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Judgment
The petitioner says that the petitioner is a short term lessee in respect of piece and parcel of land measuring about 339.64 square meters situate at 1,
River Side Road, Shibpur, Howrah, being the plot no. HL213/4 (hereinafter referred to as said plot of land) under the respondent. The petitioner says
that in respect of the said plot of land the respondent floated a tender on 10th July, 2020 (hereinafter refund to as the said first tender) inviting offers to
let out the said plot of land on long term basis. The petitioner further says that under the said first tender the petitioner be in possession of the said plot
of land as a lessee was granted the first right of refusal. The petitioner submitted its bid in respect of the said first tender. According to the petitioner,
without canceling the first tender the respondent floated a second tender for the same purpose in respect of the self-same plot of land on 22nd
September, 2020 (hereinafter referred to as the second tender). Ultimately, by a letter dated 13th October, 2020 (at page 148 of the writ petition) the
petitioner was communicated about the cancellation of the first tender without indicating therein the date on which the said first tender was cancelled.
No specific reason, according to the petitioner, has also been assigned for cancellation of the said first tender save and except “due to unavoidable
reasonâ€. In the said letter it has, however, clearly mentioned that the second tender has been floated and that too without renewal option being in
deviation of the terms of the first tender. The petitioner says that having the first right of refusal, the petitioner was confident to be successful in the
first tender and, as such, the question of the petitioner in participating in the second tender which was floated without formally canceling the first
tender did not arise. The second tender, according to the petitioner, has now been finalised and the respondent by a letter dated 12th April, 2021 has
directed the petitioner to hand over the said plot of land within 21 days of receipt of the said letter for allotting it to someone else. The petitioner,
therefore, seeks orders for quashing and/or rescinding and/or revoking and/or setting aside the second notice inviting tender date 22nd September,
2020 and all steps taken in terms thereof. The petitioner also prays for an interim protection as it apprehends that the respondent shall forcibly
dispossess the petitioner from the said plot of land to give effect to the second tender rendering the writ petition infructuous.
On behalf of the respondent it is submitted that by an electronic mail dated 29th October, 2020 appearing at page 152 of the writ petition the
respondent authorities had asked the petitioner to participate in the second tender by collecting the tender document upon paying the tender fee and
depositing the earnest money deposit by 2nd November, 2020 and to submit the Techno Commercial price bid by 3rd November, 2020 being the
extended dates of the second tender. The respondent says that the petitioner did not avail such opportunity and, as such, cannot turn around and now
say that the second tender should be quashed and/or set aside. The respondent also says that in the first tender document right was reserved by the
respondent to cancel the tender without assigning any reason and, as such, there was no necessity for the respondent to assign any reason for
cancelling the tender. The respondent also says that the first tender had been cancelled much before on 29th October, 2020 when the petitioner was
requested to participate in the second tender. No document, however, at this stage has been produced by the respondent to demonstrate that the first
tender was cancelled prior to 22nd September, 2020 being the date of floating the second tender. The cancellation was communicated only on 13th
October, 2020 when admittedly the second tender had been floated. On a query, the learned Senior Advocate representing the respondent submits that
the cancellation was made before 22nd September, 2020 by a resolution said to have been taken by the respondent. Unless the decision of cancellation
is made public or communicated to the petitioner, the resolution said to have been taken by the respondent cancelling the first tender does not come to
either public notice or to the notice of the petitioner. The respondent further says that the second tender has been finalised. The highest offer received
in the second tender is about Rs.7,23,357/- which is few times higher than the present rent received from the petitioner. If this Court is minded to pass
any interim order then the petitioner should be put to terms by directing to pay the said sum of Rs.7,23,357/- till the writ petition is decided. The
respondent also refers to the paying in the writ petition and submits that no relief has been claimed as against the letter dated 12th April, 2021 asking
the petitioner to make over possession.
The respondent is a Government Undertaking and its action has to be transparent, fair and not arbitrary. The respondent may be ultimately found to be
free to cancel the first tender in view of the right reserved thereunder but the same should have been prior to floating of the second tender. The
bidders who had participated in the first tender on the closure of the time to submit their bid had a legitimate expectation of their respective bids be
considered and they may be successful. The first right of refusal granted to the petitioner under the first tender might have persuaded the petitioner in
deciding not to participate in the second tender when the cancellation of the first tender was not known to the petitioner. Even in the electronic mail
dated 13th October, 2020 the respondent does not say when the first tender was cancelled but admits to have floated the second tender. The
respondent by floating the second tender without at least communicating to the petitioner of having cancelled the first tender has not only induced the
petitioner from deciding not to participate in the second tender in view of the legitimate expectation and the first right of refusal but have also
prevented other bidder of the first tender from participating in the second tender. The respondent have also allowed several others who did not
participate in the first tender to participate in the second tender in this process. The action of the respondent in floating the second tender without
formally cancelling the first tender prima facie appears to be arbitrary. The respondent being a public sector undertaking and statutory authority ought
to have being more cautious in its action so that the same prima facie did not appear to be intransparent and unfair.
The petitioner has made out a prima facie case. The balance of convenience and inconvenience lies in favour of the petitioner. The refusal of interim
order would be of greater prejudice to the petitioner. The respondent is restrained from awarding the lease of the said plot of land to any one in terms
of the second tender floated on 22nd September, 2020 till disposal of the writ petition. As the writ petition is to be finally heard after filing affidavits,
the respondent is also restrained from disposing the petitioner from the said plot of land without due process of law during the pendency of the writ
petition.
So far as the commercial loss said to be suffered by the respondent in view of the huge difference between the rate offered by the highest bidder
under the second tender and the rent presently paid by the petitioner is concerned, the respondent shall be free to recover the difference between the
two rates as aforesaid from date i.e 9th June, 2021 till the recovery of possession of the said plot of land in the event the petitioner is unsuccessful at
the final hearing of the writ petition. Affidavit in opposition be filed within three weeks. Affidavit in reply, if any, be filled within two weeks thereafter.
Parties are at liberty to mention after expiry of six weeks for inclusion matter in the list. The objection as to the prayer raised by the respondent is kept
open to be finally decided.