Calcutta High Court (Appellete Side)
Tarak Nath Ghosh vs The State Of West Bengal & Ors on 1 February, 2018
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1
9 01.02.18
akb W.P. 14951 (W) of 2017
With
C.A.N. 10501 of 2017
Tarak Nath Ghosh
-Versus-
The State of West Bengal & Ors.
Mr. Debbrata Saha Roy
Mr. Tarun Kumar Chatterjee ...For the Petitioner
Let affidavit-of-service filed on behalf of the
petitioner be kept on record with the note that despite service
upon all the respondents, the respondents remain un-
represented, although urging urgency the matter has come up in the list upon mentioning.
Heard Mr. Debabrata Saha Roy, learned Counsel, representing the Petitioner, who apprised the Court that the writ petitioner, Tarak Nath Ghosh participated in the E-auction tender for sand mining which was held on April 24, 2017 from the riverside at Arambagh, District - Hooghly of which the auction start time and date was April 24, 2017 at 10.00 a.m. and closing date and time was April 24, 2017 at 5.00 p.m. Mr. Saha Roy further apprised of though the writ petitioner apart from depositing the auction fee also deposited towards earnest money as the writ petitioner 2 became highest bidder in that auction process and as per terms, 30% of the offered value were offered through demand draft which would be adjusted along with the deposited earnest money on which there was never any dispute the authority did not accept the same for unknown reason.
Grievance is that despite the writ petitioner being highest bidder in that auction process for grant of mining lease for sand minerals in Mouza - Chakbansa, J.L. No. 67, Plot No. 508(P) under Police Station - Arambagh, District - Hooghly and despite offering the 30% of the offered value the authority had declined to accept the same. Finding no alternative the writ petitioner submitted one representation dated May 04, 2017 addressed to the respondent Nos. 2 and 3, which was also un-replied, which gave rise to file the instant writ petition.
At the initial stage the writ petitioner could not achieve any interim order from this Court against which the appeal was preferred seeking AST number and the Division 3 Bench, however, also did not interfere with refusal in granting any interim order by this Court, but allowed liberty to the writ petitioner to take an application for interim order in case of any fresh cause of action arises.
Now by supplementary affidavit 'original of which' could not be traced out on record and a copy thereof as supplied by Mr. Saha Roy, is retained with the record for the present with direction upon the department to search out the original supplementary affidavit, if at all it was submitted hereinbefore. From said copy of supplementary affidavit it reveals that the authority has advertised for fresh E-auction process. Mr. Saha Roy, submitted thereby that in the earlier E-auction process although the writ petitioner was the highest bidder the said process was cancelled by the authority without assigning any reason and since without assigning any reason the authority also refused to accept the earnest money and the authority went for fresh E-auction process thereby fresh cause of action having been arose some protection is required to the writ petitioner in the form 4 of interim order so that the result of the second auction process be not published till disposal of the writ petition.
Though it is unfortunate that the Court on this day while the matter is taken up for hearing, did not get assistance of the respondents, however, one document under the caption 'brief history' appending in the resolution of the 7th meeting of the District Committee as was referred to in the impugned order of cancellation of the earlier E-auction process is found on record. Mr. Saha Roy relying on the case of Union of India & Ors. Vs. Dinesh Engineering Corporation, reported in (2001) 8 SCC 491 pressing specifically paragraph 15 therefrom tried to impress that the impugned order of cancellation of earlier E-auction process being without any valid reason is liable to be quashed in extending the proposed protection in the form or interim order in favour of the writ petitioner.
For proper appreciation let the text of the impugned cancellation order dated June 29, 2017 by memo No. MM/4318/e-auction/17 be quoted hereinbelow :- 5
"This is reference to your letter dated 04.05.17 where in you have expressed your intention to deposit the auction amount in respect of auction ID2017- DMHWB-27 for mouja Chakbense, J.L. No. 67 the auction was held on 21/04/17. It is for your information that, in the 7th meeting of District Committee for Competitive Bidding (DCCB) it was unanimously decided that re-survey will be conducted in the said plot. Thus the auction held earlier automatically stands cancelled. In such circumstances, you may take refund the EMD value and auction fee."
The above memo was communicated to the writ petitioner. The above text goes to show that the earlier E- auction process held on 24.04.17 was cancelled pursuant to unanimous decision adopted by the District Committee for competitive bidding in its 7th meeting 'that re-survey will be conducted in the said plot. Thus the auction held earlier automatically stands cancelled'.
Mr. Saha Roy took exception as against the above text that the above letter could not be said with any reason or in the alternative had there been any reason it cannot be accepted as valid reason.
In this context paragraph 15 from the case of Union of India & Ors. (Supra) on which Mr. Saha Roy relied 6 on is also quoted below :-
"15. Coming to the second question involved in these appeals, namely, the rejection of the tender of the writ petitioner, it was argued on behalf of the appellants that the Railways under clause 16 of the Guidelines was entitled to reject any tender offer without assigning any reasons and it also has the power to accept or not to accept the lowest offer. We do not dispute this power provided the same is exercised within the realm of the objet for which this clause is incorporated. This does not give an arbitrary power to the Railways to reject the bid offered by a party merely because it has that power. This is a power which can be exercised on the existence of certain conditions which in opinion of the Railways are not in the interest of the Railways to accept the offer. No such ground has been taken when the writ petitioner's tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any or every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by the Railways. Mr. Iyer, learned Senior Counsel appearing for EDC drew out attention to a judgment of this Court in Sterling Computers Ltd. vs. M & N Publications Ltd. which has held : (SCC p. 455, para 12) 'Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in ona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principle laid down by Justice Holmes, that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of 'play in the joints' to the executive'."
From the above quoted citation Their Lordships 7 held that the authority is not entitled to reject any tender offer without assigning any reason. Therefore, the authority is in the domain of either acceptance or rejection of any result of the tender process. Ordinarily case on conclusion of tender process, its result is accepted. If it is rejected then it is desirable that reason should be assigned for the sake of transparency in the public domain. The above quoted text, however, does not indicate that the reason would have to be valid to the estimation of the aggrieved party. Of course if the rejection order as assailed then it is to be construed in the appropriate forum as to whether such rejection order was passed at the helm of any arbitrariness, or for the sake of valid reason.
Apparently, the letter dated June 29, 2017 (supra) goes to show that it cannot be said that the E-auction process held on April 24, 2017 was cancelled without assigning any reason because it was stated there 'that re- survey will be conducted in the said plot. Thus the auction held earlier automatically stands cancelled'. Since, the copy 8 of that resolution of 7th meeting of the District Committee as referred to also in the said letter dated June 29, 2017 is before this Court, the Court got the opportunity to look into the same and therefrom relevant paragraphs 3(a), 3(b) & 3(c) should be quoted hereinunder at least for satisfaction of the writ petitioner and to justify also as to whether the E-auction process, as was cancelled, it was cancelled actually for any valid reason, or, not :-
"3(a) In Bhabapur mouza, Block Arambag, plot - 5/277, 8.5 acres of Land has been found suitable for Sand Mining, this area may be placed for auction.
3(b) In Soaluk mouza, Pursurah, plot no. 107 has been found suitable for mining but road connectivity is to be checked with BL & LRO Pursurah, along with the concerned Gram Panchayat is asked to check feasibility of Road Connectivity along with present day usage and place report before the A.D.M. & D.L. & L.R.O., Hooghly.
(c) It has been found in the auction of Sand Block no.-
061567MUNDE508(P) (HUG/ARAMBAG/CHAKBENSE/munde/508(P) that the rate quoted by the HI Bidder is abnormally lower than the adjacent Sand Blocks. The matter is required to be reviewed. Hence, it has been unanimously decided by the committee that fresh survey is to be conducted to see whether stock of mineral is sufficient or not or to find out what is the reason behind quotation of so low rate in comparison to other sand block."
If the above text is now construed then it is 9 crystal clear that in that meeting after thorough discussion the authority thought it necessary to check and re-check the feasibility of road connectivity in the site, and, also according to them, the HI bidder abnormally lower than the adjacent sand block and so the matter required to be reviewed. That apart the Committee decided for fresh survey as to whether the stock of mineral in and around would be sufficient, or not and so on and so forth. Of course the letter dated June 29, 2017 which was communicated with the only reason showing 'that re-survey will be conducted in the said plot. Thus the auction held earlier automatically stands cancelled', as was given to know in the public domain, does not require revisit in the face of the copy of resolution of the meeting, discussed hereinbefore, which is a part of the record. Therefore, the cancellation order as assailed being well supported by reason, and, to the estimation of the Court the said reason being valid, this Court does not find any reason to pass any interim order whatsoever as against the initiation of the authority in respect of the second E-auction tender process, which may 10 forced for its conclusion in accordance with law.
Of course, the above order shall not stand on the way of the writ petitioner if he desires to contest in the said second E-auction process in the subject site, and equally, the authority shall not consider any draw-backs of the writ petitioner if he so participates in the said auction process, due to his attempt to halt the second E-auction process, meaning thereby, the authority shall be free to proceed with and to complete the second E-auction process in view of the prevalent law and rule thereunder treating also the writ petitioner as one of the participants like all other.
Since the prayer of interim order in view of above and in the face of the materials on record has been disposed of by attending all material points without inviting affidavit-in-opposition nothing remains to decide the writ petition for its disposal on any other merit and therefore along with the CAN the writ petition taking as on day's list is dismissed.
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There shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the petitioner, on priority basis.
( Mir Dara Sheko, J.)