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2022 Supreme(Bom) 405
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR
A.S. CHANDURKAR, PUSHPA V. GANEDIWALA, JJ.
Jitendra N. Jain – Petitioner
Versus
State of Maharashtra – Respondent
Writ Petition Nos. 2975, 7513 of 2019, Civil Application (CAW) Nos. 53, 55 of 2022, Misc. Civil Application (St.) No. 9662 of 2021
Decided On : 21-01-2022
Advocate Appeared:
For the Petitioners: Shri R.M. Sharma, Shri S.A. Mohta.
For the Respondents: Shri A. Madiwale, Shri A. Parchure, Shri A.M. Ghare, Shri A.A. Kathane, Shri R.J. Kankale.
Headnote:
Constitution of India, 1950 – Article 226 - Maharashtra Co-operative Societies Act, 1960 - Liquidation - Society registered under Maharashtra Co-operative Societies Act, 1960 owns property with construction - Bank is under liquidation and the District Deputy Registrar, Co-operative Societies, is functioning as the Liquidator - Wardhman Urban Co-operative Credit Society Ltd. Is stated to be in possession of approximately 97.24 square meters of that land pursuant to an agreement - Duration of that agreement is for the period - In liquidation proceedings it was proposed to sell plot - Bank through the Liquidator issued a tender notice inviting bids from persons interested in purchasing said land admeasuring about 30000 square feet alongwith construction thereon - Whether it is open for tendering authority to unilaterally reduce the upset price quoted in the tender notice – Held, court are convinced that order issued by Joint Registrar, Co-operative Societies, Maharashtra State approving sale of land in question pursuant to the bid of Housing Society as well as consequential communication issued by Liquidator to Housing Society accepting its bid are liable to be set aside - Having found that conduct of auction by the Liquidator was contrary to settled principles of law, further course of action to be undertaken will have to be considered - Auction that was undertaken pursuant to notice will have to be set aside - Fresh auction will now have to be held by Liquidator - It is seen from the record that the Housing Society whose bid was accepted had paid earnest amount - Thereafter, the balance amount was paid in two phases of Rs. 75,00,000/- and Rs. 4,68,61,111/- thus totalling - This amount is lying with Liquidator - While the earnest amount would have to be refunded in accordance with Clause 17 of tender document, the balance amount will have to be returned to Housing Society - Deposit of this amount was pursuant to the orders which have been found to be bad in law - In facts of the case, interests of justice would be met by directing refund with interest at rate of 5% per annum to be paid by Bank through Liquidator - Directions proposed to be issued would protect interests of proposed intervenors and hence no separate orders are required to be passed on their applications - Writ petitions disposed of.
JUDGMENT :
A.S. CHANDURKAR, J.
1. Rule. Rule made returnable forthwith and heard learned counsel for the parties.
The question that arises for consideration in these writ petitions is whether it is open for the tendering authority to unilaterally reduce the upset price quoted in the tender notice?
The facts giving rise to the aforesaid question are that the Buldhana District Co-operative Agricultural Rural Multipurpose Development Bank Ltd. (for short, the Bank) which is a Society registered under the Maharashtra Co-operative Societies Act, 1960 owns property admeasuring approximately 30000 square feet with construction thereon situated at Plot No. 7/2, Chaitanyawadi, Buldhana. The Bank is under liquidation and the District Deputy Registrar, Co-operative Societies, Buldhana is functioning as the Liquidator. The Wardhman Urban Co-operative Credit Society Ltd. Buldhana (for short, the Society) is stated to be in possession of approximately 97.24 square meters of that land pursuant to an agreement dated 20.10.2012. The duration of that agreement is for the period from 01.08.2011 to 31.07.2014. In liquidation proceedings it was proposed to sell plot No. 7/2. The Bank through the Liquidator issued a tender notice on 19.09.2017 inviting bids from persons interested in purchasing said land admeasuring about 30000 square feet alongwith construction thereon. The upset price fixed for the sale of aforesaid land was Rs. 15,01,58,000/-. Since there was no response to this tender notice, the Liquidator issued another notice on 6-7/11/2017. The upset price as stated in the first tender notice was maintained. In absence of any response to this notice too, the Liquidator on 16.12.2017 issued a third tender notice proposing to sell the aforesaid land and quoted the same upset price. Swastik Shops and Shop Owners Co-operative Housing Society Ltd. Buldhana (for short, the Housing Society) indicated willingness to purchase the aforesaid property and accordingly submitted its bid for an amount of Rs. 5,51,11,111/-. The bid submitted by the Housing Society was less than the upset price. Since no decision was being taken on the said bid submitted by the Housing Society, it had approached this Court in Writ Petition No. 8450/2018. This Court on 21.01.2019 directed the State Co-operation Department to take a decision on the proposal submitted by the Liquidator in that regard. On 31.01.2019 the Joint Registrar, Cooperative Societies, Maharashtra State issued a communication to the Commissioner of Co-operation and Registrar, Cooperative Societies, Pune stating that the proposal submitted by the Bank was acceptable to the State Government and further decision in the matter to be taken in the light of the Government decision dated 24.07.2015. The Commissioner of Co-operation on 15.02.2019 directed the District Deputy Registrar to take further steps in the matter. Acting on this communication the Liquidator issued a communication to the Housing Society on 16.02.2019 stating therein that the offer made by it for purchasing the property in question for Rs. 5,51,11,111/- was accepted subject to certain conditions.
The order dated 31.01.2019 passed by the Secretary, Cooperation Department is the subject matter of challenge by Dwarka Bahuddeshiya Gramin Vikas Foundation, Buldhana, a registered public trust (for short the ‘Trust’) through its President in Writ Petition No. 7513/2019 as it is also interested in purchasing the aforesaid property. The subsequent communication dated 16.02.2019 accepting the bid of the Housing Society is the subject matter of challenge in Writ Petition No. 2975/2019 that has been preferred by the Chairman of the Society.
2. When Writ Petition No. 2975/2019 was considered for admission, the statement made on behalf of the Chairman of the Society that the Society was prepared to hand over vacant possession of 3000 square feet land to the Bank was accepted as an undertaking to the Court. Thereafter this writ petition was directed to be heard
