Allahabad High Court
Upadhya And Co. vs State Of U.P. And Ors. on 3 May, 1997
Equivalent citations: (1997)3UPLBEC1637
Bench: M. Katju, B.S. Chauhan
JUDGMENT
M. Katju and B.S. Chauhan, JJ.
1. This Writ Petition No. 32974 of 1991 and Writ Petition No. 22439 of 1992 are being disposed of by a common judgment. Writ Petition No. 32974 of 1991 has prayed for writ of certiorari to quash the order dated 4-11 -1991 Annexure-3 to the petition and for a mandamus restraining the respondents from interfering with the right of the petitioner of collecting the fee over the Shastri Bridge and for a mandamus directing the respondents to accept the contract in favour of the petitioner of realising the fee over Shastri Bridge in respect of auction dated 29-10-1991 for the period 1991-94.
2. We have heard learned counsel for the petitioner and learned Standing Counsel We have also perused the two orders of the Hon'ble Supreme Court communicated through a letter of the Assistant Registrar, Supreme Court of India to the Registrar of this Court vide letter dated 22-4-1996. These orders have been passed in S.L.P. No. 9835 of 1994 State of U.P. and Ors. v. Upadhyaya and Company, on 14-7-1994 and on 22-4-1996. The Supreme Court has expressed its shock over certain interim orders passed by this Court in these writ petitions.
3. The facts of the case are that there is a bridge called Shastri Bridge at National Highway No., 2 over river Ganges near Allahabad. Petitioner has alleged that he was awarded a contract to collect the toll fee on the said bridge for one year from 24-11-1990 to 23-11-1991 and the contract money for this period of one year was Rs. 85,76,000/-. Photo copy of the agreement is Annexure-1 to the petition. It was alleged in paragraph-3 of the petition that this contract period was going to expire on 23-11-1991. The respondents published an advertisement on 6-9-1991 in the news papers inviting applications from prospective bidders for further auction for a period of 3 years (from 1991 to 1994) of the right to collect the fee over the bridge in question. The petitioner has alleged that he completed all the formalities and he has alleged in paragraph-5 of the petition that he was the highest bidder in the auction held on 29-10-1991 for these 3 years and his bid was Rs. 88,00,000/-per year. In para-6 of the petition it is alleged that on 4-11-1991 the petitioner received a notice from respondent No. 3 in which the petitioner was directed to hand over the charge of collection of fee over Shastri Bridge to the officials of respondent No. 3 on 24-11-1991. A true copy of the said notice is Annexure-3 to the petition. In para-7 of the petition it is alleged that immediately after receipt of notice dated 4-11 -1991 the petitioner made a representation to respondent No. 3 in which the petitioner requested that respondents should not interfere with the right of the petitioner to collect the fee over Shastri Bridge. True copy of the said representation is Annexure-4 to the petition It is alleged in para 20 of the petition that the Commissioner, Allahabad, did not take any decision on the representation of the petitioner dated 31-1-1991. Hence the petitioner filed this writ petition.
4. It is not disputed that under the relevant rules the bid was subject to approval of the Commissioner. If is settled law that there are two types of auctions, one where the bid is not subject to approval, and the other one where it is subject to approval In the case of a bid which is not subject to approval, the auction is complete on the fall of the hammer. However if the bid is subject to approval, it is well settled that the auction will not be complete unless approval is granted by the authority concerned. In the present case since the Commissioner, Allahabad had not granted approval for the petitioner's bid, the auction was not complete and hence the petitioner had no right to continue collecting toll on Shastri Bridge after 23-11-1991. We fail to understand how these petitions could be entertained by this Court when there was no approval by the Commissioner and how interim orders could have been passed.
5. The Supreme Court in its order dated 14-7-1994 has observed that the result of the interim order passed by a learned single Judge of this Court on 24-6-1992 is that while permitting the petitioner, who claims to be entitled to collect the toll fee over Shastri Bridge to collect the same at the revised rates (which are practically double the previous rate), the Government was restrained from enhancing the bid money, which means the Government could not get the benefit of the revised rate. The Supreme Court therefore observed that the said interim order was an unusual order which results in unjust enrichment of the petitioner to the detriment of public revenues and that the said order was wholly unjustified and one which has the tendency to shake the confidence of the people in the judiciary.
6. As observed above by us, the bid of the petitioner could only be said to be accepted after it had approval by the Commissioner. Since, there was no approval by the Commissioner there was no valid auction in favour of the petitioner at all for the period 1991-94. The interim order of this Court dated 24-6-1992 practically amounted to approval of the auction bid of the petitioner, which could only be granted by the Commissioner and not by this Court. This Court cannot arrogate to itself the power of the Commissioner under the Rules. It is surprising that although there was no approval in favour of the petitioner of the bid in respect of the auction held on 29-10-1991, the petitioner continued collecting toll for the entire period of 3 years for which the auction was held, pursuant to the interim order of this Court. In our opinion the said interim order were totally unwarranted.
7. Learned counsel for the petitioner had made a mention at 10.00 a.m. that this writ, petition be dismissed as not pressed and at that time we thought this was an innocuous prayer and we accepted it. However, subsequently when we purused the record of the case and saw the order of the Supreme Court referred to above we realised the seriousness of the situation and called for learned counsel for the petitioner and heard his submissions.
8. The Supreme Court has held that the petitioner has derived unjust benefit in pursuance of the interim order of this Court, and we are therefore of the opinion that the petitioner must repay the unjust and illegal amount by which he has been benefitted. It appears that rates of toll has been revised to almost double compared to the previous rate, but by the interim order of this Court dated 24-6-1992 the Government was restrained from enhancing the bid money. In these circumstances, we are of the opinion that petitioner has to refund to the Government, the extra illegal amount which he has pocketed. In our opinion, the bid money for the period for which the petitioner collected toll after 23-11-1991 over Shastri Bridge should be recalculated by the Commissioner, Allahabad Division, Allahabad, within one month from today. The bid of the petitioner for the period after 23-11-1991 shall be enhanced proportionately to the enhancement of the rates by the revision in the rates. The enhanced amount of bid money shall be payable with interest at 15% by the petitioner to the Government with effect from the date of enhancement of the rate of toll. The Commissioner shall pass necessary orders in this connection within one month as observed above and the petitioner shall pay the amount calculated by the Commissioner, Allahabad, within 15 days of the order of the Commissioner, Allahabad. If the petitioner does not pay the said enhanced bid amount, within this period the Commissioner shall recover the said amount as arrears of land revenue and the petitioner shall pay also interest @ 15% from the date from which the amount should have been paid till the date of the order of the Commissioner. Both these petitions are dismissed with these observations. The Commissioner, Allahabad, will send a compliance report to this Court by 10th June, 1996 and a copy of the said order will also be sent by the Commissioner, Allahabad to the Registrar of the Supreme Court of India. The Registrar of this Court will send copy of this judgment forthwith to the Registrar General of the Supreme Court.