IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.12588 of 2003 Between : Karthik Service Station rep.by sri Ambi Sambaraju, Indian Oil Dealer Mulugu X Roads, Warangal ..... PETITIONER AND 1 The official Liquidator, APSS Industrial Deve.Corp.Ltd. 8th floor, Prrisrama Bhavan, Basheerbagh, Hyd. 2 The Senior Transaction and Financial Adv Public Enterprises Dept. B.Block, 3rd floor, A.P.Secretariat,Hyd. 3 Rajiv Gandhi Memorial Industrial Traning Center, Warangal. R/o.4-1-227 reddy Colony, Hanamkonda Warangal 4 Ch.Jagadiswar C.J.Associates, Near Andhra Bank office Hanamkonda .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a suitable writ, order or direction more particularly one in the nature of writ of certiorari calling for the records and quash the proceedings of the 2nd respondent vide Ref.No.010/IS- APPSSIDC/TFA/2003 Dt.2-5-03 and further direct the official respondent to consider my officer for purchasing of RMSC land admeasuring 3742 Sq.meter @ Rs.3,233, 56 per sq meter or at the rate the Government deems fit and pass such other order or orders. Counsel for the Petitioner : MR.A.RAVINDER Counsel for the Respondents : MR.N.V.JAGANNATH The Court made the following : HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION No.12588 of 2003 ORDER : The petitioner, a dealer of Indian Oil Corporation (IOC), has challenged the validity of the orders, dated 02.05.2003, issued by respondent No.2 in Proceedings No.010/IS-APPSSIDC/TFA/2003, whereby his offer for purchase of land was rejected, and further sought for directions to the official respondents to consider the offer of the petitioner for purchase of land admeasuring about 3742 square metres, belonging to the Andhra Pradesh Small Scale Industrial Development Corporation Limited (APSSIDC). 2. The facts in brief, which led to filing of this writ petition, are as under : The Andhra Pradesh Small Scale Industrial Development Corporation Limited, which is in the process of voluntary winding up, originally owned an extent of about 5071.00 square metres at their raw-material servicing center (RMSC), Warangal. Out of the said land, an extent of 1036.64 square metres was sold to IOC at the rate of Rs.3,230/- per square metre. Though there was a proposal for purchase of the remaining land by IOC, but however, the same was not purchased, as such, the petitioner herein, who is the dealer of IOC, has submitted an offer letter, dated 03.10.2002, requesting the APSSIDC for sale of the remaining land to him at the rate of Rs.3,230/- per square metre. The said rate is offered, matching with the rate at which the IOC has purchased the land earlier. In response to the said letter, dated 03.10.2002, the APSSIDC, through letter, dated 31.10.2002, has informed to the petitioner that the offer made by him will be examined subject to certain conditions. The conditions, which were communicated to the petitioner in the letter, dated 31.10.2002, read as under : “1. Your offer should be subject to the outcome of counter offers. 2. you should agree to keep the validity of the offer till the counter offers are decided. 3. you can participate in the counter offer proposed to be invited on Tender-cum-Auction basis. 4. you should remit the EMD of Rs.1 Lakh in support of your present offer.” After receipt of the communication, dated 31.10.2002, in reference No.SIDC/SALE OF PROPERTIES/2002/543, in which, the above conditions are notified by the respondents, the petitioner has further addressed a letter, dated 05.11.2002, to the Liquidator, wherein he has clearly reiterated his rate at Rs.3,230/- per square metre, and also expressed his inability to make any further offers. In addition to the same, in the said letter, the petitioner has indicated that if open tenders are called for, his offer rate of Rs.3,230/- per square metre automatically stand cancelled. In continuation of the same, even before the tender-cum- auction notice is notified by the APSSIDC, the petitioner, on his own, submitted his rate in tender schedule on 28.12.2002, by offering his rate at Rs.3,230/-. 3. The Liquidator of the APSSIDC has issued tender- cum-auction notice on 18th of January 2003, inviting sealed tenders in the prescribed form, for purchase of the above said land. In the tender-cum-auction notice, dated 18th January 2003, published in newspapers on 21st of January 2003, it is clearly stated that the APSSIDC has received an unsolicited proposal, and it is also made clear in the tender notice that the proposals submitted by the participants in the tender, will only be accepted if they quote over and above the unsolicited price mentioned in the tender schedule. As per the tender-cum-auction notice, the proposals shall be submitted by the competing bidders by 2.00 p.m. on 13th February 2003. In response to the said tender-cum-auction notice, the 4th respondent has offered his rate at Rs.3,233.56 ps. per square metre. As the said offer was higher than that of the offer made by the petitioner prior to issuance of tender notice, the offer of respondent No.4 was accepted for allotment of land after approval of the Cabinet Sub-Committee. After acceptance of the bid of respondent No.4, he has already deposited 25% of total cost of the property, but the sale could not be finalized in view of the interim orders passed by this Court. After acceptance of the bid of the 4th respondent, the petitioner made a representation, dated 1st of May 2003, again, requesting for allotment of the said land with sheds at the rate of Rs.3,233.56 ps. per square metre, which is the offer rate received by the APSSIDC in response to tender-cum- auction notice. In response to the said representation, petitioner was communicated vide impugned proceedings, dated 02.05.2003, that his request could not be considered in view of acceptance of the offer of respondent No.4. Hence, this writ petition, questioning the said rejection proceedings, and also seeking consequential directions to the official respondents to accept the offer made by the petitioner. 4. Heard learned senior counsel Sri S.R.Ashok, appearing for the petitioner, and Sri V.Jagannath, for respondents 1 and 2, Ms.R.Annapurna, for respondent No.3, and Sri D.Prakash Reddy, learned senior counsel appearing for the 4th respondent. 5. It is contended by Sri S.R.Ashok, learned senior counsel that the offer made by the petitioner at the rate of Rs.3,230/- per square metre, was notified as an upset price in the tender-cum-auction notice, dated 18th of January 2003, but nspite of the same, without giving any further opportunity to him to match the price of the highest bid, respondents have accepted the bid of the 4th respondent. It is further submitted by the learned counsel that though the petitioner has submitted a letter, dated 05.11.2002, restricting his rate to Rs.3,230/-, but subsequently, he has filed his tender on 28th of December 2002, quoting the said price. It is submitted that as much as the respondents have issued tender-cum-auction notice, and as the petitioner has quoted his rate prior to issuance of such tender notice, it was obligatory on the part of official respondents to give further opportunity to the petitioner so as to match his rate on par with the highest offer received in response to the tender-cum-auction notice, but in the instant case, without any further opportunity, respondents have illegally and arbitrarily accepted the offer of the 4th respondent. It is also argued by the learned counsel that the proposed sale by the APSSIDC is in violation of the provisions contained under Section 512 of the Companies Act, 1956, as there is no valid sanction for sale of immovable property from competent authority. 6. On the other hand, it is argued by Sri V.Jagannath, learned counsel for the APSSIDC, and also Sri D.Prakash Reddy, learned senior counsel appearing for the 4th respondent, that the petitioner has no locus standi to question the sale, as he has not even responded to the tender-cum-auction notice, notified by the APSSIDC. It is submitted that the petitioner, after his offer dated 03.10.2002, and on receipt of the letter, dated 31.10.2002, has submitted a letter, dated 05.11.2002, stating that he is not interested in any counter offer more than Rs.3,230/-, but, by suppressing the same, he has approached this Court, questioning the validity of sale. It is further submitted that as much as there is already an approval in the meeting of creditors for realization of money by putting all the assets of the Company for sale, it cannot be said that there is no prior approval from competent authority as required under Section 512 of the Companies Act, 1956. It is contended that in any event, having offered the price for purchase, it is not open for the petitioner to question the sale on the aforesaid ground, in the absence of any objection either from any of the shareholders or from creditors of the Company. 7. In view of the rival contentions advanced by the learned counsel appearing for both sides, the primary issue, which falls for consideration is, whether the sale of land belonging to APSSIDC in favour of 4th respondent, is fair, legal and valid. 8. At the outset, it is to be noticed that the offer of the petitioner, dated 03.10.2002, is on his own, and the same is not in response to any tender notice, notified by the APSSIDC. Petitioner, being a dealer of IOC, only on the ground that the said asset is adjoining his retail outlet, submitted a letter, dated 03.10.2002, requesting for sale of property to him, by offering the price at Rs.3,230/-. On receipt of such offer, and after forwarding the offer to the Government, the petitioner was informed that his offer would be accepted only in case if there is no improved offer in the proposed tender-cum-auction process. In the letter, dated 31.10.2002, it was made clear to the petitioner that he can make counter-offer in response to the tender-cum- auction notice. Though it is the case of the petitioner that he has submitted his offer in the tender form on 28.12.2002, but the same is much before issuance of tender-cum- auction notice, dated 18th January 2003, by the Liquidator, which was published in the newspapers on 21st of January 2003. Inspite of the fact that it was made clear to the petitioner that he can also participate in the tender-cum- auction process, he did not submit his tender pursuant to the tender-cum-auction notice, dated 18th January 2003. On the other hand, after receipt of the communication, dated 31.10.2002, petitioner himself has submitted his letter, dated 05.11.2002, wherein, he made it clear that he is not interested in counter-offers and his offer at the rate of Rs.3,230/- per square metre is to be treated as cancelled, if open tenders are called for. Though, subsequently, he submitted his offer in the form of a tender schedule on 28th of December 2002, offering the same rate of Rs.3,230/- per square metre, but he did not withdrew the letter, dated 05.11.2002. In that view of the matter, even without responding to the tender-cum-auction notice, when the bid of the 4th respondent is accepted, petitioner cannot challenge the accepted bid of 4th respondent. The offer of 4th respondent in response to the tender-cum-auction notice, is an improved offer over the offer of the petitioner, and in that view of the matter, I do not find any illegality or arbitrariness on the part of respondents 1 to 3 in accepting the bid of the 4th respondent at the price offered by him in response to the tender-cum-auction notice, dated 18th January 2003. Though the petitioner has made an offer by his letter, dated 03.10.2002, quoting the price of Rs.3,230/- per square metre, but, in view of the letter, dated 31.10.2002, which was communicated to the petitioner, and also in view of the letter, dated 05.11.2002 of the petitioner himself, no further opportunity need be given to him, inviting further offer, over and above the offer of the 4th respondent. 9. With regard to the issue of suppression of material fact, raised by the learned counsel appearing for the respondents, it is submitted by Sri S.R.Ashok, learned senior counsel for petitioner, that there is no material suppression in the instant case, and though the letter, dated 05.11.2002, is not referred to in the affidavit filed in support of the writ petition, but a copy of the same is filed in the material papers. It is submitted that in view of the further offer made by the petitioner on 28.12.2002, the letter, dated 05.11.2002, submitted by the petitioner, is not significant and it cannot be said that there is a material suppression as much as a copy is also filed in the material papers by the petitioner himself. In support of his argument, the learned counsel has placed reliance on a judgment of the Hon’ble Supreme Court in the case of M/s.S.J.S.Business Enterprises (P) Ltd. V. State of Bihar[1], wherein, it was held that every suppression will not disentitle the party, for grant of relief under Article 226 of the Constitution. But, in the case on hand, it is to be noted that after receipt of the communication, dated 31.10.2002, in clear terms, the petitioner has stated in his letter, dated 05.11.2002, that his offer is at Rs.3,230/- per square metre, and that he is not interested in counter-offers. It is further stated that if further open tenders are called for, his offer at Rs.3,230/- stands cancelled automatically. Though he has submitted further offer in the shape of tender form on 28th December 2002, but the rate offered in the said document is also not in modification of any of the terms indicated by the petitioner in his letter, dated 05.11.2002. Whether the fact suppressed is material or not, and whether such suppression would disentitle a party to the relief in a particular case or not, is a matter that depends on the facts of each case. Though every omission cannot be construed as a material suppression, but having regard to the facts of the case on hand, the contents of the letter, dated 05.11.2002, constitute material facts, which will come in the way of the petitioner in questioning the validity of sale of assets of APSSIDC in favour of respondent No.4. In the letter, dated 05.11.2002, having restricted his price only to Rs.3,230/- per metre, and also by indicating that he is not interested in any further offer, he has approached this Court without disclosing the said communication in the affidavit filed in support of the writ petition. Merely because a copy is made available in the material papers, is not a ground to plead that there was no material suppression. Having regard to the plea of the petitioner in the writ petition, and on perusal of the contents in the letter, dated 05.11.2002, I am of the considered view that the petitioner has suppressed the material fact and approached this Court by filing this writ petition, questioning the validity of the sale for an offer more than Rs.3,230/- per square metre, having said that he is not interested in any better offer than the said rate. It is well settled that a person seeking discretionary relief under Article 226 of the Constitution, has to approach the Court with clean hands and shall disclose all the facts, which are within his knowledge. Apart from the merits of the case, as the petitioner has approached this Court by suppressing the material fact, he is not entitled for any relief. 10. With reference to the plea of the petitioner that the proposed sale is in violation of the provisions contained under Section 512 of the Companies Act, 1956, it is to be noted that such a contention was not raised in the writ petition, but only during the course of arguments, in the reply affidavit, the said ground is raised. The learned counsel appearing for the APSSIDC has produced the minutes of the meeting of the creditors of the Company, held on 10th of December 2001 and 10th of March 2003. In the meeting of the creditors, a resolution was passed on several agenda items, including the one, “Value of assets realizable on sale”. In terms of the provision under Section 512 of the Companies Act, 1956, in a voluntary winding up proceedings, the Liquidator is empowered to exercise any of the powers conferred on him under Section 457(a) to (d) of the Companies Act, with approval of the Company Court or the Committee of Inspection, or if there is no such Committee, of a meeting of the creditors. In view of the resolutions referred above, it cannot be said that the sale of assets of the Company is without any sanction of the meeting of the creditors. It is also to be noticed that in the absence of any objection for the sale of property on the aforesaid ground, either by the members of the Company or the creditors, it is not open for the petitioner to assail the validity of sale on the said ground. Therefore, I do not find any illegality in accepting the bid of the 4th respondent for sale of land. Though the petitioner has indicated in the reply affidavit that he is prepared to offer price at the rate of Rs.5,000/- per square metre, which apparently looks attractive, but the fact remains that the offer of the 4th respondent was in the year 2003 and in pursuance of the said offer, he has already deposited 1/4th of the total cost. In view of the escalation in land rates, merely because a higher offer is made now, by itself, is not a ground to interfere with the proceedings, as this Court has examined the validity of sale with reference to the proceedings effected in the year 2003. For the aforesaid reasons, I do not find any illegality on the part of respondents 1 to 3 in accepting the bid of 4th respondent for sale of land. 11. The writ petition is devoid of merit and it is accordingly dismissed. No order as to costs. _____________________ R.SUBHASH REDDY, J July 2009 ajr [1] AIR 2004 SC 2421