Monopolies and Restrictive Trade Practices Commission
Vijay And Ors. vs The Chief Executive Officer on 5 September, 2001
ORDER
C.M. Nayar, J. (Chairman)
1. This order will dispose of R.T.P.E. No. 215 of 1998 and U.T.P.E. No. 235 of 1998, as common question arises for consideration in both the complaints. The facts referred to in the complaint relating to R.T.P.E. No. 215 of 1998, are that the petitioners therein are vegetable vendors carrying on their business in the vegetable market for last about 7 years. A survey was conducted in the year 1992-93 for allotment of alternative sites for the applicants by Shri Ravi Mathur, the then C.E.O. of the Authority and platforms in the size of 4x2.50 metres were constructed for allotment to the applicants in the same locality which are still in existence and have not been allotted so far. The respondent published a General Notice in the newspaper that the Authority is considering the names of the vegetable, fruit, juice and pan vendors who are already in this business in 19 arid 20 Sectors crossing and in Sector 27 under high tension wire for allotment. We need not give further details except to the extent that the Notification was issued by the respondent authority fixing a date for draw of the platforms in Sectors 19, 20 and 27 which was conducted on 28th July, 1998 at 11.30 a.m. in Indira Gandhi Memorial Hall, Sector-6. A copy of the said notification has been placed on record. The applicants participated in the said draw of the lots and they were given their platform numbers immediately after the draw of lots. Paragraphs 7 and 8 of the application may be read as under :
"7. That the applicants participated in the said draw of the lots and they were given their platform numbers immediately after the draw of the lots. The applicants were given platform Nos. 40, 42, 9, 44, 47-B, 19, 18, 29, 20, 7, 47, 32, 46, 2, 36, 6, 27, 47A, 13, 21, 14, 1, and 24 respectively in the order of Sr. No. mentioned in the present application.
8. That even after the completion of the draw of the lots, three surveys were made. One by Tehsildar with Naib Tehsildar, the other by Patwari and the last by Shri R.K. Goyal, Sh. R.C. Lal, Sh, B.B. Mallk and Sh. Rajender Kumar, for the reasons best known to them. Generally no survey is made after completion of the draw of lets."
2. It is submitted that though the applicants were successful in the draw of lots, even then they were being deprived of allotment of the platforms. It is, however, stated by the learned Counsel for the applicants in R.T.P.E. No. 215 of 1998 that after filing of the present complaint all the applicants except applicant at serial No. 6 i.e. Ashok Kumar S/o Sohan Beer Singh have been allotted platforms. The respondent authority has allotted platforms to applicants 1 to 5 and 7 to 24 respectively.
3. Learned Counsel for the respondent has contended that this Commission has no jurisdiction to adjudiate on the grievance of the applicants, as the appropriate remedy will be to approach the Civil Court for redressal of their grievances. We need not exclude our jurisdiction merely on this technical ground as on its own showing the respondent authority has already granted relief to the applicants in R.T.P.E. No. 215 of 1998 except to the applicant at serial No. 6. To relegate this applicant for the remedy before the Civil Court or any other authority will not be in the interest of justice. Further it is contended that the respondent authority has taken a policy decision on 2nd November, 1998 and 15th September, 1998 respectively and the applicant Shri Ashok Kumar has been excluded from the allotment on the basis of the decision taken in these policies. Paragraph 1 of the alleged first policy decision states that Shri Ashok Kumar, son of Shri Sohan Beer Singh has not been given the platform as his father Shri Sohan Beer Singh and brother Shri Kabul Singh have already been allotted platforms and more than two platforms cannot be allotted to one family.
4. Learned Counsel for the respondent has next contended that it will not be open for this Commission to interfere with the policy decision of the respondent authority in view of the law as laid down by the Hon'ble Supreme Court in judgments reported as (1981) 4 Supreme Court Cases 535 in the matter of Madhya Pradesh Ration Vikreta Sangh Society and Ors., v. State of Madhya Pradesh and Anr., and reported as (1982) 2 Supreme Court Cases 365, In the matter of State of Uttar Pradesh and Ors. v. Vijay Bahadur Singh and Ors.
5. We have perused the judgments and do not find any ground to deny the relief to the applicants. The judgments referred to have no bearing on these cases which are based on different facts and do not in any manner cover the contention of the respondent. The first judgment relates to Essential Commodities Act, which bears a scheme for distribution of foodstuffs at fair prices through fair price shops instead of retail dealers, in which it was held valid and the power given to Collectors to appoint agents under the scheme and that framing of such a scheme is a matter of Government policy in which Court's interference is not called for. The second judgment relates to auction of contracts by the State Government. In this case it is held by the Apex Court that the Government is always not bound to accept the highest bid. The decision of the Government was held not bad for failure to state reasons in the facts and circumstances of that case. Para 3 of the judgment reads as under :
"3. It appears to us that the High Court had clearly misdirected itself. The Conditions of Auction made it perfectly clear that the Government was under no obligation to accept the highest bid and that no rights accrued to the bidder merely because his bid happened to be the highest. Under Condition 10 it was expressly provided that the acceptance of bid at the time of auction was entirely provisional and was subject to ratification by the Competent Authority, namely, the State Government. Therefore, the Government had the right, for good and sufficient reason, we may say, not to accept the highest bid but even to prefer a tenderer other than the highest bidder. The High Court was clearly in error in holding that the Government could not refuse to accept the highest bid except on the ground of inadequacy of the bid. Condition 10 does not so restrict the power of the Government not to accept the bid. There is no reason why the power vested in the Government to refuse to accept the highest bid should be confined to inadequacy of bid only, there may be a variety of good and sufficient reasons, apart from inadequacy of bids, which may impel the Government not to accept the highest bid. In fact, to give an antithetic illustration, the very enormity of a bid may make it suspect. It may lead the Government to realise that no bona fide bidder could possibly offer such a bid if he meant to do honest business. Again the Government may change or refuse its policy from time-to-time and we see no reason why change of policy by the Government, subsequent to the auction but before its confirmation, may not be a sufficient justification for the refusal to accept the highest bid. It cannot be disputed that the Government has the right to change its policy from time-to-time, according to the demands of the time and situation and in the public interest. If the Government has the power to accept or not to accept the highest bid and if the Government has also the power to change its policy from time-to-time, it must follow that a change or revision of policy subsequent to the provisional acceptance of the bid but before its final acceptance is a sound enough reason for the Government's refusal to accept the highest bid at an auction. That is precisely what has happened here. The legislative policy which the Government was bound to implement sooner or later was clearly against auction of forest lots and in favour of allotment of the lots to the Forest Corporation. That was why though forest lots were originally advertised for auction the Government cancelled the proposal to auction the lots and decide to allot them to the Forest Corporation. The decision of the Government to do so was in implementation of the policy laid down by the Legislature when it passed the Uttar Pradesh Forest Corporation Act. However, at the intervention of some members of the Legislature the Forest Minister decided to go back upon the previous decision to allot the forest lots to the Forest Corporation in accordance with the legislative policy. He decided to sell the lots by public auction, contrary to the policy indicated by the Legislature. Though the auction went off smoothly on the first three days, there was a disturbance on the fourth day, The Incident on the last day and the fantastic bids spurred the Government to rethink the entire matter and to accept the recommendation of the officials of the Forest Department from Forest Officer to Chief Conservator of Forests that the highest bids offered at the auction held on November 1, 3 and 4 should not be accepted by the Government. The Government, not having already ratified the bids and finding itself free to revise its policy, cancelled the auction and allotted the forest lots to the Forest Corporation. It is true that there is no express policy decision of the Government recorded after the date of auction. It is implicit in the very action of the Government in cancelling the auction and allotting the forest lots to the Forest Corporation. The policy decision had already been taken by the Legislature when it enacted the Uttar Pradesh Forest Corporation Act and by the Government when it earlier decided to allot all the forest lots to the Forest Corporation. There was a deviation from the policy decision, at the instance of some Legislators, in the case of the East Bahraich Forest Division. The events that took place later that is the fantasy of the bids at the auction on November 1, 3 and 4 and the disturbances that took place on November 5 exposed the folly of such deviation and resulted in the Government immediately reverting to its earlier decision to allot all the forest lots to the Forest Corporation. It is true that the auction held on November 1, 3 and 4 fetched bids totalling Rs. 1 crore 92 lakhs which was 71 per cent of the estimated price of the timber. This was far, far above any amount that might be expected to be realised from the Forest Corporation. In our view that would not make the decision of the Government arbitrary. In the first place the bids were fantastically high and, therefore, became suspect. One must wonder how such bids could be offered if the bidders did not propose to indulge in illicit felling. The State is not merely interested in realising revenue but is equally interested in the preservation and development of forests. It cannot knowingly enter into contracts with bidders who must have, at the back of their minds, the opportunity or the gamble of illicit felling of trees. In the second place the Corporation is a wholly Government-owned Corporation dedicated to the better preservation and development of forests and the better exploitation of forest produce. The profits of the Corporation are in truth the profits of the State itself. The circumstance that the Corporation may not be able to pay the same price as forest contractors cannot be a reason for denying the Government the right to give effect to legislative policy. We are, therefore, unable to find any infirmity attaching to the decision of the Government. One of the principal grounds on which the High Court set aside the decision of the Government was that the Government stated no reasons for its decision. It is not correct to say so. The letter of the Government addressed to the Chief Conservator of Forests communicating its decision says: "Government have accepted the proposal that all the forest lots should be got worked through Forest Corporation and the entire auction of all the lots of major forest produce of this Division be cancelled". It is clear that the auction was cancelled because the Government decided to allot the entire forest lots to the Forest Corporation. As already observed by us this decision to allot the forest lots to the Forest Corporation was in conformity with legislative policy and the earlier decisions taken by the Government to implement the legislative policy. It was no more than a reversion to a policy decision alredy taken. It was a good and sufficient reason for setting aside the auction. We are unable to hold that the decision of the Government was bad for failure to state reasons. In the circumstances we allow both the appeals with costs, set aside the judgment of the High Court and dismiss the writ petition."
6. The facts of the present case will indicate that the draw of lots was held on 28th July, 1998 where the applicants were stated to be declared successful, As no policy was in existence at the time of draw of lots was held nor the successful applicants were aware of this, it cannot be used against the applicants who are declared successful in the draw of lots. Framing of the policy at a subsequent stage will not in any manner prejudice rights of the applicants, as it clearly amounts to arbitrary and discriminatory action on the part of the respondent. Since the draw of lots has not been held to be invalid by the respondent authority, it will not be open for the respondent to take different stand for the applicants in the present circumstances. There is also force in the contention of the learned Counsel for the complainants that no valid policy decision has been taken in the matter and it is merely stated subsequent to the draw of lots that the criteria has been changed. The present applications are accordingly allowed. The respondent authority will however on the basis of draw of lots allot platforms to the applicants whose names figure in the draw of lots in accordance with law.