Rajendra Prasad Jaiswal vs The State of Bihar and Others

S.B. Sinha and R.N. Sahay, JJ.—These two writ applications involving common questions of fact were with the consent of the parties taken up for hearing together and are being disposed of by this common judgment.

The basic facts of this case are not disputed.

The State of Bihar makes settlement for toll collection of Dumri (Isri) Bus Stand by auction. In the year 1990-91, the Petitioner of C.W.J.C. 721 of 1991 (R) being the highest bidder, by an order dated 10.4.1990 as contained in Annexure-1 to the said writ application the job of collection of tolls from the small and big vehicles at the said bus stand had been given to the Petitioner.

A notice was published in the newspaper ''Awaz'' dated 16th March, 1991 by Respondent No. 2 (Annexure-2) intimating all concerned that a public auction would be held on 26.3.1991 for the purpose of collection of toll for the period 1.4.1991 to 31.3.1992. In terms of the said notice, a minimum guarantee of Rs. 1,38,820/- was fixed and the intending bidders were required to deposit 5% of the said amount prior to participation in the auction with the Circle Officer and to file necessary income tax clearance certificate as also a certificate from the District Magistrate or the Superintendent of Police concerned. According to the Petitioner of C.W.J.C. No. 721 of 1990 (R) in the said auction, the Petitioner became the highest bidder having offered a sum of Rs. 2,31,050.00. According to the Petitioner some persons who could not compete with him started taking the law in their own hands and in such a situation, Respondent No. 3 declared the auction as cancelled and also directed return of the earnest money deposited by the participants in the said auction.

However, according to the Petitioner, after cancellation of auction and refund of the security money, the said settlement was made in favour of Respondent No. 4.

The Petitioner has contended that Respondent No. 3 by letter dated 27.3.1991 intimated Respondent No. 2 about the incident which took place on 26.3.1991 while the said auction was held and requested him for taking suitable action in the matter. In the said letter Respondent No. 3 stated as to under what circumstance, the settlement was made in favour of Respondent No. 4 even without complying with the conditions for deposit of 5% of the bid amount. The aforementioned letter dated 27.3.1991 is contained in Annexure-3 to the writ application.

From perusal of C.W.J.C. No. 818/91 (R), it appears that the Petitioner thereof (hereinafter to be referred to as the Sahakari Samittee) also took part in the said auction and its offer was Rs. 231151.00 and its bid having been accepted by Respondent No. 3, it was directed to deposit l/3rd of the bid amount being Rs. 77500/- on the same day which was done as per challan dated 26.3.1991 which is contained in Annexure. 1/1 of the said writ application. On 27.3.1991, the records were sent to the Additional Collector, Giridih for approval, but on 4.4.1991 it was served with an order dated 3.4.91 signed by the Circle Officer, Dumri whereby it was intimated that the settlement dated 26.3.1991 has been cancelled by order of the Deputy Commissioner, Giridih and it was further directed that the Petitioner would not collect the tolls from 4.4.1991 till further orders.

The Petitioners have contended that the said impugned order which is contained in Annexure-3 to the said writ application was issued without giving him an opportunity of hearing and without assigning any reason. From a perusal of the aforementioned order dated 3.4.1991 impugned in C.W.J.C. 818 of 1991 (R) it appears that 15.4.91 was the date fixed for holding an auction in the Collectorate of Giridih in respect of collection of tolls for the said bus stand from 16.4.91 to 31.3.1992. A general notice to the aforementioned effect has also been published which is contained in Annexure-4 to the said writ application.

In C.W.J.C. 721 of 1991 (R), a counter affidavit has been filed on behalf of Respondents 1 to 3. In the said counter affidavit, the allegations made by the Petitioners of C.W.J.C. No. 721 of 1991 (R) have been accepted. The relevant portions whereof are as follows:

That in pursuance of that the Additional Collector went to Dumri Anchal on the date fixed i.e. 26.3.1991 on 11 a.m. and as per Schedule programme the auction was started in presence of huge crowd of nearly about hundred persons out of which seven bidders took participation in the above auction amongst the Petitioner Rajendra Prasad Jaiswal as well as one Kiran Kumar Sinha who is Secretary of the Motor Parivahan Sahkari Samittee also took part in the above auction bid and in the said bid the Petitioner Rajendra Prasad''s voice was the highest one who did for rupees Rs. 2,31,051/-.

That it is stated and submitted that in the meantime the member of the above Co-operative committee began to make ''Hulard Bazi'' and ultimately seeing the worse situation the bid programme had to be cancelled and the Additional Collector passed order for refund of the earnest deposit which was made prior to auction by the bidders.

That it is stated that inspite of the above fact the members of Motor Parivahan Co-operative committee did not leave the place and they made Gherao of the Additional Collector and forced him to settle the above negotiations on the amount of Rs. 2,31,051/-

That it is stated and submitted that the Additional Collector had no alternative than to settle it with the above person to avoid the situation due to worse situation which arose there and further the Additional Collector directed the said Kiran Kumar Sinha for depositing l/3rd of the bid amount amounting to rupees 77500/- before Anchal Nazir and after that the said persons lifted Gherao and went away.

Mr. Anup Kumar Mehta learned Counsel appearing on behalf of the Sahkari Samittee contended that the impugned order as contained in Annexure-3 to the writ application being C.W.J.C. 818/91 (R) is wholly illegal and invalid inasmuch as prior to issuance thereof, neither any notice was served upon it so that an effective representation could have been made, nor any reason has been assigned therein. From a perusal of the said notice dated 3.4.1991 it is evident that the purported settlement made in favour of the Sahkari Samittee was cancelled owing to administrative exigencies. It is not a case where the order had been passed by a statutory authority in a quasi judicial proceeding.

The auction was held by the authorities of the State of Bihar in exercise of their executive powers. The purported acceptance of the bid of the Sahkari Samittee on its own showing was subject to the approval of the Additional Collector.

From a perusal of Annexure 3 to C.W.J.C. 721 of 1990 (R) it appears that the Additional Collector in his letter addressed to the Deduty Commissioner, Giridih, has stated in details as to under what circumstances, the settlement for collection of tolls in respect of Dumri bus stand had to be made in favour of Sahkari Samittee. In the said report it has clearly been stated that the entire incident was politically motivated and preplanned.

As indicated hereinbefore, Respondent Nos. 1 to 3 also in their counter affidavit have indicated the reasons for issuing the impugned order dated 3.4.91 as contained in Annexure-3 to C.W.J.C. 818/91 (R).

As the said impugned order is an administrative order, in our opinion, it is permissible for Respondent Nos. 1 to 3 to state the reasons for issuing the said order in the counter affidavit. It has also not been stated by the Sahkari Samittee that it had complied with the mandatory precondition of the advertisement viz on 26.3.91, i.e., that it had deposited 5% of the minimum guarantee. In that view of the matter too, tho Sahkari Samittee was not eligible to take part in the auiction.

It is not a case when the Respondent No. 2 was bound to assign reasons as by reason of the impugned order he has not refused to accept the bid of the highest bidder. In a contract-qua-contract, the principle of natural justice is also not attracted as by reason of the impugned order he has merely cancelled the tender and directed that auction will be held.

In any event, in view of the conduct of the members of the Sahkari Samittee, we are not inclined to exercise our writ jurisdiction in favour of the Petitioner in C.W.J.C. No. 818 of 1991 (R).

In view of the facts stated hereinbefore, we have no other option but to allow C.W.J.C. No. 721 of 1991 (R) and dismiss C.W.J.C. No. 818 of 1991 (R). However, the Respondents are directed to return Rs. 77,500/- to the Sahkari Samittee which was deposited by it.

Before parting with this case, however, we may observe that if an officer of the status of the Additional Collector had to concede to such illegal demands of some persons who had taken law in their own hands, the extent of lawlessness prevailing in the State can well be imagined. In such a situation, it was expected of the authorities in charge of the law and order problem, particularly, Respondent Nos. 2 and 3 to deal with such matters with strong hands, so that possibility of recurrence thereof in future is eliminated for all time to come.

In the facts and circumstances of this case, we further direct that for the left-over period, that is, up to 31.3.1992, the State may collect toll tax from the aforementioned Dumri (Isri) Bus stand through its own agents or may hold auction for the remaining period in accordance with law.

The Petitioner of C.W.J.C. No. 818/91 (R) must also bear the costs of the Respondents of the said writ application which is quantified at Rs. 2000/-. Out of the said amount, Rs. 1000/- shall be paid to Respondent Nos. 1 to 4 and Rs. 1000/- to Respondent No. 5 thereof.