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2012 DIGILAW 48 (ORI)

Tanmaya Parija v. State of Orissa

2012-01-25

B.N.MAHAPATRA, V.GOPALA GOWDA

body2012
JUDGMENT V. GOPALA GOWDA, C.J. : The petitioner has filed this writ petition seeking for issuance of a writ of certiorari to quash the Tender Notice dated 5.7.2011 under Annexure-18 and any other orders in the circumstance of the case urging various facts and legal contentions. 2.The brief facts are stated for the purpose of appreciating the rival legal contention urged on behalf of the parties. Opposite party No.2, the Orissa State Road Transport Corporation (hereinafter called in short ‘the OSRTC’) is the owner of a piece of land situated at Station Road, Balasore Town, whereupon the erstwhile office building and garage stood. In pursuance of the decision of the Corporation to lease out the said property on monthly lease basis, tenders were invited and published in the Oriya daily ‘The Samaj’ dated 21.3.2012. In the said tender proceedings, the petitioner being an young entrepreneur participated and his bid being the highest, he was called upon for negotiation by the OSRTC and the bid was settled in favour of the petitioner vide letter No.11287 dated 29.4.2002 issued by opposite party No.3 and the said property was allotted to the petitioner on the terms and conditions contained therein. After due compliance of all requirements as stipulated in the said allotment letter by the petitioner, an agreement was executed on 21.8.2002 by the petitioner in favour of the Corporation represented by opposite party No.3. It was agreed by the Corporation to renew the lease beyond the stipulated period of 36 months provided the petitioner being desirous of such renewal and he applies for the same three months before the expiry of the tenure of the lease and agrees to pay an enhanced rent at the rate of 20% of the existing rent. The Estate Officer of the OSRTC vide his letter dated 4.9.2002 directed the Asst. Transport Manager (Admn.) to hand over the possession of the said premies to the petitioner and in pursuance thereof the vacant physical possession of the said premises was handed over to the petitioner on 5.9.2002 duly signed by the Estate Officer for the said purpose. It is the further case of the petitioner that subsequent to handing over the possession of the said premises to the petitioner after estimating the cost of renovation/repair of the building, the OSRTC decided to sanction up to Rs. It is the further case of the petitioner that subsequent to handing over the possession of the said premises to the petitioner after estimating the cost of renovation/repair of the building, the OSRTC decided to sanction up to Rs. 3,14,150/- towards the repair expenditure which is to be first spent by the petitioner from his own source and thereafter the same will be adjusted by way of 50 percent of the monthly rent to be paid by the petitioner towards the premises which is evident from the sanction order vide order No.5610 dated 17.3.2003 issued by the Accounts Officer of the Corporation. The sanction order is also produced. It is further stated that to make the premises fully fit for lodging and restaurant purpose, relying upon the promise of the OSRTC to continue such lease, invoking the renewal clause, the petitioner carried out necessary construction work which are permanent in nature incurring a huge expenses of about Rs. 25 lakhs to make the buildings business worthy as may be evident from the certificate issued by the Civil Engineer who undertook and supervised the aforesaid construction. When the matter stood thus, and the premises was ready for carrying out the aforesaid business by the petitioner, in the first week of March, 2004, to his utmost shock the petitioner received notice No.7129 dated 19.3.2004 issued by opposite party No.3 through registered post on 26.3.2004 intimating him that the agreement dated 21.8.2002 has been cancelled by the OSRTC invoking Clause-23 stating that the Corporation has intended to sell the said property. Therefore, the petitioner was called upon to vacate the premises within fifteen days. The said cancellation order was challenged by the petitioner by filing W.P.(C) No.3959 of 2004. This Court has passed the following interim order :- “Heard learned counsel for the petitioner. Issue notice to the opposite parties through Court as well as through registered post with A/D making it returnable within four weeks. Requisites shall be filed by Monday (5.4.2004). Till then, Status quo as on today with regard to possession over the building in question shall be maintained by parties.” 3.The petitioner was paying rent till date with 20% enhancement after expiry of three yeas period as agreed upon from time to time. Requisites shall be filed by Monday (5.4.2004). Till then, Status quo as on today with regard to possession over the building in question shall be maintained by parties.” 3.The petitioner was paying rent till date with 20% enhancement after expiry of three yeas period as agreed upon from time to time. While the matter stood thus, the petitioner submitted a proposal with the OSRTC to accord permission for the development of the property on payment of enhanced rent. Vide letter dated 12.11.2008, the opposite party No.3 directed the petitioner to furnish plan of the development of the space at Balasore. The petitioner submitted the detailed plan on 22.11.2008 and the same is still pending consideration. Vide letter dated 10.12.2010 the opposite party No.3 directed the petitioner to deposit arrears of rent which he has defaulted to pay because of some unavoidable reasons. In the same letter, opposite party No.3 instructed the petitioner to withdraw the writ petition by filing memo, copy of the withdrawal order dated 10.12.2010 is also produced. Proceedings were initiated against the petitioner under the Orissa Public Premises (Eviction of Unauthorised Occupants) Act, 1972 on the ground that petitioner is in unauthorized occupation of the premises since 21.8.2009 which was challenged in the writ petition. The petitioner made himself personally present in the office of opposite party No.3 on 4.7.2011 and prayed for time to file written statement as his advocate could not appear due to his personal problems. The petitioner was not allowed to meet the opposite party No.3 till 8 P.M. in the night for which he had to send a copy of the application through G.P.O., Bhubaneswar in the evening. The said notice was challenged by the petitioner in W.P.(C) No.16267 of 2011, but the same was withdrawn on 6.7.2011 for want of disclosure of certain information. Thereafter, another writ petition being W.P.(C) No.18380 of 2011 was filed challenging the initiation of proceeding vide Annexure-16 notice. Finally the order of eviction was passed on 7.7.2011. That was the subject matter of W.P.(C) No.18380 of 2011 which was dismissed by this Court on 12.7.2011. After the issuance of final order under Section 5(1) of OPP Act, the opposite party took steps for inviting open tenders. The open tender was issued on 5.7.2011 which was published in the daily newspaper ‘The Dharitri’ on 10.7.2011. The petitioner has not submitted his tender bid. After the issuance of final order under Section 5(1) of OPP Act, the opposite party took steps for inviting open tenders. The open tender was issued on 5.7.2011 which was published in the daily newspaper ‘The Dharitri’ on 10.7.2011. The petitioner has not submitted his tender bid. Further it is contended by the learned counsel for the petitioner that the aforesaid notice dated 5.7.2011 issued by opposite party No.3 initiating tender process is absolutely illegal, arbitrary, discriminatory and unreasonable. The opposite party No.3 has played hide and seek with the highest judiciary of the State by suppressing the fact of tender process stating that the final order under Section 5 of the Act has been passed. Such conduct of the opposite party No.3 has to be seriously viewed by this Court. Therefore, he has prayed that if the impugned notice is allowed to sustain, the petitioner will be put to gravest prejudice in addition to irreparable loss. 4.With reference to the aforesaid averments of the petition, counter affidavit has been filed on behalf of opp.party Nos.2 and 3 traversing the petition averments. It is stated therein that no perpetual right has been given to the petitioner as he is only a licensee, he is not entitled to challenge the tender notice as the same has been issued after the order of eviction was passed under Section 5 of the OPPE Act, which order has been confirmed by this Court in the W.P.(C) No.27970 of 2011. The premises in question have been taken over and tender notice was invited for the purpose of licensing the right to the highest bidder. It is stated that except Rs. 3,14,150/-, the petitioner was not authorized to spend any further amount. The petitioner has no right to continue in the premises beyond the agreement period. He was granted licensing right for a period of 36 months. Beyond that period, he was unauthorized occupant. Therefore, the petitioner cannot challenge the tender call notice. 5.With reference to the above said factual and rival legal contentions urged in this writ petition and the statement of counter affidavit in justification of the claim and counter claim regarding quashing the tender call notice and dismissal of the writ petition, the following points would arise for consideration :- (i)Whether the petitioner has got a right to challenge the tender call notice on the ground urged in the writ petition ? (ii)Whether the petitioner has made out a case for grant of relief as prayed in this petition ? (iii)What order ? 6.As both the point Nos.1 and 2 are interrelated, they are answered together in favour of the OSRTC by assigning the following reasons. It is an undisputed fact that the premises in question in respect of which license was granted in favour of the petitioner by inviting tenders is a public premises in terms of the definition of Section 2(s) of the Orissa Public Premises (Eviction of Unauthorized Occupants Act, 1972 hereinafter called in short O.P.P. (E.U.O.) Act. No doubt, the petitioner was the successful bidder in the previous Tender proceedings. Pursuant to the public notice put in the Oriya daily ‘The Samaj’ dated 21.3.2002, the petitioner was granted licensing right in respect of the premises in question with certain terms and conditions. It was also agreed by the Corporation to renew the lease beyond the stipulated period of 36 months provided the petitioner being desirous of such renewal applies for the same three months before the expiry of the tenure of the lease and agrees to pay an enhanced license fee at the rate of 20% of the existing license fee. The proceedings were initiated against him vide notice dated 17.5.2011 under the OPP (EUO) Act, 1972. It has culminated in the final order dated 7.7.2011. The same was the subject matter of the writ petition No.27970 of 2011 before this Court urging that the petitioner is entitled for renewal of licensing right at the enhanced license fee at of 20% over the existing licensing fee. The said ground was rejected by the learned Single Judge of this Court. This Court in the earlier writ proceedings also rejected the plea taken by him that he has spent a huge amount of Rs. 25 lakhs to make the building business worthy which is evident from the certificate issued by the Civil Engineer by recording reasons while dismissing the writ petition confirmed the order of eviction passed against him which was challenged in W.P.(C) No.27970 of 2011 by order dated 25.10.2011. The said order has attained finality. Therefore, the Corporation has issued another tender call notice inviting tender for granting licensing right in favour of the eligible person by publishing the same in the Oriya daily ‘The Dharitri’ on 10.7.2011. The said order has attained finality. Therefore, the Corporation has issued another tender call notice inviting tender for granting licensing right in favour of the eligible person by publishing the same in the Oriya daily ‘The Dharitri’ on 10.7.2011. Undisputedly, the petitioner has not submitted his bid pursuant to the tender call notice dated 10.7.2011. The ground urged by the petitioner is that he has already entered into agreement with the customers for granting accommodation for various purpose, which ground cannot be a ground for challenging the tender call notice and that the order of eviction under Section 5 of the OPP (EUO) Act, 1972 has been passed by the Estate Officer against the petitioner after recording a finding that he is an unauthorized occupant and is liable to be evicted from the premises in question. This petition is also liable to be dismissed on the ground of non-disclosure of the order passed by this Court in the aforesaid writ petition. On this ground itself, the writ petition is liable to be rejected. Learned counsel for the petitioner also contended that he has spent a huge amount of Rs. 25 lakhs for the purpose of renovation and making the building premises worthy for the business, which has been valued by a Civil Engineer is not accepted by this Court in the above referred writ petition proceedings. The premises in question was leased out in the year 2002 in favour of the petitioner for a period of 36 months only on a monthly license fee of Rs. 13,100/- per month. It is also submitted that with the permission of the Corporation, petitioner has spent a huge sum of Rs. 25 lakhs towards development of the premises in question. If the said amount is not refunded to the petitioner, the petitioner will be greatly prejudiced. The above said contention is not at all available for the petitioner in view of the order dated 25.10.2011 passed by the learned Single Judge in W.P.(C) No.27970 of 2011 which order has attained finality. Further a contention has been urged on behalf of the petitioner that he is willing to offer Rs. 10,000/- more towards the licensing fee than the highest bidder. According to him, the highest bidder has offered Rs. 50,000/- per month towards the licensing fee. The petitioner is willing to give Rs. Further a contention has been urged on behalf of the petitioner that he is willing to offer Rs. 10,000/- more towards the licensing fee than the highest bidder. According to him, the highest bidder has offered Rs. 50,000/- per month towards the licensing fee. The petitioner is willing to give Rs. 60,000/- and that will be beneficial for the Statutory Corporation which will be in the public interest as the premises in question is a public premises. Therefore, the petitioner has requested this Court to permit him by granting licensing right in respect of the premises in question as per the tender call notice dated 10.7.2011. This plea of the petitioner cannot be accepted by this Court for the reason that the petitioner has not submitted his tender bid pursuant to the tender call notice dated 10.7.2011. Not submitting the tender and challenging the same by filing the writ petition is not tenable in law as we have already stated that the petition is liable to be rejected for suppression of material fact in not disclosing the order passed by this Court on 25.10.2011 confirming the order of his eviction from the premises in question. Suppressing the material fact and offering the enhanced license fee without submitting tender application pursuant to the tender call notice dated 10.7.2011 by obtaining interim order, if the prayer of the petitioner will be allowed, there will be no sanctity for inviting tender from the applicants. If the prayer made in the writ petition is allowed, no public premises can be settled in favour of the eligible persons by inviting tenders. 7.For the reasons stated supra, there is no merit in the writ petition and the same is accordingly dismissed. Since we have already vacated the interim order passed on 20.7.2011, it is open for the Statutory Corporation to proceed in the matter for granting licensing right in favour of the eligible person after opening the tender bids for the aforesaid purpose. Petition dismissed.