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Madhya Pradesh High Court · body

2002 DIGILAW 648 (MP)

M. Ishaq M. Ghulam v. State of M. P.

2002-07-11

A.K.MISHRA

body2002
ORDER 1. In these three writ petitions, the petitioner is challenging recovery imposed upon him of the amount of loss of Rs. II ,38,063.03/suffered by the respondent re-pursuant to the auction as petitioner failed to accept an offer of appointment with respect to the units namely 2-Saliya Sehora, 4-B Barhi, 6-B Murwara, 11-Khamaria, 21-Majholi, 15-Ram Patan, 25-B Padwar, 3-Sakrigarh. 2. The petitioner makes averment in the petition that State Government took a decision about the disposal of units where the tendu leaves were found by fixation of upset price. Total numbers of 1053 units were to be disposed of by Laghu Vanopaj Sangh and 773 units by the State Government. Petitioner submits his tender for the unit in question was accepted. Petitioner was intimated about acceptance of the tender and to deposit security amount within 15 days. Before expiry of 15 days, the State Government held meeting on 27.3.1985. about disposal of those units whose tenders have not been submitted to dispose of them upto 50 percent of the upset price or even in sum up to 40 percent. Due to the aforesaid change in the policy of State Government, a peculiar situation was created. The offers made by the petitioner were above the upset price whereas the other tenderers who were similarly situated and similarly circumstanced were all owed to tender at a price of 50% less than the upset price. The petitioner did not execute the agreement nor deposited security amount and intimated to the respondents vide letter dt. 26.4.1985 (Annexures-E, F and G) that the petitioner was willing to purchase the units as per new policy of the State Government at a price of 50% of the upset price. The petitioners were intimated as per (Annexures H, I and J), dt. 30.4.1985 that his appointment has been cancelled and the earnest money deposited have been forfeited. The re-auction was held on 3.5.1985 and the units were allowed to be purchased by third parties even at the lower rate than was offered by the petitioner in offer dated 26.4.1985, petitioner previously filed writ petitions 203/86 and 1275/86 before this Court which were dismissed in limine to seek remedy in civil Court, same relief was claimed in said writ petitions. It is further averred that "several other petitioners filed writ petitions on identical grounds many of which have been all owed and many are pending adjudication. It is further averred that "several other petitioners filed writ petitions on identical grounds many of which have been all owed and many are pending adjudication. It is submitted that the petitioner should not be deprived of the remedy of the writ jurisdiction and should not be treated dissimilarly." From the petitioner, demand was made as per notices (Annexures K, Land M) issued on 27.10.1985. State Government demanded the sum for the loss suffered by it in re-auction of the said units, the difference was to be recovered worked out on the tender rate of the petitioner and fetched by the respondents in re-auction on 3.5.1985. The petitioner submits that the loss cannot be attributed to the petitioner as the petitioner had not executed the agreement, no liability can be fastened on the basis of the tender condition stated in the earlier auction. As petitioner has not been treated at par by the respondents, recovery is illegal. By the decision that the acceptance of offers may be made below the upset price up to 50% or 40% the petitioner has been put to a disadvantageous position. 3. The respondents in their return contend that the bid of the petitioner was accepted and on failure of bidder to execute the agreement, security amount was liable to be confiscated and the contractor was liable to be black listed for three years and the State Government is entitled to recover the loss caused on re-auction, amount can be recovered as arrears of land revenue. Condition No. 16(ka) has been pressed in service by the respondents. Government could not obtain reasonable offers in the second auction, therefore, the Government was constrained to hold third auction in many of the units. 4. It is not disputed that the petitioner has previously filed two writ petitions before this Court being MP Nos. 203/86 and 1275/86 with respect to the same units challenging the impugned recovery. A Division Bench of this Court has passed the following order dismissing the Writ Petition MP No. 203/86 on 15.7.1986 : "The petitioner is aggrieved by the order dt. 22.10.1985 passed by the DFO Jabalpur for recovery of the deficit amount on re-sale of the units. This recovery is being made pursuant to the cancellation made by order dt. 30.4.1985 which led to re-auction giving rise to the deficit. The cancellation made by the order dt. 30.4.1985 is not challenged. 22.10.1985 passed by the DFO Jabalpur for recovery of the deficit amount on re-sale of the units. This recovery is being made pursuant to the cancellation made by order dt. 30.4.1985 which led to re-auction giving rise to the deficit. The cancellation made by the order dt. 30.4.1985 is not challenged. That apart, the cancellation is based on breach of certain terms and the correctness thereof can be examined better in a civil suit. There is thus no occasion to entertain this petition. It is, therefore, dismissed summarily." In MP No. 1275/86 the following order was passed on 16.4.1986 : "This petition is against recovery of the amount claimed as deficit on resale of a contract on account of breach of contract. The petitioner contends that the breach was not by the petitioner but by the respondents. Accordingly, the basic dispute relates to certain questions of fact which can be decided only on the basis of evidence and it will be better to file civil suit for adjudication of these disputed facts. It would not be appropriate to entertain this petition. Under these circumstances, the petition is dismissed summarily." 5. The Division Bench of this Court held that the certain questions of fact are involved which can be decided only on the basis of the evidence and remedy of the petitioner lies in filing civil suit for adjudication of the disputed questions of fact, it was not appropriate to entertain writ petitions challenging the impugned recovery. 6. A preliminary objection has been raised by the counsel for the respondents that present writ petitions cannot be entertained owing to dismissal of previous writ petitions placing reliance on the decision of Apex Court in State of U.P. and another v. Labh Chand (1993) 2 SCC 495 . 7. Shri M.L. Jaiswal, learned Sr. Counsel appearing for the petitioner submits that this fact was disclosed in the petitions that previously writ petitions were filed before this Court and they were dismissed with liberty to file civil suit as alternative remedy. Writ petition was admitted by Division Bench of this Court. The averment has been made that other writ petitions were entertained and allowed on the same point. Thus once writ petitions have been admitted they should not be thrown out now. Previously petitions were dismissed on the ground that the petitioner may file civil suit. Writ petition was admitted by Division Bench of this Court. The averment has been made that other writ petitions were entertained and allowed on the same point. Thus once writ petitions have been admitted they should not be thrown out now. Previously petitions were dismissed on the ground that the petitioner may file civil suit. On merits it has been submitted by the learned counsel that auction is bad in law as respondents ought to have accepted the offer made by the petitioner on 26.4.1985. The petitioner was ready to purchase the units at a price of 50% of the upset price but the offer was not accepted and the auction was held on 3.5.1985 at much lesser rate than was offered by the petitioner as 50% of the upset price. Thus, the loss was occasioned in re-auction and they had taken decision to accept the offers below 50 or 40% of the upset price thus the loss caused is only due to the decision of respondents to accept lower offers as purchasers had not offered the value above upset price in their auction bid due to change of policy. The petitioner was put to a disadvantageous situation as at the time when petitioner submitted his tender the said decision of acceptance of an offer elbow the upset price was not taken by the respondents. 8. Learned Deputy Advocate General for State Shri R.S. Jha submits on merits; that petitioner failed to accept the offer and Tendu leaves are perishable commodity which perish within 15 to 3D days. That is the main reason for fetching the lower price, the loss had occasioned because of non-acceptance of the appointment for collection of Tendu leaves by the petitioner. Once, having made an offer the petitioner was bound to accept it and he could not be permitted to wriggle out by contending that the State Government had taken decision on 27th of March, 1985 to accept the offers below 50% or 40% percent of upset price. The petitioner is bound by terms and conditions of auction, thus the respondents are entitled to recover the loss caused by the petitioner. 9. First question for consideration is whether this Court can entertain fresh writ petitions in view of the dismissal of M.P. No. 203/86 and M.P. No. 1275/86 involving same issue. The petitioner is bound by terms and conditions of auction, thus the respondents are entitled to recover the loss caused by the petitioner. 9. First question for consideration is whether this Court can entertain fresh writ petitions in view of the dismissal of M.P. No. 203/86 and M.P. No. 1275/86 involving same issue. The Apex Court in State of U.P. v. Labh Chand ( (1993) 2 SCC 495 ) has laid down that if the first petition has been dismissed either on the ground of laches or non-exhaustion of alternative remedy, as well, shall not be by-passed by a Single-Judge-Bench or Judges of a larger Bench except in exercise of review or appellate powers possessed by it. When a Judge of Single-Judge-Bench of a High Court is required to entertain a second writ petition of a person on a matter, he cannot, as a matter of course, entertain such petition, if an earlier writ petition of the same person on the same matter had been dismissed already by another Single-Judge-Bench or a Division Bench of the same High Court, even if such dismissal was on the ground of laches or on the ground of non-availing of alternative remedy. Second writ petition cannot be, so entertained not because the Single Judge has no jurisdiction to entertain the same, but because entertaining of such a second writ petition would render the order of the same Court dismissing the earlier writ petition redundant and nugatory, although not reviewed by it in exercise of the recognized power. 10. In another decision of Apex Court in Forward Construction Co. and others v. Prablzat mandaI (Regd), Andheri and others AIR 1986 SC 391 . The Apex Court held that the principles of res-judicata are applicable to the writ petitions. 11. Though the statement has been made in paragraph 6 of the writ petition that MP No. 1034/84 has been allowed by this Court, perusal of record of MP No. 1034/84 indicates that it has not been allowed on the contrary it was dismissed on 12.7.1985 for want of prosecution and it has not been restored. Thus, the statement that MP No. 1034/84 and other petitions have been allowed, is not correct on facts. No other decision has been shown in which this Court had allowed the writ petition, whatever that may be. Thus, the statement that MP No. 1034/84 and other petitions have been allowed, is not correct on facts. No other decision has been shown in which this Court had allowed the writ petition, whatever that may be. Following the decision of Apex Court in State of U.P. and another v. Lahh Chand (supra) these writ petitions cannot be entertained by this Court and are accordingly, dismissed. Security amount, if deposited, be refunded to the petitioners.