Shiv Kumar Meena vs State of Raj.

M.N. Bhandari, J.—These bunch of writ petitions involve common question of law thus have been heard and decided by this order. The Rajasthan Housing Board issued an advertisement to auction the plots/houses on different locations and even in different cities. The petitioners are those who have not only participated in the auction but stood highest bidder therein. After acceptance of the initial amount, their bid was not accepted rather it was cancelled by the respondents without assigning any reason.

Learned counsel submits that petitioners participated in the auction and quoted the price higher than Minimum Sale Price (in short "MSP") prescribed by the respondents. While cancelling the bid, no reason was assigned. The MSP is determined based on various factor which includes the DLC rate, previous price fetched in the area and other factors. This has been admitted by the Commissioner, Rajasthan Housing Board in his affidavit filed as per direction of the court. When bid given by the petitioners was much higher than MSP, cancellation without reason deserves to be set aside with a direct in to confirm the sale in favour of the petitioners.

It is further stated that after opening of the bid, the respondents were under an obligation to decide confirmation/cancellation within a period of 45 days. However in the instant case, cancellation was made after 8 to 11 months. The delay in cancellation of bid/auction cannot be to the benefit of the respondents rather in such circumstances, a presumption should be drawn for confirmation of sale immediately on expiry of period of 45 days from the date of opening of the bid. In view of the above also, this court should direct for deemed confirmation of sale in favour of the petitioners. The case of discrimination has also been alleged. It is stated that in few areas where bid price was not much higher to the MSP yet sale was confirmed leaving bid of the petitioners which was much higher to the MSP thus discrimination was caused at the instance of the Minister who was having no authority to cancel the bid given by the petitioners.

Learned counsel Shri Prahlad Sharma in his writ petition further states that there was no condition in the advertisement for confirmation of sale thus respondents were not authorized to take up the matter for confirmation of sale and while doing so, cancel it. A reference of judgment of Hon''ble Apex Court in the case of Valji Khimji and Company Vs. Official Liquidator of Hindustan Nitro Product (Gujarat) Ltd. and Others, has been given. It is further stated that cancellation of highest price bid cannot be made without assigning reason and if cancellation is made, it needs interference of the court. A reference of the judgment of Hon''ble Apex Court in the case of Kalu Ram Ahuja & Anr. vs. Delhi Development Authority & Anr., reported in (2008) 10 SCC 696 and in the case of Kamlakar Bhimrao Patil Vs. Maharashtra Industrial Dev. Corpn., and lastly the judgment of Hon''ble Apex Court in the case of M.P. State Agro Industries Development Corporation Ltd. and Another Vs. Jahan Khan, has also been given. He submits that no reason for cancellation of bid has been assigned thus the impugned order deserves to be set aside.

Learned counsel for respondents, on the other hand, submits that cancellation of bid was made after due consideration by the competent authority. As per terms of auction, the matter was to be referred to the competent authority for confirmation of sale. Referring to the terms & conditions for auction, duly signed by each of the participants, he submits that highest bid was placed before the competent authority for acceptance and as the sale was not confirmed, amount was refunded. The case of each bidder was thus considered by the competent authority and finding that rates quoted by them are not adequate thus entire auction was cancelled without discrimination. The petitioners have given reference of acceptance of bid in few cases but it is not in reference to the auction in question but for different city and in reference to the different advertisement.

The MSP is determined after taking various facts but is not final rate on which sale should be confirmed. After bid, the price fetched is to be considered by the competent authority for acceptance or rejection. According to them, auction could not fetch proper rate thus it was cancelled. After cancellation of 146 auctions, plots/houses were again put for auction in majority of the cases leaving those in which stay order was passed by the court. There within a period of six months, the amount fetched is even double the amount quoted by the earlier bidders. In few cases, even MSP was found to be faulty thus was re-determined leaving other cases where such fault was not found.

Referring to the case of Shiv Kumar Meena, it is stated that highest bid given by him was for a sum of Rs. 27200/- per square metre as against MSP of Rs. 24,000/-. In the said case, MSP was re-determined to Rs. 31,500/- and it was put for auction within a period of six months. The bid price of Rs. 57,000/- was then quoted and has been confirmed. The bid price between first auction and second auction is more than Rs. 30,000/- per sq. mtr. i.e., double the price given by the petitioners. The auction in the case of Shiv Kumar Meena, S.B. Civil Writ Petition No. 4758/2013 was conducted as interim order was passed subsequent to the auction. In other cases, the auction could not be made due to interim order of the court. It is also stated that as against cancellation of 146 bids/auction, only 27 petitions have been filed. The auctions in all other cases have fetched almost double the price quoted earlier thus reason for cancellation get justified even by the aforesaid.

The original record shows that matter was considered by the higher authorities and finding that in few cases, MSP was determined without proper consideration or the rate was not adequate, the cancellation has been made thus it is by examining each matter and determination of the case on merit. The respondents have not caused any discrimination because whenever bid has been cancelled, it is for the entire auction and not selectively. For instance, if proper price was not fetched for Nasirabad then entire auction was cancelled. Thus the case of discrimination is not made out and apart from that, cancellation was for the reasons and in the public interest.

It is further stated that in the advertisement, every bidder was made aware that auction/bid is subject to the conditions of tender which are available on the website. All the petitioners were under an obligation to refer the conditions of the tender and otherwise each of the petitioners had signed the documents where condition of auction was mentioned. In Para 13 of the condition for auction, it was clearly mentioned that case of the highest bidder would be considered by the competent authority for its acceptance and if it is not accepted then there would be refund of amount without interest. Accordingly cancellation or non-acceptance of the bid was as per terms of the auction.

Coming to the issue of delay in conveying non-acceptance of the bid, it is stated that decision was taken promptly within time but could not be conveyed immediately. The amount was paid and almost all the petitioners have accepted it leaving few.

I have considered rival submissions made by the parties and perused the record.

A challenge to the order of non-acceptance of bid has been made on the ground that no reason has been assigned by the Rajasthan Housing Board and otherwise their action is discriminatory. They have accepted the bid in few cases which are similarly placed. The respondents on the other hand given detail reasons for rejection of bid.

I find that reason has not been given in the impugned order but has been supplied in the reply and shown from the record. The reason for non-acceptance of the bid of the petitioners is that it could not fetch adequate price of the plot. It was compared to the price fetched by plot in nearby area in few cases and other cases determination of MSP was found to be faulty thus re-determined. It has also come on record that subsequent auction of the plots/houses could fetch the price which was even double the price quoted on the earlier occasion. In the case of Shiv Kumar Meena, the bid given by him was for a sum of Rs. 27,200/- which was not accepted by the respondents and with a revision of MSP the subsequent auction could fetch Rs. 57,000/- sq. mtr. which is almost Rs. 30,000/- above the price quoted by the petitioner. If cancellation of the bid is for the reason that it could not fetch price and the cancellation is not selectively but for the entire auction process, the action of the respondents cannot be said to be discriminatory or illegal. The reasons should have been assigned in the impugned order also but when it has been disclosed in the reply and record has also been shown to the court. I find it to be convincing and in public interest, thus, this court is not required to cause interference.

In the cases referred by learned counsel for petitioners, no reason was assigned for cancellation and it was not given in the reply the petitioners thus caused interference. The facts of this case are not similar rather respondents have not only given reasons to justify their action but subsequent auction show and justify their action in the public interest. The Hon''ble Apex Court in the case of The Haryana State Agricultural Marketing Board and Others Vs. Sadhu Ram, has held that action in such cases cannot be said to be illegal. The action of the competent authority cannot be nullified on the ground that order is non-speaking, if ultimately no mala fide or unfair practice is found therein. In the instant case, the respondents have justified their action hence judgment of Hon''ble Apex Court in the case of Kalu Ram Ahuja (supra) and other judgments referred by the petitioners do not apply.

Learned counsel for petitioners have raised another issue to challenge the order in reference to the terms of condition of auction. As per condition, the respondents were required to consider acceptance within a period of 45 days from the date of opening of the bid.

Learned counsel for petitioners failed to refer any of such condition which provides that confirmation or rejection of the bid should be made within a period of 45 days. In absence of such a condition, the argument for deemed acceptance of bid cannot be accepted. Even otherwise when the terms of auction provides for acceptance of the bid by the competent authority, the question of deemed acceptance does not arise.

The other issue is that condition for confirmation of the sale by the competent authority does not exist in the advertisement. While the issue aforesaid was considered by this court, learned counsel Shri Prahlad Sharma submits that he is not pressing the aforesaid ground as there was a condition for confirmation of the sale. The third ground raised by Shri Prahlad Sharma, Advocate is thus not required to be dealt with though for clarification Para 13 of the condition of auction is quoted hereunder for ready reference:

There was specific provision for acceptance of the bid and in case of non-acceptance, the amount would be refunded without interest. In view of the discussion made above, I do not find any merit in the writ petitions. The same are accordingly dismissed along with stay applications.