Patna High Court
Chandrapal Singh vs State Of Bihar And Ors. on 26 July, 2004
Equivalent citations: 2004(3)BLJR1837
Author: S.K. Katriar
Bench: S.K. Katriar
JUDGMENT S.K. Katriar, J.
1. Heard Mr. Dinesh Singh for the petitioner, Mr. Mithilesh Kumar Singh for respondent Nos. 2 and 3, Mr. Kamal Nayan Choubey for respondent No. 5, and Mr. Ashok Kumar Pandey for respondent No. 6. None appears on behalf of respondent No. 1 nor for respondent No. 4 (Dinesh Singh). This writ petition is directed against the order bearing Memo No. 58, dated 31.5.2003 (Annexure -1), issued under the signature of respondent No. 3 (The Deputy Development Commissioner- cum-Chief Executive Officer, District Board, Kaimoor at Bhabhua), whereby settlement of Kakrait Ghat for the period 1.6.2003 to 31.3.2006 has been made in favour of respondent No. 5 (Sunil Kumar Singh) for a consideration money of Rs. 11,29,000/- for ferry rights to the exclusion of the petitioner.
2. A brief background of the present dispute is essential for effective disposal of the issues raised in this writ petition. Respondent No. 3 had earlier issued a notice bearing Memo No. 706, dated 28.2.2003 (Annexure-2), notifying that auction for settlement shall be made on 21.3.2003 which was extended to 1.4.2003 by a later order bearing Memo No. 710, dated 21.3.2003, marked Annexure-2/1 of the writ petition. Respondent No. 6 was the highest bidder for Rs. 9,01,000/- which was granted in his favour for a period of three years, namely, 1,4.2003 to 31.3.2006. He deposited the requisite amount and started working out the settlement. However, much before respondent No. 6 could complete the period of three years, respondent No. 5 offered a higher amount by 25 per cent. Therefore, respondent No. 3 decided to hold a fresh bid by his order dated 19.4.2003 (Annexure-12). Respondent No. 5 deposited fifty per cent of the total amount on 18.4.2003, The same was challenged by respondent No. 6 by preferring CWJC No. 4228 of 2003 which was disposed of by a learned Single Judge of this Court by his order dated 23.5.2003 (Annexure-5), where by a fresh auction was directed to be held.
3. In pursuance of the direction in the judgment, respondent No. 3 issued a fresh auction notice on the same day, i.e. 23.5.2003 (Annexure-6). The same was published in two Hindi local Dailies on 27.5.2003, photo copies of the advertisements are marked Annexures-B/1 and B/2 to the counter affidavit of respondent Nos. 2 and 3. The terms and conditions of the advertisement were stipulated in the said notice dated 23.5.2003 (Annexure-6). Accordingly the auction took place on 31.5.2003. The petitioner was the highest bidder, offering a sum of Rs. 11,30,000/-, with respondent No. 5 trailing behind with his offer of Rs. 11,29,000/-. Respondent No. 3 by the impugned order granted the impugned settlement in favour of respondent No. 5 on the ground that the petitioner had not deposited fifty per cent of the bid amount forthwith. Hence this writ petition at the instance of the petitioner.
4. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the condition stipulated in the auction notice dated 23.5.2003 (Annexure-6) is arbitrary, unreasonable, and was designed to help respondent No. 5 because he is the nephew of respondent No. 4. He further submits that it is manifest from the original records produced before the Court that respondent No. 4 is the Mukhiya of that panchayat and was allowed to deposit fifty per cent of his offer of Rs. 11,26,250/- , which was on the realisation by respondent No. 3 that the same cannot be settled in favour of a Mukhiya was directed to be returned vide orders dated 15.4.2003 and 18.4.2003. In other words, it is submitted that the settlement in substance has been made in favour of respondent No. 4 through back-door. He next submits that the circumstances obtaining in this case show a pre-determined mind to make the settlement in favour of respondent No. 5 because it was really pre-determined to be settled in favour of respondent No. 4. He next submits that respondent No. 5 has not complied with some of the other conditions mentioned in Annexure-6, nor has the document of settlement been registered till date. He submits in the alternative that a fresh bid may be held. Learned counsel for the petitioner has relied on a number of reported judgments.
5. Respondent No. 5 has submitted that the petitioner was althrough represented by one Amirukh, his agent, who is not a co-petitioner and, therefore, this writ petition is not maintainable. He next submits that in a competitive matter like the present one, the parties shall be bound down to the terms and conditions stipulated in Annexure-6. On the own showing of the petitioner, he was unable to deposit the fifty per cent of the bid amount. He next submits that there is absence of pleadings in the writ petition that the petitioner has not complied with the conditions stipulated in Clause (3) of Annexure-6. He next submits that in so far as the stipulation in Annexure-6 is concerned that the deed of settlement has to be registered, he submits that the same was unreasonable, He submits that the provisions of the Bengal Ferries Act, 1885 do not lay down that registration is compulsory. Section-90 of the Registration Act, stipulates that there is complete exemption from compulsory registration of such a settlement. However, following the line of least-resistance, he submits that respondent No. 5 is still prepared to have the same registered if so directed by the Court. Relying on the judgment reported in AIR 1968 SC 647 (State of Orissa v. Sudhansu Sekhar Misra and Ors.), he submits that the judgments relied on by learned counsel for the petitioner do not lay down the proposition submitted by him.
6. Learned counsel for respondent Nos. 2 and 3 has, in his elaborate submissions, supported the stand taken by respondent No. 5.
7. Learned counsel for respondent No. 6 has also made his own submission.
8. I have perused the materials on record, the original records maintained by respondent No. 3 in his office relating to the affairs in question, and considered the submissions of learned counsel for the parties. Clause 2 to 4 of Annexure-6 are set out hereinbelow for the facility of quick reference :
2- Mkd dh vk/kh jkf'k Mkd lekIr gksus ij rqjar tek djuk gksxkA vU;Fkk tekur dh jkf'k tIr dj yh tk;sxhA oUnksoLrh dh vo'ks"k vk/kh jkf'k nks cjkcj fdLrksa esa ,d&,d ekg ds vUrjky esa tek djuk gksxkA 3- lqjf{kr jkf'k ls Mkd dh jkf'k dke vkus ij iqu% Mkd djus ij fopkj fd;k tk;sxkA Mkd esa Hkkx ysus okys O;fDr dks viuh lEifÙk dk fooj.k rFkk vk; izek.k&i= izLrqr djuk gksxkA 4- oUnksoLrh ysus okys O;fDr dks QSjh ,sDr ds vUrxZr dewfy;r fuoaf/kr vafdr djuk gksxk] ftldk O;; Hkkj oUnksoLr/kkjh dks lO;a ogu djuk gksxkA
9. It appears to me that Clause (2) to the effect that the successful bidder shall have to deposit half of the amount forthwith unreasonable, arbitrary and meant to support respondent No. 5. In a situation like the present one where the bid amount offered by the petitioner was to the tune of Rs. 11,30,000/- half whereof may not be available to the petitioner at the time of the bid. In a God forsaken State like the State of Bihar where law and order is the greatest casualty and abduction is the most flourishing industry it would be extremely unsafe to carry a sum of Rs. 5,65,000/-. The situation of law and order is so alarming in this State that the persons carrying so much of cash will do so at the risk of abduction or loosing his life, or the very minimum of deprivation of cash. Furthermore, the bid amount could not have been known to anyone of the parties before hand. I have, therefore, no hesitation in concluding that it is unpractical and unsafe to carry that much of amount. Respondent Nos. 2 and 3 in all fairness ought to have allowed a reasonable time to deposit the amount. A reasonable time would depend on the facts and circumstances of each cases which is not the issue here. Respondent Nos. 2 and 3 would have been well advised to stipulate a fixed period in the notice to deposit the amount, The Supreme Court in its well known judgment reported in AIR 1967 SC 1427 (S.G. Jaisinghani v. Union of India and Ors.] held as follows in paragraph 14 of the report :
"14. In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey - "Law of the Constitution"-Tenth Edn., Introduction ex). "Law has reached its finest moments," stated Douglas, J. in United States v. Wunderlich, (1951) 342 US 98, "when it has freed man from the unlimited discretion of some ruler.... Where discretion is absolute, man has always suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated in it classic terms in the case of John Wilkes, (1770) 4 Burr 2528 at p. 2539 "means sound discretion guided by law. It must be governed by rule, not by humour : it must not be arbitrary, vague, and fanciful."
10. This Court is in no doubt that respondent No. 3 has been manipulating the affairs to ensure that respondent No. 5 wins the settlement. It appears to me on a perusal of the original record that respondent No. 4 (Dinesh Singh) is the Mukhiya of the local Panchayat who offered to take the settlement for Rs. 11,26,250/- and was allowed to deposit the same as per the notings in the file. The authorities later on realised that he cannot bag the contract because he is a public servant and, therefore, the amount was directed to be refunded to him. This position is manifest from the notings of 15.4.2003 to 18.4.2003. The amount was directed to be refunded by order dated 18.4.2003 and by noting of the same date, respondent No. 5 was allowed to deposit the same amount. This had led to cancellation of the previous settlement in favour of respondent No. 6 leading to the earlier writ petition. The notings in the file from 15.4.2003 to 19.4.2003 are set out hereinbelow for the facility of quick reference :
eq- dk- i-
Øekad 29 i- Jh fnus'k flag ds vkosnu&i= dk d`i;k voyksdu fd;k tk;A mUgksaus vuqjks/k fd;k gS fd ftyk ifj"knh; ddjSr ?kkV dh oUnksoLrh foÙkh; o"kZ 2003&2004 ls 2005&2006 rd 9-01-000¾00 ukS yk[k ,d gtkj esa cUnkscLrh dh xbZ gS ml cUnksoLrh jkf'k ds 25 izfr'kr vf/kd o<+kdj os 11]26]2]50¾00 X;kjg yk[k NCchl gtkj nks lkS ipkl :i;s dk vkSQj fn;s gSaA QyLo:i vkSQj jkf'k dh vkf/k jkf'k Hkh os tke djus ds fy, rS;kj gSaA vr% ml jkf'k dks ftyk ifj"kn dks"k esa tek djus ds fy, vkns'k fn;k tk ldrk gSA lkFk gh iqu% Mkd djus dh dkjZokbZ dh tk ldrh gSA mlds fy, de ls de 15 fnu dk le; nsdj fnukad 30&4&2003 ds 11 cts iwokZà esa iqu% Mkd djus gsrq frfFk ,oa le; fu/kkZfjr fd;k tk ldrk gSA nSfud lekpkj i= ds ek/;e ls cUnksoLrh lwpuk dk izdk'ku djk;k tk ldrk gSA lkFk gh mldk O;kikd izpkj izpkj Hkh vU; ek/;eksa ls fd;k tk ldrk gSA iqu% Mkd dh lwpuk iqjkus cUnkscLrnkj ,oa vkQQjdrkZ dks Hkh lwpuk nh tk ldrh gSA lwpuk esa Li"V mYys[k fd;k tk ldrk gS fd cUnksoLrh 1&5&2003 ls 31&3&2006 rd ds fy, dh tk;sxhA g- vLi"V 15&4&2003 izLrko Lohd`r g- vLi"V 15&4&2003 mi;qZDr vkns'k ds vuqikyu esa iqu% cUnksoLrh lwpuk ,oa lekpkj i= esa izdk'ku gsrq lwpuk izk:i LoPN izfr ds lkFk vuqeksnukFkZ miLFkkfirA g- vLi"V 16&4&2003 eq- dk- i-
dqi;k iqu% oUnksOrh lwpuk lEcfU/kr LoPN izk:i gLrk{kjkFkZA g- vatuh dqekj flag miLFkkfir g- vLi"V 16&4&2003 g- vLi"V 15&4&2003
11. Learned counsel for the petitioner is right in his submission that it was pre-determined that the settlement must be awarded to respondent No. 5, who is the nephew of respondent No. 4, and respondent No. 3 manipulated the entire affairs to ensure the same, It is manifest from the averments made in paragraph 11 of the writ petition is set out hereinbelow for the facility of quick reference :
"11. That the respondent No. 3 with ulterior motive first tried to get the same ghat again settled with respondent No. 4 on 15.4.2003 in Rs. 11,26,250.00 and in pursuance to that Rs. 5,63,125.00 was received by D.D.C. in cash. It is relevant to state here that Dinesh Singh is the Mukhia of Labedaha Punchayat but he did not mention and subsequently it was discovered by respondent No. 3 that respondent No. 4 has suppressed the fact that he is the Mukhia and as per the notification of the Punchayat Raj Notification No. 307/02 dated 9.4.2002, the Mukhia, Up-mukhia, Members of District Board, Chairman and Vice Chairman of the District Board cannot participate in any tender or bid being a public servant. Then the said money which was accepted by respondent No. 3 in cash without participation of respondent No. 4 in the bid and after the settlement of the ghat with the respondent No. 6 then on 18.4.2003 the said amount was withdrawn from the treasury and returned to the respondent No. 4 and again without following the procedure and cancelling the settlement of the respondent No. 6, the amount of Rs. 5,63,125.00 was accepted on the same day, i.e. 18.4.2003 from respondent No. 5, who is the son of own brother of respondent No. 4 and this amount was also accepted in cash by respondent No. 3, violating all the procedure and norms.
11.1 The same has been countered by respondent No. 5 in paragraphs 7 and 16 of his counter affidavit which are set out hereinbelow for the facility of quick reference :
"7. That in reply to the statement made in paragraph No. 11 of the writ petition, it is stated that the statement is absolutely wrong and misleading one. It is stated that Ghat was never settled with respondent No. 4 rather an offer was made by respondent No. 5 and vide memo No. 10 dated 19.4.2003 notice was published for re-bid by respondent No. 3 which was challenged by respondent No. 6 in CWJC No. 4228 of 2003, which was dismissed by this Hon'ble Court."
"16. That the statements made in paragraph Nos. 31, 32, 33, 34, 35, 36, 37 and 38 of the writ petition under reply, it is stated that statement is absolutely not correct and misleading one. Respondent No. 5 is not son correspondent No. 4 and no concern to each other. It is stated that petitioner was not participated in bid personally although so called agent's namely, Annulah had participated in bid but he failed to deposit 50% of the amount of highest bid money. According to Clause-2 of terms and condition containing Annexure-6 of writ petition. It is relevant to state here that respondent No. 5 is the second highest bidder, who was asked by the authorities and thereupon respondent No. 5 showing his witnesses to deposit the required amount and thus his bid was accepted and work order issued and agreement was intered into and executed between the parties."
11.2) It is manifest on the combined reading of the aforesaid pleadings of the rival parties that it has nowhere denied that respondent No. 5 is not the nephew of respondent No. 4, and that respondent No. 4 had deposited the amount which was promptly returned to him. In fact, the deposit and refund, as stated hereinabove, is borne out by the original record.
12. Learned counsel for respondent No. 5 has contended that this writ petition is not maintainable at the instance of the present petitioner because he was althrough represented by his agent. The contention is stated only to be rejected. The petitioner has owned all actions taken on his behalf by his agent.
13. The next question which arises for consideration as to the relief to be granted to the petitioner. This matter was for the first time taken up on 3.2.2004. Paragraph 3 of the order dated 3.2.2004 is relevant in the present context and is set out hereinbelow for the facility of quick reference.
"3. Learned counsel for the petitioner prays for interim orders. It appears to me in the circumstances of the case that it would be better exercise of discretion not to grant any interim relief, and the question of compensation to him shall be considered in the event of his success in the writ petition."
In view of the position that interim protection was not granted to the petitioner, it is in the interest of justice that the petitioner being the highest bidder shall be assigned the settlement precisely for a period of three years from the date of commencement. As to the consideration money, learned counsel for the petitioner owns the statement made on behalf of the petitioner in his representation dated 31.5.2003 (Annexure-7), to the Collector of the district of Kaimoor at Bhabhua, that he is prepared to offer a sum of Rs. 12,00,000/-. The petitioner shall deposit the amount of Rs. 6,00,000/- within a period of four weeks from today along with a copy of this judgment. Deposit of the balance of the amount shall be as per the terms and conditions of settlement. It goes without saying that the petitioner's security deposit shall be taken into account as per the terms and conditions.
14. In the result, the writ petition is allowed, the impugned order bearing Memo No. 58, dated 31.5.2003 (Annexure-1) is set aside with the aforesaid directions. It goes without saying that respondent No. 5 shall be entitled to proportionate refund of the amount deposited by him.