Andhra HC (Pre-Telangana)
Kanaka Durga Boatmen And Sand Quarry ... vs State Of A.P. And Ors. on 11 October, 2002
Equivalent citations: 2002(6)ALD274
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
ORDER L. Narasimha Reddy, J.
1. The Zilla Parishad, West Godavari district, the 3rd respondent herein had issued notification dated 31-12-2001, inviting tenders for leasing out the ferry rights of Madhavayapalem Ferry across river Godavari. The ferry fall within the territorial limits of Narsapur Mandal Parishad. The procedure contemplated submission of sealed tenders as well as participation in open auction. The tenders were received and auction was held on 22-2-2002. The petitioner-Society claims to have emerged as the highest bidder. However, the same could not be proceeded with. Thereafter, another notification dated 31-3-2002 was issued and auctions were held in pursuance thereof on 17-4-2002. The petitioner claims to have offered his bid at Rs. 33,33,333-33 ps. in the negotiations held on 3-5-2002, which became the highest bid.
2. The 4th respondent i.e., the Mandal Parishad has convened the meeting of General Body on 26-6-2002, accepted the offer of the petitioner and submitted the same for ratification by the 3rd respondent. In turn, the 3rd respondent, through its proceedings dated 23-7-2002, confirmed the auction in favour of the petitioner and directed the 4th respondent to hand over the ferry to the petitioner duly executing the agreement, on condition that the petitioner shall deposit 40% of the bid amount. The 4th respondent issued consequential proceedings dated 0-7-2002 granting time up to 9-8-2002 to the petitioner to comply with the conditions.
3. The petitioner claims that on receipt of the proceedings dated 30-7-2002, it had approached the 4th respondent duly obtaining the D.Ds., for the amount, drawn on South Indian Bank, Kotipalli Branch. When the 4th respondent refused to accept the DDs drawn on the South Indian Bank, efforts were made to convince, by citing the instances of the acceptance of the DDs of the said Bank by the Irrigation department. When even that did not fructify, the petitioner had taken DDs., on 9-8-2002 drawn on Vijaya Bank and went to the office of the 4th respondent for executing the necessary agreement. It is stated that the 4th respondent evaded to receive the amount. Feeling aggrieved by the attitude of the 4th respondent, the petitioner got issued telegrams to respondents 2 and 3 and also addressed representations through registered post. The petitioner alleged that the 4th respondent- Mandal Parishad Development Officer, who is impleaded by name as the 5th respondent, has deliberately refused to accept the DDs and confer the ferry rights on it, only with a view to advance his personal interest to lease the ferry to persons of his choice.
4. The matter came up for admission on 18-9-1002. Having regard to the urgency involved in the matter, the learned Standing Counsel for respondents 3 and 4 was directed to obtain instructions. The 4/5th respondent filed a counter affidavit as well as produced the relevant records. Respondent No. 5 has also attended the Court on 27-9-2002.
5. In the counter-affidavit filed by the 4/5th respondent, it is stated that the petitioner failed to submit the DDs, within the stipulated time and having no alternative, the 4/5th respondent had submitted proposals to the 3rd respondent for grant of the ferry rights in favour of the 2nd highest bidder subject to further orders. It is stated that in anticipation of the approval by the 3rd respondent, ferry rights were conferred on the 2nd highest bidder, through a temporary agreement dated 31-8-2002.
6. Taking the totality of the circumstances into account, this Court while admitting the writ petition on 27-9-2002, passed the following order in WP MP No. 22472 of 2002 :
"It is not in dispute that the petitioner has emerged as the highest bidder and paid the EMD before participation in the auction as required under the conditions.
Learned Counsel for the petitioner alleges that though the petitioner was prepared to deposit the amount as required under the orders dated 23-7-2002, the 4th respondent, who is also impleaded by name (5th respondent) has been refusing to receive the same under one pretext or the other.
Having regard to the facts and circumstances of the case, the 4th respondent is directed to receive the amount in the form of Demand Draft/Pay Order as directed in the orders dated 23-7-2002 of the 3rd respondent, if the same is paid by 3-10-2002, On such deposit, necessary formalities shall be completed. Notice."
7. Sri Bhoopathi Gopala Rao, the person in whose favour the temporary agreement was entered into on 31-8-2002, preferred Writ Appeal bearing WA (SR) No. 103202 of 2002 along with a petition being WA MP No. 2923 of 2002, seeking leave of the Hon'ble Court to file writ appeal against the order dated 27-9-2002 passed by this Court in WP MP No. 22472 of 2002 in this writ petition. Without admitting the writ appeal, the Division Bench comprising of Hon'ble the Chief Justice and the Hon'ble Sri Justice V. Eswaraiah, directed the Registry to place the papers in the writ appeal along with WP MP No. 22472/02 before this Court. Accordingly, the papers were placed before this Court and the matter was heard extensively. In view of the fact that the said Bhoopati Gopala Rao has preferred writ appeal and his contentions were directed to be taken into account, he is impleaded as respondent No. 6 to this writ petition.
8. Heard Sri Nuti Rama Mohana Rao, learned Counsel for the petitioner, Government Pleader for Panchayat Raj for respondents 1 and 2, Sri Dammalapati Srinivas, for respondents 3 and 4 (respondent No. 5 appeared in person) and Sri P. Venugopal, learned Counsel for respondent No. 6.
9. The pleadings as well as the record disclose that the auction notification issued on 31-12-2001 did not result in granting of ferry rights in favour of any of the tenderers for variety of reasons. It is only the 2nd notification issued on 31-3-2002 that was proceeded with, in which the petitioner emerged as the highest bidder. As required under the procedure, the 4th respondent submitted the proposals to the 3rd respondent for acceptance of the bid of the petitioner. The 3rd respondent, in turn, though belatedly, accepted the same and passed orders dated 23-7-2002, directing the 4th respondent to hand over the ferry to the petitioner, on his compliance with the two conditions viz., deposit of 40% of the amount at the time of executing the agreement and payment of balance of 60% within three months from the date of handing over the ferry. Certain general conditions were also directed to be complied with.
10. The 4th respondent, in turn, addressed letter dated 30-7-2002 to the President of the petitioner-society requiring him to comply with the conditions by 9-8-2002. This letter does not indicate the amount to be deposited with them. Be that as it may, the petitioner claims to have approached the 4th respondent with the DDs drawn on South Indian Bank. It is stated that the 4th respondent refused to accept the same and on such refusal, separate DDs were drawn on the Vijaya Bank.
11. The file submitted by the 4th respondent discloses that the petitioner issued telegrams to respondents 2, 3 and 4. The 2nd respondent, in turn, issued telegram dated 13-8-2002 to the 4th respondent to take action in accordance with the proceedings dated 23-7-2002. The 4th respondent has issued telegram on the same date to the 3rd respondent stating that the petitioner failed to attend the office on 9-8-2002 and that the telegram issued by them was false. He prayed for further instructions.
The 4th respondent also received a copy of the representation. The 4th respondent addressed letter dated 28-8-2002 stating once again that the petitioner did not attend the office. It is rather difficult to believe that the petitioner, who emerged as the highest bidder and was pursuing the matter ever since the first tender notification, did not visit the office of the 4th respondent. The allegation of the petitioner that the 5th respondent, who was holding the office of the 4th respondent, was personally interested in not conferring the ferry rights on the petitioner with an oblique motive, tends to become acceptable with one after the other acts and omissions on the part of the 5th respondent.
12. It is evident that the 4th respondent granted only one-week time to the petitioner to comply with the conditions without stipulating them. The same Officer has addressed letter dated 30-8-2002 conferring the ferry rights on the 6th respondent. The proceedings and some of the conditions incorporated therein are as under:
"Under the circumstances mentioned in the reference 1st and 2nd cited, the Madhavayapalem Ferry under the control of Mandal Parishad, Narasapur, is hereby entrusted to Sri Bhupathi Gopala Rao, of Narasapur, for the balance period of 2002-2003 i.e., from 1-9-2002 for collecting tolls under the conditions stipulated below:
3. The Lease amount per month should be paid before 5th of every month in advance to the credit of general funds of Mandal Parishad, Narasapur.
8. The licence holder should pay proportionate amount of bid @ 40% i.e., Rs. 7,70,000/- on or before 24-9-2002 and the remaining 60% of amount should be paid by the end of November 2002."
It is not in dispute that the 4th respondent was not accorded approval or permission by the 3rd respondent for conferring ferry rights on the 6th respondent.
13. The following aspects as regards the treatment accorded by the 4th respondent to the petitioner, on the one hand, and the 6th respondent, on the other, are worth noticing:-
Sl. No. Aspect Petitioner 6th Respondent 1 Status Highest bidder Second highest
2.
Acceptance by Zilla Parishad Accepted through letter dated 23-7-2002 Not Accepted
3. Time granted by R-4 for deposit of 40% 9 days 25 days
4. Nature of Condition of deposit Condition precedent for execution of agreement Agreement executed without receiving the deposit
14. This clearly demonstrates lack of transparency on the part of the 4th respondent, who is impleaded by name as the 5th respondent. He was very much aware that the 2nd respondent has issued a telegram to him in the month of August 2002 itself to comply with the order as regards conferment of rights in favour of the petitioner. He disobeyed the same and had either created or fabricated the records, with the sole object of conferring ferry rights on the 6th respondent, in utter and total disregard of the outcome of the auction, proceedings of the second respondent and the procedure prescribed therefor. The Government and the concerned authorities were put to financial loss on account of the illegal, arbitrary and mala fide action on behalf of the 4th respondent. Almost every piece of correspondence in the file reveals the sole object on the part of the 4th respondent to defeat the rights of the petitioner. The entire auction procedure was reduced to a mockery. The impugned action, therefore, cannot be sustained, either on facts or in law. Inasmuch as the conferment of the ferry rights on the 6th respondent was only temporary in nature, without there being any permission or approval by the 2nd respondent, he cannot claim any vested rights in the ferry.
15. The writ petition is accordingly allowed with the following directions:
(a) The 4th respondent shall receive 40% of the bid amount within one week from the date of receipt of a copy of this order, if not already deposited, from the petitioner
(b) The lease agreement shall be executed in favour of the petitioner within three days thereafter and ferry rights be handed over to the petitioner on the same day;
(c) The 4th respondent shall recover the lease amount from the 6th respondent for the period for which he operated the ferry, duly adjusting the EMD, and make further recoveries if the same is not adequate; and
(d) Respondents 1 to 3 shall consider the feasibility of shifting the 5th respondent subject to other guidelines as to transfer, to any other place where riparian or ferry rights are not involved. No costs.