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2009 DIGILAW 811 (ALL)

AWADHESH KUMAR SINGH v. STATE OF U P

2009-03-18

ARUN TANDON, ASHOK BHUSHAN

body2009
Heard learned counsel for the petitioner, Sri K. N. Mishra, learned counsel for respondent No. 5 and learned Standing Counsel for the State-respondents. 2. Petitioner, before this Court, seeks quashing of the order dated 13th February, 2009 passed by the Additional Commissioner (Food and Civil Supply), U. P. Lucknow. 3. Facts relevant for deciding the present writ petition, as borne out from the record are as follows : A tender notice was published by the Regional Food Controller, Kanpur Region, Kanpur on 11th September, 2004, inviting prospective godown owners to offer their bids for the godown being taken on rent by the office of Food Controller. The petitioner, at the relevant time, did not own a godown and admittedly, did not make any bid in response to the said tender notice. The details of the terms and conditions of the tender notice have not been brought on record. 4. Learned counsel for the petitioner is not in a position to point out as to what was the last date for submission and opening of the bids. However, it is stated on his behalf that an agreement, in respect of godown situate at Kamalganj, District Farrukhabad, was entered into between the petitioner and the District Food and Civil Supply Officers, Farrukhabad on 15th May, 2007. Under the terms of the agreement, so entered, the lease in respect of the godown was to commence from 1st March, 2006 and was to remain valid for a period of 11 years (reference document enclosed as Annexure-5 to the writ petition ). 5. Respondent No. 5 namely, Shamsuddin, claims that in response to the tender notice he had submitted his application and since the rent asked for in the said tender by Shamsuddin was the lowest, a contract of lease was made in his favour and accordingly agreement in respect of the godown at Kamalganj for a period of 15 years was executed in his favour on 12th July, 2005. However, the Regional Food Controller, Kanpur Region, Kanpur issued a letter dated 20th April, 2006 permitting the godown of the petitioner being taken on rent. This led to the filing of the writ petition by respondent No. 5 before this Court being Civil Misc. Writ Petition No. 29568 of 2006. The writ petition was got dismissed as withdrawn. However, the Regional Food Controller, Kanpur Region, Kanpur issued a letter dated 20th April, 2006 permitting the godown of the petitioner being taken on rent. This led to the filing of the writ petition by respondent No. 5 before this Court being Civil Misc. Writ Petition No. 29568 of 2006. The writ petition was got dismissed as withdrawn. Thereafter, respondent No. 5 made a complaint before the Food Controller alleging therein that illegal contract has been entered into with petitioner by the District Food and Civil Supply Officers for the purposes of taking the alleged godown on rent with the petitioner i. e. Awdhesh Kumar Singh. On the complaint so made by respondent No. 5, the Regional Food Controller got the matter inquired and ultimately by means of the order dated 11th July, 2008, it has been found that the contract of lease which has been entered into between the petitioner and the department was an outcome of fraud played inasmuch as petitioner did not participate in the bids nor as a matter of fact he owned a godown on the relevant date when the tender bids were required to be opened. Accordingly the Additional Commissioner has issued following directions: (a) the godown on rent from Awdhesh Kumar Singh be vacated by the department immediately, (b) the amount of rent paid to Awdhesh Kumar Singh be recovered from the officers concerned involved in entering into such illegal contract with Awdhesh Kumar Singh, (c) the godown offered by respondent No. 5 be continued to be utilized by the department and payment of rent be made accordingly. 6. The aforesaid order of the Additional Commissioner is being questioned before us only on the ground that the Additional Commissioner while passing the order, did not afford opportunity of hearing to the petitioner. 7. Learned counsel for the petitioner has vehemently contended that the order having been passed in violation of principles of natural justice cannot be legally sustained. 8. The contention so raised on behalf of the petitioner is opposed by Sri K. N. Mishra learned counsel for respondent No. 5 and learned Standing Counsel on behalf of respondent Nos. 1 to 4. Learned counsel for the petitioner has vehemently contended that the order having been passed in violation of principles of natural justice cannot be legally sustained. 8. The contention so raised on behalf of the petitioner is opposed by Sri K. N. Mishra learned counsel for respondent No. 5 and learned Standing Counsel on behalf of respondent Nos. 1 to 4. On their behalf it is contended that principles of natural justice are not a straight jacket formula, in the facts of the present case, fraud qua execution of the agreement with petitioner is writ large on record and therefore, this Court may not interfere with the order under challenge. 9. We have considered the submissions made by the learned counsel for the parties and have gone through the records of the present writ petition. 10. The Honble Supreme Court of India in series of judgments has repeatedly held that principles of natural justice are not straight jacket formula and in a given case, if only one view is possible on the admitted facts, then such opportunity of hearing is meaningless and the same will not vitiate the order passed. (Reference Ashok Kumar Sonkar v. Union of India and others, (2007) 4 SCC 54 , Paragraphs 26 to 31 and Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7 SCC 529 , Paragraph 25 ). 11. For the application of the law so laid down by the Honble Supreme Court, we may record the following facts, which are admitted to the petitioner: (a) petitioner was not owner of godown even on the last date of submission of bids in response to the tender notice, (b) tender notice was invited in the year 2004 and the submission as well as opening of the bids had taken place in the year 2004 itself, (c) petitioner is stated to have purchased a godown on 1st February, 2006 from one Sri Rajiv Kumar Kanaujiya. (d) Rajiv Kumar Kanaujiya participated in the bids and offered his godown in response to the tender notice, however, his bid was not accepted, inasmuch as no agreement in respect of the godown possessed by him was ever executed in his favour. The agreement in favour of petitioner is stated to have executed on 15th May, 2007 i. e. nearly after two and half years of the last date of the opening of the bids. 12. The agreement in favour of petitioner is stated to have executed on 15th May, 2007 i. e. nearly after two and half years of the last date of the opening of the bids. 12. Learned counsel for the petitioner has been more than fair enough to admit that the said agreement has been entered into between the petitioner and the department on the basis of an application made by the petitioner alone and that at no point of time the petitioner claims or asserts that he had participated in the tender bids in response to the tender notice. 13. From the aforesaid admitted facts, what logically follows is that the petitioner did not participate in the bids in response to the tender notice, he was not one of the applicant in response thereto, as a matter of fact he was not even a owner of a godown up to the relevant date. The agreement, which has been entered into between the petitioner and the officers of the Food and Civil Supply department is only through private negotiation. 14. We find that the agreement entered into between the petitioner and the State-authority has been so done without any publication of notice inviting tenders. The Honble Supreme Court of India in Nagar Nigam, Meerut v. Al Faheem Meat Exports Pvt. Ltd. and others, JT 2007 (1) SC 484, held as under: "the law is, thus, clear that ordinarily all contracts by the Government or by an instrumentality of the State should be granted only by public auction or by inviting tenders, after advertising the same in well known newspapers having wide circulation, so that all eligible persons will have opportunity to bid in the bid, and there is total transparency. In our opinion, this is an essential requirement in a democracy, where the people are supreme, and all official acts must be actuated by the public interest, and should inspire public confidence. " 15. In these set of circumstances, we have no hesitation to hold that agreement which has been entered into between the petitioner and the District Marketing, Food Inspector, is a void agreement entered into without following due procedure prescribed. " 15. In these set of circumstances, we have no hesitation to hold that agreement which has been entered into between the petitioner and the District Marketing, Food Inspector, is a void agreement entered into without following due procedure prescribed. We have therefore, come to the conclusion that in the facts of the present case the order passed by the Additional Commissioner dated 13th February, 2009 rectifying the aforesaid patently illegal act of the Regional Food Authorities does not warrant any interference in writ jurisdiction under Article 226 of the Constitution of India. 16. The writ petition is therefore, dismissed. .