IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7285 of 2007 ASHOK KUMAR GUPTA Versus NAGAR PARISHAD,SIWAN & ORS ----------- For the Petitioner: Mr. Rajendra Narain,Advocate Mr. S.K.Srivastava, Advocate For Nagar Parishad: Mr. Ravi Bhushan Verma, Advocate For Respondent No.6:Mr. Y.V.Giri,Sr.Advocate Mr. Ashis Giri, Advocate,& Mr. Ranjeet Kumar, Advocate. ---------- 9 9 .9.2008 Petitioner initially filed the writ application for quashing of the order/Parwana for settlement made for the year 2007-2008 dated 28.3.2007 contained in annexure-6. The Parwana was for realization of service fee from all the commercial vehicles, temporary Gumtis and Thelas from the property of the respondent Nagar Parishad Siwan. The primary reason for seeking quashing of this Parwana is on the ground that 15.8.2005 the petitioner was entrusted with the responsibility of the same kind by virtue of an order passed in his favour which would be evident from perusal of annexure-1. Subsequently on a representation made by the petitioner on completion of the earlier period of settlement a so called decision was taken by the Zila Parishad to extend the settlement by another three years on same terms. This according to the petitioner is his substantive right to challenge the new arrangement made through order contained in annexure-6. Petitioner has brought certain materials to show that some kind of decision for extending the initial settlement was - 2 - made in favour of the petitioner in the year 2005was extended by another three years. But this decision only remained on paper and no communication was ever made with the petitioner conferring any right in him. In otherwords mere decision on file without communication of the same to the petitioner did not create a right of settlement for three years based on the initial settlement of one year. Keeping the fact in mind and also the issue that any Bandobasti or settlement ought to be made from year to year, by a open bid, so that the meager resources of Nagar Parishad could be augmented to meet the financial crunch which includes payment of salary of permanent employees whose non-payment has led to many litigations before the High Court, the Nagar Parishad did no wrong in issuing public notice in question for fresh settlement. During the pendency of the writ application I.A. No. 1882 of 2008 was filed by the petitioner to restrain the respondents from holding a public auction for fresh settlement in terms of the notice dated 15.3.2008 contained in annexure-8. The Court was informed by learned counsel appearing on behalf of the Siwan Nagar Parishad that since the auction was already scheduled for the day no stay ought to be granted. It was in this background the Court allowed holding of the auction with a direction upon the respondent that final decision with regard to the settlement will not be taken and the competitive bid will be furnished to the Court in a sealed envelope. The auction for settlement for the year, 2008-2009 was held. - 3 - Subsequently on 15.4.2008 the Court was informed that bidding, in fact, had taken place on 26th March, 2008 instead of 28th March, 2008 as informed by learned counsel for the respondent. Not only the Court but even the petitioner felt that there was a foul play in the auction held in this regard. The Court decided to issue a suo motu contempt against respondent no.4 which was registered as MJC No. 1121 of 2008. This contempt application was separately heard. By order dated 13.8.2008 the contempt proceeding was dropped on the Court being satisfied that there was no intent or purpose to mislead the Court about the date of auction. Nothing more need to be recorded on that issue in this part of the order. The settlement in favour of the highest bidder came to be made in the light of an order passed in this regard on 30.6.2008 for the reasons indicated therein and the settlement was allowed. Petitioner has challenged this settlement made in favour of one Sita Ram Chaudhary who was the highest bidder. This time the bidding for the settlement of Nagar Parishad is of Rs. 7,00900/-. It may not be very relevant for adjudication of the issue raised in the writ application but the Court does notice the fact that the petitioner had initially got the settlement in his favour at Rs. 1,11344/- and he wanted this amount to remain so for the next three years as was the original relief and prayer made in the writ application. Learned counsel for the petitioner seriously - 4 - challenges the settlement made in favour of the newly added respondent no.6. He wants quashing of the order of settlement dated 26.3.2008 contained in annexure-10 appended to I. A.No. 4022 of 2008. He tried to impress upon the Court that the auction held on 26.3.2008 was a rigged auction. The respondents have deliberately misguided the Court by making a statement that auction was due only on 28th March, 2008. There has been violation of the terms of the advertisement and the highest bidder i e. the respondent no.6 has been given some reliefs which would be evident from the record itself. With regard to the first submission that the Court was misled about the date of auction it is recorded that the Court is satisfied that open auction was held on 26th March, 2008 in terms of the advertisement issued on 15.3.2008. The notice itself had given three tentative dates for holding of auction and 26th March, 2008 was one of the dates. Since there was communication gap this fact was not properly brought to the notice of the Court by the counsel. The Court however does record that a large number of persons participated in the auction surprisingly about which the petitioner pleads ignorance, when the public notice was issued on 15.3.2008 Petitioner’s next contention is that in terms of the notice dated 15.3.2008 the bidders had to deposit a bank draft of the minimum bid amount but the respondent no.6 had deposited a cheque instead of bank draft. Not only this he deposited the - 5 - balance amount of bid late in the evening after the office hours. This according to the petitioner is a serious breach and aberration why the settlement should be quashed. Learned counsel appearing on behalf of the respondent no.6 however disputes the position. He submits that there was no occasion for the petitioner to challenge the present settlement because he did not participate in the auction at any point of time. He was merely interested in getting some kind of relief from the Court rather than being a serious contender to the aforesaid settlement which was scheduled in terms of the notice dated 15.3.2008 and was widely known to all. He further submits that there was no breach of the advertisement. Respondent no.6 had deposited a bank draft. Even if it is accepted that there is some confusion whether the initial security was a bank draft or a cheque, a cheque is as valid legal tender more so if the cheque had been enchased and had not bounced on presentation. The objection raised by the petitioner is hyper technical raised with the object of digging holes in the settlement rather than establish any serious infirmity or breach of advertisement. He also submits that the money was deposited by him with the respondents and the process took time because there were other tenders for which bid had been held and all the money had been accepted by the respondents while the office was still working. It is only after deposit of the entire amount on the day that settlement/Parwana dated 26.3.2008 for the year, 2008-2009 contained in annexure-10 came to be - 6 - issued. After taking into consideration the submissions made on behalf of the parties, the Court finds no serious infirmity in the auction which has been held by Nagar Parishad in terms of which Parwana dated 26.3.2008 came to be issued. Even if it is taken for the argument sake which is seriously disputed by the private respondent no.6 that he had deposited a cheque in lieu of a draft then the Court is of the opinion that it not a serious breach of the advertisement. More so when it is not in dispute that the cheque in question has already been enchased and amount credited in the account of the Zila Parishad, Siwan the day it was presented. The Court, in fact, opines that the petitioner was trying to hang to a benefit which he got way back in the year, 2005 for a paltry sum of a lakh and odd and he wanted to protect his territory through Court and legal jugglery rather than participating in the open auction. Petitioner has no case and there is no merit in the writ application both with regard to initial prayer of continuing his initial settlement for three years on a decision only taken on file and the subsequent settlement which has been made in favour of respondent no.6 contained in annexure-10 to the I.A. No. 4022 of 2008. This writ application is dismissed. RPS (Ajay Kumar Tripathi, J.)