Nav Bhar Ali vs State of Uttarakhand and Others

Barin Ghosh, C.J.

Delay Condonation Application No. 8668 of 2010

The appeal is delayed by 17 days. We have considered the averments made in the application for condonation of delay in preferring the appeal. Being satisfied that reasons furnished for delay are sufficient we allow the application.

Special Appeal No. 207 of 2010

Admit.

With consent of the parties the appeal is taken up for final hearing.

With an object to sell its right to collect toll on entry to the city of Nainital for the period 1st April, 2009 to 31st March, 2010, the Respondent Nagar Palika, instead of taking steps to hold public auction, called a tender. This tender was not responded by anyone. The Respondent Nagar Palika accordingly invited another tender for the self same purpose. The same was responded by the Appellant and three others. Tenders were opened on 23.03.2010, when it transpired that the bid given by the Appellant is the highest, as the same was worth Rs. 2,10,51,000/-. The next bid was given by one Naveen and same was wroth Rs. 2,00,00,000/-. The terms and conditions set down in the tender provided that the selected tenderer shall deposit 50% of the tender money on receipt of a communication to that effect. Selection of the tenderer was thus depended on issuance of a communication to that effect and receipt of such communication obliged the selected tenderer to deposit 50% of the tender money. Only thereafter the selected tenderer could start collecting toll. A communication selecting the Appellant was prepared on 26.03.2010. A copy thereof was said to have been handed over to a courier for tendering the same to the Appellant. The courier allegedly tendered the communication to the Appellant on 27.03.2010, whereupon allegedly, against his signature, Appellant accepted the communication. When the courier reported to the Nagar Palika, in regard to such acknowledgment is absent from the records of Nagar Palika produced before us. There is not even a whisper in that regard in the pleadings filed by it. Dak and postage register, produced before us, does not suggest the date of receipt by Nagar Palika of the acknowledgment returned to Nagar Palika by the courier. Signature of the receiver appearing on the receipt of the courier is totally different from the signature of the Appellant contained in his tender. We are, therefore, prima facie of the view that purported sending of the said communication through courier and preparation of the said acknowledgement is intentional falsification and forgery on the part of Nagar Palika. The purpose of falsification of documents pertaining to sending the said communication through courier and preparation of the said forged acknowledgment was part of a conspiracy to denude the Nagar Palika of the actual price of selling its right to collect toll for the said period as will be unfolded herein below. The fact remains that despite the said acknowledgment of courier of 27.03.2010, for sending a copy of the said communication once again to the Appellant, the postal packet containing the same was handed over to the Postal authority only on 29.03.2010, which, as per the report submitted by the postal authority, was received by the Appellant only on 05.04.2010. In the meantime, on 31.03.2010 offer given by the Appellant was cancelled and his security deposit amounting to Rs. 10,00,000/- furnished by a fixed deposit receipt was forfeited. On 03.04.2010, Appellant wrote two letters to the Nagar Palika. In one, he stated that he be given a communication entitling him to deposit 50% of the bid given by him. In the other, he stated that steps that are being taken to push him aside for the purpose of giving the right to collect toll to some other is at the risk and responsibility of Nagar Palika. The Nagar Palika is said to have held a Board meeting on 03.04.2010 where it purported to decide to go ahead with a fresh tender. On 05.04.2010, an advertisement was published for inviting fresh tender which was responded, amongst others, by one Alok Chaudhary, one of the Respondents herein, who was given the right to collect toll from 15.04.2010 instead of 01.04.2010 until 31.03.2011 at Rs. 1,54,00,000/- without taking note that it was one of the terms of the tender that the minimum bid shall not be less than Rs. 1,85,40,000/-. As a result for no just reason, the tender of the Appellant was cancelled and his security deposit was forfeited and Nagar Palika lost Rs. 56,00,000/-. In the meantime during the period 01.04.2010 to 14.04.2010 Nagar Palika collected toll worth Rs. 7,00,000/-. Thus the actual loss stood reduced to Rs. 49,00,000/-.

Without wasting any time Appellant approached this Court by filing a writ petition. In the writ petition, he challenged awarding of right to collect toll to Alok Chaudhary, cancellation of the tender given by the Appellant and forfeiture of his security deposit. No interim order was passed on the writ petition and the same came to be decided on 28.07.2010. The learned Single Judge dealing with the writ petition held that since the contract awarded in favour of Alok Chaudhary has not been produced, the writ petition is not maintainable. If cancellation of the tender of the Appellant was interfereable then all steps taken thereafter contrary thereto would have been of no consequence, including the contract awarded in favour of Alok Chaudhary. In addition to that, it was held that the period of contract was to commence from 01.04.2010 and the Appellant was required to deposit 50% of the bid amount before that date. This finding is patently contrary to records. The tender terms clearly provided that Nagar Palika is not obliged to accept the highest bid and that the selected bidder will be communicated. Therefore until communication of selection no obligation arose for the Appellant to make any deposit. At the same time, tender terms nowhere stipulates that 50% of the bid amount is to be deposited on or before 01.04.2010. The terms and conditions of the tender stipulated that 50% of the bid amount is to be deposited no sooner a communication to that effect is received by the Appellant. The learned Single Judge further held that Appellant failed to comply with essential conditions stipulated in the tender, without, however, specifying the same. The learned Single Judge also held that the Appellant cannot be permitted to complain against the order cancelling his bid and forfeiting his security deposit. The learned Single Judge held that the Appellant was given an opportunity on 03.04.2010 to deposit 50% of the bid amount but he willingly waived of his right. There is nothing on record to suggest that Appellant was given such an opportunity. The finding is de hors the records. There is minutes of a meeting held on 03.04.2010, where it has been insinuated that the Appellant was called over phone, but the fact remains that there is no evidence to suggest that Appellant attended the meeting and participated in the proceedings. The learned Single Judge held that the earnest money was forfeited in accordance with tender terms and conditions. On the contrary, as we have found, apart from the said courier receipt, there is nothing on record which would suggest that despite communication of selection of the Appellant and asking him to deposit 50% of the bid money in terms of the conditions of tender, the Appellant failed to deposit 50% of the bid money before issuance of letter dated 31.03.2010 cancelling the bid of the Appellant and forfeiting his security deposit.

The Respondent Nagar Palika is a Statutory Authority constituted and guided by Statute. The Statute prescribes the mode and manner of sending of notices and other communications by Nagar Palika. The Statute does not contemplate that Nagar Palika would send any communication through courier. There is no just reason, therefore, why steps were taken to send the communication dated 26.03.2010 asking the Appellant to deposit 50% of the bid money through courier whose credentials are unknown and operates from a hotel and has its office in Delhi. If it was thought that as abundant precaution the said communication would also be sent through courier there is no just reason why the postal packet containing the said communication was handed over to the postal authority on 29.03.2010. Further, when the courier receipt was returned to Nagar Palika it was bounden duty of Nagar Palika to satisfy itself that the addressee has received the communication and that the courier is making an appropriate report. For that purpose a mere glance at the signature on the courier receipt and comparison thereof with the signature of the Appellant appearing on the tender document would have satisfied any prudent person that the courier has not been able to establish that the communication in question has been served upon the Appellant.

That being the situation, on 31.03.2010 bid of Appellant could neither be cancelled nor his security deposit could be forfeited. At the same time Nagar Palika could not take any step on 03.04.2010 either to consider giving of the tender to the second highest bidder or to take a decision to invite fresh tender.

In the circumstances, according to us writ petition ought to have had been allowed. We accordingly, set aside the judgment and order under appeal. Having set aside the judgment and order under appeal, it is our duty, taking into account the passage of time, to frame appropriate relief, which can be granted by us on the writ petition. Having concluded that there was no just reason to forfeit the security deposit of the Appellant and there being no other ground to do so, we are of the view that one of the conclusions would be that forfeiture of security deposit of the Appellant was patently illegal. We, accordingly, direct Nagar Palika to refund security deposit to the Appellant with interest at the rate of 9% per annum to be calculated from 01.04.2010 until the date of payment thereof. In the event, payment, as above, is not made within 30 days from today the rate of interest shall stand increased to 18% per annum. In as much as the period, the Appellant was to collect toll, has come to an end, and at the same time in as much as the period, of the subsequent contract granted to Alok Chaudhary has also come to an end, we are unable to grant any relief to the Appellant in that regard except preserving right of the Appellant, if any, to recover compensation by taking such recourse to law as he may be advised.

Having concluded in this judgment that in order to cause loss of Rs. 49 Lakhs to Nagar Palika a few people associated with Nagar Palika created the things, referred to above and thereby committed cognizable offences, it is our duty to direct that the matter to be investigated by an appropriate agency. We accordingly, direct the Registrar General of this Court to submit a copy of this order with the Central Bureau of Investigation, Dehradun with a direction upon Central Bureau of Investigation, Dehradun to lodge a first information report on the basis of this judgment against unknown accused persons and thereupon to investigate into the matter and to take such further appropriate steps as are required to be taken under law in respect of cognizable offences.

Original records produced by the Nagar Palika will be sealed by our officer and kept in the custody of the Registrar General of this Court for the purpose of handing over the same to the Central Bureau of Investigation for investigation.