1 LPA NO. 93 of 2009 PUNJAB AND HARYANA HIGH COURT, CHANDIGARH. *** LPA NO. 93 of 2009 Date of decision: February 10, 2010. *** Sadhu Ram through Rajesh Kumar Vs. State of Haryana and others. LPA No. 136 of 2009 *** Sohan Lal through Jagmal Singh Versus State of State and others. LPA No. 121 of 2009 The Ishwarwal Coop Society through Jagmal Singh Vs. The State of Haryana and others. *** CORAM: Hon'ble Mr. Justice Mukul Mudgal, Chief Justice and Hon'ble Mr. Justice Jasbir Singh. *** 1.Whether Reporters of local papers may be allowed to see the judgment ? 2.Whether to be referred to the Reporters or not ? 3.Whether the judgment should be reported in the Digest? *** Present: Shri H.S.Sawhney, Sr.Advocate, with Shri B.S.Giri, Advocate, for the appellant in all the three L.P.As. Shri Anil Rathee, Addl: A.G.Haryana, for the respondents. *** Mukul Mudgal, CJ (Oral) JUDGMENT 1. By this common judgment, we shall dispose of all the aforesaid three L.P.As because the question of law and facts involved in all these appeals, as also the parties are similar. 2. In all these appeals, the appellants have questioned the legality of judgment dated 2.12.2008 passed by learned Single Judge of this Court, whereby the learned Single Judge has disposed of the writ petitions with an 2 LPA NO. 93 of 2009 observation that the Scheme 2001, so far it allots the routes on the basis of bid, is held to be bad and is quashed, however, the State of Haryana shall formulate a new policy within three months from today and the buses operating on the basis of bid may continue to operate. Instead of respondent-state, the petitioners in whose favour the order was passed, filed the instant L.P.As. 3. We have heard learned counsel for the parties and with their assistance perused the record. 4 It is not disputed by either side that the appellants operated the buses till the pronouncement of impugned order dated 2.12.2008. It is also not disputed that the appellants plied their buses for a period of six years as the routes permits were allotted in the year 2002. It is further the admitted case of the parties that the permits were issued for five years, subject to renewal. The operative portion of the judgment by which the appellants are aggrieved, reads as under:- ''Therefore, it is held that 2001 Scheme, so far it allots the routes on the basis of bid, is held to be bad and is quashed. The State of Haryana shall formulate a new policy within three months from today. Till then on the routes where the buses are operating on the basis of bid, may continue to operate. It is further held that if because of stay granted by this Court or otherwise, bid money has not been paid, taking into consideration long pendency of the writ petitions, bid money may be deposited by the bus operators in two instalments within six months. Otherwise, the State shall be at liberty to recover the bid money as arrears of land revenue, in accordance with law. The State shall also beat liberty to 3 LPA NO. 93 of 2009 construe non-deposit of bid money as disability for renewal of the permit for operating buses on the notified routes. However, in case an undertaking is furnished by the bus operator within one month from today that he shall deposit the amount of bid money in two instalments within six months, such a disability shall not be construed against the bus operator and their application for renewal of the permit shall be considered in accordance with law.'' 5. It is admitted case that the petitioners (appellant in these appeals) who obtained permits on account of higher bid, operated the buses for a period of six years on the basis of the bids and after enjoying the benefit of permits for six years sought to challenge the said bid amount and succeeded before the learned Single Judge. Learned Single Judge quashed the bid holding the same to be bad in law and directed the respondent-State to formulate a new scheme and indisputably even till today the appellants are operating the buses after depositing the bid money. 6. Learned counsel for the appellant contended that the realisation of bid money from 3.12.2002 is not justified as the bid money has been held to be illegal , therefore, the bid money be returned to the operators. 7. Learned Single Judge in judgment dated 2.12.2008 has clearly held as under:- '' Having held the allotment of permits on the basis of bid to be bad, second limb of the argument that the operators, who had obtained route permits on the basis of the bid, be absolved of their financial liability to pay the bid amount, is to be dealt with. It has been submitted that since awarding of the permits on the basis of bid was bad 4 LPA NO. 93 of 2009 in law, therefore, those operators/ petitioners, who have obtained permits on the basis of bid, cannot be made to pay the bid amount. This argument is fallacious. In the present case, operators, knowing fully well, for promotion of their business, had made the bid and obtained the permits. To participate in the bid was their conscious decision. They had the choice not to participate in the bid. Once, knowing fully well the terms and conditions spelt out in the scheme, they came forward to bid and obtain the permits, they cannot now turn their back and say that having ousted others from the process of bidding, they will have the cake and eat it too. There was no compulsion on their part to participate in the bid. The petitioners were all along aware that they have to pay the bid amount. They calculated and computed the cost to be incurred by them for plying the vehicles taking into account the bid money. They have devised their margins of profits. Therefore, it is too naive on their part to state that they will not pay the bid amount. Petitioners were in the business of providing transport services for profit. They being entrepreneurs, knowing fully well the consequences, had made the bid. They had exploited the situation to their advantage by making bid and ousted others from the competition. Had it been known to others that later bid is to be held bad and they do not have to pay the amount, they would have also acted in the fashion, in which petitioners intend to do. Those, who had not participated in the bid or had given the lower bid and made a quit from the bidding process, were those citizens, who wanted to adhere to the rule of law. Therefore, petitioners cannot be permitted to say that having obtained the permits on the basis of bid, simply because the scheme was bad, they are absolved of their responsibility to pay the bid amount. If the argument of the counsel for the petitioners is accepted that State cannot enrich itself by 5 LPA NO. 93 of 2009 levying bid amount, petitioners can also not enrich themselves by participating in the bidding process and then later to run away from their financial commitment. This view is also supported by a Division Bench judgment of this Court rendered in ‘M/s Trishul Industries v. State of Haryana and another’ 2006 (4) RCR (Civil) 367. Counsel for the petitioners, in order to support his contention, has relied upon ‘Mafatlal Industries Ltd. and others v. Union of India and others’ 1997 (5) SCC 536, which, in the facts and circumstances of the present case, is not attracted. Therefore, it is held that the grant of the permits on the basis of bid cannot be sustained. However, those, who participated in the bidding process, cannot escape from paying the amount of bidding, which they are bound to pay.'' 8. In our view this submission of the counsel for the appellants is not tenable. Rather it is unjust and contrary in the eyes of law in view of the fact that appellants had obtained the permit only because of the fact that they were the highest bidders. In order to strengthen his submission, the learned counsel for the appellants has relied upon para 5 of the decision in Nathpa Jhakri Joint Venture Vs. State of H.P. And others- (2000) 3 Supreme Court Cases 319- which is reproduced as under:- ''Learned counsel drew our attention to the decision in a case under the Bihar Sales Tax Act and the earlier decision under the Orissa Sales Tax Act, but in view of the decision of this Court in Steel Authority of India it is wholly unnecessary to refer to the same. Following the decision in Steel Authority of India, we allow this writ petition and quashing the aforesaid provisions as being 6 LPA NO. 93 of 2009 beyond the purview of the Himachal Pradesh State Legislature. Such amount as has been collected from the appellant under provisions of Section 12-A read with Rule 31-A shall forthwith be refunded by the State. If any amount has been deposited in any bank pursuant to orders passed by this Court or the High Court, it shall be refunded to the appellant with interest accruing thereon. In the circumstances of the case, there shall be no orders as to costs''. 9. In our view the case law cited by learned counsel for the appellant is not applicable to the facts of the case in hand. In the cited case the Hon'ble Supreme Court has observed that the amount collected from the appellant has to be refunded under the provisions of Section 12-A read with Rule 31-A of HP General Sales Tax Act, in respect of transfer of goods involved in work contract. Such a situation cannot be equated with the present cases where the appellants, after having availed the benefits of the permits under terms of allotment which includes the bid amount sought to challenge the same. The other judgment relied upon by learned counsel for the appellant is Belapur Sugar and Allied Industries Ltd. Versus Collector of Central Excise, Aurangabad-AIR 1999 SC 1692 In para No.11 of the aforesaid judgment it is observed as under:- ''Next submission for the revenue is that at-least those assesses who have cleared and paid the excise duty, as the appellant has done, it cannot claim benefit under the amended Notification. We do not find any merit even in this submissions. When Notification granted exemption to such factories which produced in excess of average production and such assessee if 7 LPA NO. 93 of 2009 otherwise is entitled for such exemption it cannot be defeated merely on the ground that such factory has already paid the duty for the period in question, Even if duty is paid under ignorance of law or otherwise, if by subsequent legislation or valid Notifications the obligation to pay the duty is withdrawn, it cannot be refused since he has already paid the duty. 10. In the aforesaid case it has been held that if duty paid is shown to be not leviable or entitled for rebate, the revenue has to refund, adjust, credit such amount, to the assessee, as the case may be. 11. The above position of law does not apply to the facts of the cases in hand. The above cited case pertained to the payment of excise duty and it was not the case where the appellant had obtained something in an auction and then challenged it. The appellants having availed the benefit of bid are estopped from claiming refund of the amount paid on the ground that the learned single Judge has quashed the bid being bad in the eyes of law. Thus the judgment relied upon by learned counsel in Mafatlal Industries Ltd. and others Versus Union of India and others- (1997) 5 Supreme Court Cases 536 and in particular view taken at page 707 is not applicable to the facts of the present cases. Since, the State has not chosen to challenge the judgment delivered by the learned Single Judge, we refrain ourselves from commenting upon further in the matter. The principle laid down in the above cited judgments cannot be applied to the facts of the instant appeals because the appellants in these appeals have fully availed the benefit of the auction by depositing the bid amount and have operated the routes pursuant to the grant of permits. 8 LPA NO. 93 of 2009 12. As a sequel to our above discussion, all the aforesaid appeals fail and are dismissed with costs of Rs.20,000/- each to be deposited with the High Court Legal Service Committee not later than four weeks from today. (Mukul Mudgal) Chief Justice (Jasbir Singh) February 10, 2010 Judge Malik