Punjab-Haryana High Court
Ashish Jain vs The Haryana State Industrial And ... on 13 February, 2019
Bench: Mahesh Grover, Lalit Batra
CWP No. 31711 of 2018 & connected matters -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
-.-
Date of decision: 13.02.2019
(1) CWP No. 31711 of 2018 (O&M)
Ashish Jain .....Petitioner
Vs.
HSIIDC & Anr. ...Respondents
(2) CWP No. 30487 of 2018 (O&M)
Amit Kohli & others .....Petitioners
Vs.
HSIIDC & Anr ....Respondents
(3) CWP No. 30587 of 2018 (O&M)
Essaar Textiles .....Petitioner
Vs.
HSIIDC ....Respondent
(4) CWP No. 32117 of 2018 (O&M)
M/s Mahavir Overseas Pvt. Ltd .....Petitioner
Vs.
HSIDC & Anr ....Respondents
(5) CWP No. 32345 of 2018 (O&M)
Pankaj Chawla .....Petitioner
Vs.
HSIIDC & Anr ....Respondents
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CWP No. 31711 of 2018 & connected matters -2-
(6) CWP No. 32975 of 2018 (O&M)
Gaurav Kapoor and others .....Petitioners
Vs.
HSIIDC & Anr ....Respondents
(7) CWP No. 33005 of 2018 (O&M)
Auxein Medical Pvt. Ltd and another .....Petitioners
Vs.
HSIIDC & Anr ....Respondents
(8) CWP No. 33006 of 2018 (O&M)
Krishan Kumar Behreja and another .....Petitioners
Vs.
HSIIDC & Anr ....Respondents
(9) CWP No. 505 of 2019 (O&M)
Varinder Singh .....Petitioner
Vs.
HSIIDC & Anr ....Respondents
(10) CWP No. 2002 of 2019 (O&M)
R.M Enterprises .....Petitioner
Vs.
HSIIDC & Anr ....Respondents
CORAM: HON'BLE MR. JUSTICE MAHESH GROVER
HON'BLE MR. JUSTICE LALIT BATRA
Present:- Mr. Akshay Bhan, Sr. Advocate, with
Mr. Amandeep Singh Talwar, Advocate,
Mr. Arun Jain, Sr. Advocate, with
Mr. Amit Jain, Advocate, and
Mr. Ajay Kaushik, Advocate,
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CWP No. 31711 of 2018 & connected matters -3-
Mr. Girish Agnihotri, Sr. Advocate, with
Ms. Roja Agnihotri, Advocate,
Mr. Harit Sharma, Advocate,
Mr. Manish Soni, Advocate,
Mr. Vivek Aggarwal, Advocate,
Ms. Sharmila Sharma, Advocate,
for the petitioners.
Mr. Vikas Bahl, Sr. Advocate, with
Ms. Harbani Shinh, Advocate,
Mr. Aknur Mittal, Advocate,
for HSIIDC.
....
MAHESH GROVER, J. (Oral)
C.M No.1716-CWP of 2019 in CWP No.31711 of 2018 C.M No.2121-CWP of 2019 in CWP No.32117 of 2018 C.M No.2177-CWP of 2019 in CWP No.32975 of 2018 C.M No.825-CWP of 2019 in CWP No.33005 of 2018 Allowed as prayed for subject to all just exceptions.
Main Cases By this order, a bunch of 10 writ petitions i.e C.W.P Nos.
31711, 30487, 30587 32345, 32117, 32975, 33005 and 33006 of 2018 along with C.W.P Nos. 505 and 2002 of 2019 shall be disposed of. The facts of the case have been taken from C.W.P No. 31711 of 2018 HSIIDC put out an advertisement offering 1762 industrial plots through what they described "transparent procedure of allotment of plots".
The terms and conditions for online industrial plots/sheds/FAF sheds were given out in the brochure. We intend to produce the relevant clause:-
"1. The allotment shall be made in accordance with the Enterprises Promotion Policy of the State Government and Estate Management Procedures (EMP)/Allotment Procedure of the Corporation, as amended from time to time. The applicant confirms that he has gone through the Industrial Policy of the State Government and the Estate Management Procedures 3 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -4- (EMP)/Allotment Procedure of HSIIDC and understood the provisions thereof and agrees to abide by the same."
A glance at the above extracted clause shows that allotment was to be made in accordance with the enterprises promotion policy of the State Government and the Estate Management Procedures (EMP)/Allotment Procedure of the Corporations as amended from time to time. It would thus be relevant to refer to the State Management Procedure/Allotment Procedures envisaged clause 3.4 ii (a) and (c) which are relevant are extracted here-below:-
"3.4 Process of Allotment:-
ii General/NRI/FDI/Persons with Disability Categories Allotment:
a) The applications for allotment of plots under this category shall be invited through advertisement on first of each month and 100% of the available industrial plots of each sector/phase shall be offered for allotment in one go;
b) xxx xxx xxx xxxx
c) In case, the number of applications received in any plot
size category are less than or equal to the number of plots offered, all the applicants may be considered for allotment by the Managing Director/Industrial Plot Allotment Committee and where the number of applications are more, the allotment shall be made through limited e-auction amongst the applicants;
What is thus contemplated is a limited e-auction amongst the applicants in case the applications made are more than the allocated plots.
It is thus in tune with the allotment procedures that an exercise to conduct e-
auction for allotment of industrial plots was undertaken on 25.09.2018. All the petitioners before us participated in the e-auction and were successful 4 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -5- bidders against various categories of plots in different places which had been put out for auction vide an advertisement dated 04.07.2018.
But instead of accepting the bids a public notice was given out on 29.11.2018 (Annexure P-9) putting out as many as 130 plots for manual auction by discarding the bids obtained during e-auction. The public notice makes a revealing reading as it has been said "due to some technical reasons it has been decided to resume/conduct some of the auctions manually as per the following schedule".
After the schedule, a note is given in the notice which also needs to be extracted here:-
"Note:- The auction at Sr. No.1 to 8 above, shall be resumed from the highest bid as received during e-auction"
It is at this stage petitioners have approached this Court by impugning the action of the respondents in scuttling the bids received by them in e-auction and to proceed with the process of allotment through manual auction.
The arguments advanced by Mr. Akshay Bhan, Sr. Advocate assisted by Mr. A.S. Talwar, Advocate, before us are on expected lines that the rules of the game could not be changed having once accepted by the parties and sufficiently embarked upon by them, to which the respondents would also reply on expected lines that they indeed have the power to withdraw/modify the entire process and merely because a bid has been made would give no cause of action to the petitioners to agitate before the court of law and the respondents would be justified in making a change in the bidding process and the exercise has resulted in substantial gain to the exchequer.
5 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -6- No other point was urged by any of the counsels appearing for the petitioners in connected matters. Rather they adopted the arguments advanced by Mr. Bhan.
Reply to the petition has been filed and the respondents have put on record the minutes of the meeting held on 27.11.2018 where each and every complaint has been compressed and stated this to be the primary reason for discontinuing the process of e-auction to revert to manual auction qua the limited number of plots. The complaints set out in tabulated form make interesting reading and are extracted below:-
"A- 1012.50 sqm size plots in IE Barhi-e-auction held on 26.09.2018 Sr. No. Complainant/Complaint Observations/Findings of the Committee 1 Madan Lal & Sons- The complainant did not appear for hearing Images shows Zero seconds and has withdrawn his application for and their bid was highest at allotment on 14.11.2018. that time. But when they generated the result, the plot was allotted to some other applicant.
2 Mr. Mukesh Sharma- The complainant did not appear for hearing.
On perusal of the record produced before the Committee, it was observed that the The website was very poor to complainant was bidding against plot No. 136 perform so he could not bid and was second highest bidder at Rs. 20200/- in the last few seconds. at 15:59:54.784 Hours and highest bid against this plot was Rs. 22200/- at 15:59:57.528 Hours. Similar is the grievance of many other bidders and thus the complaint merits consideration.
3 Mr. Shubham Goel The complainant did not appear for hearing.
During e-auction he tried to On perusal of the e-auction logs, it has been bid so many times but was observed that there was no bid placed by the not able to see my bid placed. complainant in this e-auction. Beside that the website was very poor to perform taking so much time to perform. He wanted to bid but due to the reasons mentioned above, he could not bid.
6 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -7- Sr. No. Complainant/Complaint Observations/Findings of the Committee 4 Bright Cables Pvt. Ltd. Sh. Jaibir Singh, representative of the complainant appeared before the Committee NaN error popped up so and contended that they could not bid due to many times during e-auction NaN error. On perusal of the record, it was disabling us to bid in a right observed that there was NaN error, which was way. So many times we did resolved by the IT Team at 15:45 hours.
log out then again log in 5 Ms. Sarika Walia- Mr. Kapil Walia, Husband of the complainant appeared before the Committee and informed N2018JUL13269 that they were bidding against plot No. 137 and contended that the results changed within The results were changed seconds after the time was over and the last within seconds after the time two bids were not visible to them. Thus they was over. This is clearly a could not place the bid thereafter and case of fraud to genuine requested to re-conduct this auction. applicants. You are requested to cancel this auction and make this happen again for a On perusal of the e-auction logs, it was fair competition else we have observed that the complainant was bidding no choice than to proceed against plot No. 18, 41, 137, 138, 140 & 144. legally. Against plot No. 137 her last bid was for Rs.
20700/- at 15:59:50.21 Hours and thereafter there were 2 bids of Rs.20900/- at 15:59:52.622 and highest bid of Rs. 22100/- at 15:59:57.95 Hours. The complainant has submitted an affidavit in support of her contentions. Therefore, the complaint merits consideration.
6 Mr Dinesh Sharma The complainant did not appear for hearing.
On perusal of the record produced before the Committee, it has been observed that the Because of lethargic complainant was bidding against plot No. 16 performance of the e-auction & 39. Against plot No. 16, his last bid was for website, we could not bid Rs. 18500/- at 15:43:38.11 Hours and properly. thereafter there were 4 bids with highest bid of Rs. 20200/- at 15:52:42.065 Hours.
Against plot No. 39, he is the highest bidder at Rs. 22700/- at 15:59:56.124 Hours. Thus, the complaint is devoid of any merit.
7 Mr. Vikas Bansal The complainant did not appear for hearing, but vide email dated 15.11.2018 has requested for another date due to some I do many bid in plot No. 136 medical emergency in the family. On perusal and last bid at 15.59.20 rate of the e-auction logs of Plot No. 136, it was 22200 I do- but your observed that the complainant had placed the department award any other bid of Rs. 18200/- at 15:26:12.982 Hours and in same but I think some the highest bid was of Rs. 22200/- at mistake your site I am call all 15:59:57.528 Hours. Since the complainant's officer yesterday in barhi but bid of Rs. 22200/- at 15.59.20 hours was not no one response me and captured by the system, the complaint merits solve my problem consideration.
7 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -8- Sr. No. Complainant/Complaint Observations/Findings of the Committee 8 Mr. Puneet Sethi This complaint was received subsequent to the date of hearing. On perusal of the screen shot submitted by the complainant, it is true He was bidding against Plot that last bid was shown as Rs. 19000/- with No. 47. He was highest zero remaining time. But as per e-auction bidder at Rs. 19000/- with logs, there are five bids thereafter with remaining time displaying highest bid of Rs. 20000/- at 15:59:33.263 zero on the screen. Submitted Hours, which was not visible to the screen shot in support complainant. Similar screen shot has been thereof. Final result was submitted by another bidder of Rai. The different. Requested for a representative of M/s Nextenders present solution else legal action. during hearing could not give any satisfactory reply to the same. Therefore, the complaint merits consideration.
B. 1800 sqm size plots in IE Barhi- e-auction held on 14.9.2018.
Sr. No. Complainant/Complaint Observations/Findings of the Committee 1 Small Scale Industrial Mr. Mahender Goel, President SSIMA, Rai Manufacturers Association, appeared before the Committee in some other Rai on behalf of Mr. Amit case and denied having made this complaint. Kohli Further Mr. Amit Kohli, on whose behalf this Some irregularities have complaint was made has withdrawn the been pointed out in complaint vide email dated 12.11.2018, being placing/accepting the bids in satisfied with the e-auction. the last moment by the system and requested for live hammer auction.
C. 750 sqm size plots in Udyog Vihar Gurugram-e-auction held on 17.9.2018.
Sr. No. Complainant/Complaint Observations/Findings of the Committee 1 Tirupati Global International- Mr. Karan Chitkara, representative of the They placed bid due to some complainant appeared before the committee server error their bids were and informed that they could not place bid not uploaded on the site. after 15:59:06 hours due to screen showing They tried for 40 seconds zero seconds for auction and requested to before the auction ended but cancel the auction. The complainant has also the server did not work submitted an affidavit in support of his properly and they faced this contentions. On perusal of the e-auction logs, problem continuously. it was observed that there was only one plot in this category. The complainant was the second highest bidder with a bid of Rs.
57700/- at 15:59:06.458 hours and highest bid against this plot was Rs. 64700/- at 15:59:18.131 hours. Since the complainant was continuously bidding and was the second highest bidder, but could not place bid in the last few seconds, the complaint merits consideration.
D. 250 sqm size plots in Udyog Vihar Gurugram-e-auction held on 17.9.2018.
8 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -9- Sr. No. Complainant/Complaint Observations/Findings of the Committee 1 Mr. Mukesh Aggarwal- In The complainant appeared before the Committee and informed that he was bidding the last seconds when he was trying to submit bid whichagainst plot No. 602, but he could not place bid in the last few seconds, which was higher was higher than the winning than the winning bid. On perusal of the e-
bid, but bid was not going to the system. auction logs, it has been observed that there were two plots in this category i.e., Plot No. 602 & 658. Against plot No. 602, the last bid of the complainant was Rs. 118400 at 15:52:55.3 hours and highest bid was Rs.
134600/- at 15.59.57.047 hours. Similarly, against Plot No. 658, the last bid of the complainant was for Rs. 160500/- at 14.26.29.163 hours and highest bid of Rs.
171600 at 15.59.53.036 Hours. Since, the complainant was continuously bidding but could not submit his bid in the last second, as complained by other bidders as well in other e-auctions, the complaint merits consideration.
E. 3855.60/4050 sqm size plots in Kundli-e-auction held on 14.9.2018.
Sr. No. Complainant/Complaint Observations/Findings of the Committee 1 Elegant Farm Developers Mr. Gaurav Chaudhary appeared before the Pvt. Ltd.- In the last seconds Committee and informed that they tried to bid the server stopped accepting 10-20 times but the system did not respond bids. They tried to place the being very slow and they were not able to see bid several times (Approx. their bid placed. He further informed that they 20 times) but the system did tried to place a bid of Rs. 32900/-at 15:59:31 not record their bid. It is seconds, but the same was not saved by the further stated that highest bid system. The complainant has submitted an is much lower than they were affidavit in support of their contentions. On ready to pay. perusal of the e-auction logs, it has been observed that the complainant was bidding against plot No. 377 and the last bid of the complainant was Rs. 29400/- at 15:32:36:77 hours and highest bid was Rs 33500/- at 15:59:54:489 hours. In view of the complainant having submitted an affidavit, the complaint merits consideration.
9 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -10- Sr. No. Complainant/Complaint Observations/Findings of the Committee 2 Rizon Developers & Mr. Gaurav Chaudhary appeared before the Infrastructure Pvt. Ltd.- In Committee and informed that they tried to bid the last seconds the server 10-20 times but the system did not respond stopped accepting bids. They being very slow and they were not able to see tried to place the bid several their bid placed. The complainant has times (approx. 20 times) but submitted an affidavit in support of their the system did not record contentions. He further informed that they their bid. It is further stated tried to place a bid of Rs. 29500/-at 15:59:28 that highest bid is much seconds, but the same was not saved by the lower than they were ready to system. On perusal of the e-auction logs, it pay. has been observed that the complainant was bidding against plot No. 96-E and the last bid of the complainant was Rs. 25400/- at 15:32:38:955 hours and highest bid was Rs 28200/- at 15:57:20:745 hours. In view of the complainant having submitted an affidavit, the complaint merits consideration.
3 Bellstar Trading Pvt. Ltd.- Mr. Abhay Bhanot appeared before the The website was not Committee and informed that they tried to bid performing in proper way as several times but the system did not respond they were able to see their being very slow and they were not able to see bid after 5-6 seconds of their bid placed. However, the complainant placing it. could not submit any evidence in support thereof. On perusal of the e-auction logs, it has been observed that the complainant was bidding against Plot No 96-F and was the second highest bidder with a bid of Rs.32200/- at 15:59:59.365 hours and highest bid was for Rs.32800/- at 15:59:59.834 hours. Since the complainant was able to place the bid till the last second, the complaint is devoid of any merit and same was clarified to the complainant. The Complainant agreed with the observations of the Committee and suggested unlimited extensions for future e- auctions.
F. 1800 sqm size plots in Kundli- e-auction held on 25.09.2018 Sr. No. Complainant/Complaint Observations/Findings of the Committee 1 M/s J.K.Polyplast Pvt. Mr. Sandeep Sangwan (authorised Ltd.-The auction Website representative) appeared before the could not perform properly Committee and informed that they tried to and they could not bid in the bid several times in the last seconds but the last few seconds. In the last system did not respond being very slow and 10 seconds they bid almost they were not able to see their bid placed. On 10-20 times and could not perusal of the e-auction logs, it has been see their bids placed. At one observed that the complainant was bidding moment error popped up against plot No. 163-M and was the second 'You cannot bid'. highest bidder with a bid of Rs.43,700/- at 15:59:52.267 hours and highest bid was for Rs.45000/- at 15:59:55.972 hours. Since the complainant was continuously bidding and was the second highest bidder, the complaint merits consideration.
10 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -11- G. 8100 sqm size plots in Rai-e-auction held on 14.09.2018 Sr. No. Complainant/Complaint Observations/Findings of the Committee 1 M/s Sequal Industries Pvt. Mr. Naresh Kumar appeared before the Ltd.- After bid of Rs 21000/- Committee and informed that after placing by the other party, they bid of Rs.20100/- by other party, they repeatedly tried to place their repeatedly tried to place their bids but the bids but the portal was not portal was not accepting their bid and accepting their bid and consequently they could not place their next consequently they could not bid. However, he could not submit any place their next bid. evidence in support thereof. On perusal of the e-auction logs, it has been observed that the complainant had placed first bid at 10:12:39.777 hours, the second bid was placed by some other applicant at 10.23.44.563 hours and thereafter there was no bid. Further, this complaint was received on 13.10.2018 i.e. After one month of auction and there was no complaint/query from the applicant in this regard on the day of e-
auction or thereafter for one month.
Therefore, there is no merit in the complaint.
H. 1800 sqm size plots in Rai -e-auction held on 25.09.2018 Sr. No. Complainant/Complaint Observations/Findings of the Committee 1 Ram Karan Yadav- Tried to The complainant did not appear for hearing.
place their bid after 03:23 On perusal of the e-auction logs, it has been PM was shown invalid by e- observed that the complainant was bidding auction site. majorly against plot No.1918-1 and placed 9 bids with last bid of Rs.28200/- at 15:23:43.561 hours and the highest bid against this plot was Rs.35800/- at 15:59:59.756 by some other applicant. Since this is a common complaint from many bidders that they could not bid in the last seconds, the complaint merits consideration. 2 Shivani Bansal- Last bid did Mr. Arun Bansal (Husband of the not submitted even while complainant) appeared before the Committee many seconds were available and informed that they could not submit the and result got changed within last bid even while many seconds were few second after time was available and result got changed within few over second after time was over. The complainant has submitted an affidavit in support of her contentions. On perusal of the e-auction logs, it has been observed that the complainant was bidding majorly against plot No.1918-I and placed 5 bids with last bid of Rs.30200/- at 15:59:13.575 hours and highest bid against this plot was Rs.35800/- at 15:59:59.756 by some other applicant. Since this is a common complaint from many bidders that they could not bid in the last seconds, the complaint merits consideration.
11 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -12- Sr. No. Complainant/Complaint Observations/Findings of the Committee 3 Rajesh Kumar-Placed bid in The complainant did not appear for hearing.
the last minutes but most of On perusal of the e-auction logs, it has been the time NaN error appeared. observed that the complainant was bidding They bid 15-20 times but against plot No. 2068 and was the second only one bid placed highest bidder with bid of Rs.32900/- at successfully. 15:59:49.939 hours. Since the complainant was a genuine bidder being the second highest bidder, the complaint merits consideration.
4 Ankush Gupta-Last bid did Mr. Amit Gupta (brother of the complainant) not submitted even while appeared before the Committee and informed many seconds were available that they could not submit the last bid even and result got changed within while many seconds were available and result few second after time was got changed within few second after time was over. over. On perusal of the e-auction logs, it has been observed that the complainant was bidding majorly against plot No.2069 and his last bid was of Rs.26200/- at 15:19:07.409 hours. Since this is a common complaint that bidders could not bid in the last few seconds, the complaint merits consideration.
5 Ashok Dyestuff Pvt. Ltd. The complainant did not appear for hearing.
(Sati Setia)- The system was On perusal of the e-auction logs, it has been hanging lots of time and in observed that the complainant is the highest the end they lost on e-auction bidder against plot No.1918-I and as such the because of such error. complaint is devoid of any merit. 6 Manish Pakkers (Sanjay Sh. Mahender Goel, partner of the Manocha)- Bid was placed complainant appeared before the Committee of Rs. 30800/- and the time and informed that as per display on their stopped and shows zero system, at the close of the e-auction with zero second remaining but even remaining time, they were the highest bidder after the time was over it with bid of Rs.30800/- but even after the time took one more bid from any was over it took one more bid from another other person of Rs. 31800 person of Rs.31800/- psm. He submitted a Psm. copy of screen shot in support of his contentions. On perusal of the e-auction logs, it was observed that the complainant was bidding against plot No.2069 and placed a bid of Rs.30800/- at 15:59:09.633 hours and highest bid against this plot was Rs.33900/- at 15:59:57.177 hours. As per the screen shot submitted by the complainant, the highest bid was Rs.31800/- with zero remaining time.
Therefore, the complaint merits
consideration.
4050 sqm size plots in IMT Manesar-e-auction held on 14.9.2018 12 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -13- Sr. No. Complainant/Complaint Observations/Findings of the Committee 1 Sh. Nishant Kharbanda- The complainant did not appear for hearing.
Partner of R&M Global On perusal fo the complaint & e-auction logs, Ventures LLP- was one of it was observed that the last bid of the the bidder from plot No. 11, complainant was Rs 25100/- at 13:17:43.007. Sector M-11, with a bid of The highest bid against this plot was Rs. Rs. 25100/- at 13:17 PM. 31000/- at 15:59:57.028 hours. The comlaint The applicant has claimed of the complainant that he could not get a that he was highest bidder chance to re-bid in last 30 seconds, as from 01:30 PM to 03:59 PM complained by other complainants also, an in last 30 seconds some therefore, the complaint merits consideration. other bidder placed the highest bid and he could not get a chance to re-bid. It is further contended that in other auctions by banks etc. upon bid in the last five minutes the auction is automatically extended.
2 Sh. Narinder Singla- was The complainant did not appear for hearing.
one of the bidder for plot No. On perusal of the complaint & e-auction logs, 34, Sector 6. The applicant it was observed that the last bid of the did not get a chance to re-bid complainant was Rs. 23000/- at 13:01:17.795 in the last few seconds and hours. The highest bid against this plot was of the Corporation has not Rs.23300/- at 13:42:16.06 hours. The granted an auto extension of complaint of the complainant that he could 5 minutes thereafter. not get a chance to re-bid in last few seconds, as complained by other complainants also, therefore, the complaint merits consideration.
Recommendations of the Committee:
Sr. No. E-auction Recommendations
1 1012.50 sqm size plots in IE Majority of the complaints merit
Barhi consideration and therefore, it is
recommended to resume this auction, from
where it concluded.
2 1800 sqm size plot in IE Mr. Mahender Goel, President SSIMA, Rai
Barhi appeared before the Committee in some other
case and denied having made any complaint
against this e-auction. Further, Mr. Amit Kohli, on whose behalf this complaint was filed, has withdrawn the complaint, being satisfied with the e-auction. Therefore, the e- auction may be accepted.
3 750 sqm size plot in Udyog The complaint merits consideration and it is Vihar Gurugram recommended to resume this auction, from where it concluded.
4 250 sqm size plots in Udyog The complaint merits consideration and it is Vihar Gurugram recommended to resume this auction, from where it concluded.
5 3855.60/4050 sqm size plots The complaints merit consideration and it is in IE Kundli recommended to resume this auction, from where it concluded.
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Sr. No. E-auction Recommendations
6 1800 sqm size plot in IE The complaint merits consideration and it is
Kundli recommended to resume this auction, from
where it concluded.
7 8100 sqm size plots in IE Rai The complaint is devoid of any merit and it is
recommended to file the same and accept the e-auction.
8 1800 sqm size plots in IE Rai The complaints merits consideration and it is recommended to resume this auction, from where it concluded.
9 4050 sqm size plots in IMT The complaints merits consideration and it is Manesar recommended to resume this auction, from where it concluded.
If we see the complaints in the way they have been set out in their compressed form, in majority of them it is noticed that the complainants did not appear for hearing although the contents of complaint is noticed. It indicates that at a particular time, which is just a few nano seconds before the final bid, was the bid of the complainant as against the one received from the successful bidders which is concededly higher.
Now it does not require the expertise of a technocrat to understand that in matters of e-auction it is the final bid made that is to be accepted even though the bidder may have scraped through to beat the time by a fraction of a mili second over rival contenders and this is precisely what has happened. The fact is that the bidder who lost out and made the complaint was himself into that game by bidding at nth second for example 15.59.54.784 Hours as against unsuccessful bidders offer at 15:59:57.528.
Learned counsel for the respondents has very strenuously referred to one complaint where a screen-shot had been provided by the complainant to highlight the flaw in the e-auction and at the cost of repetition we intend to reproduce the complaint here-below:-
14 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -15- 6 Manish Pakkers (Sanjay Sh. Mahender Goel, partner of the complainant Manocha)- Bid ws placed of appeared before the Committee and informed Rs. 30800/- and the time that as per display on their system, at the close of stopped and shows zero the e-auction with zero remaining time, they second remaining but even were the highest bidder with bid of Rs.30800/-
after the time was over it took but even after the time was over it took one one more bid from any other more bid from another person of Rs.31800/- person of Rs. 31800 Psm. psm. He submitted a copy of screen shot in support of his contentions. On perusal of the e- auction logs, it was observed that the complainant was bidding against plot No.2069 and placed a bid of Rs.30800/- at 15:59:09.633 hours and highest bid against this plot was Rs.33900/- at 15:59:57.177 hours. As per the screen shot submitted by the complainant, the highest bid was Rs.31800/- with zero remaining time. Therefore, the complaint merits consideration.
This again shows that as per his own showing the complainant was bidding against plot No.2069 and placed the bid of Rs.30,800/- at 15.59.09.633 hours whereas the highest bid of Rs.33,900/- was received on 15.59.57.177 hours and the screen-shot submitted by the complainant showed highest bid of Rs.31,800/- with zero remaining time. It is stated with some vehemence by the learned counsel for the respondents that this formed the basis of their decision as they concluded a systemic failure to warrant the scrapping of the entire e-auction qua 130 plots.
This to our minds is an indefensible stand taken by the respondents. Firstly if there was a systemic failure then decision of scrapping should have been applied to the entire e-auction process, and, process undertaken afresh. Instead the respondents went cherry-picking by limiting it to few plots as has been done; secondly even if the screen shot submitted by the complainant was suggestive of a systemic failure it was the bounden duty of the respondents to associate technical experts and solicit a report from them in this regard. To a pointed question whether any technical evaluation was done regarding the complaint of system failure, the candid answer by the learned counsel for the HSIIDC, on instruction, is in the 15 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -16- negative. He further states that even though NIC and others were associated, there is nothing on the record with them to show flaw or failure in the system. This would imply that the material with the HSIIDC was only an unsustainable, unverified complaint received by them, which just does not justify the scrapping of the process and that too selectively.
Evidently the decision to scrap the e-auction was deeply flawed besides being completely arbitrary and no foundation to justify it manifests itself.
Learned counsel for the respondents would then refer to a condition in the brochure 4-D extracted here-below, to contend that they were within their rights to add/amend/withdraw/modify any of the terms and conditions at any stage without any notice and the decision of the Corporation would be final in this regard:-
"d) The Corporation reserves the right to add/amend/ withdraw/modify any of the above terms & conditions at any stage without any notice. The decision of the Corporation in respect of all these will be final."
We are of the opinion that this blanket clause cannot be used to subvert a legitimate process unless justifiable reasons are shown to exist or at least shown to the Court at the time when an issue offers itself for judicial review. As noticed above the respondents have been unable to justify their stand of systemic failure and assuming there was one neither was any technical report obtained nor any input in this regard manifested itself. In fact the arbitrariness is writ large in the entire exercise of back track. What the respondents have done is to extend the auction process through a back door and their mind reveals itself from language employed in the public 16 of 17 ::: Downloaded on - 10-03-2019 05:19:26 ::: CWP No. 31711 of 2018 & connected matters -17- notice (Annexure P/9) on record where they have stated that auctions of plots identified at Sr. Nos. 1 to 8 shall be resumed (emphasis provided) from the highest bid as received during the e-auction.
The State in the matters of contract has a greater onus on it to act fairly. It cannot be treated at par with ordinary parties desirous of contracting an agreement amongst themselves. The State's responsibility is far greater, as what it offers to the public at large has a backing of sovereign reliability and sovereign guarantee. Therefore any attempt made by the State or its agencies or statutory bodies to act unfairly casts an equally important role upon the Courts to scuttle such attempts in the exercise of their powers of judicial review to stem arbitrariness.
For the aforesaid reasons when absolutely no justification has been offered by the Corporation for their actions in scuttling e-auction we have no other option but to accept the writs and strike down the course adopted by the Corporation.
Accordingly above-numbered writ petitions are allowed.
(MAHESH GROVER)
JUDGE
February 13, 2019 (LALIT BATRA)
tripti JUDGE
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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