Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Use Of The Word 'ordinary' - Condition Not Mandatory.
JUDGEMENT TITLE : Arjun Singh Vs. State Of U.P. And Others On 24/04/2009 By Allahabad High Court
CASE NO : WRIT - C NO. 16380 OF 2009
CORAM : Hon'ble Yatindra Singh,J. And Hon'ble Anil Kumar,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR
Court No. 36

WP No. 16380 Of 2009
Arjun Singh Vs. State Of UP And Others

Hon'ble Yatindra Singh, J
Hon'ble Anil Kumar, J

1. This Is A Writ Petition Against The Order Dated 21.2.2009 Cancelling The Bid Of The Petitioner And Awarding The Tehbazari Contract To Respondent No.5.

The Facts
2. The Zila Panchayat Chitrakoot (the Zila Panchayat) Published A Notice In The Newspaper Dated 13.1.2009 For Auction Of Tahbazari Contract On 31.1.2009. In This Auction, The Petitioner As Well As Respondent No.5 Participated. The Petitioner Was The Highest Bidder And His Bid Was For Rs.16,51,000.00. The Bid Of Respondent No.5 Was Second Highest And It Was For Rs.16,50,000.00. The Bid Of The Petitioner Was Accepted.

3. The Petitioner Had Deposited A Sum Of Rs.1,00,000.00 As Security Amount And He Further Deposited A Sum Of Rs. 2,00,000.00 On The Date Of The Auction Namely On 31.1.2009. He Also Filed An Application On The Same Day That He May Be Given Time Upto 20.2.2009 To Deposit The Remaining Amount, Otherwise The Auction May Be Given To The Second Highest Bidder. On This Application, A Note Was Prepared On 9.2.2009 And A Letter Of The Same Date Was Sent To The Petitioner To Deposit The Entire Amount By 12.2.2009.

4. According To The Petitioner;
(i) The Money Could Not Deposited By 12th February 2009 As The Aforesaid Letter Was Received By Him On 13th February 2009.
(ii) He Approached The Zila Panchayat After Receiving The Letter To Pay The Amount But No One Was Prepared To Accept It As The Date Filed By The Zila Panchayat Was Over.
Subsequently An Order Was Passed On 21.2.2009 By Which The Security Amount Rs. 1,00,000.00 Of The Petitioner Was Forfeited And The Contract Was Given To Respondent No.5.

5. Respondent No.5 Deposited The Entire Amount Of His Bid, Namely Rs.16,50,000.00 On 21.2.2009. He Further Deposited A Sum Of Rs.1,131,000.00 On 4.3.2009 For Stamps For The Contract. The Stamps Have Been Purchased And The Contract Has Been Executed In His Favour.

6. The Petitioner Has Filed The Present Writ Petition Against The Rejection Of His Bid And Grant Of Contract To Respondent No.5. This Court While Entertaining The Writ Petition Granted Interim Order On 30.3.2009 By Which The Petitioner Was Required To Deposit The Remaining Amount By 31.3.2009 And The Zila Panchayat Was Required To Make Arrangement For Realising Tahbazari. The Petitioner Has Deposited The Entire Amount In Pursuance Of The Interim Order Of The Court.

Points For Determination
7. We Have Heard The Counsel For The Petitioner; The Standing Counsel, Sri Sanjay Singh Counsel For Zila Panchyat And Sri Prem Prakash Yadav Counsel For Respondent No.5. The Affidavits Have Already Been Exchanged And With The Consent Of The Parties, We Are Deciding The Case Finally At This Stage.

8. The Following Points Arise For Determination In This Case:
(i) Whether, Under The Terms And Condition Of The Auction, The Entire Money Was To Be Deposited On The Date Of Auction And As It Was Not Deposited, The Auction In Favour Of The Petitioner Was Rightly Not Confirmed.
(ii) Whether The Petitioner Is Now Estopped From Changing His Stand Or Depositing The Amount As He Himself Had Given An Application That He Will Deposit The Money By 20.2. 2009.
(iii) What Compensation Should Be Given To Respondent No. 5 In Case The Contract Is Awarded To The Petitioner As There Was On Fault On The Part Of Respondent No.5.


Ist Point : Not Mandatory
9. The Zila Panchayat Has Filed The Terms And Condition Of The Auction Alongwith The Counter Affidavit. The Counsel For The Respondents Have Referred To Its Condition No.4 Which Stipulates Deposit Of The Entire Amount Of Auction On The Date Of Auction Itself. Clause 4 Of The Terms And Condition Is As Follows:
(४) साधारणतया तथा नीलामी बोली समाप्ति के उपरान्त उच्चतम बोलीदाता को बोली की नीलामी समस्त धनराशि एकमुश्त जमा करना अनिवार्य होगा।

10. In This Condition, The Words ' साधारणतया ' Has Been Used. It Means, Ordinarily The Amount Is To Be Deposited After The Auction But This Does Not Mean That It Is Mandatory: It Can Be Extended, As The Word ' साधारणतया (ordinarily)' Has Been Used.

11. The Petitioner Had Filed An Application To Grant Time Upto 20.2.2009 To Deposit The Money. It Was Necessary For The Zila Panchayat To Pass Appropriate Order Therein And In Fact It Did Pass An Order. In These Circumstances, It Can Not Be Said That The Bid Of The Petitioner Was Liable To Be Rejected As He Did Not Deposit The Money At The End Of The Auction.

12. The Counsel For The Respondents Submitted That :
(i) The Zila Panchayat Had Informed The Petitioner To Deposit The Money By 12th February 2009;
(ii) The Money Was Not Deposited In Time;
(iii) The Auction In Favour Of The Petitioner Was Rightly Not Confirmed And Given To Respondent No.5.

13. It Is Correct That A Letter Was Send By The Zila Panchayat. However, It Is Not Disputed That It Was Despatched On 10.2.2009. The Petitioner Has Filed A Certificate From Superintendent, Post Office Banda Division, Banda To Show That It Was Delivered On 13.2.2009. As The Letter Was Received After The Date Of Deposit, It Can Not Be Held Against The Petitioner.


IInd Point : No Estoppel
14. It Is Correct That The Petitioner Had Given An Application That He May Be Given Time Upto 20th February 2009 Otherwise, The Contract May Be Given To Second Highest Bidder. The Petitioner Has Alleged In The Writ Petition That After He Received The Letter, He Approached The Office Of Upper Mukhya Adhikari Chitrakoot To Deposit The Amount But It Was Not Accepted As The Date Fixed By Zila Panchayat Was Over. It Was Only Then, He Filed This Writ Petition And Deposited The Money In Pursuance Of The Order Passed By The Court.

15. The Allegations In The Writ Petition Have Been Denied. This Is Disputed Question Of Fact. We Could Have Remitted An Issue To The Commissioner Prescribed Authority For The Zila Panchayat) To Decide It But We Are Negating The Plea Of Estoppel After Considering The Following Circumstances:
(i) Contract Is Only For One Year And Almost A Month Has Already Passed;
(ii) The Time Is Crucial;
(iii) The Letter Of Zila Panchayat Was Not Delivered To The Petitioner In Time;
(iv) The Petitioner Has Filed The Writ Petition And Deposited The Money; And
(iv) The Nature Of Final Order That We Propose To Pass.

IIIrd Point: Compensation Awarded
16. Respondent No.5 Has Deposited The Entire Amount Of Rs.16,50,000.00 With The Zila Panchayat On 21.2.2009. He Has Further Deposited Rs.1,31,900.00 For The Stamps On 4.3.2009. This Amount Has Been Used In Purchasing The Stamps And They Have Been Cancelled. Broadly Speaking, Respondent No.5 Has Deposited Total Sum Of Of Rs.17,81,900.00 For A Period Of Two Months. Now If The Petitioner Is Permitted To Run The Contract Then Respondent No. 5 Has To Be Compensated As There Was No Fault On His Part.

17. This Case Was Taken Up Before Lunch. On The Request Of The Counsel For The Petitioner It Was Taken Up After Lunch. He Made A Statement That The Petitioner Is Willing:
(i) To Compensate The Respondent No.5 For The Amount Spend On The Stamp;
(ii) To Pay Additional Amount Of Rs.32,100.00 (approximate Interest For Two Months On Rs.17,81,900.00 At The Rate Of 8%) As Damages Or Compensation To Be Paid To Respondent No.5; And
(iii) To Forgo Claim For Refund Or To Extend His Contract For The Period That He Has Not Been Able To Run It.

Conclusion
18. In View Of The Above Statement, In Case The Petitioner Deposits A Further Sum Of Rs.1,64,000 ( I.e. Rs. 1,31,900 For The Stamps And Rs. 32,100 For The Interest) And Money For Purchasing Stamps For The Contract With The Zila Panchayat By 30.04.2009 Then,
(i) The Contract For Realising Tehbazari Will Be Executed In Favour Of The Petitioner And He Will Be Permitted To Work On The Contract Immediately. In This Event, The Contract In Favour Of Respondent No 5 Will Stand Cancelled.
(ii) Thereafter, The Zila Panchayat May Return Rs. 16,50,00.00 Plus Rs.1,64,000.00 (total Rs. 18,14,000.00) To Respondent No.5 Within A Week,

19. We Further Clarify That:
(i) If The Petitioner Does Not Deposit This Amount By 30th April 2009 Then,
Respondent No. 5 Will Be Permitted To Work The Contract And The Money Deposited By The Petitioner Will Be Returned To Him After Forfeiting The Security Amount;
(ii) In Case The Petitioner Is Permitted To Work The Contract Then He Will Not Be Entitled To Claim Refund Of Any Amount Or Get The Time Of The Contract Extended On The Ground That He Could Not Work The Contract For One Month.

20. With These Observations, The Writ Petition Is Disposed Off.

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