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2000 DIGILAW 728 (PAT)

Deo Kumar Singh v. State Of Bihar

2000-05-17

S.K.KATRIAR

body2000
Judgment 1. This writ petition has been preferred with the prayer to issue a writ in the nature of mandamus or any other appropriate writ or order or direction commanding the respondents to enter into an agreement with the petitioner for collection of tolls on Mahatma Gandhi Setu (Bridge), on the basis of public auction held on 6.4.2000 where the petitioner was the highest bidder and fulfilled all the norms and conditions stipulated in the auction notice (Annexure-1). 2. The State Government issued on advertisement which was published in local dailies on 25.3.2000 (Annexure-1), inviting tenders for settlement of the contract for collection of tolls from the Mahatma Gandhi Setu which connects the township of Patna and Hajipur spanning river Ganga, from the mid-night of 13.5.2000 to the mid-night of 12.5.2001, under the Bihar Tolls Rules, 1979 (Amendment 1982). The petitioner submitted his tender for Rs. 7,13,00,000/-. He deposited a sum of Rs. 2,00,000/- by way of security money on 3.4.2000, vide demand draft dated 3.4.2000 (Annexure-2), along with his tender papers. The auction took place on 6.4.2000, and the petitioners bid of Rs. 7,13,00,000/- was the highest. As per the terms of the advertisement read with the oral directions of the respondent authorities, the petitioner had deposited 10% of the bid amount by way of demand draft amounting to Rs. 70,13,000/- for which the Executive Engineer, National Highway Division, Gulzarbagh, granted receipt dated 6.4.2000 (Annexure-3), to the petitioner. The aforesaid sum of Rs. 2.00,000/- plus Rs. 70,13,000/- completed 10% of the bid amount. The petitioner was waiting for the formal agreement to be executed, but instead noticed an advertisement dated 27.4.2000 (Annexure-4), inviting fresh tenders for the same settlement. This appeared to him in supersession of the aforesaid advertisement dated 25.3.2000 (Annexure-1). Hence the writ petition. 3. While assailing the validity of the impugned action whereby the petitioners bid pursuant to the first advertisement dated 25.3.2000 (Annexure-1) has not been finalised and has instead been cancelled, learned counsel for the petitioner submits that after the respondent authorities accepted 10% of the bid amount they be estopped from rescinding it. He relies on the judgment of the Supreme Court reported in A.I.R. 1979 S.C. 621 (M/s. Motilal Padamapat Sugar Mills Co. Ltd. V/s. State of Uttar Pradesh and ors.). He also relies on the passage occurring in Halsburys Laws of England, Vol. He relies on the judgment of the Supreme Court reported in A.I.R. 1979 S.C. 621 (M/s. Motilal Padamapat Sugar Mills Co. Ltd. V/s. State of Uttar Pradesh and ors.). He also relies on the passage occurring in Halsburys Laws of England, Vol. 16, paragraph 957, page 844 (4th Edition, the Hailsham Edition) which is relevant in the present context and quoted hereinbelow for the facility of quick reference : "957. Approbation and reprobation. On the principle that a person may not approbate and reprobate, a species of estoppel has arisen which seems to be intermediate between estoppel by record and estoppel in pais. The principle that a person may not approbate and reprobate expresses two propositions : (1) that the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resile; and (2) that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent. Thus a plaintiff, having two inconsistent claims, who elects to abandon one and pursue the other may not, in general, afterwards choose to return to the former claim and sue on it; but this rule of election does not apply where the two claims are not inconsistent and the circumstances do not show an intention to abandon one of them. The common law principle which puts a person to his election between alternative inconsistent courses of conduct has no connection with the equitable doctrine of election and relates mainly, though not exclusively, to alternative remedies in a court of justice." 3.1. He next submits that the impugned action can be taken only after observance of the principles of natural justice and fair play. He also submits that after the respondents had accepted 10% of the bid amount, it has given rise to legitimate expectations in the mind of the petitioner. He relies on judgment reported in 1999 (3) BLJ 450 : 1999(3) PLJR 235 (Raju Mishra V/s. State of Bihar and ors.). 4. Mr. K.P. Yadav learned S.C.5, submits that this writ petition is not maintainable because there was no concluded contract between the parties. The petitioners offer was not accepted. He relies on judgment reported in 1999 (3) BLJ 450 : 1999(3) PLJR 235 (Raju Mishra V/s. State of Bihar and ors.). 4. Mr. K.P. Yadav learned S.C.5, submits that this writ petition is not maintainable because there was no concluded contract between the parties. The petitioners offer was not accepted. He submits that the tender notice (Annexure-1), read with the corrigendum dated 4.4.2000 (Annexure-5), clearly stated that a bid amount lower than Rs.11,00,00,000/- may not be acceptable to the Government. He further submits that it is clearly stated in the general terms and conditions (Annexure-6), which was part of the tender document and has to be read with the advertisement (Annexure-1), that the bid was subject to Governments approval. He lastly submitted that the auction pursuant to the second advertisement took place on 5.5.2000, where the highest bid was for Rs. 7,51,00,000/-, which has also been cancelled because the same was below Rs. 11,00,00,000/-. The third auction will now take place on 6.6.2000 with the same terms and conditions. 5. Learned counsel for the petitioner in reply submits that Rs. 11,00,00,000/- being the minimum bid amount, it has to be read down in the facts and circumstances of the present case, inter alia, for the reason that the respondent authorities had accepted 10% of the bid amount. He relies on the judgment of a Constitution Bench of the Supreme Court reported in A.I.R. 1991 S.C. 101 (Delhi Transport Corporation V/s. D.T.C. Mazdoor Congress and ors.) 6. Having considered the rival submissions of the parties, I am of the view that this writ petition has to be dismissed. Learned Standing Counsel is right in his submission that there was no concluded contract between the parties. Clause 4 of the corrigendum (Annexure-4) reads as follows : (Local language) Clauses 20 to 23 of the General Terms & Conditions (Annexure-6) of the auction & settlement are as follows : (Local language) It is manifest from the advertisement dated 25.3.2000 (Annexure- 1), read with the corrigendum dated 4.4.2000 (Annexure-5), that the Government has made a condition of the advertisement that a bid for a amount lesser than Rs. 11,00,00,000/- may not be acceptable to the Government. He is further right in his submission that the general terms and conditions (Annexure-6), read with the advertisement, made it clear that the minimum bid would be Rs. 11,00,00,000/- may not be acceptable to the Government. He is further right in his submission that the general terms and conditions (Annexure-6), read with the advertisement, made it clear that the minimum bid would be Rs. 11,00,00,000/- and in any event the highest bid has to be approved by the State Government. He is further right in his submission that the deposit of 10% of the bid amount was only to enable the State Government to consider the petitioners case and does not confer any right on him. Further more the terms and conditions stipulate that steps with respect to execution of the agreement and handing over the bridge in question to the highest bidder shall be taken after the State Govt. approves the highest bid amount. It is, therefore, open to the State Govt. to refuse to approve the bid amount even higher than Rs. 11,00,00,000/-, let alone bid amount lower than that. It further provides that the second instalment, namely, the instalment after the deposit of the aforesaid sum of Rs. 10% has to be deposited as a condition precedent for execution of the agreement and the petitioner was never called upon to do so. I have thus no manner of doubt that the Government was entirely within its jurisdiction to refuse to accept the petitioners bid. The contention of the petitioner is, therefore, rejected. 7. In that view of the matter, the remaining contentions of the petitioner do not survive for consideration. Once it is held that Rs. 11,00,00,000/- was the minimum bid amount, and that the highest bid amount even exceeding Rs. 11,00,00,000/- is subject to the approval of the Government, there is no question of invoking the doctrine of Reading Down which in any case applies to legislation with different objects in view. Further more, once it is held that there was no concluded contract between the parties no enforceable right accrued in favour of the petitioner. The principles of natural justice are, therefore, not attracted. For the same reason, the principle of promissory estoppel does not apply. The petitioner has not altered his position in the present case, nor the respondents have taken any benefit from the petitioners election. Therefore, neither the principles enunciated in the case of M/s. Motilal Padampat Sugar Mills Co. Ltd. (supra), nor in paragraph 957 of the Halsburys Laws of England (supra), apply in the present case. The petitioner has not altered his position in the present case, nor the respondents have taken any benefit from the petitioners election. Therefore, neither the principles enunciated in the case of M/s. Motilal Padampat Sugar Mills Co. Ltd. (supra), nor in paragraph 957 of the Halsburys Laws of England (supra), apply in the present case. The facts and circumstances also do not give rise to the doctrine of legitimate expectation. 8. In the result, this writ petition is dismissed. It goes without saying that the respondents shall refund the petitioners deposits forthwith.