Madhya Pradesh High Court
Amit Khampariya vs The State Of Madhya Pradesh on 23 June, 2016
Author: Rajendra Menon
Bench: Rajendra Menon
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Writ Petition No.7699/2015
Amit Khampariya.
Vs.
The State of MP & others.
Writ Petition No.11199/2015
M/s Shri Kartikeya Construction.
Vs.
The State of MP & others.
Writ Petition No.16119/2015
M/s S.V.Developers.
Vs.
State of MP & others.
Present : HonâÂÂble Shri Justice Rajendra Menon,
Acting Chief Justice and
HonâÂÂble Shri Justice Anurag Shrivastava.
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Shri A.M.Trivedi, learned senior counsel with Shri Shyam
Yadav, counsel for the petitioner in W.P. No 7699/2015 and
WP No.11199/2015.
Shri Wajid Hyder, learned counsel for the petitioner in WP
No.16119/2015.
Shri Swapnil Ganguly, learned Government Advocate for the
respondents (State Government).
Shri Anshuman Singh, learned counsel for the respondent
(National Informatics Centre).
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ORDER
(Passed on this 23rd day of June, 2016) Per Rajendra Menon, Acting CJ:
As common questions of law and facts are involved in these three writ petitions, they were heard together and are being disposed of by this common order.
2. In WP No.7699/2015 the petitioner calls in question action of the respondents in finalizing the e-auction undertaken for grant of sand quarry lease in Budhani-02 [SMC0053). In WP No.11199/2015 challenge is made to grant of quarry lease in Budhani-03 [SM0054], and in WP No.16119/2015 challenge is made to grant of sand quarry lease in Nasrullaganj-I District Sehore.
3. As far as Budhani-02 sand quarry and Chandiya [SMC0089] sand quarry are concerned, challenge to these are also made in WP No.7699/2015, it is a case of the petitioner that reserved price for these sand quarries was fixed at Rs.2,25,00,000/- and for participating in the E-auctioning process a prospective bidder had to deposit 10% of the auction price i.e. reserved price. Accordingly, the petitioner is said to have deposited the reserved price for Budhani-02 mines amounting to Rs.22,50,000/-. Similarly, for Chandiya [SMC0089] upset/reserved price was fixed at Rs.60,33,000/- and the petitioner is said to have been deposited the reserved price of Rs.6,07,300/-. According to the petitioner, the bid started from Rs.99,23,000/- and was increased by Rs.50,000/- on every time by the prospective bidder and ultimately the bid came to Rs.3,26,23,000/-. At this stage, the petitioner is said to have offered a further increase of Rs.50,000/- through the online system of bidding, but due to error in the online/computer system, it is said that increase of Rs.50,000/- took the bid to Rs.30,31,23,000/- and at this amount bid of the petitioner for Chandiya mines was fixed. According to the petitioner, they offered an increase of Rs.50,000/- to the final bid amount of Rs.3,26,23,000/-, and the amount of bid should have been Rs.3,31,23,000/-, but due to some error in the online computer system, the bid amount was incorrectly reflected as Rs.30,31,23,000/-.
4. Similarly, for Budhani mines, the petitioner offered by increasing his bid every time by Rs.50,000/- and when the bid reached Rs.2,68,00,000/-, the petitioner increased his bid by Rs.50,000/-, instead of showing the increased final amount of bid at Rs.4,15,00,000/-, due to error or mistake in the online system, the bid amount was erroneously showing at Rs.41,65,00,000/-. According to the petitioner, the manner in which the final bid was indicated in the online system of E- auctioning and was accepted by the department by holding this to be the final bid offered by the petitioner is irrational, arbitrary, unreasonable and is because of some error in the system of E-auction, the petitioner by bringing on record various documents and representation, submits that no prudent man will offer an exorbitant amount, more than 10 times the final bid amount which was only Rs.3,26,23,000/- in the case of Chandiya mines and Rs.4,16,50,000/- in the case of Budhani mines. It is said that the manner in which the e- auction was conducted is nothing but an arbitrary, irrational and unreasonable process, it violates the constitutional right of the petitioners and is liable to be quashed.
5. Learned senior counsel for the petitioners invites our attention to the various documents and material available on record, relied upon a judgment of the Hon'ble Supreme Court in the case of State of NCT of Delhi and another Vs. Sanjeev alias Bittoo, (2005) 5 SCC 181 to say that an auction undertaken in such an irrational or arbitrary manner is unsustainable, illegal and violates Article 14 of the Constitution of India, accordingly, interference into is warranted into such an unreasonable and arbitrary act of the State and its instrumentally. Taking us through the meaning of the word âÂÂirrationalâ as appearing in various dictionary and the law as has been discussed in the case of Sanjeev alias Bittoo (supra). Learned senior counsel for the petitioner emphasis that no prudent man will offer a bid so high, when the offset price fixed was only Rs.2,25,00,000/- and 60,73,000/- respectively. He argues that the manner in which the computer indicated the final bid amount after increasing it only by a sum of Rs.50,000/- is irrational, and therefore an interference should be made.
6. In WP No.11199/2015 also similar contentions have been advanced. It is stated that for Budhani-03 mines the reserved price fixed was Rs.2,06,25,000/- by gradually increasing the bid in installment of Rs.50,000/-, the amount was increased to Rs.2,58,77,500/-, but due to error and mistake in the computer/e-auction system the bid amount suddenly went to Rs.2,58,77,500/-.
7. Similarly, in WP No.16119/2015 also it is stated that the amount was increased in installment of Rs.50,000/- and Rs.5,57,00,000/-, but it was shown as Rs.65,70,00,000/-. Accordingly, in all the three petitions it is the case of each of the petitioners that due to error in the computer or e- auctioning system, the aforesaid mistake happened, because of which, petitioners' reasonably offer/bid has been rejected, and an account of an irrational/ unreasonable method followed, the petitioners' right to get the leave has been frustracted.
8. A detailed reply has been filed on behalf of the respondent- Corporation and it is stated that an enquiry was conducted in the matter and in the enquiry no such error as pointed out by the petitioners has occurred in the e-auction process in question.
9. Shri Swapnil Ganguly, learned counsel for the respondents No.1 to 3 i.e. the State Government and Shri Anshuman Singh, learned counsel for the respondent-Corporation invite our attention to the enquiry conducted and the progressive chart with regard to bid offered by various participants and point out that the so-called error canvassed by the petitioners is not correct. Shri Ganguly point outs that when the petitioners increased the bid by Rs.50,000/- as canvassed by them and the computer screen reflected an exorbitant amount, the petitioners should have immediately withdrawn from the auction process, instead they accepted the amount reflected in the computer screen. Therefore, it is argued that the contentions advanced by the learned counsel for the petitioners are not correct and cannot be upheld.
10. Shri Anshuman Singh, learned counsel appearing on behalf of the respondent namely the State Electronic Development Corporation also submits that the contentions of the petitioners are not correct, because in the auction process the bid amount as shown in the computer screen was offered by the petitioners themselves.
11. Shri Swapnil Ganguly, learned counsel also points that for the E-auction in question, respondent No.3 the MP State Mining Development Corporation conducted auction in 624 cases and the State Government conducted the auction in 773 cases. As far as the State Government is concerned, out of the 773 auction conducted, no complaint is received in the matter. However, in the auction conducted by the MP State Mining Corporation, only seven complaints out of 624 have been received. He submits that the contention of the petitioners that there was an error in the e-auction process is denied. That apart, Shri Ganguly, learned counsel for the respondents No.1 to 3 invites our attention to an order dated 8.6.2015 passed in WP No.8043/2015 by a Coordinate Bench of this Court in the case of Raghav Chandak Vs. State of MP & another, in which this Court under similar circumstances has opined that since clause 2.25 of the general terms and conditions provides a mechanism for settlement of dispute, no indulgence could be caused in a petition under Article 226 of the Constitution of India. He argues that there being serious disputed questions of fact, the same can be resolved in accordance with the process contemplated in Clause 2.25 and as ordered by the Coordinate Bench of this Court on 8.6.2015 in the case of Raghav Chandak (supra), the petitions should be dismissed and the petitioners should take the recourse of alternative remedy available.
12. We have heard the learned counsel for the parties and perused the record.
13. After considering the controversy involved in the matter, we find that there is a serious dispute between the parties with regard of the factual aspect of the matter. According to the petitioners, they participated in the auction process and every time increased their offer or bid by a sum of Rs.50,000/- . According to them, in the final bid submitted by them, the amount was increased in a manner, which was irrational and unreasonable. Thus, it is said that due to an error in the online or computer system, and therefore the act of the respondents in accepting the offer or forfeiting their earnest money of the petitioners is irrational, unreasonable and arbitrary.
14. The respondents have filed a detailed affidavit to say that there is no error in the auction process. The petitioners knew very well the amount which was being offered by them and ultimately this offer it was reflected on the computer screen before it was accepted. The respondents in the affidavit have stated that they have conducted necessary enquiry and in the enquiry no such error as pointed out by the petitioners is seen to have occurred in the auction process. Shri Ganguly submits that there was no error in the E-auction process and only seven complaints have been received out of 624 cases conducted by MP State Mining Corporation, whereas there was no complaint in 773 cases conducted by the State Government. In our considered opinion, on the facts in dispute as are made on affidavit by the parties which are contractory in nature, this court cannot record a positive finding as to assertion made in which affidavit is correct. It is a case where there are serious disputes on facts and such a dispute cannot be adjudicated in a petition under Section 226 of the Constitution. In the facts and circumstances of the case, when the procedure contemplated for conducting the auction process provides for a dispute resolution mechanism i.e. Clause 2.25 of the general terms and conditions of the auction process, which reads as under:
^^ 2-25 fooknksa dk fuiVkjk%& fuxe ,oa cksyhdrkZ ds e/; fu"ikfnr vuqca/k ls lacaf/kr fdlh fookn ds fujkdj.k gsrq fookn mRiUu gksus ds lkr fnolksa ds Hkhrj cksyhdrkZ }kjk fuxe ds izca/k lapkyd dks vkSipkfjd #i ls fyf[kr esa fookn dk lkjHkwr vf/klwfpr fd;k tkosxkA vf/klwfpr djus ds rhl fnol ds Hkhrj fuxe ds izca/k lapkyd lacaf/kr i{kksa dh lquokbZ dj bldk fujkdj.k dj ldsaxsA ;fn fuxe ds izca/k lapkyd 30 fnol esa mUgsa lanfHkZr fd;s x;s fookn dk lek/kku djus esa vleFkZ jgrs gS rc ,slh fLFkfr esa ;k cksyhdrkZ izca/k lapkyd }kjk fu.khZr lek/kku djus vleFkZ jgrs gSa rc ,slh fLFkfr esa ;k cksyhdrkZ izca/k lapkyd }kjk fu.khZr lek/kku ls larq"V u gks rks vkjchVês'ku ,.M dUlhfy,'ku ,DV 1996 ds varxZr lacaf/kr i{kksa }kjk fookn iap fu.kZ; gsrq izLrqr fd;k tkosxk ,oa iap }kjk fof/k lEer fu.kZ; nksuksa i{kksa dks ekU; gksxkA^^ Interference by a writ court exercising its jurisdictions in a petition under Article 226 of the Constitution, that also into disputed questions of fact is not warranted. A Coordinate Bench of this Court in the case of Raghav Chandak (supra) vide order dated 8.6.2015 after taking note of similar facts and various judgments of the Supreme Court has refused to interfere in a petition under Article 226 of the Constitution of India and directed the aggrieved person to take the recourse of alternative remedy available as per Clause 2.25 of the general terms and conditions. The dispute in question is also covered by Clause 2.25 and the order of this Court in the case Raghav Chandak (supra). Taking note all the facts and circumstances of the case, we are not inclined to interfere into the matter as serious dispute on facts are involved. That apart as suggested by Shri Swapnil Ganguly and Shri Anshuman Singh, the petitioners might also have entered a wrong figure by typing one or two more zeros (0) while submitting their offer and without correcting the same accepted it as their final offer. If this had happened, then the petitioners themselves are to be blamed, this submission of the respondents adds more confusion to the factual dispute.
15. Accordingly, all these three writ petitions filed by the petitioners are hereby dismissed to liberty to them to invoke Clause 2.25 as contained under General Terms and Conditions of NIT.
16. Petitions dismissed with no order as to cost.
(RAJENDRA MENON) (ANURAG SHRIVASTAVA) Acting Chief Justice JUDGE 23/06/2016 23/06/2016 Ansari