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2005 DIGILAW 979 (PAT)

Dineshwar Singh v. State Of Bihar

2005-11-10

SARIN GHOSH

body2005
Judgment 1. This is quite unfortunate, as it appears to me, that a lucrative deal clinched by a partner has been lost to the partnership by reason of the greed on the part of the said partner. From the records and pleadings, the following emerges. 2. On 1st August, 2003, a deed of partnership firm was executed by the petitioner and by seven others. This deed provided that the partners shall carry on query business. On 23rd August, 2003, a public bid for settlement of a query lease was attended by the petitioner. The bid given by the petitioner was the highest bid and the same was accepted. In terms of the conditions of the bid, the successful bidder was required to deposit 20% of the bid money and was also required to furnish bank guarantee for the remaining 80% of the bid money. In terms of Rule 25 of the Bihar Minor Mineral Concession Rules, 1972, a successful bidder is required to obtain a formal lease within 90 days from the date of acceptance, of the bid. The successful bidder in terms of the Government order is also required to furnish bank guarantee within three months from the date of execution of the formal lease. In such view of the matter the petitioner was required to deposit approximately Rs. 34 lacs, being 20% of the bid money, and then to obtain the mining lease within 22nd November, 2003 and to furnish a bank guarantee for the remaining 80% of the bid money within 22nd February, 2004. 3. The records show that on 16th September, 2003, the petitioner was informed by the State to deposit the remaining amount due and payable by the petitioner namely Rs. 19,97,600/-. On 17th September, 2003, the petitioner by a letter informed the State that he has deposited instead of the remaining amount of Rs. 19,97,600/-, a sum of Rs. 19,98,500/-. There is no dispute that all these payments, which aggregated to Rs. 34,11,100/-, were deposited by bank drafts. On 19th September, 2003, eight partners of the said partnership firm including the petitioner wrote a letter to the State indicating therein that each of them as partner of the said partnership firm is the beneficiary of the said bid. On 19th September, 2003 itself, the State by a letter asked the partnership firm to execute the deed. On 19th September, 2003, eight partners of the said partnership firm including the petitioner wrote a letter to the State indicating therein that each of them as partner of the said partnership firm is the beneficiary of the said bid. On 19th September, 2003 itself, the State by a letter asked the partnership firm to execute the deed. This letter was though addressed to the partnership firm, but also carried the name of the petitioner and his address. According to the petitioner, the letter dated 19th September, 2003 said to have been written by the partners of. the said partnership firm did not contain his signature. According to the petitioner, on receipt of the letter dated 19th September, 2003 of the State, the petitioner approached the Mining Officer and asked him to remove the name of the partnership firm and the petitioner was appropriately assured. Subsequent thereto on 15th November, 2003 a lease deed was executed in between the State and the partnership firm. By a letter dated 29th September, 2003 the petitioner was asked by the Mining Officer to furnish bank guarantee. The petitioner has relied upon a letter dated 18th March, 2004 emanating from the Mining Officer and addressed to him, wherein it has been indicated that on 17th March, 2004, before the Mining Officer the petitioner raised an objection as to inclusion of the partnership firm in relation to the said bid. 4. If the petitioner had not executed the letter dated 19th September, 2003 which purports to be a representation by the partners of the partnership to settle the lease in favour of the partnership firm, then the petitioner was not aware of the existence of the said letter, moresowhen it is the specific case of the petitioner that his signature on the said letter has been forged. There is, however, no dispute that the petitioner received the letter dated 19th September, 2003 whereby the partnership firm was asked to have the lease deed executed. There is no dispute that the petitioner did execute the partnership deed on 1st August, 2004. He was aware that he has agreed with 7 others to carry on business in the name and style of Maa Mundeshwari Stones. This information, according to the petitioner, was not supplied by him to the State and its Officers. There is no dispute that the petitioner did execute the partnership deed on 1st August, 2004. He was aware that he has agreed with 7 others to carry on business in the name and style of Maa Mundeshwari Stones. This information, according to the petitioner, was not supplied by him to the State and its Officers. How the State and its Officers came to know about the existence of the said firm would have been the question which the petitioner would have asked first to the Mining Officer immediately on receipt of the letter dated 19th September, 2003. He, however, did not do anything. In the meantime he did not take any step whatsoever to obtain the lease. The time to obtain lease expired on 22nd November, 2003. According to the pleadings of the petitioner, only on receipt of the letter dated 29th November, 2003 the petitioner was satisfied that the Officers of the State are now proceeding with the matter in appropriate manner inasmuch as the said letter was addressed to him and not to the partnership firm. Despite being satisfied that the black spot of the partnership firm has been removed from the subject bid, the petitioner did not take one single step to have the lease in his favour. He did not take any step to obtain bank guarantee. As it appears to me, taking advantage of the letter dated 29th November, 2003, he for the first time on 17th March, 2004 held out before the Mining Officer that he alone is entitled to have the lease and not the partnership firm. As aforesaid, up to that date he did nothing to have the lease in his name. 5. In the counter affidavit filed by the other partners of the said partnership firm, it has been contended that the sum of Rs. 34 lacs (Approximately) as was deposited by the petitioner on account of 20% of the bid money had been arranged by them from their own resources and their bankers have issued the bank drafts in relation thereto. They have also annexed certificates issued by their bankers in support of such contention. In the reply filed to the counter affidavit, the statements pertaining to arrangement of the said sum by the other partners have been denied but it had not been stated as to from what source the petitioner had arranged the money. They have also annexed certificates issued by their bankers in support of such contention. In the reply filed to the counter affidavit, the statements pertaining to arrangement of the said sum by the other partners have been denied but it had not been stated as to from what source the petitioner had arranged the money. In such view of the matter, I asked the petitioner, who is physically present in Court, as to from which Bank he obtained the bank drafts. In reply thereto, the petitioner answered that he had obtained loan from one Jai Kumar Singh and then handed over the money to one of the partners of the said firm, namely, Kumar Parmendra for the purpose of converting said money into drafts and it is Kumar Parmendra, who has purchased those drafts. If that was the truth, why the same could not be stated in the reply? The fact, therefore, is admitted that the drafts were handed over by the partners of the said partnership firm and, if not by all, at least by Kumar Parmendra. The question is with whose money the drafts were purchased. If the drafts were purchased with the money borrowed by the petitioner there was no reason to hide the same. On the other hand, the partners of the partnership firm have not only asserted that the drafts have been obtained by them from their own bankers but they have also indicated that the funds to purchase those drafts had also been provided by them, 6. A person, who has borrowed approximately Rs. 34 lacs for the purpose of obtaining a mining lease will sit idle and take no step for the purpose of obtaining a lease in his favour, is not acceptable to me. The petitioner sat tight over the matter and took no step to have the lease executed in his name. On the other hand, the lease was executed on 15th November, 2003 in between the State Government and the said partnership firm and signed on behalf of the partnership firm, amongst others, by the petitioner. Of course, the petitioner is contending that it is not his signature. On the other hand, the lease was executed on 15th November, 2003 in between the State Government and the said partnership firm and signed on behalf of the partnership firm, amongst others, by the petitioner. Of course, the petitioner is contending that it is not his signature. I was requested to make an endeavour to ascertain whether the signatures appearing on the letter dated 19th September, 2003, being Annexure-6 to the Writ Petition, and on the lease purporting to that of the petitioner, are in fact the signatures of the petitioner or not by taking assistance of a handwriting expert. I would have done so provided the petitioner had established before me that as a normal person, after having had invested Rs. 34 lacs of borrowed funds he had taken appropriate steps to obtain a lease within a reasonable time, may be even after expiry of the initial three months. As there is nothing on record that the petitioner did take any such step, it would not be appropriate on my part to decide whether these two documents contained forged signatures of the petitioner and particularly when the petitioner has approached the Criminal Court and has alleged forgery of these documents and on the basis whereof he is seeking conviction, amongst others, against Kumar Parmendra, a partner of the said partnership firm. As a result, the picture, as it appears to me, is that, although the bid was given by the petitioner but the lease was executed by the partnership firm and subsequent thereto the petitioner contended that he alone, and not the partnership firm, is entitled to the benefit of the bid. In such a situation, unless the bid is cancelled, as has been done in the instant case, the State will suffer for the petitioner and the other partners will go on fighting in the same manner as they are fighting in this Court as well as before the Criminal Court and would not be in a position to lift the minor mineral proposed to be sold by the State by that bid. In fact, after deposit of Rs. 34 lacs (Approx.) neither the petitioner, nor the partnership firm has submitted either the bank guarantee or any further portion of the bid money. In fact, after deposit of Rs. 34 lacs (Approx.) neither the petitioner, nor the partnership firm has submitted either the bank guarantee or any further portion of the bid money. Accordingly, the Officers of the State in order to safeguard the interest of the State have rightly rejected the bid and cancelled the whole matter lock, stock and barrel. For what I have indicated above, I think no prudent person in a situation of this nature having regard to the fiscal condition of this State would have taken a decision contrary to the decision which has been taken in the instant case and accordingly there is no scope of interference of this Court. 7. In the instant case, having found that an affidavit was purported to have been affirmed by the petitioner while he was in jail custody, I had issued a notice to show cause why steps shall not been taken under Section 340 of the Code of Criminal Procedure. Having regard to the fact that the petitioner is denying each and every signature of his which is being projected by his other partners, it may be possible that the affidavit in question has been signed in fact by the petitioner, though the petitioner is also denying his signature on the said affidavit. Inasmuch as a criminal case relating to the forged signature of the petitioner is pending before the appropriate criminal court, it would not be appropriate on my part to ascertain whether that signature of the petitioner contained in the said affidavit is really a forged signature or not. However, having regard to the fact that the petitioner was undisputedly in jail at the time of affirmation of the said affidavit, it goes without saying that without the petitioner being present the said affidavit was affirmed by someone else, and accordingly the identifier has made untrue representation before the Oath Commissioner. However, inasmuch as none of the parties could take any advantage out of the said affidavit in these proceedings, I am dropping the proceedings initiated under Section 340 of the Code of Criminal Procedure. 8. This disposes of the writ petition.