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2010 DIGILAW 968 (PAT)

Encee Enterprises v. State Of Bihar

2010-04-26

DIPAK MISRA, MIHIR KUMAR JHA

body2010
JUDGEMENT 1. Mr. Jitendra Kumar Singh, learned Senior counsel along with Mr. Sanjeev Kumar, for the appellant, Mr. V.M.K. Sinha, learned counsel for the Mining Department, Mr. Rajiv Nayan, at present Partner on behalf of the appellant and Mr. Satendra Kumar on behalf of Respondent no.7 are present. 2. In this intra-Court appeal the assail is to the order dated 13.4.2010 in C.W.J.C. No.1961 of 2010. 3. The facts which are essential to be stated, the writ petitioner, respondent no.7 herein was aggrieved by non settlement of Sand Bank situate on the bank of river FALGU. 4. It is worth noting, there are two units, namely, Unit No.1 and 2. The writ petitioner was permitted to bid in respect of Unit No.2, but he was not allowed entry to bid in respect of Unit No.1. It was contended that he was restrained by a guard of office of the Collector. In respect of Unit No.1 his offer was Rs.1 crore 55 lacs and that of the present appellant was Rs.1.67 crores. As far as Unit No.2 is concerned, the writ petitioner, 7th respondent herein, could not make his offer. The offer of the present appellant, who was respondent in the writ petition, was Rs. 3.66 crores. 5. The learned Single Judge taking note of the facts recorded as follows:- "Intervener-respondent challenged the bona fides of the petitioner. The petitioner, to establish his bona fide, said that he was ready to bid Rs. 3 crores for this Unit I alone, if the intervener could match the bid. What now happened was interesting. To test the bona fide of both the parties who had agreed in Court to raise the bid to Rs.3 crores each, this Court directed petitioner to deposit within 3 days an amount of Rs.1.50 crores by bank draft in favour of Registrar General of the High Court being 50% of bid amount. Petitioner agreed and deposited the said amount by bank draft. Intervener- respondent, who had earlier deposited substantial money within the first week of getting the settlement, agreed to immediately deposit additional Rs. 50 lacs by bank draft to match his bid to Rs.3crores. He also deposited the same in due time. Thus, we have the intervener and the petitioner both agreeing to take the settlement of Unit I at Rs. 3 crores as against the settlement which was originally made with intervener-respondent No.7 for only Rs. 50 lacs by bank draft to match his bid to Rs.3crores. He also deposited the same in due time. Thus, we have the intervener and the petitioner both agreeing to take the settlement of Unit I at Rs. 3 crores as against the settlement which was originally made with intervener-respondent No.7 for only Rs. 1.67 crores. Effectually, the bid has dubbed before the Court. If the Collector of the district was really acting in bona fide interest of raising revenue as was sought to be projected, he should not have stopped at Rs. 1.67 crores when, in presence of Court, it was straightway taken to Rs.3 crores. In fairness to counsel for respondent No.7, I must note his one submission in response to observation of the Court that the two contesting parties having agreed at Rs.3 crores in Court must now bid amongst themselves before appropriate authority to be directed by the Court. He submitted that he had bid for Units I and II as one composite unit and there were considerations which were involved in the two, it may not be fair to ask him to bid for Unit I once again without bidding taking place for Unit II as well. Petitioner is not interested in Unit II. In any event, Unit II is not the issue in this case. This Court would not like to go into that aspect of the matter as that aspect was a commercial decision which intervener-respondent was required to take with its risks. That does not touch upon any legal issue. That apart, it only establishes the petitioners submission that he was kept out of Unit I to give unfair advantage to respondent No.7 in low bid for Unit I and give him (respondent No.7) further chance to outbid others in Unit II having got Unit I cheaply. I would, therefore, not open Unit II to rebid. That apart, it only establishes the petitioners submission that he was kept out of Unit I to give unfair advantage to respondent No.7 in low bid for Unit I and give him (respondent No.7) further chance to outbid others in Unit II having got Unit I cheaply. I would, therefore, not open Unit II to rebid. Faced with this situation that for Unit I both petitioner and respondent No.7 are ready to accept the settlement at Rs.3 crores, to establish the bona fide of which they have both deposited the sums as directed by the Court by way of bank drafts in favour of Registrar General of this Court, I direct the Principal Secretary-cum-Commissioner, Department of Mines and Geology, Government of Bihar to call upon both the petitioner and intervener-respondent No.7 on a fixed day and time to be present in his office where the Collector of the District-Jehanabad would also be present where petitioner and respondent No.7 would be asked to bid and outbid each other with all consequences as aforesaid starting from Rs.3 crores for Unit I. In case petitioner ultimately outbids respondent No.7 then all monies deposited by respondent No.7 for Unit I would be refunded including the draft as deposited in the High Court to respondent No.7 within one week. If petitioner was outbid in the process, he would get the return of the draft as deposited by him with this Court within a week. The person, who succeeds, would have to make all deposits as if it was an auction being finalized under the same terms and conditions as before. On failure to honour the bid, the amount so deposited by either party defaulting would stand forfeited to the State in full with no refund and/or return. This, this Court is ordering because to establish their respective bona fides, both parties have agreed to deposit the said amount and, thus, the amount would be treated as earnest amount of money deposited. This Court would request the Principal Secretary-cum-Commissioner to fix a date within the next ensuing week and ensure adequate notice is given to both the parties and in addition thereto, he would inform leaned counsel for the State to inform the Senior Counsels who have appeared for the two respective parties who would then communicate the same to their respective clients through their instructing lawyers. Once the bids are so finalized with direction to deposit the requisite monies as per the terms of tender itself, the Principal Secretary-cum- Commissioner would file a report on affidavit before this Court on or before 27th of April, 2010. Needless to mention, the drafts deposited with the Registrar General would be appropriated by the State in the manner above mentioned towards the liabilities of either of the parties." 6. The present appeal was preferred by the intervener respondent on a singular ground that he had not agreed for to hike the price in respect of both the units. It was contended by Mr. Jitendra Singh, learned Senior counsel that a total offer of Rs.5.42 crores was offered regard being had to the availability of Sand in both the units and if they are segregated and separated, it would be extremely difficult to fetch the said price. 7. At this juncture, a query was made by Mr. Dinu Kumar, learned counsel appearing for the writ petitioner, respondent no.7 herein, whether the said respondent would agree to bid for both the units and take settlement thereof. Learned counsel being assisted by Mr. Sidharth Prasad obtained instruction that respondent no.7, namely, Sharma Brothers is agreeable to go for the auction in respect of both the units. 8. At this juncture, a suggestion was made to give their enhanced offer before this Court. Mr. Jitendra Singh, learned Senior counsel bring assisted by Mr. Sanjiv Kumar initially agreed to offer of Rs.6.7 crores. Mr. Dinu Kumar, learned counsel enhanced the offer and eventually the appellant proceeded to state that he is prepared to pay Rs.8.60 crores for both the units. Thereafter, learned counsel for respondent no.7 took instruction from his clients and submitted fairly that they cannot travel beyond the said amount. 9. As both the units have been settled with the present appellant and only the price is enhanced, there is no reason or justification to have a fresh auction. It is settled at Rs.8.60 crores. The enhanced amount shall proportionately be paid and appropriate direction shall be issued by the District Magistrate, Jehanabad, who has been authorized to do so on behalf of the State Government. When we say it should be proportionate we mean that initially the bid price was Rs.5.42 crores and presently it is enhanced to Rs.8.60 Crores. The enhanced amount shall proportionately be paid and appropriate direction shall be issued by the District Magistrate, Jehanabad, who has been authorized to do so on behalf of the State Government. When we say it should be proportionate we mean that initially the bid price was Rs.5.42 crores and presently it is enhanced to Rs.8.60 Crores. Thus, rescheduling and re-phasing shall be proportionate regard being had to the date of commencement and the date of payment. 10. Needless to emphasize, this amount covers the period from the date the work order was issued. 11. The amount of Rs. 50 lacs that has been deposited in pursuance of the order passed by the learned Single Judge by the present appellant be paid to Mr. Vikash Kumar, learned counsel for the State by way of bank draft in the name of the competent authority so that the same can be adjusted by the District Magistrate keeping in view the enhanced price that has been settled today. The amount of Rs.1.50 Crores that has been deposited by respondent no.7 be returned to Mr. Ranjit Kumar, learned counsel assisting Mr. Dinu Kumar. Any amount that has been deposited by Sharma Brothers, respondent no.7 also be refunded by the concerned District Magistrate within four weeks. 12. In view of the order passed hereinabove, the appeal is allowed and the order passed by the learned Single Judge is set aside. 13. That apart, as we have disposed of the appeal nothing remains to be adjudicated in the writ petition. Thus. C.W.J.C. No.1961 of 2010 shall be deemed to have been disposed of. Registry to take note of the same. There shall be no order as to costs. 14. A free copy of the order be handed over to Mr. Vikash Kumar, learned counsel assisting Mr. P.K.Shahi, learned Advocate General, so that he can instruct the District Magistrate, Jehanabad to do the needful.