CW 1082/99 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.1082/1999 M/s Choudhary Enterprises & Anr. Versus Reg. Dev. Commnr., Command Area Dev. Kota & Ors. Date of Order ::: 26/03/09 Hon'ble Mr. Justice Ajay Rastogi Mr. AK Sharma, for petitioners Ms Raj Sharma, Addl. Govt. Counsel, for respondents-State. Instant petition has been filed assailing order dt.24/12/1998 (Ann.10) whereby respondents while cancelling the bid, forfeited 1/4th amount of Rs.3,27,750/- deposited by petitioner-Firm vide receipt (Ann.2) pursuant to auction notice NO.1/98-99 dt.09/09/98 (Ann.1). While matter came up on 04/10/06, Counsel for petitioners confined relief only with regard to forfeiture of security amount of Rs.3,27,750/- vide order dt.24/12/1998 (Ann.10). Petitioner is a registered partnership Firm in the name & style of M/s Choudhary Enterprises and petitioner NO.2 is a partner of the firm engaged in business of giving heavy equipments like Cranes, pick & carry Crane, Road Roller, Earth Moving Machinery on hire basis. Notice NO.1/98-99 (Ann.1) was issued by Executive Engineer Field Machinery Division Command Area Development Irrigation Department, Chambal, Kota for auction of useless/obsolete machinery/ CW 1082/99 //2// vehicles – pursuant to which, petitioner Firm also tendered bid for Lot NO.8, Drag Line, DL-6 in open auction held on 09/09/98 for a sum of Rs. 13.11 Lacs, which being highest bid made by petitioner Firm, its 1/4th amount to the tune of Rs.3,27,750/- was deposited in cash at the auction place vide receipt No.20/366556 dt. 09/09/98 (Ann.2). As per conditions of auction notice, 3/4th of bid amount was to be deposited within 25 days of acceptance as communicated vide letter dt.22/09/98 (Ann.3) at the address of Baroda by post, which was received by petitioner Firm on 29/09/98, whereby it was called upon to take delivery of material after deposit of 3/4th of bid amount within 25 days. After receipt of letter dt.22/09/98 (Ann.3), petitioner proceeded to make arrangement of 3/4th bid amount and prepared demand drafts – reference whereof has been made in para 4 of instant petition. But due to Diwali festival, huge expenses have to be incurred, last demand draft of Rs.1,33,250/- was prepared on 20/10/98 and was sent with covering letter dt.20/10/98 (Ann.4) alongwith bank drafts in all of Rs.9,83,250/- towards 3/4th bid amount, received by respondents on 24/10/98 with a request for extension of date of payment by one week and also for delivery of machineries under auction and Executive Engineer vide letter dt. CW 1082/99 //3// 30/10/98 (Ann.5), recommended case of petitioner to the authority for extension of time upto 24/10/1998 so that 3/4th bid amount could be accepted and scrape goods under auction could be delivered to petitioner Firm. That apart, petitioner Firm was also ensured that time would be extended, since his case like others was also recommended by Executive Engineer earlier vide letter dt. 31/03/98 (Ann.7) atleast in five different cases, where there was also delay in depositing 3/4th bid amount for extension of time which was allowed by Superintending Engineer as is evident from letter dt.31/03/98 (Ann.7) - taking note whereof and under bonafide belief of recommendation made in its case also vide letter dt.30/10/98 (Ann.5), petitioner Firm deposited sales tax @ 2% of full sale value of auction lot, of Rs.29,366/- vide receipt dt.05/11/98 (Ann.6). But case of petitioner Firm was turned down by authority vide letter dt.24/12/98 (Ann.10) while cancelling the bid, itself and forfeited 1/4th bid amount deposited at the stage of offering bid in open auction. Hence instant petition. Counsel for petitioners submits that after petitioner firm received letter of acceptance of its bid at Baroda on 29/09/98, it started preparing bank drafts of 3/4th bid amount, CW 1082/99 //4// lastly being prepared on 20/10/98, sent all drafts alongwith covering letter dt.20/10/98 (Ann.4); and period of 25 days is taken note of from date of receipt 29/09/98 of letter dt. 22/09/98 certainly he deposited 3/4th bid amount within 25th days which should be considered as per terms & conditions of tender notice; as such forfeiture of 1/4th bid amount by respondents is not legally sustainable. Counsel further submits that even if considered that 3/4th bid amount was to be deposited within 25 days from the letter of acceptance viz. 22/09/98 as referred to in auction notice, still respondents adopted double standards and despite his case being recommended by Executive Engineer for extension of time it was arbitrarily rejected while those who were other bidders also failed to deposit 3/4th bid amount within stipulated time, but in those cases, on the recommendations of Executive Engineer, extension of time was granted and while in case of petitioner Firm without assigning reasons, recommendation of Executive Engineer was rejected, as such action of respondents was wholly arbitrary and in violation of Art.14 of the Constitution. In their reply, respondents inter-alia averred that petitioner Firm was under obligation CW 1082/99 //5// to deposit 3/4th bid amount within 25 days from the issuance of letter of acceptance dt.22/09/98 as per terms & condition NO.3 of auction notice and since petitioner Firm deposited 3/4th bid amount alongwith application dt.20/10/98 received on 24/10/98, it was after expiry of 25 daysfrom the date of letter of acceptance as such no error has been committed in forfeiting 1/4th bid amount deposited by petitioner Firm. As regards double standard adopted by respondents, it has been averred in para 7 that auction sale is purely commercial deal in which the State has to save financial interest of the State; in that eventuality, question of equal treatment does not arise. I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record. As per conditions of auction notice, 3/4th bid amount was to be deposited within 25 days of letter of bid acceptance as is evident from Notice (Ann.1). However, petitioner is a registered Firm engaged in its business activities at Baroda, letter dt. 22/09/98 was sent by post at its address of Baroda which was received on 29/09/98 and certainly if letter sent from Kota, this Court can take judicial notice that letter may take normally 4-5 days to reach the addressee at CW 1082/99 //6// Baroda; and petitioner bonafidely prepared all demand drafts for deposit of 3/4th bid amount as per details furnished in para 4 and letter (Ann.4), which demonstrates that last draft was of Rs.1,33,250/- prepared on 20/10/98 and with a covering letter, it was sent to respondents having received on 24/10/98. Thus, bonafide of petitioner Firm with regard to making payment of 3/4th bid amount can very well be manifest from demand drafts prepared and sent vide letter dt. 20/10/98 (Ann.4). If it is taken from letter dt. 22/09/98 of acceptance, 25 days comes to some where on 17th/18th Oct. 1998 and as per condition of auction notice, the delay in depositing of 3/4th bid amount was of 5-6 days. But if it is taken from the date of receipt (29/09/98) of letter dt.22/09/98, it was much within 25 days as per condition of auction notice, which could be only for purposes to manifest bonafide of petitioner Firm that he was interested to deposit 3/4th bid amount within reasonable possible time made available at its disposal. However, this fact cannot be ruled out that respondents in other cases of similar nature like petitioner had granted extension as sought for on recommendations made by Executive Engineer as in case of petitioner also, where 3/4th bid amount was deposited after expiry of 25 days of CW 1082/99 //7// bid acceptance letter as is evident from letter dt.30/03/98 (Ann.7). Bonafide of petitioner-Firm is further manifest from material on record that immediately after his case was recommended by Executive Engineer vide letter dt.20/10/98 (Ann.5), under bonafide belief that extension was earlier granted and as already considered in favour of other bidders, petitioner deposited sales tax on full sale value of auction lot of machinery, as is evident from letter dt.06/11/98. Thus, it cannot be ruled out that those similarly situated other bidders like petitioner who failed to deposit 3/4th bid amount within stipulated time from the bid acceptance letter, extension was granted to all of them on the recommendations of Executive Engineer as is evident from letter dt.30/03/98 (Ann.7), no justification has come forward from respondents as to why similar treatment could not have been extended in case of petitioner. In the opinion of this Court, action of respondents in the facts of instant case, while forfeiting 1/4th bid amount of petitioner Firm was arbitrary and also violative of Art.14 of the Constitution. Submission of Government Counsel that being commercial contract, respondents are only supposed to save financial interest of the State CW 1082/99 //8// and question of equal treatment does not arise in such commercial matters, is of no substance for the reason that being public authority even in commercial matters, their action should always be reasonable and so also in consonance with Art.14 of the Constitution. If similarly situated bidders having been granted extension of time and permitted to deposit 3/4th bid amount, there was no justification available for them as to why same treatment was not extended in case of petitioner. Consequently, writ petition succeeds & is hereby allowed. Order dt.24/12/98 as regards forfeiture of 1/4th bid amount deposited pursuant to auction notice (Ann.1) is hereby quashed & set aside and respondents are directed to refund a sum of Rs.3,27,750/- (deposited as 1/4th bid amount vide receipt (Ann.2)) through cross cheque/demand draft in favour of petitioners within two months from receipt of certified copy of this order. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.8/1082CW99Mar25Al.doc