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2023 DIGILAW 300 (UTT)

Naushad v. Uttarakhand Waqf Board

2023-05-11

RAKESH THAPLIYAL, VIPIN SANGHI

body2023
JUDGMENT : VIPIN SANGHI, J. 1. Despite grant of opportunity, as early as on 24.06.2022, only one counter-affidavit on behalf of respondent Nos. 3 to 5, i.e. the Administrator, Waqf Dargah Piran Kaliyar Shariff; the Joint Magistrate/S.D.M. Roorkee, District Haridwar and Tehsildar, Roorkee, District Haridwar, has been filed. No counter- affidavit has been filed on behalf of respondent Nos. 1 and 2, i.e. the Uttarakhand Waqf Board and the Waqf Dargah Piran Kaliyar Shariff, Roorkee. 2. We have heard learned counsels, and proceed to dispose of the petition. 3. The petitioner had participated in an open tender issued in respect of shop No. 1, located at Nakkar Khana, Waqf Dargah Hazrat Sabir Pak Area, Kaliyar, Roorkee, in respect thereof license was offered to operate the business of selling ilaichi dana, chadar, agarbatti, itra and flowers etc. The advertisement was issued on 21.04.2022 by the Joint Magistrate, Roorkee. The petitioner participated in response to this tender, and his technical bid was accepted on 04.05.2022. On opening of the financial bid on 09.05.2022, the petitioner’s bid was found to be the highest. Vide Office Order No. 723, he was directed to deposit 50% of the rent as advance and 5% as performance security within seven days from the date of the said order. The petitioner complied with the said order, and deposited 50% advance rent, along with 5% performance security, totaling Rs.96,80,920/-. The order issued by the Joint Magistrate on 09.05.2022, required the Tehsildar, Roorkee, to verify the solvency certificate produced by the petitioner, which certified the solvency of the petitioner to the tune of Rs.68,53,539/-. 4. Despite the petitioner depositing the aforesaid substantial amount of Rs.96,80,920/-, he was not offered possession of the shop. The petitioner, consequently, addressed the communication dated 28.05.2022 to respondent No. 2 demanding possession of the shop. The case of the petitioner is that he did not hear from the respondents thereafter. Consequently, this petition has been preferred. 5. We may, at this stage, notice the averment made by the petitioner in para 17 of the writ petition, where he states that he was orally informed that the tender of the petitioner had been rejected on account of the solvency of the petitioner being reduced by the Office of Tehsildar, Roorkee, upon verification. 6. Upon issuance of notice, respondent Nos. 3 to 5 had filed their counter-affidavit. 6. Upon issuance of notice, respondent Nos. 3 to 5 had filed their counter-affidavit. Along with the counter-affidavit, the communication dated 02.06.2022, issued by the Tehsildar to the Joint Magistrate, Roorkee has been placed on record, which concludes that the earlier solvency certificate for Rs.68,53,539/- issued to the petitioner was liable to be cancelled. On the basis of the said communication, which was not addressed to the petitioner, the tender in question was cancelled on the orders of the Joint Magistrate, Roorkee, on 02.06.2022. Even this order does not appear to have been addressed to, or communicated to the petitioner. 7. The submission of Mr. Singh is that the respondents have acted behind the back of the petitioner throughout. Firstly, the Tehsildar, cancelled the earlier solvency certificate for the amount of Rs. 68,53,539/- without putting the petitioner to notice, and the said cancellation dated 02.06.2022 was not even communicated to the petitioner. No opportunity of hearing was granted to the petitioner, either to represent his case, or to be heard before cancellation of earlier solvency certificate of the petitioner. The respondents also did not put the petitioner to notice and give any opportunity to the petitioner to represent before cancelling the tender in question on the basis of the communication dated 02.06.2022, issued by the Tehsildar. Thus, the actions of the respondents, as well the Tehsildar, are completely in violation of the principles of natural justice, and are hit by the vice of arbitrariness. 8. On the other hand, the submission of learned counsel for the respondent Nos. 3 to 5 is that, the acceptance of the petitioner’s bid was conditional upon verification of the documents, including the solvency certificate produced by the petitioner. Since the solvency of the petitioner was not certified as claimed by him, his bid was cancelled. However, there is no denial to the fact that the petitioner was not put to any notice, either by the Tehsildar, or by the Joint Magistrate, at any stage before cancelling the solvency certificate, or the tender in question. 9. In response to our query - whether the respondents, after cancellation of the tender in question, communicated to the petitioner with regard to the said cancellation, and whether they offered to refund the amount of Rs.96,80,920/- to the petitioner, the response of learned counsel for respondent Nos. 9. In response to our query - whether the respondents, after cancellation of the tender in question, communicated to the petitioner with regard to the said cancellation, and whether they offered to refund the amount of Rs.96,80,920/- to the petitioner, the response of learned counsel for respondent Nos. 3 to 5 is that, since this petition was preferred and pending before this Court, the amount was not offered to the petitioner. 10. Having heard learned counsels and on perusal of the record, it is clear to us, that the actions of the respondents cannot be sustained. The Tehsildar should have put the petitioner to notice before proceeding to cancel the earlier solvency certificate for the amount of Rs. 68,53,539/- issued to the petitioner. The petitioner was entitled to get an opportunity to represent in the matter, and to be heard, before his solvency certificate was cancelled. That was not done. Behind the back of the petitioner, the communication dated 02.06.2022 was issued by the Tehsildar addressed to the Joint Magistrate. The Joint Magistrate also acted in breach of the principles of natural justice, by not putting the petitioner to notice before cancelling the tender, even though, the petitioner had parted with a substantial amount of Rs. 96 lakhs and more, as noticed hereinabove. Even after cancellation of the tender, none of the respondents offered to refund the said amount to the petitioner, and they have kept the amount, and have been enjoying the same throughout. The pendency of this petition had no bearing on the obligation of the respondents to refund the said amount, as they had cancelled the bid of the petitioner. There was no stay against refund of the amount. The only stay granted by the Court was in relation to the fresh auction - which was allowed to continue, but no final decision could be taken without the leave of the Court. 11. Considering the fact that the term of the license was for a period of one year between 2022 and 2023, and the said period is already over, and also the fact that the petitioner’s solvency certificate has been cancelled, we are not inclined to direct the respondents to deliver possession of the shop to the petitioner at this stage. We, however, direct the respondents to refund the amount of Rs. We, however, direct the respondents to refund the amount of Rs. 96,80,920/- received from the petitioner with interest from 01.06.2022 onwards till the date of refund, at the rate of 9 per cent per annum. 12. It shall be open to the petitioner to take independent remedial steps in respect of the communication dated 02.06.2022 issued by the Tehsildar addressed to the Joint Magistrate, whereby the petitioner’s solvency certificate in respect of amount of Rs.68,53,539/- has been cancelled. We also leave it open to the petitioner to pursue his remedies, if any, for claiming damages from the respondents in respect of the tender in question. We may hasten to add that the said liberty should not be construed as an expression of opinion of this Court on the merits of any such claim which the petitioner may make. 13. The petition stands disposed of in the aforesaid terms. 14. All pending applications also stands disposed of.