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2017 DIGILAW 497 (JK)

Mini Bus Workers Union v. State

2017-07-28

DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA

body2017
JUDGMENT : Dhiraj Singh Thakur, J. 1. This Letters Patent Appear has been preferred against the judgment and order dated 18.5.2017 passed by the writ court in OWP No. 637/2017 whereby the writ petition filed by the petitioner/respondent No. 4 herein, has been allowed. Briefly stated the material facts are as under: 2. The Jammu Development Authority (for short, 'JDA') issued e-tender notice vide e-NIT No. JDA/II/e-NIT/2015-16/56 dated 16.9.2016, inviting bids for a parking lot at Maheshpura Chowk Near K.C. Theater, Jammu from eligible contractors and firms. Petitioner/respondent No. 4 being eligible applied for the same and was found to be the highest bidder at Rs. 3,56,250/-. The said amount appears to have been deposited by the petitioner, based whereupon, an allotment was made in favour of the petitioner w.e.f., 14.12.2016 to 13.12.2017 for a period of one year. Physical possession of the parking lot, however, was not handed over to the petitioner, which forced the petitioner to file a writ petition bearing OWP No. 637/2017, seeking a writ of mandamus to the respondents to handover the possession of the parking lot in question. 3. The above said writ petition was allowed by virtue of judgment and order impugned dated 18.05.2017. The court noticed that an agreement had been executed between the JDA as also the petitioner/respondent No. 4 in regard to the contract in question, based whereupon, it directed the respondent No. 2-JDA to handover the possession of the parking lot to the petitioner within a period of one week. 4. The appellant is a Mini Bus Workers Union, who claims a right over the parking lot on the ground that a similar agreement had also been executed between the JDA and the Union on 01.09.2010, pursuant whereto the appellant was operating the parking lot. 5. It was stated that without impleading the appellant as a party-respondent in the writ petition, the petitioner had without any resistance from the JDA, succeeded in the writ petition and obtained an order against the JDA for handing over the possession of the parking lot to the petitioner even when the same was not with the JDA. It was in those circumstances that the appellant, who was not a party to the writ petition was granted permission to challenge the judgment and order impugned dated 18.5.2017 by filing the present Letters Patent Appeal vide order dated 3.7.2017. 6. It was in those circumstances that the appellant, who was not a party to the writ petition was granted permission to challenge the judgment and order impugned dated 18.5.2017 by filing the present Letters Patent Appeal vide order dated 3.7.2017. 6. Learned counsel for the appellant urged that the appellant was in possession of the parking lot and was not a trespasser and, therefore, could not be evicted by the JDA on the strength of the orders passed by the writ court. The right to remain in possession despite the expiry of the period, as reflected in the agreement between the appellant and the JDA, as urged was, based upon the fact that similarly situate other unions, who were put in possession of other parking lots by the JDA continued to remain so without their parking spaces having been put to auction and re-allotment. 7. It was urged that the appellant had been condemned unheard and, therefore, rules of natural justice stood violated. 8. Heard learned counsel for the parties. 9. Admittedly, the Jammu Development Authority had entered into an agreement with the appellant on 1st of September, 2010 in regard to the parking lot in question, which was to remain in force till 31.8.2011. The consideration, which was payable for this duration of one year was only Rs. 1,20,000/- @ Rs. 10,000/- per month plus applicable taxes. 10. Admittedly, in the e-tendering process conducted by the JDA, the highest bid submitted was that of the petitioner/respondent No. 4 herein, who paid an amount of Rs. 3,56,250/- in regard to the parking lot in question. 11. Equally untenable is the argument that the principles of natural justice had been violated as no opportunity of being heard had been granted to the appellant before making the allotment in favour of the petitioner as even if such an opportunity had been granted, the result would have remained the same and would be a fruitless exercise. 12. In Aligarh Muslim University and Ors., v. Mansoor Ali Khan, (2000) 7 SCC 529 , the Apex Court propounded the "useless formality" theory and followed the law as laid down in the case of S.L. Kapoor (supra) and in paragraphs 23 and 35 observed as under:- "23. 12. In Aligarh Muslim University and Ors., v. Mansoor Ali Khan, (2000) 7 SCC 529 , the Apex Court propounded the "useless formality" theory and followed the law as laid down in the case of S.L. Kapoor (supra) and in paragraphs 23 and 35 observed as under:- "23. Chinnappa Reddy, J. in S.L. Kapoor case laid down two exceptions (at SS p.395) namely, if upon admitted or indisputable facts only one conclusion was possible, then in such a case, the principle that breach of natural justice was in itself prejudice, would not apply. In other words if no other conclusion was possible on admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Of course, this being an exception, great care must be taken in applying this exception. 35. Thus, in our view, in the above peculiar circumstances, the only conclusion that can be drawn is that even if Mr. Mansoor Ali Khan had been given notice and he had mentioned this fact of job continuance in Libya as a reason that would not have made any difference and would not have been treated as a satisfactory explanation under Rule 5(8)(i). Thus, on the admitted or undisputed facts, only one view was possible. The case would fall within the exception noted in S.L. Kapoor case. We, therefore, hold that no prejudice has been caused to the officer for want of notice under Rule 5(8)(i). We hold against Mr. Mansoor Ali Khan under Point 5." 13. In Ashok Kumar Sonkar v. Union of India & Ors., (2007) 4 SCC 54 , the Apex Court has held as under:- "A court of law does not insist on compliance with a useless formality. It will not issue any such direction where the result would remain the same, in view of fact situation prevailing or in terms of legal consequences. -This was a case where the appellant before the Apex Court was not qualified on the cut-off date. Being ineligible to be considered for appointment, it would be a futile exercise to give him an opportunity of being heard." 14. This principle laid down by the Apex Court was further followed in the case of State of Chhattisgarh & Ors. v. Dhirjo Kumar Sengar (2009) 13 SCC 600 . 15. The fact that the petitioner/respondent. Being ineligible to be considered for appointment, it would be a futile exercise to give him an opportunity of being heard." 14. This principle laid down by the Apex Court was further followed in the case of State of Chhattisgarh & Ors. v. Dhirjo Kumar Sengar (2009) 13 SCC 600 . 15. The fact that the petitioner/respondent. No. 4 had responded along with others pursuant to the e-tender notice is proof enough of the fact that it was in the public domain and must be presumed to be in everybody's knowledge. 16. It needs to be highlighted that the appellant neither participated in the tendering process nor took any steps for challenging the e-tender notice dated 16.9.2016 issued by the JDA. The action of the JDA in inviting bids for the said parking lot after the expiry of the period of contract with the appellant herein cannot therefore, be said to be in any manner illegal or unjustified. 17. The petitioner/respondent No. 4 herein having been found to be the highest bidder and having submitted a bid, almost three times more than the bid of the appellant, on the basis of which he had earlier been awarded the contract could not have, therefore, been justifiably denied the allotment of the parking lot or possession thereof. 18. In those circumstances, the direction issued by the writ court to the JDA in ensuring the handing over of the possession of the parking lot in question to the successful bidder i.e., the petitioner/respondent No. 4 herein, therefore, cannot be said to be a direction, which is illegal or perverse in law. For the reasons mentioned above, the appeal is found to be without merit and is accordingly dismissed along with connected M.P.