Narendra Kumar Tyagi vs State Of U.P. and others

Heard learned counsel for parties and perused record.

This writ petition has been filed by sole petitionerNarendra Kumar Tyagi assailing allotment letter dated 14.08.2014 and extension of offer made to respondent5 vide letter dated 23.07.2014 in respect of plot no. B399, measuring 200 square meters, at Defence Enclave Yojna, Kankadkheda, Meerut.

Meerut Development Authority (hereinafter referred to as "MDA") invited tenderscumopen auction for allotment and sale of certain plots in Defence Enclave, Kankadkheda, Meerut. Brochures containing terms and conditions for tendercumopen auction were made available for sale till date of auction, i.e., 23.07.2014. Sealed tenders were to be dropped in tender box between 11:00 am to 2:00 pm in the office of MDA on the prescribed date. It was also provided that those who are willing to participate in open auction should not submit their application in tender box. The conditions of eligibility for participating in open tender prescribed in clause V of brochure read as under: "VERNACULAR MATTER OMITTED"

The process of bidding will be held in Conference Room of Authority at the time and date mentioned in Annexure-1. Only following persons can participate in bidding process:

*Those who have with their tenders deposited bank draft/ pay order/bankers'' cheques of earnest money in original as also "selfsigned rules and conditions" will have to produce prescribed Form (Annexure3) alongwith photocopy of draft/pay order/bankers'' cheques of earnest money, for participating in bidding process.

* Those who have not deposited sealed tenders but are interested in directly participating in bidding process will have to submit original bank draft/pay order/bankers'' cheques of earnest money along with prescribed Form (Annexure3) before starting of bidding process.

* The persons participating in bidding process shall be permitted to bring only one person along with them.

* In case applicants are not able to participate personally, they can participate in tendercumopen bidding process through their authorised representatives after completing tender application and application for bidding process, for which applicants, firm/company etc., will have to make proper authorisation in favour of their authorised representatives; and in that condition, authorised person shall have to submit his authorisation letter before bidding committee.

* If applicant is representing any firm/company etc., he/she will have to enclose with tender application form and auction application form necessary papers in relation to registration (as private/private owner/public limited company/ partnership firm, registered society, registered cooperative society, trust, registered consortium, firms and HUF or others) as also other necessary documents regarding memorandum etc.

* Applicants shall as against price reserved for building/flat quote their rates based on per square metre for plots involved in the tendercumopen bidding process.

* After bidding once, same cannot permitted to be withdrawn. In the same way, after putting your tender in tender box, rate quoted by way of tender cannot be permitted to be withdrawn."

(English Translation by Court)

Clause VII of brochure stated that after completion of open auction, Auctioning Officer shall open sealed tenders and thereafter submit his recommendations on merits to Vicechairman, MDA.

Petitioner submitted his tender on 23.07.2014 enclosing a bank draft of Rs. 2,70,000/issued on 19.07.2014 by Punjab National Bank payable to Vicechairman, MDA and another bank draft of Rs. 500/issued on 22.07.2014 by State Bank of India towards cost of tender application. Petitioner was loan tenderer who had dropped tender in tender box. Petitioner submitted tender offering Rs. 14,000/per square meter against reserve price of Rs. 13,500/per square meter.

Auction formalities were initiated by 02:30 pm on 23.07.2014 but there was noone else to participate and petitioner was only and highest bidder by way of tender. After completion of process, since petitioner was sole bidder and tenderer in respect of plot in question, he requested authorities to issue allotment letter but he was directed to wait for some time. Petitioner waited for about 10 days and, having received no notice, made inquiry and came to know that tendercumauction sheet was tampered by adding participation of one Anuj (respondent5) and his bid was shown as Rs. 14,200/per square meter, though neither he was present nor participated either in tender or auction but it was added by manipulation in tendercumauction sheet.

Petitioner submitted a letter dated 29.08.2014 before Vicechairman, MDA requesting him to make appropriate inquiry in the matter and make allotment in his favour. Another letter was submitted by petitioner on 09.09.2014 to Chairman, MDA. Then petitioner applied under Right to Information Act, 2005 (hereinafter referred to as "RTI Act, 2005") vide application dated 03.09.2014 seeking following information: "VERNACULAR MATTER OMITTED"

"(1) The bid sheet of auction/tender.

(2) Applications of the parties concerned.

(3) Copy of the bank draft with date, (of the party in whose name the plot has been allotted).

(4) Allotment letter of the concerned plot.

(5) All the documents available in the file apart from the above.

(6) The coverage of the entire videography organised by the Authority on 23.07.2014."

(English Translation by Court)

The information was made available to petitioner by letter dated 14.10.2014 sent by Joint Secretary, MDA. Annexure No. 5(C) is copy of auctioncumtender sheet and Annexure No. 5(D) is copy of notesheets pages 53 and 54. Annexure No. 5(F) is tender document of respondent5 which is said to have been received on 23.07.2014. Letter dated 19.08.2014, Annexure 5(G), is copy of acceptance letter issued by MDA stating that offer made by respondent5 at the rate of Rs. 14,200/per square meter was found highest and accepted by Vicechairman, MDA vide order dated 22.07.2014.

A complaint was published in daily newspaper "DLA News" dated 29.06.2014 that MDA is allotting land to its own favourites at throwaway prices. In respect of plot No. B399, a similar news was published in Dainik Jagran dated 20.09.2014.

Challenging allotment of an industrial plot, Civil Misc. Writ Petition No. 35402 of 2014 (Max Alert Vs. State of U.P. and others) was filed wherein Court in its order dated 11.07.2014 recorded its prima facie observations that MDA has violated terms and conditions of brochure but since private respondent was not before Court, issued notice to private respondent therein.

Petitioner then filed present writ petition challenging aforesaid allotment made to respondent5. This Court while entertaining writ petition on 16.01.2015 passed following order:" Allegations made in the writ petition are serious and need immediate response from the Vicechairman of the Meerut Development Authority, Meerut.

In view of the aforesaid we direct that the writ petition shall come up again on 28th January, 2015, by which date the Vicechairman may file his personal affidavit in response to the allegations made in the writ petition. All relevant records shall also be produced before the Court on the next date. Let notice be issued to respondent no. 5 by speed post by tomorrow i.e. 17.01.2015, who may also respond to the petition by the next date."

Consequently, a counter affidavit has been filed on behalf of respondents2, 3 and 4, sworn by Sri Rajesh Kumar, Vicechairman stating that petitioner did not fillin tender and had not dropped any tender in tender box. In fact, petitioner participated in auction. After auction, tenders were opened and highest offer to tender and auction was to be accepted. Only respondent5 put his tender in tender box alongwith drafts of Rs. 500/and Rs. 2,70,000/, respectively. Since tender amount of respondent5 was found higher than that of petitioner''s bid in auction, therefore, plot was allotted to respondent5. All allegations otherwise were denied and, in fact, very claim of petitioner that he participated in process by dropping tender in tender box itself was disputed.

Another affidavit has been filed by respondent5 and he has also said that petitioner participated in auction while he submitted tender offering price of disputed plot at the rate of Rs. 14,200/which was higher than the price offered by petitioner hence it was accepted.

When matter was heard on 06.10.2017, Court noticed several cuttings and overwritings in auctioncumtender sheets, and thereafter passed following order: "1. From bare perusal of Annexure5 to writ petition it is evident that several manipulations and corrections subsequently have been made which show that first of all respondent''s no. 5 presence has been tried to be added and thereafter with respect to tender amount manipulation has been made by increasing it to Rs. 14,200/.

Let all these officers of Meerut Development Authority who have signed this document, i.e., Annexure5 to the writ petition, shall remain present before this Court on 12.10.2017 to explain this manipulation alongwith original record.

List this matter on 12.10.2017."

Consequently, four supplementary counter affidavits are filed; one is sworn by Sri Rajesh Kumar, the then Vicechairman who in October, 2017 was posted as Additional Land Reform Commissioner, Board of Revenue, U.P., Lucknow stating that he functioned as Vicechairman, MDA from 14.02.2014 to 15.10.2014. The disposal/auction of property in dispute was completed during his tenure. On 23.07.2014, time for dropping tenders was 11:00 to 14:00 hours. Only respondent5 dropped tender in tender box while petitioner participated in auction. Sri Hari Singh, Clerk, MDA filledin auctioncumbid sheet during process of auction and thereafter completed process. In para 17 of supplementary counter affidavit, he said that after auction bid, sealed tender box was opened by Committee. Tender forms were arranged and marked by a Committee Member. Then Clerk filled tender bill in presence of persons present and Members of Committee. Clerk went through tender forms received out of tender forms which were duly signed by Committee Members. Then in para 19 to 26, correction/overwritings have been sought to be explained as under:" 19. That the clerk saw the first form from which he noted the name of the respondent no. 5 and did not write the amount as this form was only meant for auction, it was blank on the amount column, as this form was meant for taking part in the auction but bidder dropped it in the tender box alongwith the tender form. A copy of both the parts of the application form are being filed as Annexure No. SCA 1.

That relaying on the blank amount he filled the petitioner''s name as has been qualified because respondent no. 5 (Mr. Anuj) name was written without amount (which was later found in detail scrutiny that auction and tender forms both were submitted), clerk did not go through the tender form due to human error.

That on scrutiny, committee found that tender form exhibits the amount also, therefore then and there amount of tender bid was filled up, consequently tender bidder qualified as the highest bidder.

That in the above mentioned circumstances there was no option before the committee except to make correction or edit the facts which was not a manipulation.

That the whole auction cum tender process was conducted in very transparent manner.

That the correction was done in bonafide manner which was rectified by the auction committee on the same day, then and there, minutes of the committee are attached as Annexure No. SCA 2.

That on the biding sheet the applicants, whether auction bidder or tender bidder, who so ever were present, their signatures were obtained from them.

That in the present bid only auction bidder i.e. petitioner 1 was present, who signed the bidding sheet, other person Mr. Anuj (i.e. respondent no. 5) was not there so the committee could not get his sign on the bidding sheet." (emphasis added)

Repeating same facts, separate affidavits have been filed by Sri Jitendra Pratap Singh Yadav, Finance and Account Officer, MDA and Sri Shabih Haider, Superintending Engineer, Lucknow Development Authority who was posted at relevant point of time as Superintending Engineer, MDA. Sri Haider has stated in para 3 of the affidavit that he worked from 18.08.2009 to 17.07.2017 at MDA and held offices of Assistant Engineer, Executive Engineer and ultimately as Superintending Engineer.

Sri Hari Singh, Property Clerk, MDA has also filed affidavit stating similar facts.

Petitioner in rejoinder affidavit has denied the stand taken by respondents that he did not submit tender and instead participated in auction and respondent5 submitted tender document on 23.07.2014. It is said that respondent5 was not at all present anywhere in the office of MDA.

Original record was also produced which was perused by us. Certain facts borne out are very necessary and we may mention hereatunder.

Application/tender form, allegedly submitted by respondent5 (copy whereof has been filed as Annexure 5(F) to writ petition) shows no date of submission of application. Column "Avedan ki tithi" is blank. It is said to have been dropped in tender box but on the left side of said application, we find somebody''s initials mentioning date as "23.07.2014" and said initials are admittedly not that of respondent5.

Petitioner''s own letter filed as Annexure3 to writ petition shows that he admits of having participated in auction on 23.07.2014, therefore, his claim that he submitted tender in tender box does not appear to be correct.

Auctioncumtender sheet (copy whereof has been filed as Annexure No. 5(C)) shows in the earlier part a chart for making details of all bidders in auction. In the aforesaid chart, name of petitioner is mentioned at Sr. No. 1 showing his first round bid of Rs. 14,000/. Thereafter, we find that in same chart at Sr. No. 2, name of respondent5 has been mentioned and his amount in tender has been mentioned as Rs. 14,200/. At the end of chart, there is a column of signatures of participants in auction and those who submitted tenders but therein signatures of Narendra Kumar Tyagi (petitioner) are shown and not that of respondent5. In last column, then it talks of names of highest bidder/tenderer.

Initially only name of petitioner was mentioned and in the column of highest amount of tender/auction bid as Rs. 14,000/was mentioned, in words and figures, but thereafter, name of petitioner was erased and name of respondent5 got mentioned and amount of Rs. 14,000/has been tampered in words and figures, both, by making it "Rs. 14,200/" in figure and by adding "VERNACULAR MATTER OMITTED" between words "VERNACULAR MATTER OMITTED" and "VERNACULAR MATTER OMITTED". In the corrections and manipulations made, we do not find initials of anyone though sheet is signed by three Members, namely, Executive Engineer, Chief Town Planner and Finance Controller and one Secretary as Adhyaksha.

Minutes of proceedings submitted to Vicechairman obviously have been prepared subsequently. These minutes contain signatures of three Members, i.e., Executive Engineer, Chief Town Planner, Finance Controller, one MembercumCoordinator, i.e., Planning Officer and then that of Secretary as Adhyaksha. Thus, there are five signatures. Planning Officer, i.e., Member Coordinator had not signed bidcumauction sheet. There is a blank over mentioning of words "Yojna Adhikari, Sanyojak" in tender/auction sheet. Therefore, Member Coordinator was not a participant in proceedings on 23.07.2014 but has signed minutes prepared subsequently which are on record as Annexure 5(D) to writ petition.

Respondent5 was not present when tender was opened and, therefore, did not sign auctioncumtender sheet. This is admitted in para 26 of the supplementary counter affidavit filed by the then Vicechairman, Superintending Engineer and other Officers, which is common in all affidavits.

Most interesting thing which is disclosed by document is that tender offer of respondent5 was accepted by Vicechairman on 22.07.2014, i.e, before the date of tendercumauction, i.e., 23.07.2014. Date of auction/tender mentioned in acceptance letter dated 19.08.2014 is 17.07.2014. It would be useful to reproduce first paragraph of the acceptance letter dated 19.08.2014, Annexure No. 5(G) to writ petition, as under: "VERNACULAR MATTER OMITTED"

"The per square metre rate of Rs. 14,200/quoted by you was found to be highest against reserve price of Rs. 13,500/per square metre for residential HIG plot no. B399 measuring 200 square metres in tendercumbidding process held on 17.07.2014 for plots situated in Sector ''Y'' in Defence Enclave Residential Scheme of Meerut Development Authority, which has been approved by Vicechairman vide order dated 22.07.2014. Accordingly, this allotment letter in respect of aforesaid residential plot is being sent to you subject to terms & conditions of tendercumbidding."

(English Translation by Court)

Whenever a preplanned action is executed, subsequently Executors have to take care of so many things otherwise there is every possibility of some slips on crucial aspects. It is always said that if a person tells a lie, in future he has to remember everything and there is always a possibility of narrating different story to different persons but in regard to truth, it comes out on its own. One need not remember anything as truth travels in a straight line. This is what has happened in this case also.

From record what transpires is that application prepared by respondent5 and without mentioning any date of submission of tender/application, it was handed over to some person/official in MDA. When auctioncumtender and sheet were finalized, there was no mention of name of respondent5 that''s why neither his signature appears on the sheet nor his name or amount is mentioned. It is only when sheet was finalized subsequently name of respondent5 was added at different places in auction sheet.

We have also checked from record that on left side of tender application of respondent5 (Annexure No. 5(F) to writ petition), somebody has initialed mentioning date as "23.07.2014" and same person has initialed on auctioncumtender sheet also mentioning date under his initials though no other Officer, member of Auction Team, has put any date. Auction sheet contains date at two places; one at top and another under initial of person whose name is not very clear but when we compared with supplementary counter affidavits and tally these initials with signatures of officials, we find that these two initials on auction sheet and tender application form of respondent5 tally with signature of Sri Jitendra Pratap Singh Yadav, Finance and Account Officer, MDA. He was neither member of Auction Team nor otherwise had any role in the process of auction and acceptance. Presence of his initials separately in bid as also on tendercumapplication form of respondent no. 5 (Annexure No. 5(F) to writ petition) is not understandable and could not be explained.

We are explained that Finance Controller was Member but since he himself was not present, Sri Jitendra Pratap Singh Yadav, Finance and Account Officer, MDA signed auctioncumbid sheet (Annexure No. 5(C) to writ petition) on behalf of Finance Controller but why he separately signed said sheet mentioning date as "23.07.2014" and also signed on tendercumapplication form of respondent5 could not be explained. Moreover, mention of different date of auction and tender as also offer of respondent5 accepted by Vicechairman on 22.07.2014 though auction itself took place on 23.07.2014, report was submitted by Auction Team much later on, makes it clear that entire process adopted by respondents in the present case is nothing but a farce and full of manipulations, fraud and misrepresentation. Various officials have gone to the extent of making false averments before this Court knowing it well that they are not in a position to explain apparent contradictions in record.

Time and again, complaints of various irregularities coupled with corruption prevailing at largescale in Development Authorities have been brought to the notice of this Court in various matters. In the present case, record has fortified such a complaint in respect of MDA. The above facts and stand taken in various affidavits before this Court show a clear collusion of all Officers involved in the matter, whether from Engineering Section, Accounts Section or Administration Section and even the then Vicechairman, MDA cannot be spared.

We are really surprised that in the mater of public dealing where process of allotment of land needs impartial, objective and transparent procedure, MDA and its officials are indulged in otherwise corrupt activities, and going to the extent of manipulating record in favour of selective individuals, obviously for reasons other than bonafide. It cannot be termed with any other expression except patent and evident illustration of corruption. Off late, corruption has taken several shades. It is not as simple as it was in earlier days when a simple giving and taking or doing something illegal or favourtism, etc. was the only mode. Now corruption takes place in variety of ways. It has discovered myriad of ways. Sometimes apparent corruption may not be visible since it has its consequences in various phases, means and stages. As we have advanced in technology, ways of corruption have also advanced. Many a times one may find a transaction to be simple and ordinary but in effect it is full of corruption. People involved in corruption are now part of everyday life and it has engulfed society in a very big way. Today, finding an honest person is a rarity. Dishonesty and corruption are routine affair. Honesty has become scarcity and virtually an endangered species. We need immediate step to evolve a scheme (as is being practiced in respect of rare animals) to protect honest and impartial men of integrity. True that number of such persons is decreasing, still we believe that society has ample honest people. Need is only to identify and encourage them so that their number may get increased. For this purpose, what is needed more is a simultaneous deterrent action against corrupt and dishonest people by finding them out and punish sternly. Failure of system in meeting menace of corruption and dishonesty is encouraging these corrupt people, multiplying their cadre. It is causing reverse impact on honesty and integrity. We boast lot in favour of removal of corruption but do least. In fact, no serious attempt is vigilant so as to give even a ray of hope to ordinary citizens. The disease is spreading like anything and treatment requires a traumatic attempt.

So far as present case is concerned, we direct Principal Secretary, Nagar Vikas to forthwith refer the matter for Vigilance Inquiry against all officials involved. Vigilance Department must complete investigation and submit report for action within three months from the date of receipt of instruction from Principal Secretary, Nagar Vikas. Thereafter, departmental as well as criminal and other action be initiated and completed against all erring persons and officials with a timebound schedule so that final action is taken not beyond one year from the date of this judgment.

So far as present writ petition is concerned, we have no hesitation but to allow the same. Acceptance of allotment of Plot No. B399, Defence Enclave Yojna, Kankadkheda, Meerut in favour of respondent5 and consequential allotment letter and all subsequent proceedings are held illegal and quashed. MDA shall take fresh steps for allotment of disputed land after taking fresh action in accordance with law. Petitioner shall also be entitled to cost which we quantify to Rs. 50,000/. At the first instance, cost shall be paid by MDA but it shall be at liberty to recover the said amount from concerned officials.