IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Decided on: 18.11.2008 [ENTITY] Petitioner VERSUS The [ENTITY] and others Respondents
CORAM:- HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] Present:- Mr. [ENTITY], Advocate for the petitioner.
Ms. [ENTITY], Advocate, for the respondents.
1. Whether Reporters of local papers may be Yes allowed to see the judgment?
2. To be referred to the Reporters or not? Yes
3. Whether the judgment should be reported in Yes the Digest?
[ENTITY] J.
1. This petition filed under [SECTION] of the [ACT] prays for quashing letter dated 17.12.2004 (P-8) issued by the Estate Officer, HUDA, Kaithal-respondent No. 3 refunding the earnest money of Rs. 59,500/- to the petitioner on the pretext that Booth No. 271, Sector 20, Kaithal, which was auction on 29.7.2004 in his favour has been withdrawn by the Administrator, HUDA, Hisar-respondent No. 2. A further prayer for quashing order dated 20.2.2007 (P-12), passed by the Estate Officer-respondent No. 3, in pursuance to the direction issued by this Court in [CASE NUMBER], rejecting the representation of the petitioner, has been made. Still further it has been prayed that direction be issued to the respondents to allot one alternate booth site out of Booth Nos. 243 to 252, Sector 20, HUDA, Kaithal, to the petitioner in view of the fact that Booth Site No. 271, Sector 20, HUDA, Kaithal, which was allotted in the open auction in favour of the petitioner being the highest bidder, has been found to be allotted in the name of Shri [ENTITY] son of Shri [ENTITY] in the earlier auction.
2. Brief facts of the case are that in an open auction held on 29.7.2004 for sale of commercial sites, booths, SCOs, D.S. Shops of Sector 19 and 20, HUDA, Kaithal, the petitioner remains successful for allotment of Booth Site No. 271, Sector 20, Kaithal, being the highest bidder. He gave the bid of Rs. 5,95,000/- and immediately thereafter deposited 10% amount of Rs. 59,500/- against Receipt No. 419116, as earnest money (P-2). He was told that allotment letter would be issued within one or two months.
3. When the allotment letter was not issued even after lapse of considerable time, the petitioner contacted the respondent authorities on 16.11.2004 and it came to his knowledge that allotment letters to the remaining highest bidders in respect of other plots which were auctioned on 29.7.2004 had already been issued. Consequently he sent a representation on 20/22.11.2004 (P-3 & P-4). On 6.12.2004 another representation was made (P-5), which was supplemented by a legal notice dated 21.12.2004 (P-6 & P-7). On 17.12.2004, a letter was sent to the petitioner by the Estate Officer, HUDA, Kaithal- respondent No. 3 intimating that Booth No. 271, Sector 20, Kaithal, was withdrawn by the Administrator, HUDA, Hisar from the open auction and accordingly 10% amount deposited as earnest money, amounting to Rs. 59,500/- was sent back to him (P-8). However, no reasons for such withdrawal were disclosed. The petitioner later on came to know that the site in question was already allotted to one Shri [ENTITY] son of Shri [ENTITY], resident of House No. 943/1, Partap Gate, Kaithal, in an earlier auction which was held in the year 2003. It is claimed that the petitioner then requested the respondent authorities to allot some alternate plot keeping in view the fact that he had already deposited 10% amount of Rs. 59,500/- as per terms and conditions of the auction held on 29.7.2004.
4. Feeling aggrieved, the petitioner filed [CASE NUMBER] which was disposed of by a Division Bench of this Court on 8.5.2006 and a direction was issued to the Estate Officer-respondent No. 3 to consider and decide the representation, which was to be made by the petitioner, as per the policy applicable within a period of four months (P-9).
5. The petitioner filed his detailed representation on 22.5.2006 (P-10). When no decision was taken on the representation within four months, the petitioner again sent a communication to the Estate Officer on 21.9.2006 (P-11). Ultimately, the Estate Officer- respondent No. 3 has passed the impugned order dated 20.2.2007 rejecting the representation of the petitioner (P-12). The findings recorded by the Estate Officer-respondent No. 3 reads thus:-
" That the plea of the petitioner in the representation dated 22.05.06 in nut-shell is that he is entitled (to) allotment of alternative plot in terms of HUDA policy dated 15.04.1998 actually not 15.04.1990. But the fact is that the case of the petitioner is not covered under the said policy. This policy (Annexure R-1) is applicable only when allotment letter is issued to any allottee and he deposited the 15% amount to complete 25% cost of the plot by accepting the allotment letter and possession could not be delivered due to the following reasons. I. Where HUDA could not deliver the possession of plots due to litigation pending in the court by the original land owners.
II. Where the plot is not actually available on the ground as per layout plan.
III. Where the land is under unauthorized encroachment which cannot be easily removed and HUDA can not deliver the possession.
But in the instant case, no such condition is applicable as explained in fore-going para No. 2 above and moreover, the allotment letter was not issued to the petitioner because the bid was rejected timely prior to issue of the allotment letter. The petitioner would have become entitled for allotment of alternative plot in case the allotment letter had been issued and 15% amount of the bid money deposited to complete 25% of the cost of the plot."
6. In the written statement filed by the respondents the stand taken is that the representation filed by the petitioner has rightly been rejected vide order dated 20.2.2007 (P-12) because after holding the auction the mistake came to surface as it was found that the site in question had already been allotted in name of one [ENTITY] on 20.2.2003 itself. Accordingly, the site was withdrawn prior to issuance of allotment letter and auction was not finalized in favour of the petitioner. The petitioner has already been refunded 10% amount of earnest money alongwith interest @ 9% per annum from the date of deposit till the date of refund, vide Cheque No. 451721, dated 17.12.2004. It has also been asserted that as per Condition No. 5 of the auction, the presiding officer is empowered to accept or reject any bid or to withdraw any property from auction without assigning any reason.
7. Having heard the learned counsel, we are of the considered view that there is no merit in the instant petition and the same is liable to be dismissed. The matter is not res integra. A similar controversy came up for consideration before us in the case of [PRECEDENT], decided on 4.11.2008). In that case, despite the fact that the petitioner gave the highest bid of the site in question, the presiding officer refused to auction the site by exercising his power conferred under the terms and conditions of the auction. After considering the matter in detail we came to the conclusion that mere participation in the auction and depositing of the bid amount does not vest any right to claim that the highest bidder must get the site in question. In that case, in terms of clause (iii) of the terms and conditions of the advertisement it was clarified that the Chairman, Improvement Trust, Bathinda, was fully entitled to cancel the auction. In pursuance to the afore-mentioned clause, the Trust has passed a resolution and rejected the auction because the bid price of the sites was found to be too less than the sites auctioned earlier. After considering various judgments of Hon'ble the Supreme Court in the cases of [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; [PRECEDENT]; and [PRECEDENT], we have observed that the petitioner merely because he was highest bidder, could acquire any right to claim that the auction be concluded in his favour and that the High Court would not enjoy jurisdiction under [SECTION] of the [ACT] to entertain challenge to the cancellation of an auction held by a public body where the prime consideration is fairness and generation of public revenue. In that regard reliance was placed on the judgment of Hon'ble the Supreme in the case of [PRECEDENT] (supra) wherein their Lordships' held that the judicial review would apply to the exercise of contractual power by governmental bodies only in order to prevent arbitrariness and favouritism and the power is tampered with inherent limitation. The Government being the guardian of the finances of the State is expected to protect its financial interests, which include the right to refuse the lowest tender although the principles laid down in [SECTION] of the [ACT] have to be complied with. It was further held that if the power has been exercised for any collateral purposes then such an order may have to be struck down and to that extent judicial restraint in administrative action is imperative because Court does not sit as a Court of appeal and it is only to review the manner in which the decision was made. The Court does not also have any expertise to correct the administrative decision. Accordingly we have dismissed the petition.
8. When the facts of the present case are considered, we find that though the petitioner was the highest bidder in the open auction held on 29.7.2004 and he has also deposited 10% earnest money, still he cannot stake his claim for allotment of site in question or any other alternative site because no letter of allotment was issued to him and it was realized by the respondent authorities that the site was mistakenly put to auction, inasmuch as, the same had already been allotted to someone else, namely, [ENTITY] in an earlier auction held on 20.2.2003. Therefore, the petitioner does not have any right to claim allotment of site. Moreover, it is conceded position that the 10% amount of earnest money deposited by the petitioner has already been refunded to him alongwith interest @ 9% per annum on 17.12.2004.
9. We are not impressed with the argument raised by learned counsel for the petitioner that since the petitioner has deposited the 10% earnest money, therefore, alternative site is liable to be allotted to him. In that regard, learned counsel has placed reliance and cited the case of one Shri [ENTITY], wherein under similar circumstances the respondent authorities have allotted alternative plot to Shri [ENTITY] while considering his representation in pursuance to the direction given by this Court in [CASE NUMBER] ([ENTITY] v. HUDA and others, decided on 18.10.2001). Shri [ENTITY] was allotted a preferential plot in Mandi Township, Kaithal. However, at a later stage it was found that the said plot was already sold to some one else. [ENTITY] filed [CASE NUMBER] in this Court, which was disposed of by directing the respondents to decide his representation. While deciding the representation allotment of alternative plot was made. At the cost of repetition we again reiterate that no such direction could be issued by this Court in favour of the petitioner because no legal right has accrued to him in view of above mentioned catena of judgments of Hon'ble the Supreme Court. Accordingly, the argument raised by the learned counsel is hereby rejected.
10. For the reasons aforementioned, this petition fails and the same is dismissed.
([ENTITY]) JUDGE ([ENTITY]) JUDGE November 18, 2008 Pkapoor