IN THE HIGH COURT OF JUDICATURE' AT BILASPUR (CHHATI'ISGARH) / W. P. NO.?_2?_3OF 2005 PETITIONER ” Ashok Singh, S/o Shri C. D. Singh, aged about 35 years, Occupation-Business, presently Working as ‘ Contractor, R/o Thanganpara, Ambikapur, Dist. Surguja .(Chhattisgarh). VERSUS State of Chhattisgarh through Secretary, Public Works Department, Mantralaya, Dau Kalyan Singh Bhawan, Raipur District Raipur [Chhattisgarh] [2. Executive Engineer, Pubiic Works Department, Division No.1, Ambikapur, District Surguja (Chhattisgarh). a i WRIT PETITION UNDER ARTICLE 226 227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN NATURE OF CERTIORARI, MANDAMUS, PROHIBITION AND OTHER SUITABLE WRIT" OR WRITS‘ DIRECTION OR DIRECTIONS, ORDER OR ORDERS: l J, / y HIN GH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH Writ Petition No.2g23 of 2005 Ashok Singh — Versus - State of Chhattisgarh & others Pos'rN FOR ORDER ON 22M? ‘AUGus'r zoos ‘J \’ “‘m\ f Sd/- J L.C.Bhadoo Judge ig—a-2oos @ HIGH COURT OF JUDICATURE AT BILAEPUR, CHHATTI$GARH WritM Petition No.2223 of 2005 Ashok Siugh ~ Versus - State of Chhattisgarh 82; others Present: - Mr. Manindra Shrivastava, Sr. Advocate with Shri Amn‘to Das, Advacatc. Mr. Y.S. Thakur, Govt. Advocate. For the petiticncr. For the State] respondent No.1 65 2. u M Before Hon’bie Mr. L.C. Bhadoo J. ORDER {Passed on 12 ND August, 2005) 1. The petitioner, who is a civil contractor, has preferred this Writ petition under Article 226/227 of the Constitution of India questioning the legality 8n propriety of communication dated 17.5.2005 (Annexure P—4) issued by respondent No.2— Exgcutive Engineer. P.W.D. Division No.1. Ambikapur, Disuict Sarguja Whamby thc petitioner has been asked to make good the loss including interest to the tune of Rs. 15.19.000/- within a period of seven days, failing which his deposits and amount due to him under other contracts shall be adjusted against the said amount. . The circumstances under which the petitioner has been forced to file this petition are that the petitioner took part in an auction proceeding condncted on 31.12.1997 for award of contract for recovexy of toll-tax in Iespect of Malian, Maren 8r. Pangan bridges at Kilometers 48/8, 45/4 & 110/5 on Ambikapur-Dhanbar- Varanasi road. As against thc GOVcmmcnt oE—sct price of Rs. 18,70,000/— the petitioner o emd a bid ofRs.26,60,000/- and the said bid was considered to be the highest. However, thereaikr, the petitioner did not proceed to take confxact nor did he enter into any agreement, there&re, the respondents before xe-auctiom'ng the right to mcover the toll-tax issued notices to the petitianer for entering into agreement but the petitioner failed to enter into the agxeement, therefore, the respondents hadv re-auctioned the said right to collect the toll-tax in which the highest bid was of Rs.17,11,000/- and the contract has been awaxded to another contractor namely Shri Parmeshwar Singh. However, on account of that the department had sudered a loss of Rs.9,49,000/— and interest thereon and ultimately, the secun’ty deposit of petitioner to the tune of Rs.1,05,833/- has been folfeitcd and vide impugned nou'cc he has been asked to deposit remaining loss of Rs.15,19,000/- after deducting the security deposit. 3. The case of the petih'oner is that since the petitioner did not enter into any agreement, his security amount has already been forfeited and on account of re‘auction of right to collect toll-tax the respondents would have received the less amount but the dimerence amount between his bid and pie-auction bid cannot be recovered dam the petitioner under any law. As such; the impugned notice is illegal. Return has been med on behalf of the respondents in which it has been mentioned that knowing fully well and being aware of the terms &. conditions of the bid the petitioner participated in the auction proceedings, his bid was accepted being the highest bid i.c. Rs. 26,60,000/-, but thcrcafhcr, the petitioner failed to execute the agreement, as a result of which, perforce the mspondent had to re~auction the right to collect toll—tax and same bid was left for Rs.,11,000/~ due to which the mepondents swemd a loss of Rs.9,49,000/- Le. the di§erence ammmt of second bid 8n peu'tioner’s bid, a per farms & conditions of tender the respondents entitled to recover the said amou from the petitioner. 5, I have heard learned counsel for the yartice. 6. From the above facts, it is admitted sition that the petitioner backed out &om the bid befom entering into the conttact/ agreement to collect he to-tax, therefom. the question or determination before this Court is that when the petitioner backed out n‘om his bid and did not enter into any contract/agreement, in the circumstance, the tespondents are x entitled to Iecover the din‘erence amount of Rs.9,49,000/~ between the petitioner’s bid and rte-auctioned bid plus interest amount. In this connection, the Constitution Bench of Hon'ble Apex Court while dealing with‘the similar situation in the matter of K.P.Chowdhry V State of Madhya Prndeah an other: moor-ted in AIR 1967 Supreme Court 203 held that: “in View of Art. 229 (1) of the Constitution. there can be no implied contract between the Govemment and any other person, the reason being that if such an implied contract between Government and any other person were allowed; that would in eh‘ect make Art. 299 (1) useless, for then a person who had a contmct with Government which was not executed at all in the 17 s am nt po t ll f manner pmvidcd in Art. 299 (1) could gct away by saying that an implied contract may be inferred by the facts and circumstances of a particular c&se. Further if the contract bewveen the Government and another Femon is not in campliame with Art. 299 (1), it woum be no contract at all and could not be enforced either by the Government or by the other person as a contract. " In the abovc case, a forest contractor, agreed to bid for certain contracts in pursuance of the notificau'on issued by the Divisional Forest Onicer, for auction of various contracts in that division. The conditions of auction specified inter alia (1) that any bidder had to Sign a sale notice in token of his agreement to abide by the Divisional Forest Oncer were subject to the sanction of the competent authority and the bidder was bound by his bid until orders were passed by the competent authority; and (3) if the successful bidder failed to pay the amount of consideration or to complete the formalities, the amnest money deposited by him was to be forfeited “to Government and the connect was to be xe- aucn'oned at the risk of the bidder and any dedciency occurring was to be recoverable mm the bidder as arrears of laud revenue. The contractor took part in the auction and successfully bid for certain contracts, but however, he failed to execute the agreement, therefore, the contracts were again auctioned in which less amount was received and the action was initiated for same manner as anears of land revenue. Since there was no contract, money could not be recovered under Clause (B) of Section 155 of the Land Revenue Code. The same pn'nciple applies in the pnesent case, as the petitioner had not entered into any contract with the lespondent, therefore, no amount is due against the petiiioner under any conuact. Similarly, the provisions of Section 15‘5 of the Land Revenue Code is also not amactell in the pxesent case, as the case of the petitioner 1's not covered under Clause (B) of Section 155 of the Land Revenue Code. As such, on'the basis of terms 63 conditions of the tender the respondents are not entitled to Iecover the dinerence amount and intelest thereon i.e. Rs.15,19,000/— from the petitioner and the impugned notice is without jurisdiction competence. K ‘ Rfaghank In thc msult, for thc fomgoing masons, I‘am of the opinion that the petition of the petitioner deserves to be allowed and the notice impugned is liable to be quashed. Accordingly, the peu'tion is allowed and the impugned notice dated I7.5.2005 (Annexum P-4) is hewby quashed. ‘9' Sd/- L.C.Bhadoo Judge