Daya Nand Singh vs The State of Bihar and Others

Shivaji Pandey, J.—Heard learned counsel for the petitioner and learned counsel for the State. In this case, the petitioner is challenging the Parwana vide letter No. 552 dated 29th March, 2014 issued by the Executive Officer, Nagar Parishad, Hajipur in favour of Respondent No. 5.

It appears from the record that a general notice vide memo. No. 243 dated 17th February, 2014 was issued to the knowledge of the public for settlement of 16 sairats for the financial year 2014-15 including the sairat which is subject matter of the present proceeding i.e. for the settlement of Budhamurti Chowk Tempo Stand, Hajipur and the date was fixed for holding the open bid on 28th February, 2014. In the said notice, it has been mentioned that the interested persons would participate in the said bid after depositing due security amount in the treasury of Nagar Parishad, Hajipur. Subsequently, such notice was issued in daily Newspaper ''Prabhat Khabar'' and also in daily Hindi Newspaper ''Rashtriya Sahara'' on 20th February, 2014. In the said notice, minimum amount was fixed at Rs. 13,47,500/- and 10% of the minimum amount i.e. Rs. 1,34,750/- was fixed as security amount. As per the general notice as well as notice issued in the newspaper, an open auction was held on 28th February, 2014 and in the said auction, respondent No. 5 was the highest bidder for an amount of Rs. 13,52,000/-, accordingly, respondent No. 5 was declared successful and Parwana was issued and thereafter, he entered into an agreement for the said settlement with Executive Officer, Nagar Parishad, Hajipur.

On 29th March, 2014, the petitioner filed an application raising grievance that he was not allowed to participate in the said auction, he was physically obstructed to participate there and under the criminal threat, he could not participate in the said bid, claimed that the said auction is completely a fraud in law as well as on fact. In the writ application, the petitioner has stated that he is ready for an amount of Rs. 21,00,021/-(twenty one lacs and twenty one) for the settlement of Budhamurti Chowk Tempo Stand, Hajipur. On the basis of statement made in the writ application, notices were issued and vide order dated 5th September, 2014, the Court has shown its intention to hold an open auction in the Court itself and directed interested parties to participate in the open bid in the Court itself.

All the respondents have appeared and filed their respective counter affidavits. The basic plea has been taken by the private respondent including Nagar Parishad, Hajipur that the allegation of criminal threat or physical obstruction is completely a wrong statement and no such force was ever applied against the petitioner rather the real fact is that he never participated in the open bid which was held on 28th February, 2014 but after lapse of about six months, the petitioner approached this Court which itself is a ground for dismissal of the present writ application. The locus to file the writ application has been challenged by the respondent, and it has been submitted that from the record itself shows that for the first time the petitioner approached District Magistrate, Hajipur on 28th March, 2014 i.e. after one month from the date of open bid, there he has made a statement that he is ready to get a settlement for that sairat in Rs. 21,00,021/-. In the application, no-where he has stated about the criminal intimidation or having applied any criminal force or physical obstruction in allowing the petitioner to participate in the said auction and has submitted that the present application has filed afterthought, cannot be basis to nullify the whole effort of auction and so much so more than 8 months have elapsed, it will not be in equity and it will not be prudent that this Court should interfere with the settlement of Sairat, merely because the petitioner has come to this Court with an offer of higher amount cannot be a basis to nullify the open bid conducted by Nagar Parishad, Hajipur.

In reply, the counsel for the petitioner submits that when the petitioner could know about the issuance of Parwana in favour of respondent No. 5, he instantly took steps for preparation of draft for Rs. 1,34,750/- and later on he raised grievance before the District Magistrate, Vaishali, thereafter he filed the present writ application to take settlement of that sairat in a very higher amount of Rs. 21,00,021/- and as such, the allegation that the petitioner was not diligent rather negligent is completely a wrong statement.

The counsel for the petitioner has drawn attention about the use of physical obstruction by respondent No. 5, relying on FIR which was instituted by the petitioner vide Police Case No. 179/2013 dated 23rd March, 2013 for offences under Sections 147, 341, 323, 379, 427, 509 and 506 IPC where the petitioner has made an allegation of use of the criminal intimidation to participate in the auction related to sairat at Hajipur and there the allegation has been made that if the petitioner would participate in the auction, he would face dire consequences. The FIR has been instituted one year earlier and further action is unknown.

This Court has called for original records with respect to the auction which was conducted on 28th February, 2014. With respect to Budhamurti Chowk Tempo Stand, Hajipur, this Court perused the records in detail and from the record it appears that the petitioner has made a complaint dated 28.3.2014 to District Magistrate, Vaishali and to Sub-Divisional Officer, Hajipur whereupon he called the report from Executive Officer, Nagar Parishad, Hajipur who has given reply dated 16th April, 2014 where he has given full details of the facts and at last he has given the finding that there is no illegality or irregularity committed in holding the said open bid, as at every stage, transparency was maintained and allegation raised by the petitioner is not sustainable in law.

So far locus standi of the petitioner is concerned, as has been claimed by other side that he has no right to challenge the Parwana or the settlement which has been given in favour of respondent No. 5. Neither in the writ petition nor in the interlocutory application, there is any averment showing that physical force was applied against the petitioner to participate in the said auction. The petitioner was asked to show basic averment of use of criminal force in the petition but is absent, save and except the oral submission made by the petitioner. He is not in a position to point out aforesaid facts from the record of the case. He has not made any statement with regard to physical obstruction led by respondent No. 5 nor he could show, he had ever tried to participate in the auction proceeding, no averment whatsoever has been made in the writ application about having no knowledge about the notice to the public in general, he could not say that the petitioner had no knowledge about the said auction,

The foundational fact itself is missing from the writ application and so much so, from the record that has been produced by Nagar Parishad, Hajipur, this Court does not find any error in holding the open auction for Budhamurti Chowk Tempo Stand, Hajipur so much so more than 8 months have already crossed, it will not be in the ends of justice to interfere with the settlement. Accordingly, the same is dismissed. The counsel for Nagar Parishad, Hajipur has been handed over the original record that was called by this Court. If any person has deposited the money in the Office of the Registrar, the person can approach the Registrar of this Court and the same will be returned to him/them.