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2018 Supreme(UK) 195
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
K.M. Joseph, Sharad Kumar Sharma, JJ.
Uttarakhand Waqf Board – Appellant
Versus
Shahid and Others – Respondents
Special Appeal Nos. 306, 333 of 2018
Decided On : 18-05-2018
For the Appellants : Shri Dharmendra Barthwal, Shri Siddhartha Singh.
For the Respondents: Shri D.S. Patni, Shri Syed Nadim, Shri Pradeep Hairiya.
The main legal point established in the judgment is that a decision may be illegal but not necessarily void, and a party cannot avoid challenging a decision and yet seek reliefs against it.
Headnote:
Writ Petition - Contractual Dispute - Article 226 of the Constitution - [SUMMARY OF ACT SECTIONS REFERRED] - [SUMMARY OF THE JUDGMENT]
Fact of the Case:
The Writ Petition was filed seeking a writ of mandamus to command the respondent to issue the letter of acceptance of contract in favor of the petitioner as the second highest bidder, as the successful bidder failed to deposit the required amount within the stipulated time, rendering the contract cancelled.
Finding of the Court:
The learned Single Judge allowed the Writ Petition, directing the respondent to give the offer to the writ petitioner, who was the second highest bidder, based on the violation of the mandatory conditions of the tender by the successful bidder.
Issues: The issues included the maintainability of the writ petition in a contractual matter, the position of the Sub-Divisional Magistrate, and the effect of the writ petitioner not challenging the decision to extend the time and award the contract to the successful bidder.
Ratio Decidendi: The Court held that the decision to award the contract based on the extension of time granted to the successful bidder could not be treated as a nullity or a void decision, as the status quo order was not conclusively served on the respondent. The Court also emphasized that the relief sought in the writ petition could not have been granted after the award of the contract in favor of the successful bidder was not challenged.
Final Decision: The appeals were allowed, the judgment of the learned Single Judge was set aside, and the Writ Petition was dismissed.
K.M. Joseph, J.
1. Since a common question of fact and law arises for consideration in these two appeals, we are disposing of the same by this common judgment. Writ Petition (M/S) No. 1033 of 2018 is the writ petition, from which both these appeals arise.
2. Special Appeal No. 306 of 2018 is filed by the 4th respondent in the Writ Petition. Special Appeal No. 333 of 2018 is filed by the 3rd respondent in the Writ Petition (hereinafter referred to as the “Waqf Board”).
3. The Writ Petition was filed seeking the following relief:
“(i) Issue a writ, order or direction in the nature of mandamus commanding the respondent no. 1 to issue the letter of acceptance of contract in favour of petitioner being the second highest bidder in regard to shop no. 1 (main gate Nakkar Khana, Dargah Piran Kaliyar) as respondent no. 4 had failed to deposit 50% amount of his accepted bid within two days, rendering the contract cancelled.”
4. The 1st respondent in the Writ Petition was arrayed as SDM/Administrator Dargah Piran Kaliyar Sharif, Teshil Roorkee, District Haridwar.
5. According to the writ petitioner, Annexure 1 dated 15.3.2018 which was issued by the office of Waqf Dargah Piran Kaliyar, inviting tenders for settling the right to carry on the business from the shops of the said Dargarh. Further case of the writ petitioner is that originally the offer of the 4th respondent came to be accepted. But, he however, did not make the deposit of the amount within stipulated time in terms of the tender. This entitled the writ petitioner to be given the right being second highest bidder. The Writ Petition came to be filed on 11.4.2018. The case came up before the learned Single Judge of this Court on 13.4.2018 and the learned Single Judge passed an interim order, which reads as follows:
“Shri Siddhartha Singh, Advocate, present for the petitioner.
Shri Anurag Bisaria, Standing Counsel, present for the State/respondent No. 1.
Ms. Nishat Intezar, Advocate, present for the Waqf Board.
List this case on 16.04.2018 in the daily cause list.
Till the next date of listing, status quo shall be maintained.”
6. Thereafter, on 16.4.2018, notice was issued to the 4th respondent in the writ petition and it was also directed that till the next date of listing, the respondents are restrained from proceeding any further in the matter. The interim order granted on 16.04.2018 was again continued on 24.4.2018 and still again on 26.4.2018. The matter came up thereafter on 03.5.2018 and, on 04.5.2018, the Writ Petition was allowed. The respondent (Waqf Board) was directed to forthwith give the offer to the writ petitioner, who was the second highest bidder.
7. The reasoning recorded by the learned Single Judge was that as per the mandatory conditions of the tender, the offer/opportunity had to be given to the second highest bidder, who was the writ petitioner; but, instead, what happened was that the successful bidder (4th respondent in the writ petition) though failed to deposit the 50 per cent amount within the stipulated time, the offer was not given to the writ petitioner and instead further time was granted to the 4th respondent by the Joint Magistrate, Roorkee to deposit the amount. It is stated that the 4th respondent was permitted to deposit the sum of Rs. 96,00,393/- in two or three installments by 12.04.2018. It was further held that granting further time to the respondent no. 4 to deposit the amount in installments is totally arbitrary and illegal as the same is in violation of the mandatory conditions of the bidding as there was no such power vested granting extension of time for deposit. It is this judgment, which is subject matter of the appeals.
8. We heard Shri D.S. Patni, learned counsel for the appellants in SPA No. 306 of 2018. We also heard Shri D. Barthwal, Advocate for the Waqf Board, i.e. the appellant in SPA No. 333 of 2018. We also heard Shri Siddhartha Singh, Advocate for respondent No. 1 (writ petitioner) and Shri Pradeep Hairiya, learned Standing Co
