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1990 DIGILAW 722 (ALL)

Vinod Kumar v. Lucknow Nagar Mahapalika

1990-07-31

VIRENDRA KUMAR

body1990
ORDER Virendra Kumar, J. - This writ petition is directed against the non-acceptance of the highest tender of the petitioner for the Theka for realising Tehbazari for Sandas Market Machhali Mandi within the local limits of the Lucknow Nagar Mahapalika for the year 1990-91 and quashing the impugned Theka granted in favour of opposite party No. 3. 2. Opposite party No. 3 Matsya Vyapari Nagar Mahapalika Sandas Market Machhali Mandi was given the Theka for realisation of Tehbazari for the years 1989-90. The period of Theka expired on 31-3-1990. By virtue of the advertisement dated 28-3-90, contained in Annexure-1, Lucknow Nagar Mahapalika - opposite party No. 1 invited tenders for the year 1990-91. The petitioner and one more person vis. Mukesh Kumar submitted separate tenders. According to the petitioner he has filed the documents required with the tender application but Mukesh Kumar did not do so. Hence his tender so far as his knowledge goes, was accepted and he should have been given the Theka but the opposite party No. 1 instead of accepting the tender of the petitioner for Rs. 100051/- decided to give the Theka to the opposite party No. 3 for the year 1990-91 though the opposite party No. 3 had not submitted his tender. The opposite party No. 3 had earlier filed a suit for permanent injunction against the opposite party No. 1 to restrain it from giving the Theka to any one else in which case a temporary injunction was granted to the opposite party No. 3 against Lucknow Nagar Mahapalika. 3. Opposite party No. 3 was given the Theka for the year 1989-90. They moved for extension/continuance of the period of their Theka for the year 1990-91 on the ground that the delivery of possession of the site in respect of the Theka for 1989-90 was made to them as late as on,1-2-1990 instead of their getting possession of the same from 1-4-89. Representation of the opposite party No. 3 for continuance of the Theka in their favour to make good their loss thus suffered was considered favourably giving rise to the grievance on the part of the petitioner for filing this writ petition. 4. Representation of the opposite party No. 3 for continuance of the Theka in their favour to make good their loss thus suffered was considered favourably giving rise to the grievance on the part of the petitioner for filing this writ petition. 4. Issue of the advertisement inviting for tenders for the Theka for the year 1990-91 (contained in Annexure-1) in which date insulted is 28-3-1990 was simply an invitation to make offers by furnishing of tenders by those interested in taking the Theka. The petitioner has put forward his offer by furnishing the tender but as is evident from the counter affidavit as well as the rejoinder affidavit, he has not fulfilled one of the basic conditions of furnishing the tender. That condition was to deposit 25 per cent of the amount of the tender by bank draft with the tender itself. The petitioner has not deposited the entire 25 per cent of the amount for which he has furnished the tender. Yet he claims that he is entitled to get the Theka in pursuance of the tender. The petitioner's assertion that his tender was accepted, is not borne out and does not seem to be correct. Moreover the Executive Committee, of the opposite party No. 1 under the terms of the advertisement inviting the tenders had reserved to itself full right to accept or not to accept the tender. The Executive Committee did not accept the tender of the petitioner. It seems that for the reason that the opposite party No. 3 was given possession of the Theka very late on 1-2-1990. they were permitted to make good the loss they had suffered. It, therefore, cannot be said that not granting Theka in favour of the petitioner for 1990-91 and letting the opposite party No. 3 to continue with the Theka for that year was unreasonable or arbitrary. 5. The case of Prakash Vishwakarma v. Administrator, Nagar Mahapalika, Varanasi, 1987 UPLBEC 129 , cited by the learned counsel for the petitioner is quite distinguishable for the reasons that in that case the petitioner was the highest bidder but his bid was rejected, the auction was cancelled, re-auction was ordered without making enquiry into the complaints made about that auction by a few bidders who had offered lower bids and the court had found that the cancellation of the auction was without good and sufficient reasons. In the instant case the grounds raised by opposite party No. 3 were considered good and sufficient for continuance of the Theka in its favour for the year 1990-91. It is obvious that the continuance of Theka in its favour was to make good the loss which it suffered in the course of the Theka for the year 1989-90 for no fault of its own. Such grounds did not exist in the case of Prakash Vishwakarma (supra). 6. According to the learned counsel for the petitioner it was obligatory on the part of the opposite parties Nos. 1 and 2 to take decision on the tenders received upto the fixed time and immediately' after obtaining the same .the petitioner's tender being the highest was bound to be accepted. My attention has not been invited to any clause in the advertisement where under this could be said to be obligatory. As already mentioned, the final authority to accept or not to accept or in other words ignore the tender was reserved for the Executive Committee. It was not bound to accept the highest bid nor it was prohibited from giving consideration and to appreciate the grounds on which the opposite party No. 3 was claiming continuance of Theka in his favour for the year 1990-91 to compensate for the loss to which he was put due to the actions for which it was not at all responsible. 7. The petitioner has challenged also the passing of interim injunction order in the Civil Suit of opposite party No. 3 on two grounds. First ground is that no such order of restraint can be issued in respect of an auction intended to be made or to give effect to any auction made by the Government. But, in the instant case the tenders were invited not by the Government. Secondly, the relief of perpetual injunction in that case is barred by Sections 38 and 41 of the Specific Relief Act, hence no interim injunction could validly be issued. It is a controversial point and the Civil Court in the suit is yet to decide whether the suit is barred or not. The matter is pending consideration before it. 8. In any case, the petitioner has the alternative remedy of filing a civil suit for the alleged breach against the opposite parties. 9. It is a controversial point and the Civil Court in the suit is yet to decide whether the suit is barred or not. The matter is pending consideration before it. 8. In any case, the petitioner has the alternative remedy of filing a civil suit for the alleged breach against the opposite parties. 9. For the reasons given above, this writ petition is liable to fail and is hereby dismissed. No order is made as to costs.