Punjab-Haryana High Court
Smt.Prem Chaudhary vs State Of Haryana & Others on 24 July, 2012
Author: G.S.Sandhawalia
Bench: Ajay Kumar Mittal, G.S.Sandhawalia
CWP No.13827 of 2012 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CWP No.13827 of 2012
Date of decision:24.07.2012
Smt.Prem Chaudhary .....Petitioner
Versus
State of Haryana & others .....Respondents
CWP No.13839 of 2012
Date of decision:24.07.2012
Suresh Kumar .....Petitioner
Versus
State of Haryana & others .....Respondents
CORAM : HON'BLE MR.JUSTICE AJAY KUMAR MITTAL &
HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr.Baljinder Singh, Advocate, for the petitioner.
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G.S.Sandhawalia J.
1. This order shall dispose of CWP Nos.13827 of 2012 & 13839 of 2012 since the facts and questions of law are similar. The facts have been taken from CWP No.13827 of 2012.
2. The present writ petition has been filed under Articles 226 & 227 of the Constitution of India for quashing letter dated 17.04.2012 (Annexure P-6) whereby respondent No.2 proposed to forfeit the security deposit and cancel the letter of allotment dated 16.05.2011. Further prayer has been made for issuance of a writ in the nature of mandamus directing the respondents to refund the security amount of `6 lacs along with interest in favour of the petitioner.
3. The pleaded case of the petitioner is that the respondents had invited tender for construction of godowns under PEG Scheme, 2008 and in CWP No.13827 of 2012 2 pursuance of the said notice, the petitioner submitted the tender for Gohana centre along with the site plan and Aks Shizra showing the actual site and an approach of 15 ft. wide metalled road that connects Gohana-Jind road along with earnest money of `2 lacs. The site offered by the petitioner was opposite to the New Grain Market, Gohana. The tender offered by the petitioner was L-2 but on counter-offer to construct 15,000 M.T. capacity godown on L-1 rates, the petitioner accepted the same and deposited the balance security amount of `4 lacs and accordingly, the allotment letter dated 16.05.2011 was issued to the petitioner. The technical bid of the petitioner was accepted after site inspection and the price bid of the petitioner was opened. However, the agreement with the respondents was never finalized and the period for extension of offer was never extended between the petitioner and the respondents. The petitioner was sincerely and willingly making efforts for the construction of godowns after the acceptance of her tender and approached the Town & Country Planning Department, Sonepat for obtaining change of land use (CLU) certificate when she came to know that no CLU for construction of godowns could be given as there has to be a 33 ft. wide approach road to the site of godowns from the metalled road. The application for obtaining CLU had to be submitted along with non-refundable processing fee of `40,000/- per acre and therefore, the petitioner did not apply for CLU as it could not be granted for the site offered by the petitioner. The petitioner had accepted the counter-offer of the respondents on a bona fide belief that her technical bid had been accepted by the Government agency with 15 ft. wide road to the site and the petitioner was never informed during site inspection or thereafter regarding the minimum requirement of 33 ft. wide approach road CWP No.13827 of 2012 3 to the site of godowns from the metalled road. Petitioner has further pleaded that the road proposed by the petitioner could not be sanctioned and the technical committee sanctioned the site offered by the petitioner as per their own specifications and kept the petitioner in dark by sanctioning the site plan with 15 ft. approach road and under the misguidance, the petitioner deposited the security amount of `6 lacs and now the respondents were forfeiting the same by blaming the petitioner for not completing the construction work.
4. The petitioner had made repeated requests to the respondents to refund the security amount and also through written request dated 05.12.2011, but the respondents kept on compelling the petitioner to construct the godowns which was not possible. The legal notice dated 28.02.2012 was sent for refund and its reply was received on 29.03.2012. Instead of refunding the security amount, the respondents issued letter dated 17.04.2012 proposing to cancel the allotment letter dated 16.05.2011. Thereafter, vide letter dated 03.07.2012, the allotment was cancelled and the amount of `6 lacs had been forfeited. Accordingly, in the said circumstances, the writ petition has been filed.
5. Counsel for the petitioner has argued that the technical bid of the petitioner was opened and she had submitted the site plan and, therefore, HAFED had wrongly cancelled the allotment letter and forfeited the earnest money. It was contended that it was not possible to get the CLU since there was no approach road of minimum width of 33 ft., therefore, it was not the fault of the petitioner as she could not construct the godowns.
6. The submission made by the counsel for the petitioner is without any basis. Admittedly, the petitioner had applied for construction CWP No.13827 of 2012 4 of 15,000 M.T. capacity godown at Gohana, District Sonepat and was well aware of the condition that all necessary approvals have to be taken from the Government departments for the running of the godowns and it was her responsibility. The petitioner was allotted the said contract on 16.05.2011 and vide notice dated 17.04.2012, had been asked to submit the lay-out plan for inspection and approval of the competent authority but the same had never been submitted. The godown was to be constructed within one year from the date the letter of allotment was issued, i.e., 16.05.2011 but even on 17.04.2012, no lay out plan was submitted. Thus, HAFED had served notice upon the petitioner for completing the construction failing which, the letter of allotment was to be cancelled. There is nothing to show that the petitioner took any steps to start construction, at any stage, nor there is anything on record to show that she had even applied for change of land use and submitted any layout plan. In the notice inviting tender, Clause 31 especially provided that in case the construction is not completed and leased out by the extended date, then the security deposited by the tenderer is liable to be forfeited. The construction was to be done as per Clause 31 of the General Conditions of Tender. The same is reproduced below:
"31. The HAFED reserves the right to refuse to take over the said Godowns on guaranteed hiring for Ten years if the construction of godowns is not completed in all respects and leased out to the HAFED by the extended date and in that event the Security Deposit of the tenderer is also liable to be forfeited."
7. In view of the fact that the petitioner was to comply with the conditions as per the allotment letter within a period of one year and she failed to do so, she cannot turn around now and say that the CLU was not granted due to the fact that the road was not 33 ft. wide. Nothing has been CWP No.13827 of 2012 5 brought on record to show that any effort for change of land use had been made by the petitioner. It is her own case that she had not applied for the CLU for construction of the godown. Thus, it is apparent that the petitioner was not interested seriously in pursuing the allotment and constructing the godown in pursuance of the same. Once the petitioner was well aware of the conditions of the PEG Scheme, 2008, she cannot now be permitted to say that she is entitled for the refund of the earnest money. As per Clause 39 of the General Conditions of the Tender, it was the petitioner who had to get the necessary approvals and the same is reproduced below:-
"39. That obtaining of necessary approvals/license from the concerned rural and/or urban local bodies, State and Central Govt. Departments/concerned authorities for the construction and running of Complex will be the responsibility of the Tenderer at his cost and the HAFED will have no responsibility in this regard, whatsoever."
8. There is nothing on record to show that the petitioner had made efforts for the same and, therefore, the present writ petitions under Articles 226/227 of the Constitution of India lacks merit. Accordingly, the writ petitions are dismissed in limine.
(G.S.SANDHAWALIA)
JUDGE
24.07.2012 (AJAY KUMAR MITTAL)
sailesh JUDGE