IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY THURSDAY, THE THIRTY FIRST DAY OF DECEMBER, TWO THOUSAND NINE WRIT PETITION No.3543 of 2005 Between: A.Obelu. … Petitioner And Government of Andhra Pradesh, reptd., by the Divisional Forest Officer, Narsipatnam, Visakhapatnam District and two others. … Respondents Counsel for the petitioner: Sri S.Lakshma Reddy. Counsel for the respondents: AGP for Forests. This Court made the following: ORDER:- This Writ Petition is filed for a Mandamus to declare the inaction of the respondents in refunding the Earnest Money Deposit/sale amount of Rs.2,75,200/- to the petitioner and to set aside letters dated 21-12-2004, 31-12-2004 and 21-1-2005 issued by the respondents. Heard Sri S.Lakshma Reddy, learned counsel for the petitioner, and the learned Assistant Government Pleader for Forests. The petitioner is a Forest Contractor. In pursuance of tender-cum-auction notice, dated 13-9- 2004, inviting sealed tenders for collecting Beedi (tuniki) leaves in seven forest areas of Narsipatnam Division for the years 2005-07, the petitioner submitted his bid and participated in the auction held on 29-9-2004. He emerged as the highest bidder and, accordingly, he deposited 1/4th of the bid amount i.e., Rs.2,75,200/-. He received the confirmation letter, which was dispatched by registered post, on 8-12-2004. Thereupon, he issued notice, dated 16-12-2004, to respondent No.3, revoking his offer and requested for refund of the EMD amount on the ground that the respondents failed to confirm the bid within 30 days from the date of auction, viz., 29-9- 2004. However, respondent No.3 issued notice, dated 21-12-2004, wherein he has taken the stand that the Conservator of Forests, Visakhapatnam, respondent No.2 herein, confirmed the sale within the stipulated time and communicated the same to the petitioner to fulfill the other conditions. Respondent No.3, therefore, called upon the petitioner to explain why the amounts paid by him should not be forfeited to the Government as he failed to comply with the conditions of tender- cum-auction notice. This notice was replied to by the petitioner, vide: his letter dated 27-12-2004, wherein he reiterated his plea that the confirmation order was dispatched only on 6-12-2004; and thereby a delay of 39 days occurred in confirming the sale. The petitioner, therefore, maintained that in pursuance of the revocation letter issued by him, he is entitled to refund of the EMD amount. On receipt of the said notice, respondent No.3 issued final notice, dated 31-12-2004, calling upon the petitioner to pay all the balance amounts under the contract, failing which it was stated that all the amounts paid by the petitioner will be forfeited to the Government. The petitioner filed an appeal, against the said order, before respondent No.2, who by his order, dated 20-1-2005, dismissed the same by holding that the sale was confirmed within 30 days, as required by the conditions of general sale notice. The said orders of respondents 2 and 3 are questioned in this Writ Petition. A detailed counter-affidavit has been filed by respondent No.3, wherein it is, inter alia, stated that respondent No.2, vide his proceedings dated 29-10- 2004 confirmed the sale and the said confirmation letter was sent to the petitioner, vide: his office letter dated 27- 11-2004. Respondent No.3 has, thus, taken the stand that within the stipulated period of 30 days from the date of auction the sale was confirmed; and that as the petitioner failed to fulfill the tender conditions by paying the balance sale consideration and entering into a contract, the respondents are entitled to forfeit the EMD amount paid by the petitioner. In order to resolve the dispute raised in this writ petition, it is necessary to notice the relevant general sale conditions. Under Condition No.7, where the amount of the bid knocked down exceeds Rs.1,000/-, the successful bidder shall pay 1/4th of the bid amount, less the EMD; and if the amounts are not paid, the EMD paid by the successful bidder stands forfeited to the Government. Under Condition No.8, the bid once given is final and cannot be revoked and the highest bidder shall be bound to accept the contract if the orders confirming the bid are communicated by the competent authority. Condition No.8 (ii), which is very material for the present purpose, reads as under: “The date of confirmation for this purpose shall be date of dispatch of the confirmation order by the competent authority”. Condition No.9(ii) envisages that the competent authority shall confirm or reject the bid within 30 days from the date of sale, and once it is confirmed, a concluded contract is deemed to have been effected between the Governor of Andhra Pradesh and the bidder, in whose favour the bid is confirmed in token of acceptance. Proviso to the said condition provides that the bid may be revoked by specific notice to the competent authority, if it is not confirmed within the period of 30 days. As stipulated in Condition No.9(ii), the competent authority shall confirm or reject the bid within 30 days from the date of sale. Condition No.8(ii) explicitly makes it clear as to what constitutes the date of confirmation. According to this condition, the date of dispatch of the confirmation order shall constitute the date of confirmation. In the light of the above discussed sale conditions, it is necessary for the respondents to prove that they have confirmed the sale within a period of 30 days by dispatching the confirmation order within the said period. As 29-9-2004 was the date of auction/sale, the confirmation order should have been dispatched by the respondents on or before 29-10-2004. As noted above, though respondent No.3 has taken the stand in the counter-affidavit that on 29-10-2004 respondent No.2 confirmed the sale, for the purpose of satisfying Condition Nos.8 and 9, the said date cannot be taken as the material date of confirmation unless the said confirmation order was dispatched on that day. Even on the respondents’ own showing, the said confirmation order was sent to the petitioner through respondent No.3’s office proceedings dated 27-11-2004. A copy of the said order was filed by the petitioner. A perusal of the said order shows that while the same bears 27-11- 2004 as the date, it was signed by the Superintendent on 6-12-2004. Both in the correspondence and in the affidavit filed by the petitioner he pleaded that the said order was dispatched through registered post on 6-12- 2004, which plea has not been disputed by the respondents. These uncontroverted facts, thus, make it clear that the confirmation order was dispatched only on 6-12-2004 as against the stipulated date of 29-11-2004. Accordingly, the respondents failed to comply with the mandatory requirements contained in Condition Nos.8 and 9 of the general sale notice. A right has, therefore, accrued to the petitioner under proviso to Condition No.9(ii) to revoke the bid by issuing a specific notice. The petitioner, accordingly, exercised this right by writing revocation letter, dated 16-12-2004. In the light of these facts, the stand taken by the respondents that the petitioner’s bid was confirmed in accordance with the conditions stipulated in the general sale notice, cannot be accepted. As the respondents failed to confirm the bid within the stipulated time, the petitioner revoked his bid by exercising his right in this regard, as envisaged in the proviso to Condition No.9(ii). In this view of the matter, the respondents are not entitled to forfeit the EMD made by the petitioner equivalent to 1/4th of the bid amount. The respondents are, therefore, liable to refund the said amount along with the payments, if any made, by the petitioner as the bid has become abortive with its revocation made by the petitioner in terms of the conditions referred to above. For the above mentioned reasons, the Writ Petition is allowed. The impugned proceedings are set aside. Respondents 2 and 3 are directed to refund the amount of Rs.2,75,200/- paid by the petitioner towards EMD within a period of four weeks from the date of receipt of a copy of this order. If the amount is not refunded within the said period, the respondents will be liable to pay interest from the expiry of the above mentioned period at the rate of 18%, per annum, till such time as the payment is made to the petitioner. ------------------------------------ C.V.NAGARJUNA REDDY,J Dt.31-12-2009 MNR