Prithvi Builders v. Manekchowk Khoda Dhor Panjarapole sanstha through Trustees
1996-03-11
R.BALIA
body1996
DigiLaw.ai
RAJESH BALIA, J. ( 1 ) HEARD learned Counsel. ( 2 ) THE petitioner challenges the order of the Gujarat Revenue Tribunal dated 26-2- 96 by which it has affirmed the order of the charity Commissioner accepting the bid offered by respondent No. 2-M/s. Vyapti builders for the three properties belonging to respondent No. 1 on the ground that the charity Commissioner has acted arbitrarily in the background of the present case in accepting the bid of M/s Vyapti Builders, which is lower than the petitioners bid by about Rs. 90,000/-, for no reason. ( 3 ) THE background in which this dispute has arisen is that on 27-4-92 the respondent no. 1 -Trust advertised for the sale of three properties in question under the directions of the Charity Commissioner. The petitioner made its offer in pursuant thereof. Amongst the bidders petitioners bid was highest, i. e. Rs. 23,20,003/ -. The Trust recommended the acceptance of the bid to the Charity Commissioner and decided to return the earnest money deposited by other tenderers. However, for some reason or another the bid of the petitioner did not come to be affirmed by the Charity Commissioner. Meanwhile on 29-6-95 the General Manager of the respondent-Trust gave an application to the Charity Commissioner intimating him that higher offe,rs of the same properties and the same may be considered by the Charity Commissioner. In view of the said application, the Charity commissioner directed to invite fresh offers. The fresh offers were invited by 3. 0 p. m. of 5th July 1995. The offers were to be accompanied with 10% of the offer price as earnest money. In the wake of this development, the petitioner approached this court by way of Special Civil Application no. 5641 of 1995 seeking a mandamus that the Charity Commissioner may be directed to accept its offer made in May 1992 and recommended for acceptance by the Trust at that time. The Special Civil Application came to be rejected on 12-7-95. On 5-7-95 until the expiry of the period for submitting tenders or bids in pursuance of the direction dated 29-6-95 petitioner has not deposited any further amount than the one already lying with the Trust as earnest money for its offer dated 7-5-92. On rejection of petitioners petition, he deposited Rs. 3,98,997/- on 13-7-95.
On 5-7-95 until the expiry of the period for submitting tenders or bids in pursuance of the direction dated 29-6-95 petitioner has not deposited any further amount than the one already lying with the Trust as earnest money for its offer dated 7-5-92. On rejection of petitioners petition, he deposited Rs. 3,98,997/- on 13-7-95. The petitioner, instead of making a firm bid, had made it known to the Charity Commissioner that it is intending to purchase the property at rs. 27/- per sq. yd. and with the maximum of rs. 61,695/- more than the highest bidder. While the tenders were opened on 5-7-95. ( 4 ) IN the aforesaid circumstances, the charity Commissioner decided to accept the bid offered by respondent No. 2 without cosidering the offer of the petitioner on the ground that on 5-7-95 there was no valid offer made by the petitioner inasmuch as neither there was any firm offer nor the offer was accompanied by requisite deposit that if the petitioners offer is not considered while the bid accepted by the Charity commissioner was the highest. The order of the charity Commissioner was challenged by the petitioner before the Gujarat Revenue tribunal. The Tribunal on taking into consideration the totality of the facts came to the conclusion that the bid of the petitioner cannot be treated as proper and valid offer also. The amount of Rs. 61,675/-, more than the highest bidder, which the appellant had offered, is less than even one per cent of the amount of highest bidding. There is no sizeable difference in the amount if it is compared with the highest offer by the respondent No. 2. The Tribunal was also of the opinion that if the petitioner did want to purchase the property, it should have quoted the price of the properties in clear terms and not in vague terms so as to enable it to be the highest amongst all the offerers without quoting the price in terms of Rupees. ( 5 ) THE learned Counsel for the petitioner vehemently urged that the Charity commissioner has acted to the detriment of the trust by not accepting his bid, which was about Rs.
( 5 ) THE learned Counsel for the petitioner vehemently urged that the Charity commissioner has acted to the detriment of the trust by not accepting his bid, which was about Rs. 90,000/- higher than the bid of respondent No. 2 when he ultimately decided to finalise the bid and that being so, the act of the Charity Commissioner is nothing but an arbitrary exercise of power while entering into the realm of contract. ( 6 ) MR. Merchant appearing for the caveator urged that no ground is made out for interfering under Article 227 of the constitution inasmuch as there is neither an error of jurisdiction nor the manner in which the decision has been taken by the revenue Tribunal, which is a quasi-judicial authority and whose decisions are final, is arbitrary. He also contends that in the facts and circumstances of the case, the order of the Charity Commissioner cannot be said to be arbitrary, particularly when no valid offer was before it at the opening of the the tenders other than the respondent No. 2s highest bid. ( 7 ) HAVING carefully considered the rival contentions, I am of the opinion that the petition must fail. Law is well settled that ordinarily extraordinary jurisdiction under article 226 is not invoked when the matter is relating to contract. The extent to which judicial review is permissible is in regard to the manner in which the contract is granted to private parties by State or instrumentality of the State or by exercise of power by the Statutory authorities which may spell favouratism or detrimental to public interest. In other words, interference can be made only in the field of the manner in which the contract is entered into but not in relation to the terms of the agreement. ( 8 ) IT is true that normally in the matter of selling out properties of the Trust, the trustees or the Charity Commissioner are to act in the best interest of the Trust and that ordinarily reflects when the best available price is secured for the property to be sold. But at the same time, while entering into the agreement of like, with which we are concerned, it cannot be a case of single golden scale criteria that any time or every time a higher offer comes one should require the Authority to postpone the process, which had already commenced.
But at the same time, while entering into the agreement of like, with which we are concerned, it cannot be a case of single golden scale criteria that any time or every time a higher offer comes one should require the Authority to postpone the process, which had already commenced. It has to be brought to a logical end. In the present case, as has been noticed, though the offer made in 1992 by the petitioner was highest it remained to be accepted. By June 1995 the prices of the property has shot up over 60 lacs and every prudent Trustee or a person interested in public disposal of the trust properties would have taken recourse to the action, which the Charity Commissioner has taken, namely, inviting fresh offers keeping the three higher bidders in fray. The petitioner had known about this development. The last date for making bid was 5-7-95. The manner of making bid was to offer the price with deposit of 10% of the offer price. After the dead line was over, it was not the right of anybody and everybody to come forward on knowing the prices offered by others to make a marginally higher bid and to enforce the Charity commissioner to revert to negotiation table amongst the bidders. It is not to say that the charity Commissioner did not have the discretion to resort to negotiation if he thought it fit in the given circumstances. But unless the circumstances was so compelling, the Charity Commissioner could not have been compelled to take into consideration any bid which had come into existence in accordance with the procedure prescribed after the dead line had expired. It is an indisputed fact that on 5-7-95 neither the petitioner has offered any fixed price for the property in question before the charity Commissioner nor it was accompanied by the requisite earnest money. In fact, it is only on 13-7-95 that the petitioner made the final bid good with proportionate ratio of earnest deposit. Other thing which cannot also be ignored is that the petitioner has made move to deposit only after his petition for securing the properties at the rate prevailing in 1992 had failed on 12-7- 95. The offer of Rs. 61,695/- over and above the maximum price offered by anybody else smacks more of a gambling than of a firm bid in competition.
The offer of Rs. 61,695/- over and above the maximum price offered by anybody else smacks more of a gambling than of a firm bid in competition. Moreover, the difference between the prices, as noticed by the Tribunal, is not that significant which could have stirred the Charity Commissioner to permit the petitioner to enter the fray for the purpose of a fresh competition between the bidders, which might have necessitated inviting the open bids, once the commissioner decided to open the gate for the petitioners offer after 5-7-95 keeping in view the fact that the petitioner was not an offerer in accordance with the tender notice issued on 5-7-95. It could have been done only by giving offer to negotiation by public at large, Hence it would have been clearly an act of discrimination. It was not the case of negotiation amongst tenderers for increasing bids and securing higher price. ( 9 ) IN the totality of these circumstances, it cannot be said that the Charity Commissioner had acted in an unreasonable manner in accepting the highest bid on 5-7-95 by ignoring the bid which was not there on 5- 7-95. The order of the Gujarat Revenue tribunal suffers from no error apparent on the face of record which need be corrected by issue of writ of certiorari. ( 10 ) PETITION is dismissed summarily. .