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High Court Of Calcutta
A. K. GANGULY, TAPAN KUMAR DUTT
NAND KISHOR SONKAR - Appellant
Versus
HOWRAH MUNICIPAL CORPORATION - Respondent
M. A. T. 2149 Of 2004
Decided On : 08/25/2004
CONTRACT - TENDERS - MUNICIPAL CORPORATION - HOWRAH MUNICIPAL CORPORATION ACT, 1980 (HMCA), SECTIONS 21, 22, 23 - WEST BENGAL CO-OPERATIVE SOCIETIES ACT, SECTION 60 (3) - WEST BENGAL CO-OPERATIVE SOCIETIES RULES, RULE 97 - CONSTITUTION OF INDIA, ARTICLES 41, 46 - TENDER NOTICE - BID CONDITIONS - HIGHEST BIDDER - CO-OPERATIVE SOCIETY - MAYOR'S ORDER - M-I-C DECISION - INTERIM ORDER - ARBITRARINESS - UNFAIR TREATMENT - RES JUDICATA - RELAXATION OF CONDITIONS - CO-OPERATIVE SOCIETY'S WEIGHTAGE - FRESH TENDER - STAY OF OPERATION OF JUDGMENT.
Fact of the Case:
Tender notice was issued by the Howrah Municipal Corporation (HMC) inviting tender for grant of parking fee license by HMC in respect of I. C. Bose Road and also the road in front of Ashoka hotel. Two offers were received by HMC, one by the writ petitioner/appellant and the other by the respondent No. 6, Tandel Bagan Co-operative (hereinafter referred to as the 'said Co-operative'). The petitioner/appellant's offer was higher and the same was accepted by the Mayor-in-Council in a meeting held on March 12, 2004. The said decision of the Mayor-in-Council dated March 12, 2004 was communicated to the appellant on 02. 04. 2004 and he was directed to deposit the bid amount for the year 2004-05 within the scheduled time every year. The petitioner/appellant approached this Court with a writ petition 19. 04. 2004, praying, inter alia, for proportionate reduction of license fees in view of the proposed shifting of the wholesale vegetable market to any other area or alternative site. On such writ petition, being filed, a learned Judge of this Court directed the filing of affidavits and passed the following interim order:"without prejudice to the rights and contentions of the parties in the writ application and subject to the result of the writ application, time to deposit the sum of Rs. 41, 11, 111. 11 is extended till April 30, 2004. In default of payment of the aforesaid sum within the aforesaid time period. Howrah municipal Corporation is at liberty to take steps against the petitioner in accordance with law." The said writ petition is still pending.
Finding of the Court:
1. The Mayor's order dated 13. 05. 04 in allowing the said society to deposit 1/3rd of its bid money by 15th of May, 2004 and then giving it the Possession Certificate to collect the parking fees is contrary to tender conditions, contrary to the collective decision of M-I-C and thus contrary to section 23 of HMCA, and is, therefore, bad in law. 2. All subsequent acts of HMC in accepting further instalments from the said society and granting a possession certificate to the said society are also bad in law. 3. The order of the learned judge dated 20th April, 2004 is also set aside.
Issues: 1. Whether the Mayor's order dated 13. 05. 04 in allowing the said society to deposit 1/3rd of its bid money by 15th of May, 2004 and then giving it the Possession Certificate to collect the parking fees is bad in law? 2. Whether all subsequent acts of HMC in accepting further instalments from the said society and granting a possession certificate to the said society are also bad in law? 3. Whether the order of the learned judge dated 20th April, 2004 is also bad in law?
Ratio Decidendi: 1. The Mayor's order dated 13. 05. 04 in allowing the said society to deposit 1/3rd of its bid money by 15th of May, 2004 and then giving it the Possession Certificate to collect the parking fees is contrary to tender conditions, contrary to the collective decision of M-I-C and thus contrary to section 23 of HMCA, and is, therefore, bad in law. 2. All subsequent acts of HMC in accepting further instalments from the said society and granting a possession certificate to the said society are also bad in law. 3. The order of the learned judge dated 20th April, 2004 is also set aside.
Final Decision: 1. The Mayor's order dated 13. 05. 04 and all subsequent orders accepting the instalment payments by the said Society are set aside. 2. The order of the learned judge dated 20th April, 2004 is also set aside. 3. HMC is directed to conduct a fresh tender for allotment of the license for collection of parking fees. For that HMC is to issue notice forthwith and the entire process should be completed on or before 30th of September, 2004.
( 1 ) IN this matter, parties have been heard at length and with the consent of the parties, we have treated this appeal on day's list and both the appeal and the stay application are decided by the following judgement:
( 2 ) THIS appeal is directed against an order dated May 20, 2004 passed by a learned Judge of the Writ Court dismissing the writ petition summarily without calling for any affidavit.
( 3 ) IN fact, two writ petitions were filed. The first one was filed by the petitioner in the month of April, 2004 and is still pending. Both the writ petitions were filed in connection with disputes arising out of a tender notice issued by the howrah Municipal Corporation (HMC) inviting tender for grant of parking fee licence by HMC in respect of I. C. Bose Road and also the road in front of Ashoka hotel. An advertisement was published in two Bengali dailies i. e. "ganashakti" and "aajkal" on January 14, 2004 inviting tenders for grant of licence in front of those roads for a period of three years. The annual reserve price was fixed at rs. 30 lakhs.
( 4 ) VARIOUS tender conditions were stipulated by the HMC and of those conditions the one which is relevant for the present dispute is Condition No. 21, which says the successful bidder would have to deposit the offered amount within seven days from the date of receipt of the letter of acceptance.
( 5 ) IT is not in dispute that pursuant to the said tender notice, two offers were received by HMC, one by the writ petitioner/appellant and the other by the respondent No. 6, Tandel Bagan Co-operative (hereinafter referred to as the 'said Co-operative' ). It is also not in dispute that the petitioner/appellant's offer was higher and the same was accepted by the Mayor-in-Council in a meeting held on March 12, 2004. The said decision of the Mayor-in-Council dated March 12, 2004 was communicated to the appellant on 02. 04. 2004 and he was directed to deposit the bid amount for the year 2004-05 within the scheduled time every year.
( 6 ) IT appears that after receiving the said letter of acceptance, the appellant approached this Court with a writ petition 19. 04. 2004, which is referred to previously as the first one, praying, inter alia, for proportionate reduction of licence fees in view of the proposed shifting of the wholesale vegetable market to any other area or alternative site. In fact, the cause of action for filing the first writ petition in the month of April, 2004 was that the petitioner/appellant came to know from an article published in the Ananda Bazar Patrika that the hmc decided to shift the wholesale vegetable market to a site on the Bombay road. As such, a prayer was made in the writ petition to reduce the licence fee in view of the fact that as a result of such proposed shifting, the petitioner's volume of business would be substantially reduced. On such writ petition, being filed, a learned Judge of this Court directed the filing of affidavits and passed the following interim order :"without prejudice to the rights and contentions of the parties in the writ application and subject to the result of the writ application, time to deposit the sum of Rs. 41, 11, 111. 11 is extended till April 30, 2004. In default of payment of the aforesaid sum within the aforesaid time period. Howrah municipal Corporation is at liberty to take steps against the petitioner in accordance with law. "
( 7 ) WHILE passing the said order, the learned Judge recorded the submissions made on behalf of the learned Counsel for the HMC that there was no proposal to shift the HMC Fish Market.
( 8 ) THE said writ petition is still pending.
( 9 ) THE writ petitioner/appellant, however, could not make the payment of the entire money pursuant to the aforesaid tender by April 30, 2004 and on april 30, 2004, the writ petitioner/appellant made a prayer to the Mayor-in-council, HMC praying for paying the entire money of Rs. 41,11,000/- and odd in four monthly instalments. After the
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