IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.1483 of 2007 Date of decision : December 22, 2010 Satija Rajesh N. …Petitioner. Versus State of H.P. and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. R.L. Sood, Senior Advocate, with Mr. Arjun Lall, Advocate. For the Respondents : Mr. Vikas Rathore, Deputy Advocate General, for respondent No.1. Mr. Bhupinder Gupta, Senior Advocate, with Mr. Neeraj Gupta, Advocate, for respondent No.2. Mr. Ajay Mohan Goel, Advocate, for respondents No.3 and 4. Ms Charu Gupta, Advocate, for respondent No.5. Surjit Singh, Judge(Oral) Petitioner Shri Satija Rajesh N. has filed the present writ petition, under Article 226 of the Constitution of India, seeking quashing of acceptance of bid of respondents No.3 and 4, namely Smt. Kirti Devi and Shri Sunil Kumar, by respondent No.2, i.e. Himachal Pradesh Urban Development Authority (HIMUDA), in respect of lease of a partly built structure of Cafetaria, standing on land measuring 331.80 square metres, situate in Shimla Town and also for cancellation of lease deed executed in favour of the said Whether reporters of the local papers may be allowed to see the judgment? …2… respondent, by respondent No.2, on the ground of malafides, bordering on fraud. 2. Respondent No.2, in the year 2006, vide advertisement Annexure PB, which appeared in several newspapers, including Dainik Bhaskar, invited bids for leasing out the above-described property, for a period of 99 years. As per advertisement, bids, in sealed cover, together with money equivalent to 10 per cent of the bid money, were required to be submitted, on or before 14th September, 2006, by 5 p.m. 3. Petitioner and proforma-respondent No.6 M/s Tripti Associates submitted their bids, in sealed covers, together with demand drafts of money, representing 10 per cent of the bid money. Petitioner and said proforma- respondent No.6 allegedly remained present in the office of Administrative Officer of respondent No.2 upto 5.30 p.m., on 14th September, 2006 and by that time only two sealed covers, containing bids, i.e. of the petitioner and proforma- respondent No.6 had been received in the office of respondent No.2, as confirmed to them by the Administrative Officer of respondent No.2. 4. As per advertisement, sealed covers, containing bids, were to be opened on the next following day, i.e. 15th September, 2006, at 2 p.m. Petitioner and the representative of proforma-respondent No.6, and also respondents No.3 and 4 were present, at the time of the opening of the bids. In addition to the two bids of the …3… petitioner and proforma-respondent No.6, there was a third bid, allegedly made by respondents No.3 and 4. Petitioner and proforma-respondent No.6 pointed out that only two bids had been submitted by the stipulated time on 14th September, 2006 and, therefore, the third bid of respondents No.3 and 4 was not to be considered. Despite their objections, all the three sealed covers were opened and bid of respondents No.3 and 4, being highest, was accepted. 5. Petitioner and proforma-respondent No.6 immediately submitted their complaints/representations/ protest petitions, copies whereof are Annexures PC and PD. These were submitted to the Chief Executive Officer-cum- Secretary of respondent No.2. Shri Y.R. Sharma was the Chief Executive Officer-cum-Secretary of respondent No.2, at that time. He has been impleaded as respondent No.5, by name. On the next following day, i.e. on 16th September, 2006, another complaint/protest petition Annexure PE was submitted to the Chief Executive Officer-cum-Secretary of respondent No.2. 6. Respondent No.5, in his capacity as Chief Executive Officer-cum-Secretary of respondent No.2, responded to the aforesaid complaint-cum-protest petitions, on 26th December, 2006, vide Annexure PF. In this response, it was stated that respondents No.3 and 4 wanted to deposit money, representing 10 per cent of the bid money, to the Cashier in his office at 3.45 p.m., the Cashier …4… took time upto 4.15 p.m. to count the cash and to issue receipt and thereafter the bid, in a sealed cover, was presented to him, in his office at 4.25 p.m. He further stated that soon after the submission of sealed cover, containing the bid of respondents No.3 and 4, he received a message that he was required by Hon’ble Chief Minister in his office. Therefore, he immediately left his office for Chief Minister’s office and returned at 7 p.m. and then handed over the sealed cover to the Administrative Officer of respondent No.2. 7. Petitioner then made representation to the Chief Minister, who, as per submission of the petitioner’s counsel, happened to be the Chairman of respondent No.2, because of his holding the portfolio of Housing Department. There was no response. That representation is Annexure PM. 8. Petitioner again made another representation to respondent No.5, in his official capacity on 15th January, 2007, copy Annexure PK, in which it was stated that site should not be allotted or leased out to respondents No.3 and 4, as it was intended to file a case in the High Court, after obtaining copies of requisite documents. In September 2007, or say about a year after the opening of the bids, the present writ petition was filed. 9. In the writ petition, it is alleged that no bid had been submitted by respondents No.3 and 4, by the stipulated date and the time and that cover containing the bid of respondents No.3 and 4 had been slipped in, after the …5… expiry of the date and time stipulated for submission of bids. This, according to the petitioner, was done with a view to helping respondents No.3 and 4, who are alleged to be the wife and the nephew of a sitting MLA of ruling party from Shimla Constituency. It is alleged that entries in the Cash Book had been manipulated to create evidence that bid had been submitted on 14th September, 2006, before 5 p.m. 10. Respondent No.2, in its reply, admits that the last date for submission of bids was 14th September, 2006 and the time was upto 5 p.m. It has been stated that the sealed cover, containing bid of respondents No.3 and 4, had been received by respondent No.5 at 4.25 p.m., as stated by respondent No.5 in his response Annexure PF, which is dated 26th December, 2006. Respondent No.5 has filed his affidavit, in which the plea taken is the same, which was conveyed to the petitioner, vide communication dated 26th December, 2006, copy Annexure PF. 11. So far as respondents No.3 and 4 are concerned, they have stated in their reply that sealed cover, containing bid, had been submitted to respondent No.2, before 5 p.m. In Para-8 it has been specifically stated that the bid had been submitted to Chief Executive Officer-cum-Secretary of respondent No.2, or say respondent No.5. They have denied that there was any hanky-panky in the submission of their bid, the acceptance of their bid or the leasing out of the property, in question, to them. …6… 12. It may be stated that the lease deed was executed between respondent No.2, on one side and respondents No.3 and 4 on the other, on 23rd December, 2006 and was registered with the Registrar of Documents on 30th December, 2006. 13. Some preliminary issues have also been raised. Petitioner is alleged to have raised disputed questions of fact, which cannot be determined unless there is full-fledged trial and, therefore, remedy of writ petition is not available to the petitioner. Also, it is alleged that the petitioner is guilty of delay and latches. Petitioner’s attorney Shri Ashish Satija, through whom the petition has been filed, is alleged to have no authority to file the petition. 14. I have heard the learned counsel for the parties and gone through the record. 15. Petitioner and proforma-respondent No.6 very categorically stated in their representations Annexures PC and PD, submitted to respondent No.5 on the very day of the opening of the bids, that they had been in the office of the Administrative Officer of respondent No.2 till 5.30 p.m., on the previous day, i.e. on 14th September, 2006 and they were told by the Administrative Officer that only two bids, one of the petitioner and the other of proforma-respondent No.6, had been received, by that time. Though, the respondents, in their replies, have denied this allegation, yet it is clear from an overall reading of their replies as also the response Annexure PK, which was given on …7… 26th December, 2006, by respondent NO.5 to the complaint- cum-representation Annexure PC of the petitioner, that they do not deny that the bid of respondents No.3 and 4 was not with the Administrative Officer by 5.30 p.m. nor had it been entered in the relevant register, which has been produced in the Court. Copy of relevant folio is Ex. R-2/7. 16. Pivotal question, upon the answer to which, fate of the case hinges is, whether the plea taken by respondent No.5, who was working as Chief Executive Officer-cum- Secretary of respondent No.2., at the relevant time, is believable. 17. Respondent No.5, as already noticed, has taken the plea that the cover, containing the bid of respondents No.3 and 4, had been submitted to him on 4.25 p.m. and that before that respondents No.3 and 4 had deposited the cash with the Cashier, who took about half an hour to count the same and to issue the receipt. Respondent No.5 was holding a very high position, virtually the highest on account of being Chief Executive Officer in the establishment of respondent No.2. Advertisement, copy Annexure PB, reads that the bids, in sealed covers, were required to be submitted in his office, which, in my considered view, definitely means that these were to be submitted not to him, but someone subordinate to him and authorized to receive the same. In any case, it is not denied that bids were being delivered to the Administrative Officer, working under respondent No.5, who had been getting the …8… same entered in a register from his subordinates. Therefore, there was hardly any occasion for respondents No.3 and 4 to have gone straightway to the office of respondent No.5, who was the head of the institution, to submit their bid. This apart, even if respondents No.3 and 4 had gone to the office of respondent No.5 to deliver the bid papers, as claimed by respondent No.5, why should have he retained the same with him, when he had authorized the Administrative Officer to receive the bids and to enter them in the relevant register. He was supposed to have sent respondents No.3 and 4 to his Administrative Officer for delivering the bid cover to him or in any case if he considered respondents No.3 and 4 to be important persons, he should have called the Administrative Officer and handed over the bid cover to him, before leaving for the office of the Chief Minister. Office rooms of the Chief Executive Officer-cum-Secretary of respondent No.2. and the Administrative Officer are admitted to be on the same floor, in the same building, and the walking distance between the two rooms is stated to be three-four minutes. 18. Also, where was the occasion for respondent No.5 to know everything about the movements of respondents No.3 and 4 in his office. He has taken the plea that respondents No.3 and 4 went to the Cashier at 3.45 p.m., Cashier took time upto 4.15 p.m. to count the cash and thereafter at 4.25 p.m. sealed cover, containing the bid and documents attached therewith was handed over to him. …9… 19. Plea taken by respondent No.5, though sworn by him on affidavit, is not supported by any other official of respondent No.2. Affidavits of the persons, holding the office of Administrative Officer of respondent No.2, and the concerned Clerk, who used to enter the sealed covers in the relevant register, have not been submitted. 20. Petitioner and proforma-respondent No.6, on the very day of the opening of the bids, made the allegation that bid of respondents No.3 and 4 was not there upto 5.30 p.m. on 14th September, 2006. They made another complaint to this effect on 16th September, 2006. Respondent No.5 took more than three months to respond to the aforesaid complaints/ representations of the petitioner, vide his letter Annexure PF and this he did only after leasing out the property to respondents No.3 and 4, by executing lease deed on 23rd December, 2006. Not only this, he kept this fact concealed from the petitioner, because he made no mention of it in his response Annexure PF and also in the subsequent letter dated 19th January, 2007 Annexure PL. This long delay itself is suggestive of the fact that the story put forward by him is concocted. 21. Entry pertaining to the deposit of cash by respondents No.3 and 4, on account of 10 per cent amount of bid money, is also doubtful. Initially, only four entries were made on receipt side of the Cash Book and three lines, in red, had been drawn below those entries for recording the total receipts in cash and by cheques/demand drafts …10… drawn on various banks on 14th September, 2006. Entry pertaining to cash deposited by respondents No.3 and 4 was made thereafter. The Cashier, namely Shri Milkhi Ram, who has produced this register, was questioned by this Court. His examination was recorded. Explanation offered by him is that around 3.30 p.m., when he was closing the Cash Book, he received a message that someone wanted to deposit money, in connection with the bids for the property, in question, and so the Cash Book be not closed and that is why he made the entry pertaining to the deposit of respondents No.3 and 4 and some other entries, on receipt side, after drawing the aforesaid three lines, in red, for closing the Cash Book for the day. 22. From the above discussed position, which is based on the material on record, it can reasonably be presumed that the story put forward by the then Chief Executive Officer-cum-Secretary of respondent No.2, who has been impleaded as respondent No.5, by name, is not true. He wanted to help respondents No.3 and 4 for the reasons best known to him. It is not denied by the respondents that respondents No.3 and 4 are the close relatives of a person, who was a sitting MLA from the ruling party of that time and from Shimla Constituency. Thus, the entire process of leasing out the property, in question, is vitiated. 23. Learned counsel representing respondents No.3 and 4 has argued that disputed questions of fact are …11… involved in the matter and, therefore, the right course for the petitioner is to approach the Civil Court, by filing Civil Suit. In view of what has been stated hereinabove and which is based on the material on record, it cannot be said that the question of fact, involved in the present case, requires full-fledged trial for finding answer to it. 24. Next submission made on behalf of respondents No.3 and 4 is that the petition is hit by delay and latches. As a matter of fact delay and latches are on the part of respondent No.2 and its the then Chief Executive Officer- cum-Secretary of respondent No.2, namely Shri Y.R. Sharma, impleaded as respondent No.5. Petitioner and proforma-respondent No.6, on the very day of the opening of the bids, made the allegation that bid of respondents No.3 and 4 was not there upto 5.30 p.m. on 14th September, 2006. They made another complaint to this effect on 16th September, 2006. Respondent No.5 took more than three months to respond to the aforesaid complaints/ representations of the petitioner, vide his letter Annexure PF and this he did only after leasing out the property to respondents No.3 and 4, by executing lease deed on 23rd December, 2006. Not only this, he kept this fact concealed from the petitioner, because he made no mention of it in his response Annexure PF and also in the subsequent letter dated 19th January, 2007 Annexure PL. 25. Also, it has been submitted on behalf of respondents No.3 and 4 that Shri Ashish Satija, through …12… whom the present petition has been filed by the petitioner, is in fact not authorized to file the petition, by virtue of instrument of Power of Attorney Annexure PA. Submission has been noticed only to be rejected. Vide para-11 of the instrument, Shri Ashish Satija has been authorized to initiate, institute, join, contest, compromise, refer, withdraw or compound any case etc., in any Court. 26. As a result of the above discussion, writ petition is allowed, actions of respondents No.2, in accepting the bid of respondents No.3 and 4 as also the leasing out of the property, in question, to respondents No.3 and 4, are quashed. In case respondent No.2 still wants to lease out the property, it shall do so by initiating the process afresh. Petition stands disposed of. Pending applications also stand disposed of, having become infructuous. December 22, 2010(sd) ( Surjit Singh ), J