioner of Municipal, Kalwakurthy" and along with that, they have to submit relevant post-paid cheques mandatory. Before December 31st, they have to pay the equal amount which they have to pay'. In none of the tender conditions or in the Municipalities Act, except stating that one-fourth amount has to be paid, there is no mention about when the said one-fourth amount has to be paid. Even in the counter-affidavit filed by the 2nd respondent, they state that they have asked the petitioner to pay the amount on 01.04.2022 and on the said date itself, they have issued the contract in favour of the unofficial respondent. When the petitioner is the highest bidder and when the auction notification does not specify what is the timeframe ::5::

for payment of one-fourth amount, the 2nd respondent cannot say that the petitioner failed to pay. Even assuming that they have asked the petitioner by way of WhatsApp messages on 1st, without even waiting for that day, they have issued the contract in favour of the unofficial respondent, which is contrary to the principles of natural justice. The 2nd respondent is supposed to mention in the tender conditions with regard to the payments that have to be made by the parties but without doing so, by giving a reminder on 1st to the petitioner, they have taken the money from the unofficial respondent. The action of the 2nd respondent on the face of it is arbitrary. This Court is not able to appreciate the contention of the learned Standing Counsel that the petitioner being the highest bidder in respect of both Thai Bazar and cattle market, having paid for Thai Bazar, cannot plead that he is not aware of the same, it has no legs to stand for the reason that the tender conditions are silent about the time-frame and without there being any time-frame, it is not open for them to contend that 01.04.2022 is the date when one-fourth amount has to be paid. Even according to them, they have sent a message to the petitioner i.e. on 1st and without waiting for the same giving the contract in favour of the unofficial respondent itself ::6::

shows that the action on the part of the 2nd respondent is not fair.

Earlier, when the matter came up, on a query from this Court, learned Standing Counsel submits that the petitioner has not paid the money. Learned counsel for the petitioner states that the petitioner is ready to deposit the money before the 2nd respondent. Because of the arbitrary action on the part of the respondent Municipality, now the unofficial respondent has to face the consequences for no fault of him.

Accordingly, the Writ Petition is allowed and the proceedings No. A1/152/KLKY/2022 dated 01.04.2022 issued in favour of the unofficial respondent is set aside. The official respondents are directed to entrust the work to the petitioner and any amounts that have to be returned to the unofficial respondent shall be returned within a period of two weeks from the date of receipt of a copy of this order. There shall be no order as to costs.

10. We find from the above that respondent No.3 was

admittedly the highest bidder. He was required to pay 1/4th of the

bid amount at the first instance, but as he failed to pay the same

by 01.04.2022, respondent No.2 leased out the cattle market in ::7::

favour of the appellant. Reference was made to clause 4 of the

Notice Inviting Tender (NIT) as per which, 1/4th of the bid

amount could be deposited as down payment and rest of the

amount can be paid on monthly basis though on security cover.

11. In the order dated 22.07.2022, learned Single Judge noted

that there was no mention in the tender conditions as to

when 1/4th of the bid amount had to be paid. Referring to the

counter-affidavit filed by respondent No.2, learned Single Judge