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2020 DIGILAW 113 (GUJ)

Gujarat Housing Board v. State of Gujarat

2020-01-21

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : A.J. SHASTRI, J. 1. Present Letters Patent Appeal under Clause-15 of the Letters Patent has been filed feeling aggrieved by the order dated 17.09.2019 passed by the learned Single Judge in Special Civil Application No.6626 of 2016. 2. Facts on account of which the present Letters Patent Appeal is brought before us are that the original petitioner applied on 27.09.2013 for the purpose of rent, an office situated at Khatodara, Surat. This was pursuant to an advertisement issued by the appellant – Gujarat Housing Board in the month of October, 2013, inviting applications for the purchase of various properties situated in different parts of Gujarat. With respect to property in question, respondent No.2 – original petitioner, filled through tender and was found to be the highest bidder with respect to rent property at Khatodara, Surat. A decision was taken by the Appellate Board to allot the same vide communication dated 24.02.2014. In response to the said communication and allotment of the premises, a total amount of Rs.52,22,222/- was paid by the original petitioner. While bidding the property in question, the original petitioner paid an amount of Rs.3,33,650/- as an earnest money, while the remaining amount was paid in a phase manner. It is the original petitioner's case that pursuant to the allotment letter dated 24.02.2014, the petitioner was required to pay the remaining amount by 20.03.2014. However, on account of circumstances beyond control, he could not generate the funds. A request was made to the respondent No.3 authority i.e. the present appellant for an extension of time, from 20.03.2014 to 30.04.2014. The said letter was written on 14.03.2014, six days prior to the deadline for payment. By this date, the petitioner had made payment of Rs.23,50,000/-, in addition to the security deposit as indicated above. Thereby, nearly 50% of amount had been paid before requesting for an extension of time. The said request for extension of time was duly received by respondent No.3 office i.e. present appellant. Subsequently, by 17.04.2014, the original petitioner i.e. respondent No.2 herein cleared the entire payment, which was acknowledged by the office of present appellant. The said payment was acknowledged and conveyed to him vide letter dated 17.04.2014. 3. It is the original petitioner's case that in wake of the aforesaid situation, when the entire consideration has been acknowledged, the appellant authority did not execute the Sale Deed in favour of the petitioner. The said payment was acknowledged and conveyed to him vide letter dated 17.04.2014. 3. It is the original petitioner's case that in wake of the aforesaid situation, when the entire consideration has been acknowledged, the appellant authority did not execute the Sale Deed in favour of the petitioner. A letter was written on 29.05.2014 requesting the execution of the Sale Deed. Despite repeated representations and personal visit to the appellant Board at Surat as well as that at Ahmedabad, over a period of seven months, no attention was paid. Surprisingly, after an unreasonable period of time, despite having accepted the entire cost of consideration, on 02.01.2015, an intimation was given by the Appellant Board that since original petitioner i.e. the respondent No.2 herein had not complied with Condition No.1 of the tender bid, the entire process of tender stood cancelled. Along with the letter, a cheque amounting to the consideration paid by the original petitioner was sent back. Said letter is a part of the record. 4. Since that incident, at the behest of the Appellant Board, it appears that further communication has been reiterated by the Appellant Board on 09.04.2015. It was on account of information sought by the original petitioner i.e. the respondent herein, on 17.06.2015 under the provisions of the Right to Information Act, that it was noticed that a bunch of communications in the form of letters has narrated that the respondent – original petitioner, had paid off full amount. An opinion of the Appellant Board – original respondent No.2, was asked for. It is only on account of some internal communication in the month of December 2015, that a decision was taken to cancel the tender process itself. When that has come to the notice of the respondent – original petitioner, a petition was brought against such an arbitrary action before this Court, claiming the following reliefs : “(A) Issue a writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction, quashing and setting aside the communication dated 02.01.2015 (Annexure-F) and 09.04.2015 (Annexure-H) by the respondents No.2 and 3 respectively whereby the respondents have set aside the entire auction process, and further be pleased to direct the respondents No.2 and 3 to allot the property (Khatodara Rent Office, Surat) in favour of the present petitioner. (B) Pending the admission and final disposal of the present petition by way of an ad-interim/interim relief be pleased to restrain the respondents No.2 and 3 from initiating any process of inviting of tenders and allotment of the property (Khatodara Rent Office, Surat) during the pendency of the present petition; (C) Pending the admission and final disposal of the present petition by way of an ad-interim/interim relief be pleased to restrain the respondents No.2 and 3 from allotting the property (Khatodara Rent Office, Surat) in favour of any person other then the present petitioner; (D) Pass such orders as thought fit in the interest of justice.” 5. The said writ petition came for consideration before the learned Single Judge on 17.09.2019. After hearing both sides at length, the learned Single Judge found that the actions of the respondent authority are not just and proper. Hence, the petition came to be allowed and the impugned communications have been set aside. It is this order, passed by the learned Single Judge, that is made the subject-matter of present Letters Patent Appeal before us. 6. Learned Senior Advocate Shri Mehul Suresh Shah appearing with and assisted by Shri Tanmay B. Karia, learned counsel for the appellants has vehemently contended that this tender process is in the realm of contract. Therefore when a condition contained in the contract is breached by a party, the ordinary course is to go before the Civil Court. The person concerned cannot invoke extraordinary jurisdiction of this Court. It has been further contended undisputedly, that Condition No.1 contained in the tender has been breached by the original petitioner. Since such is the position, it was not just and proper on the part of the learned Single Judge to allow the petition since it has the effect of changing the terms of the contract, which is outside the purview of extraordinary jurisdiction. The learned Single Judge ought to have appreciated that when the appellant authority has strictly adhered to the terms of the contract, it was not open to take a close scrutiny, having the effect of changing the terms. As a result of this, an apparent error has been committed by the learned Single Judge in transgressing the extraordinary jurisdiction periphery. Learned Senior Advocate has further submitted that the sequence of events contained in the present proceedings would establish a violation of the terms. As a result of this, an apparent error has been committed by the learned Single Judge in transgressing the extraordinary jurisdiction periphery. Learned Senior Advocate has further submitted that the sequence of events contained in the present proceedings would establish a violation of the terms. Hence, the order passed by the learned Single Judge is, apparently, not just and proper and is contrary to the established principles. That being so, the same is required to be quashed and set aside. No other submissions have been made. 7. Having heard learned Senior Advocate appearing on behalf of the appellants and having gone through the material on record independently, we have also found from the record that, undisputedly, the original petitioner – respondent No.2, has paid the amount of earnest money of Rs.3,33,650/- by 20.03.2014. A later payment was deposited as Rs.23,50,000/-, before making an extension application. The extension application was made seeking time upto 30.04.2014. By that time, the total amount of Rs.52,22,222/- had also been paid. This has been clearly acknowledged by the authority by a written communication and retained by the appellant. It appears that it is only on account of intra-departmental discussion for unknown reason, that suddenly the decision was communicated on 02.01.2015 regarding Condition No.1 not having been complied with, following which the entire tender process came to be cancelled and the cheque was returned. We have noticed that the return of the amount was also made after a pretty long period of seven months, a fact that cannot be left unnoticed. 8. Apart from that, while looking at the record of the case and in examining the order in question, we have found that the learned Single Judge has carefully considered every aspect and submissions made before him. It is after examining the case from the perspective of arbitrariness, it appears that the discretion has been exercised. While coming to the conclusion of allowing the petition, reasons have also been assigned that are just and proper. We deem it proper to reproduce them hereinafter : “[4] The Court has considered the rival submissions of the parties and perused the documents placed on record. While coming to the conclusion of allowing the petition, reasons have also been assigned that are just and proper. We deem it proper to reproduce them hereinafter : “[4] The Court has considered the rival submissions of the parties and perused the documents placed on record. The office of the respondent No.2 had issued an advertisement in October-2013 in the information circular of the GHB, wherein, the property in question namely rent office at Khatodara, Surat was listed at item No.21 with the base price of Rs.33,36,500/- and earnest money deposited of Rs.3,33,650/-. [5] As per the condition No.1, under such circular, the payment was made to be made of the full amount by way of Demand Draft of Nationalized Bank within a period of 15 days of the grant of permission to purchase. In case of failure, the earnest money deposited was liable to be confiscated. The condition No.4 reads as under:- “When tender/bid of applicant for residence is approved, amount of earnest money deposit shall be set off and remaining amount of the house shall be deposited as mentioned above in concerned office of the Gujarat Housing Board. Application/Tender of the applicant shall be considered cancelled automatically if he fails to pay remaining amount in stipulated time and to carry out other procedures and the amount of deposit paid by the applicant towards earnest money deposit along with the application shall stand forfeited and the applicant shall lose rights over the amount of earnest money deposit and allotment of residence and the Gujarat Housing Board will allot the said residences to other applicant (some lines are illegible).” [6] It appears that by a communication dated 24.02.2014, the petitioner was informed about the bid being accepted and in the said communication, the amount specified therein was to be paid on or before 20.03.2014. It is not in dispute that the petitioner has made payment of earnest money of 3,33,650/- on or before 20.03.2014. The petitioner had made payment to the tune of Rs.23,50,000/- and such payment was accepted. Thereafter, the petitioner had made an application on 14.03.2014 seeking extension of period for making payment till 30.04.2014. In such application, one of the reasons for seeking extension was that the date allotted as per the communication was 01.04.2014 and therefore, the extension was sought till 30.04.2014. Thereafter, the petitioner had made an application on 14.03.2014 seeking extension of period for making payment till 30.04.2014. In such application, one of the reasons for seeking extension was that the date allotted as per the communication was 01.04.2014 and therefore, the extension was sought till 30.04.2014. From the condition No.1 mentioned hereinabove, the amount is required to be deposited within a period of 15 days from the approval of the offer of the petitioner. Even if such approval is considered dated 24.02.2014 and that there is no specific date coming on record about the receipt of such communication by the petitioner and if the date on which the date of allotment is to be considered being 01.04.2014, the petitioner was entitled to 15 more days beyond 20.03.2014. It is also not in dispute that by 17.04.2014, the entire amount of Rs.52,22,222/- was paid to the GHB. [7] Considering the submission that the respondent-board did accept the entire amount even after the crossing of the deadline more particularly when the application for extension of period was with the respondent authorities not having been finally decided, the Court is incline to consider the case of the petitioner to be treated as payment of consideration made in accordance with clause No.1 of the agreement. [8] Even on facts, this Court is of the view that the belated payment is only of 27 days and is of not such gross period that the right of the petitioner which had been crystallized by making and accepting the successful bid can be set aside. In doing so, the Court is also mindful of the fact that upon cancellation of the bid process, the respondents will once again have to undertake rig-modality of the bidding process which is not only time consuming, but also not appropriate in the facts of the present case.” 9. From the aforesaid reasons assigned by the learned Single Judge, it spells out that while exercising the discretion, proper application of mind is reflected and the order appears to be a well-reasoned one. While exercising this equitable jurisdiction, material facts have been taken into consideration i.e. the acknowledgment of total amount. The only delay was at the maximum of 27 days, which cannot be said to be gross. Further, the return of amount by the Appellant Board unilaterally is after a period of almost seven months, which is unreasonable. While exercising this equitable jurisdiction, material facts have been taken into consideration i.e. the acknowledgment of total amount. The only delay was at the maximum of 27 days, which cannot be said to be gross. Further, the return of amount by the Appellant Board unilaterally is after a period of almost seven months, which is unreasonable. When that is the situation, all contentions raised by the appellants are not found to be acceptable. Additionally, we are also of the opinion that when the learned Single Judge has assigned proper reasons while examining the issue at length and no new submissions are made before us, on the basis of same material and same submissions, we are not inclined to substitute the view taken by the learned Single Judge. That being so, in the absence of any perversity or material irregularity of any nature, we are in complete agreement with the view taken by the learned Single Judge. Accordingly, after taking into consideration the observations made by the Apex Court with regard to exercise of appellate jurisdiction in Letters Patent Appeal in the case of Management of Narendra & Company Private Limited vs. Workmen of Narendra & Company, reported in (2016) 3 SCC 340 , we deem it proper not to entertain the present appeal. Accordingly, the same is dismissed hereby with no orders as to cost. Since the main appeal is dismissed, the connected Civil Application also stands dismissed hereby.