Patna High Court - Orders
The Union Of India & Ors vs Umesh Kumar Paswan & Anr on 7 January, 2010
Author: Dipak Misra
Bench: Dipak Misra
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.765 of 2009
RAM BABU CHOUDHARY, SON OF LATE AWADH CHOUDHARY,
RESIDENT OF MOHALLA - DONAR, STATION ROAD, P.O.
LALBAGH, P.S. DARBHANGA TOWN, DISTRICT - DARBHANGA
..................................... RESPONDENT NO. 7 / APPELLANT
Versus
1. THE UNION OF INDIA THROUGH ITS COMMISSIONER CUM
SECRETARY, DEPARTMENT OF RAILWAY, GOVT. OF INDIA, NEW
DELHI,
2. ZONAL MANAGER, EAST CENTRAL RAILWAY, HAJIPUR,
DISTRICT - VAISHALI, BIHAR,
3. SR. DIVISIONAL RAIL MANAGER (COMMERCIAL), EAST
CENTRAL RAILWAY, SAMASTIPUR,
4. DIVISIONAL RAIL, MANAGER (COMMERCIAL), EAST CENTRAL
RAILWAY, SAMASTIPUR, BIHAR,
5. ASSISTANT COMMERCIAL MANAGER-I, D.R.M. OFFICE, EAST
CENTRAL RAILWAY, SAMASTIPUR, BIHAR,
6. STATION SUPERINTENDENT (RAIL), DARBHANGA UNDER
D.R.M., SAMASTIPUR .................. RESPONDENTS /
RESPONDENT 1ST SET, AND
7. VIJAY KUMAR ANAND, SON OF RAM CHANDRA PANJIYAR,
RESIDENT OF MOHALLA - ROHANGANJ, P.O. LALBAGH, P.S.
LAHERIASARAI, DISTT. - DARBHANGA .....................
................................PETITONER / RESPONDENT 2ND SET.
with
LPA No.766 of 2009
RAM BABU CHOUDHARY, SON OF LATE AWADH CHOUDHARY,
RESIDENT OF MOHALLA - DONAR, STATION ROAD, P.O.
LALBAGH, P.S. DARBHANGA TOWN, DISTRICT - DARBHANGA
.................................... RESPONDENT NO. 6/APPELLANT
Versus
1. THE UNION OF INDIA THROUGH ITS COMMISSIONER CUM
SECRETARY, DEPARTMENT OF RAILWAY, GOVT. OF INDIA, NEW
DELHI,
2. DEPUTY GENERAL MANAGER, EAST CENTRAL RAILWAY,
HAJIPUR, DISTRICT - VAISHALI, BIHAR,
3. DIVISIONAL RAIL MANAGER COMMERCIAL (BA), EAST
CENTRAL RAILWAY, SAMASTIPUR, BIHAR
4. ASSISTANT COMMERCIAL RAIL MANAGER, EAST CENTRAL
RAILWAY, SAMASTIPUR, BIHAR,
6. STATION SUPERINTENDENT (RAIL), DARBHANGA UNDER
D.R.M., SAMASTIPUR ......RESPONDENTS / RESPONDENT 1ST SET,
AND
7. UMESH KUMAR PASWAN, SON OF SURAJ PASWAN, RESIDENT
OF MOHALLA - LAXMISAGAR, NEAR CHAKKAR, P.O. LALBAGH,
P.S. L.N.M.U., DISTT. - DARBHANGA .....................PETITONER /
RESPONDENT 2ND SET.
with
LPA No.784 of 2009
2
1. THE UNION OF INDIA THROUGH ITS COMMISSIONER - CUM -
SECRETARY, DEPARTMENT OF RAILWAY, GOVT. OF INDIA, NEW
DELHI,
2. ZONAL MANAGER, EAST CENTRAL RAILWAY, HAJIPUR,
DISTRICT - VAISHALI, BIHAR,
3. SR. DIVISIONAL RAIL MANAGER (COMMERCIAL), EAST
CENTRAL RAILWAY, SAMASTIPUR,
4. DIVISIONAL RAIL MANAGER (COMMERCIAL), EAST CENTRAL
RAILWAY, SAMASTIPUR,
5. ASSISTANT COMMERCIAL MANAGER, D.R.M. OFFICE, EAST
CENTRAL RAILWAY, SAMASTIPUR,
6. STATION SUPERINTENDENT (RAIL), DARBHANGA UNDER
D.R.M., SAMASTIPUR ............................... RESPONDENTS /
RESPONDENT 1ST SET,
Versus
1. VIJAY KUMAR ANAND, SON OF RAM CHANDRA PANJIYER,
R/O MOHALLA - RAHAMGANJ, P.S. - LALBAGH, LAHERIASARAI,
DISTT. - DARBHANGA ........... PETITONER / RESPONDENT
2. RAM BABU CHOUDHARY, SON OF NOT KNOWN, RESIDENT OF
MOHALLA - DONAR, STATION ROAD, P.O. LALBAGH, P.S.
LAHERIASARAI, DISTRICT - DARBHANGA ............ PRIVATE
RESPONDENT NO. 7/PROFORMA RESPONDENT.
with
LPA No.789 of 2009
1. THE UNION OF INDIA THROUGH ITS COMMISSIONER - CUM -
SECRETARY, DEPARTMENT OF RAILWAY, GOVT. OF INDIA, NEW
DELHI,
2. DEPUTY GENERAL MANAGER, EAST CENTRAL RAILWAY,
HAJIPUR, DISTRICT - VAISHALI, BIHAR,
3. DIVISIONAL RAILWAY MANAGER COMMERCIAL (BA), EAST
CENTRAL RAILWAY, SAMASTIPUR, BIHAR,
4. ASSISTANT COMMERCIAL RAIL MANAGER, EAST CENTRAL
RAILWAY, SAMASTIPUR, BIHAR
5. STATION SUPERINTENDENT (RAIL), DARBHANGA UNDER
D.R.M., SAMASTIPUR ......... RESPONDENTS / APPELLANTS,
Versus
1. UMESH KUMAR PASWAN, SON OF SURAJ PASWAN, RESIDENT
OF MOHALLA - LAXMISAGAR, NEAR CHAKKAR, P.O. LALBAGH,
P.S. L.N.M.U., DISTT. - DARBHANGA.. PETITIONER / RESPONDENT
2. RAM BABU CHOUDHARY, SON OF NOT KNOWN, RESIDENT OF
MOHALLA - DONAR, STATION ROAD, P.O. LALBAGH, P.S. TOWN,
DISTRICT - DARBHANGA ............ PRIVATE RESPONDENT NO.
6/PROFORMA RESPONDENT.
-----------
(In LPAs No. 765/2009 & 766/2009)
For the Appellant:- Mr. Ajay Kumar Thakur,
Mr. Md. Imtiyaz Alam, Advocates.
For the Respondents 1-5/6:- Mr. N.K. Agrawal, Sr. Advocate with
Mr. Sunil Kumar Ravi, Advocate.
For the Respondent No.6/7:- Mr. Y.V. Giri, Sr. Advocate with
Mr. Md. Shahnawaz Ali, Advocate.
3
(In LPAs No.784/2009 & 789/2009)
For the Appellants:- Mr. N.K. Agrawal, Sr. Advocate with
Mr. Sunil Kumar Ravi, Advocate.
For the Respondent No. 1:- Mr. Y.V. Giri, Sr. Advocate with
Mr. Md. Shahnawaz Ali, Advocate.
----------
4. 07.01.2010. These four intra-court appeals being interconnected and interlinked were heard analogously and disposed of by a singular order.
2. Be it noted, LPA No. 765/2009 and LPA No. 766/2009 have been preferred by one Ram Babu Choudhary, the private respondent in CWJC No. 3647/2009 and CWJC No. 4685/2009. LPA No. 784/2009 and LPA No. 789/2009 have been preferred by Railway Administration which is also dissatisfied with the order passed in the writ petitions.
3. Sans unnecessary details, the facts which are requisite to be exposited are that Umesh Kumar Paswan and Vijay Kumar Anand invoked the jurisdiction of this Court under Article 226 of the Constitution of India forming the subject matter of CWJC No. 3647/2009 and CWJC No. 4685/2009 respectively challenging the communications dated 09.03.2009 and 12.03.2009 of the Divisional Rail Manager (Commercial), Samastipur by which said Ram Babu 4 Choudhary was selected for settlement of Cycle-cum- Scooter Stand and Taxi Stand respectively at Darbhanga Railway Station for the purpose of collecting parking fees for a period of three years commencing 1st April, 2009. In October, 2008, the Railway Administration issued Notice inviting tenders for settlement of Cycle- cum-Scooter Stand and Taxi Stand at Darbhanga Railway Station fixing the reserved price at Rs. 3,12,075/- and Rs. 7,80,000/- for Cycle-cum-Scooter Stand and Taxi Stand respectively. Tenders were required to be filed separately for each of the places and certain procedures were prescribed for filing tenders. Tenders were to be filed between 10.00 A.M. to 12.00 Noon on 23.03.2008. Petitioner Umesh Kumar Paswan, who was earlier a licensee for Taxi Stand purchased tender form and made all arrangements including purchase of Bank Draft, but he was cornered by the private respondent, Ram Babu Choudhary and his associates as a consequence of which he could not participate in the tender. He submitted representation to the Railway authorities making allegations in the said regard, but when no response was shown, he visited this 5 Court by filing CWJC No. 2104/2009 for annulment of the tender. It was averred in the writ petition that there was only singular tender filed by said Ram Babu Choudhary which had been accepted. This Court directed the Railway Administration to consider the facts from all spectrums keeping in view the concept of healthy competition. Said Umesh Kumar Paswan submitted a representation in pursuance of the order passed by this Court, but the Railway Administration stood embedded in its stand that the tender process has been fair and transparent.
4. As far as Vijay Kumar Anand, writ petitioner in CWJC No. 4685/2009 is concerned he had purchased the tender papers, but could not participate in respect of the tender process for Cycle-cum-Scooter Stand being prevented by Ram Babu Choudhary. In this backdrop, a prayer was made in the writ petition for holding a re-tender which would be fair and transparent.
5. The Railway Administration filed its counter affidavit before the Writ Court stating, inter alia, that five tender forms were sold in relation to Taxi Stand (Motor Vehicle Stand), but only one form was submitted. 6 As far as Cycle-cum-Scooter Stand is concerned, it was put forth that seven tender forms were sold, but only one was submitted. The forms that were submitted in respect of both the tenders belonged to Ram Babu Choudhary. Justification was given how there has been a fair and transparent process. The offset price / reserved price, as has been indicated hereinbefore, was Rs. 3,12,075/- for Cycle-cum-Scooter Stand and Rs. 7,80,000/- for Taxi Stand and the tender given by Ram Babu Choudhary for the first one was Rs. 3,25,209/- and for the second was Rs. 8,11,009/-. Learned single Judge took note of the fact that seven tender papers were sold and there was no reason that one tender could be submitted and, that too, by one person; that the Railway Administration should have considered the representation submitted by the writ petitioner, which was made in pursuance of the order passed in CWJC No. 2104/2009; that the very object of open tender is to get the best competitive price, but in the cases at hand, the same stood frustrated; that the communication made to the writ petitioner shows the realisation of the Railway Administration that railways have not got the best price; 7 that if the guidelines issued by the Central Vigilance Commission, especially Clause 6.3 is properly appreciated, it would be clear that the element of competition has been totally eliminated; that the acceptance of a singular tender was not justified in the absence of any explanation offered by the Railway Administration for going for further competitive bids; that the Railway Administration took its own time to take a decision after expiry of five months and, in fitness of things, to inspire confidence in the operative system of railway it was appropriate to command the Railway Administration to re-tender the matter ensuring healthy competition for getting the best price.
6. Being dissatisfied with the aforesaid order, as has been indicated hereinbefore, the licensee as well as the Railway Administration have preferred the appeals.
7. When the appeals were taken up today for hearing, this Court enquired from the learned counsel for the parties to put forth their bids in respect of tender Items No. 1 and 2. As far as the Cycle-cum-Scooter Stand and Taxi Stand is concerned, the offer started from 8 five lacs and eventually went up to twenty one lacs. As far as the Taxi Stand is concerned, it commenced from ten lacs and went up to twenty five lacs.
8. In this context we may refer with profit to the decision rendered in Ram and Shyam Company Vs. State of Haryana & Ors., (AIR 1985 SC 1147). In the said case, the Apex Court addressed itself to the concept of legitimate revenue of the State and how the State is deprived. In this context we may reproduce paragraphs 5 & 6 as under:-
"5. At this stage it would be advantageous to refer in some details of what transpired at the hearing of this appeal in this court. Let us at once recapitulate what happened in the court because that by itself provides a tell-tale piece of evidence compelling the court to interfere and set aside the impugned order. Mr. L.N. Sinha, learned Attorney General raised a sort of a preliminary objection that this court should not assist the syndicalists to join hands to deprive the State of its legitimate revenue. Then he made a pertinent observation interposing an objection when Mr. Sorabjee, learned counsel for the petitioner was making his submissions. The question posed was; if this Court interferes 9 and quashes the grant in favour of the fourth respondent, the only option open to the court would be to direct a fresh auction. He posed the further question that if at the time of re- auction, the highest bid does not reach up to Rs. 4,50,000/- p.a. for which the lease is granted to the fourth respondent, would the Court make good the loss? Apart from the rhetoric of the question, the issue raised was of primary importance. We therefore asked Mr. Sorabjee whether his client is willing to make an affidavit incorporating therein that if the highest bid at a reauction, if the court so directs, falls short of Rs. 4,50,000, the appellant would agree and undertake to accept the contract at the value of Rs. 5,50,000/- p.a. Such an affidavit was immediately filed. In order to give the fourth respondent to whom contract under the impugned order was given, an opportunity whether he would like to raise his offer. Mr. P.P. Rao voiced his apprehension about his contentions. We assured him that without prejudice to his contentions, it would be open to his client to raise his offer. What transpired may be tabulated in a chart :
Appellant's offer Respondent's offer
1. 5.50 lacs 2. 6 lacs
3. 6.50 lacs 4. 7 lacs 10
5. 7.50 lacs 6. 8 lacs
7. 8.50 lacs 8. 9 lacs
9. 10 lacs 10. 10.50 lacs Court intervened at this stage and said that the raise must be minimum at the rate of Rs. 1 lac.
11. 12 lacs 12. 14 lacs
13. 15 lacs 14. 16 lacs
15. 17 lacs 16. 18 lacs
17. 19 lacs 18. 20 lacs
19. 21 lacs 20. 22 lacs
21. 25 lacs."
...........
"6. Shock and surprise was visible on the face of each one in the court. Shock was induced by the fact that public property was squandered away for a song by persons in power who hold the position of trust. Surprise was how judicial intervention can serve larger public interest. One would require multi-layered blindfold to reject the appeal of the appellant on any tenuous ground so that the respondent may enjoy and aggrandize his unjust enrichment. On this point we say no more."
9. After so stating, their Lordships proceeded as follows:-
"13. Approaching the matter from this angle, 11 can there be any doubt that the appellant whose highest bid was rejected by the Government should have no opportunity to improve upon his bid more so when his bid was rejected on the ground that it did not represent adequate market consideration for the concession to extract minor mineral. A unilateral offer, secretly made, not correlated to any reserved price made by the fourth respondent after making false statement in the letter was accepted without giving any opportunity to the appellant either to raise the bid or to point out the falsity of the allegations made by the fourth respondent in the letter as also the inadequacy of his bid. The appellant suffered an unfair treatment by the State in discharging its administrative functions thereby violating the fundamental principle of fairplay in action. When he gave the highest bid, he could not have been expected to raise his own bid in the absence of a competitor. Any expectation to the contrary betrays a woeful lack of knowledge of auction process. And then some one surreptitiously by a secret offer scored a march over him. No opportunity was given to him either to raise the bid or to controvert and correct the erroneous statement."
10. Thereafter, eventually their Lordships 12 proceeded to state as follows:-
"14.What happened in this case must open the eyes both of the Government as well as the people at large. How an uncontrolled exercise of executive power to deal with socialist property in which entire community's interest was sacrificed so as to cause huge loss to the public exchequer would have gone unnoticed but for the vigilance of the appellant who no doubt is not altruistic in its approach but its business interests goaded it to expose the unsavoury deal. ....."
11. Thereafter, their Lordships proceeded to state as follows:-
"19.Apart from various considerations herein examined if any other view is taken in the facts and circumstances of this case, it may provide a classic example of ostrich burying its face in sand and declining to see the reality."
12. The present factual scenario, if we are allowed ourselves to say so, frescoes a disturbing scenario as is evident the offer which was Rs. 3,25,209/- has gone up to Rs. 21,00,000/- and the offer that was Rs. 8,11,009 has gone up to Rs. 25,00,000/-. This 13 phenomenon is not only perplexing but disastrously shocking. It does reflect a concavity in the tendering system. The authorities which deal with public largesse are the trustees of such largesse on behalf of the Collector. They cannot afford to guillotine the fundamental fiscal principle and rest in `City Halls'. When the single tender was submitted and there is a marginal rise in the offer, we are disposed to think the Railway Administration had really not applied its mind and had mechanically accepted the tender. A public authority must remember its accountability to the public at large as he acts on behalf of the public. There has to be fair play in action. That apart the collective interest based on the commercial principle cannot be foundered or thrown to the Bay of Bengal as the State has a sacrosanct duty to obtain acceptable and legitimate revenue from its resources. The sacrosanctity of the public interest has to be kept on the high pedestal and no deviancy thereof should be shown. Thus, the direction of the learned single Judge for holding a fresh tender cannot be found fault with and, more so, when what has surfaced in course of hearing in these appeals.
14
13. In view of the aforesaid premises, we are inclined to issue the following directions:-
(a) The reserved price / offset price of the Cycle-cum-Scooter Stand and that of the Taxi Stand is fixed at Rs. 21,00,000/- (Twenty One lacs) and Rs.
25,00,000/- (Twenty Five lacs) respectively.
(b) The appellant, namely, Ram Babu Choudhary and the private respondents, namely, Vijay Kumar Anand and Umesh Kumar Paswan shall deposit a sum of Rs. 7,00,000/- (Seven lacs) each for the first tender and Rs. 8,00,000/- (Eight lacs) each for the second tender before the Registry of this Court by way of Bank Drafts within ten days from today. Be it noted, the said position has been agreed to by the learned counsel for the parties after obtaining instructions.
(c) The appellant, Ram Babu Choudhary and the private respondents, namely, Vijay Kumar Anand and Umesh Kumar Paswan shall not submit their offer below the reserved price and, on their doing so, the amount deposited by them before this Court shall stand forfeited. The said position is acceded to by the learned counsel for the parties after obtainment of instructions. 15
(d) The fresh tender process shall commence by the Railway within a period of two weeks by giving wide publicity.
(e) On the date of submission of the tender, the Collector and the Superintendent of Police of Darbhanga District shall provide police protection to the persons submitting tender and the authorities of the Railways. Learned Government Counsel has fairly stated that such arrangement shall be made on intimation by the concerned Divisional Railway Manager to the Collector of the District. The concerned Divisional Railway Manager of the Railway Administration, the Collector and the Superintendent of Police of the District shall coordinate and work in harmony so that a fair and transparent tender process takes place.
(f) Any amount that has been deposited by the earlier licensee shall be adjusted from the amount that has been directed to be deposited before this Court.
(g) The period of tender shall be for three years from the date of settlement.
With the aforesaid modification in the order of the learned single Judge, all the aforesaid Letters 16 Patent Appeals are disposed of. In the facts and circumstances of the case there shall be no order as to costs.
( Dipak Misra, C.J. ) ( Dr. Ravi Ranjan, J. ) Dilip