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2013 DIGILAW 622 (CAL)

Bajrul Islam v. State of West Bengal

2013-08-29

ARUN MISHRA, JOYMALYA BAGCHI

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JUDGMENT : Joymalya Bagchi, J. The appeal is directed against the judgment and order dated 19th July, 2013 by directing the respondent authorities to invite fresh offer for sale of 295 trees which had been auctioned in favour of the appellant at a grossly depressed price of Rs. 23,000,00/- (Rupees twenty three lakh). The appellant had approached this Court, inter alia, alleging that he was the highest bidder in an auction sale in respect of the said 295 trees which were auctioned at the behest of the respondent authorities and that in terms of the letter dated 18.04.2013 offered to deposit the bid amount of Rs. 23,000,00/- (Rupees twenty three lakh) in favour of the Executive Engineer, who had refused to accept the same on one plea or another. The appellant accordingly prayed for a writ of mandamus upon the respondent authorities to accept the aforesaid bid amount and issue work order accordingly. In the course of hearing before the learned Single Judge, affidavit was filed on behalf of the State and the records were also produced before the First Court. We find that several other tenderers took out applications before the learned Single Judge and claimed that they had offered in excess of Rs. 46 lakh or 50 lakh in respect of the trees. Although the learned Single Judge was not happy in the manner in which note-sheets were maintained and reasons recorded therein in cancelling the earlier bid and directing a re-tender but bearing in mind the public interest involved in the light of the contentions raised by the applicants that they had, in fact, offered and/or are still offering substantially higher rates than the price at which goods have been sold, Learned Single Judge by the impugned order, inter alia, directed fresh tender in respect of the aforesaid 295 trees within a fortnight. 2. The appellant has assailed such order before us on the ground that after his bid of Rs. 23,000,00/- was accepted by the respondent authorities. A concluded contract had been entered into and therefore it was not within the power of the respondent authorities to seek a re-tender. 3. To bolster his argument, learned counsel contended that although the learned Single Judge had recorded that no cogent reason was appearing from the note-sheet submitted before the Court, fresh tender was directed. A concluded contract had been entered into and therefore it was not within the power of the respondent authorities to seek a re-tender. 3. To bolster his argument, learned counsel contended that although the learned Single Judge had recorded that no cogent reason was appearing from the note-sheet submitted before the Court, fresh tender was directed. He submitted such action was illegal and constituted breach of the terms of a concluded contract. 4. Learned counsel appearing for the State respondent has produced the note-sheets in respect of the earlier tender. He also intimated us that in the meantime fresh tender has been called and the price offered by the highest tenderer was to the tune of Rs. 58,000,00/- (Rupees fifty eight lakh). He further submitted that in public interest the impugned order ought not to be interfered with. 5. Learned lawyer appearing for the respondent no. 6 submitted that his client had, in fact, offered a higher bid in the earlier tendering process and in the subsequent bid highest offer price bid was Rs. 56,000,00/- (Rupees fifty six lakh) was made by them. 6. We have considered the submissions of the parties in the backdrop of the fact that a much higher bid for purchase of the aforesaid 295 tress have, in fact, been received in the subsequent tender. 7. In Rajasthan Housing Board and Anr. v. G.S. Investments and Anr., (2007) 1 SCC 477 the Supreme Court held that the Court should be circumspect in exercising its discretionary powers under Article 226 of the Constitution and the same ought to be exercised only in furtherance of public interest. The Supreme Court held as follows: 11. The sale of plots by the Rajasthan Housing Board by means of an auction is essentially a commercial transaction. Even if some defect was found in the ultimate decision resulting in cancellation of the auction, the court should exercise its discretionary power under Article 226 of the Constitution with great care and caution and should exercise it only in furtherance of public interest. The court should always keep the larger public interest in mind in order to decide whether it should interfere with the decision of the authority. In the present case, there was enough material before the State Government to show that in the past plots in the area had fetched a price of Rs. The court should always keep the larger public interest in mind in order to decide whether it should interfere with the decision of the authority. In the present case, there was enough material before the State Government to show that in the past plots in the area had fetched a price of Rs. 10,000/- per square meter and the highest bid made by the respondent in the present case was nearly half i.e. Rs. 5750/- per square meter, which clearly indicated that the auction had not been conducted in a fair manner. If in such a case the State Government took a decision to disapprove the auction held and issued a direction for holding of a fresh auction, obviously the said decision was taken in larger public interest. In these circumstances there was absolutely no occasion for the High Court to entertain the writ petition and issue any direction in favour of the contesting respondent. The orders passed by the learned single Judge on 4.8.2004 and the order passed by the Division Bench of the High Court on 23.9.2004 are clearly erroneous in law and are liable to be set aside. 8. It is, therefore, clear that the private right of a tender in a matter of auction of Government property must yield to the larger public interest of obtaining the best possible price in respect thereof. The effort of the public authorities in going for fresh tender in the instant case, therefore, cannot be said to be one vitiated with malice or so arbitrary or capricious in nature as to necessitate interference in the extraordinary writ jurisdiction. 9. That apart, the subsequent tender wherein the appellant also participated (without prejudice to his rights and contentions in the present appeal) has fetched a price which is twice the highest bid in the earlier tender. Public interest, therefore, impels us not to interfere in the instant case. 10. Ordinarily the writ Court would not issue a writ of mandamus for specific performance of a contract, particularly, when damages are available for an alternative remedy in view of the provisions of the Specific Relief Act, 1963. [See: Noble Resources Ltd. v. State of Orissa and Anr., (2006) 10 SCC 236 para 43]. For the aforesaid reasons, we do not find any merit in the instant appeal. The appeal and other connected applications are accordingly dismissed. [See: Noble Resources Ltd. v. State of Orissa and Anr., (2006) 10 SCC 236 para 43]. For the aforesaid reasons, we do not find any merit in the instant appeal. The appeal and other connected applications are accordingly dismissed. Departmental records be returned to the learned counsel for the respondent authorities.