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2010 DIGILAW 1838 (ALL)

O. P. SHARMA v. U. P. AWAS AVAM VIKAS PARISHAD

2010-05-28

RAKESH SHARMA

body2010
JUDGMENT RAKESH SHARMA, J.--Heard Sri Rahul Sripat, learned Counsel for the plaintiff-appellant and Sri A.P. Srivastava, Advocate, learned Counsel for the respondents. 2. Through this second appeal, under section 100 of the C.P.C., the plaintiff-appellant had assailed the judgment and decree dated 2.2.2000, passed by the 1st Additional District Judge, Bareily, in Civil Appeal No. 67 of 1998 reversing the judgment and decree dated 24.9.1993, passed by the IV Additional Civil Judge, Bareily in Original Suit No. 143 of 1977. While admitting this Second Appeal in the year 2000, following substantial questions of law were formulated by the Court:-- "(a) Whether the learned Appellate Court has reversed the judgment of Trial Court on the basis of irrelevant consideration and caused substantial failure of justice? (b) Whether any oral evidence was admissible for contents of document in view of section 59 of Indian Evidence Act? (c) Whether burden of proof has wrongly been fixed upon the plaintiff to produce evidence in respect of delegation of power either by Housing Commissioner or by Housing Board to the Assistant Housing Commissioner, while in view of section 106 of the Indian Evidence Act, the fact relating to delegation of power which is especially within the knowledge of the respondents? (d) Whether the rights of the highest bidder could be defeated by the subsequent rules of Avas Evam Vikas (Disposal of Property) Rules, 1980 and in pursuance of the changed scheme?" 3. It emerges from the record that an advertisement was inserted in the local news paper by the U.P. Awas Evam Vikas Parishad (hereinafter referred to as the Board) for auction of nine shops and plot meant for Cinema Hall in the Izzat Nagar Scheme No. 1, Block C and D in the District Bareily for which 11 th March, 1977 was fixed as the date for auction. The auction proceedings were conducted by one Sri R.K. Bishen, Assistant Housing Commissioner of the, said Board and the terms and conditions were spelt out on the date of auction. A printed format containing terms and conditions for allotment of the shops and plot have been placed on record as Paper Nos. Ka-1 and Ka-2. The bid of the appellant being the highest bid was accepted and he was asked to deposit an amount of Rs. 26,300/- through a Bank draft and Rs. 5,00/- in cash. A printed format containing terms and conditions for allotment of the shops and plot have been placed on record as Paper Nos. Ka-1 and Ka-2. The bid of the appellant being the highest bid was accepted and he was asked to deposit an amount of Rs. 26,300/- through a Bank draft and Rs. 5,00/- in cash. The appellant immediately deposited the said amount and a receipt thereof has been issued to him by the Assistant Housing Commissioner on 11.3.1977. 4. Since no allotment order was issued, the appellant made a representation to the respondents on 24.5.1977 in response to which he was informed vide a letter dated 26.5.1977 that the Housing Commissioner of the Board had rejected the bid and the amount deposited by the appellant was refunded. The appellant again wrote to the Authorities of the Board on 1.6.1977 re-asserting his claim. The Bank Draft received by the appellant was returned back to the Board. 5. The appellant, being aggrieved by the inaction on the part of the Authorities of the Board, had filed a Civil Suit. During the trial proceedings, the plaintiff-appellant had examined himself as P.W. 1. The Board had examined Sri R.K. Bishen as D.W. 1. All the documentary evidence were filed before the Trial Court. The Trial Court had decreed the suit vide its judgment and order dated 17.12.1977. Against the selid judgment and order of the Trial Court, a First Appeal No. 107 of 1978 was preferred by the defendant-respondents, that is, the Board before this Hon'ble Court. The case, in the First Appeal, as set out by the Board was that the Trial Court had not discussed the entire evidence and based its findings upon the negative reasonings. This Court had set aside the decree of the Trial Court and remanded back the matter to the Trial Court for a fresh decision, after giving opportunity to both the parties of adducing evidence on the points indicated in the judgment. 6. Upon remand, the defendant-respondents, that is, the Board, had amended its written statement and produced three more witnesses. The Trial Court, after detailed consideration of the entire pleadings and evidence on record, had decreed the suit again. The Trial Court had recorded categorical findings of fact based on documentary evidence that the Assistant Housing Commissioner was empowered to finally conclude the contract/ agreement, that is, on the date of auction. The Trial Court, after detailed consideration of the entire pleadings and evidence on record, had decreed the suit again. The Trial Court had recorded categorical findings of fact based on documentary evidence that the Assistant Housing Commissioner was empowered to finally conclude the contract/ agreement, that is, on the date of auction. He had accepted the bid and being the competent to conclude the contract, he had done so. Much stress has been laid that the auction with regard to the three shops had been concluded by him. This action was approved by the Housing Commissioner and the three shops were handed over to the highest bidders after formal allotment was made to them. The allottees/owners of the said three shops are enjoying the benefits of allotment of three shops, while the appellant had been forced to enter into litigation in the year 1977, denying him the same benefits. 7. Sri Rahul Sripat, learned Counsel for the appellant, had assailed the judgment of the First Appellate Court on various grounds, which are as under: 8. As per learned Counsel for the appellant, the material document which is the letter of delegation of authority to the Assistant Commissioner is the document which is to be prepared in three copies under the Rules of 1966 which are the statutory rules for conducting auction of the properties. One copy is to be sent to the Board, another to the State Government and third to the officer being delegated under the order. The respondents, inspite of order summoning the delegation letter having been issued, though asked by the Trial Court, did not produce the same and it was stated by them that the records have got misplaced during transit from Bareilly to Lucknow. The inference was therefore drawn against them for not producing the letter of authority under section 114 of the Evidence Act. The Trial Court has discussed the entire evidence and concluded the matter in favour of the appellant and decree in suit in toto. 9. The lower Appellate Court without considering the material admission of the D.W. 1 and misreading the statements of D.W. 2, D.W. 3 and D.W. 4 allowed the appeal, set aside the judgment and decree of Trial Court on surmises and conjectures and against the established principles of law which gave rise to the aforementioned substantial Questions of Law in the present second appeal. 10. 10. The Lower Appellate Court had failed to appreciate that the letter of authority was in possession of the respondents and the same was deliberately concealed from the Court as under the Rules of 1966 two copies were there with the Board and the State Government for which no averment was made by the respondents as to why the same could not be produced. The only averment made was with regard to the copy which was sent to Bareilly that the same has been misplaced in transit. The Lower Appellate Court therefore ought to have drawn the inference in favour of the appellant but instead it shifted the burden on the appellant to produce the same knowing fully well that it is the document of the respondents and the appellant cannot lay his hand upon it. 11. The categorical admission of the Assistant Commissioner in his statement-in-chief as D.W. 1 that he had the authority to finalize and conclude the auction has been completely ignored by the Lower Appellate Court causing serious prejudice to the rights of the appellant which had been established upon the fall of hammer. The statements of other D.Ws. also supported the case of the appellant. 12. No reserved price was fixed nor it was informed at the time of auction is established from the evidence of the respondents which has been ignored by the lower Appellate Court. 13. Learned Counsel for the appellant has placed reliance upon the following judgments to strengthen his case: 1. Ramana Dayaram Shetty v. International Airport Authority of India and others1. 2. Dubaria v. Har Prasad and another2. 1. AIR 1979 SC 1628 . 2. 2010 (1) ARC 173= 2009 (9) SCC 346 . 14. Sri A.P. Srivastava, Advocate, has put in appearance on behalf of the respondents. According to him, the auction held on 11.3.1977, in respect of the plot meant for Cinema, was subject to terms and condition, that the highest bid would be forwarded to the Housing Commissioner for being accepted. This condition was expressly announced by the Auctioning Officer at the time of holding of auction. A note to this effect has been taken by this Hon'ble Court in First Appeal No. 107 of 1978. The matter had been remanded back vide judgment and order dated 20.5.1987 to the Trial Court for reconsideration. This condition was expressly announced by the Auctioning Officer at the time of holding of auction. A note to this effect has been taken by this Hon'ble Court in First Appeal No. 107 of 1978. The matter had been remanded back vide judgment and order dated 20.5.1987 to the Trial Court for reconsideration. The Division Bench had made observations and laid down guiding principles for deciding the case afresh by the Trial Court. 15. According to learned Counsel for the Defendant-respondents, the power to accept the bid had rested with the Housing Commissioner and it was not delegated to the Auctioning Officer. In view of this fact, the contention of the appellant that the auction became fmal on 11.3.1977 is not legally tenable. The Trial Court had ignored the direction as contained in the remand order passed by the High Court and illegally decreed the Suit. In the the First Appeal preferred against the judgment and order of the Trial Court, the learned Additional District Judge, Bareily had afforded full opportunity of hearing to the appellant and the respondents. He had rightly allowed the appeal of the Board with costs. In fact no question of law arises to be considered by this Hon'ble Court as this Hon'ble Court in its earlier judgment had already been dealt with the matter and taken into account the points raised by the appellant. The amount deposited by the appellant had already been refunded back tp him. There did not exist any ground of breach of terms and conditions of contract between the plaintiff-appellant and the Defendant-respondents for filing the Suit and the same itself was not legally maintainable. The Suit was Illghtly dismissed by the First Appellate Court and the findings recorded thereupon are unassailable. According to Sri A.P. Srivastava, learned Counsel for the respondents the Auctioning Officer was not empowered to award the contract. The terms and conditions of auction were given in the printed Booklet. These were made known to the bidders at the time of auction. He has also highlighted the provisions contained in section 16 of the U.P. Avas Evam Vikas Parishad Act according to which the functions of the Housing Board was delegated to the Housing Commissioner. The Assistant Commissioner was not empowered to conclude the contract, who had illegally allotted the plot to the appellant. He has also highlighted the provisions contained in section 16 of the U.P. Avas Evam Vikas Parishad Act according to which the functions of the Housing Board was delegated to the Housing Commissioner. The Assistant Commissioner was not empowered to conclude the contract, who had illegally allotted the plot to the appellant. U.P. Awas Evam Vikas Parishad (Disposal of Property) Rules, 1980 had not been considered by the Trial Court in dealing with the matter. He has placed reliance on following judgments:- 1. V. Ramachandra Ayyar and another v. Ramalingam Chettiar and another1. 2. Deity Pattabhiramaswamy v. S. Hanymayya and others2. 3. Rajasthan Housing Board and another v. C.S. Investments and another3. 1. AIR 1963 SC 302 (V 50 C 20). 2. AIR 1959 SC 57 . 3. 2007 (50) AIC 473 (SC)=2007 (66) ALR 20 (Sum.)= (2007) 1 SCC 477 . 16. I have heard learned Counsel for the parties and perused the materials on record. 17. There appears to be force in the submissions of Sri Rahul Sripat, learned Counsel for the appellant. At the relevant time, the Assistant Housing Commissioner was empowered to hold the auction, execute contract/agreement with the highest bidder and allot the property to the highest bidder or the candidate. In the instant case, an auction took place on 11.3.1977 in which the appellant being the highest bidder was to be allotted the plot. He had completed all the necessary formalities, which were required on the date of auction. Interestingly, three shops and a plot meant for cinema was auctioned on the said date. The Assistant Housing Commissioner had allotted three shops to the highest bidders, who had purchased the three shops in the same auction process. The bid of the appellant was accepted by the Assistant Housing Commissioner, but due to inaction on his part, he had sent a letter to the Housing Commissioner. If the Assistant Housing Commissioner was competent to allot three shops to the highest bidders, who had offered highest bids then there appears to be no reason to deny the same benefit to the appellant, who was the highest bidder, and offered highest bid offer in the same auction process to purchase the plot meant for Cinema. Thus, the bid of the plaintiff-appellant was rightly accepted by the Assistant Housing Commissioner. Thus, the bid of the plaintiff-appellant was rightly accepted by the Assistant Housing Commissioner. It has b.een pleaded before the First Appellate Court that there was a formal letter of delegation of authority to the Assistant Housing Commissioner by which he was empowered to make allotments of the properties and enter into contract/agreements and sign bids etc. This letter was issued under the statutory rules of 1966 under which auction of the properties were being conducted at the relevant time. The plaintiff-appellant had requested the Court below for directing the Authorities of the Board to produce this document, but the said delegation order was not produced before the Court below on the ground that it was misplaced during transit from Bareily to Lucknow. As submitted by the learned Counsel for the appellant, an adverse inference could have been drawn against the respondents in not producing the letter of authoriry/delegation before the Court under section 114 of the Evidence Act. Sri R.K. Bishen, the Assistant Housing Commissioner of the Board, had made a categorical statement before the Court below that he was empowered to accept the bid and allot the properties, thus, he had allotted three shops as a result of bid proceedings of the auction held on 11.3.1977. Thus, there appears to be no reason as to why having same authority and being empowered, he did not allot the plot meant for Cinema Hall. 18. The Lower Appellate Court, while reversing the findings of the Trial Court has not taken into account this material fact and the pleading. The material admission of D.W. 1 was excluded from consideration. It has misread the statement of D.W. 2, D.W. 3 and D.W. 4. D.W. 1 (Assistant Housing Commissioner of the Board) had categorically stated before the Court below that he had the authority on 11.3.1977 to finalise and conclude the auction, thus, in view of this clearcut admission/statement made by the Assistant Housing Commissioner, naturally a serious prejudice was caused to the plaintiff-appellant as due to this action he was deprived of having allotment and possession of the plot even after being the highest bidder in the auction proceedings and that too after depositing the required amount with the Authorities of the Board at the fall of the hammer. 19. 19. The First Appellate Court had also ignored the fact that there was no reserved price fixed nor it was known to the applicants at the time of auction. The plaintiff-appellant's submission that the bid amount was more than the market value of the property at the relevant time when the auction took place was also ignored. The price offered by the plaintiff-appellant was acceptable to the concerned Authority of the Board, that is, the Assistant Housing Commissioner, who was well versed with the ground realities. Thus, this fact is established from the evidence of the respondents that there was no illegality or infirmity in the auction proceedings and allotment of the plot in question to the plaintiff-appellant. The terms and conditions, circulated on the printed format, did not stipulate any such condition that the auction was subject to approval by the Housing Commissioner. The Paper No. Ka-2 was admitted to the respondents as it was proved by their own witnesses. The First Appellate Court had failed to appreciate this material evidence. 20. The First Appellate Court, while reversing the findings of the Trial Court had not recorded its own reasons as to why it is reversing the findings of the Trial Court and why the evidence brought before it was not discussed and dealt with. There is force in the submissions of the learned Counsel for the plaintiff-appellant that the First Appellate Court came to the conclusion on the basis of conjunctures and surmises. It has placed reliance on unproved and inadmissible evidence. The First Appellate Court cannot give weightage to the oral evidence in preference to the documentary evidence. The case set up had to be dealt with in the light of the provisions of section 59 of the Evidence Act. Thus, the burden of proof has wrongly been shifted upon the plaintiff-appellant to produce evidence in support of delegation of power either by the Housing Commissioner of by the Housing Board to the Assistant Housing Commissioner, which, in fact, was in the possession of the defendant-respondents. 21. There is sufficient force in the submission of learned Counsel for the plaintiff-appellant that in view of section 106 of the Evidence Act, the fact relating to delegation of power to the Assistant Housing Commissioner was especially within the knowledge of the respondent-Authorities of the Board. 21. There is sufficient force in the submission of learned Counsel for the plaintiff-appellant that in view of section 106 of the Evidence Act, the fact relating to delegation of power to the Assistant Housing Commissioner was especially within the knowledge of the respondent-Authorities of the Board. The documents in this regard were with them, but the original documents were not produced before the Court below by the Housing Commissioner and the concerned Authorities of the Board, though pleaded by the plaintiff-appellant, while the Assistant Housing Commissioner himself had admitted before the Court below that he was empowered to hold the auction and execute the contract/agreement. Thus, he had allotted the shops and executed contract/agreements under the authority delegated to him by the Board as Assistant Housing Commissioner, Bareily. The claim of the highest bidder, like the plaintiff-appellant, who has offered the highest bid and deposited the amount asked for by the Board immediately after the auction proceedings were concluded, ought not to have been thrown out like this as has been done in the present case. This Court has rioted that throughout the proceedings right from 1977 till date an interim order was available to the plaintiff-appellant and as per learned Counsel for the plaintiff-appellant, the plot in question is still lying vacant. Thus, the plaintiff-appellant is entitled to have possession of the plot in question meant for Cinema Hall after executing proper contract/ agreement as required by the Board. 22. The judgments relied upon by the learned Counsel for the plaintiff-appellant supports case of the plaintiff-appellant. 23. The judgments relied upon by the learned Counsel for the respondents do not apply in the present set of facts and circumstances. 24. In view of the discussions made above, the second appeal succeeds and is allowed. The judgment and decree passed by the First Appellate Court is set aside and the judgment and decree passed by the Trial Court is affirmed. The Suit is decreed with costs. 25. All the necessary consequences shall follow. The lower Court records, if summoned, will be transmitted back immediately. Appeal Allowed.