ALAULI ANCHAL BOAT TRAFIC.COP.ST.L.& ANR Vs. STATE OF BIHAR & ORS.
Supreme Court of India (Full Bench (FB)- Three Judge)
Appeal (Civil), 1853 of 2016, Judgment Date: Feb 26, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1853 OF 2016
(Arising out of SLP(C) No.8448 of 2012)
ALAULI ANCHAL BOAT TRAFFIC COOPERATIVE
SOCIETY LTD., PHULTORA AND ANR. ....Appellants
Versus
STATE OF BIHAR AND ORS. ….Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal assails an order dated 15.12.2011 passed by the
Division Bench of the High Court of Judicature at Patna allowing Letters
Patent Appeal No.1457 of 2009 setting aside the order of the learned Single
Judge and declining to interfere with the order of the Collector dated
16.10.2008, auctioning Ghurandera Kilagarai Ghat and direction to the
appellant-society to deposit the balance bid amount of Rs.10,80,000/- for
the year 2008-2009 for settlement of the said ghat.
3. A public notice dated 16.10.2008 was issued by the Zonal
Officer, Alauli for auction of Ghurandera Kilagarai Ghat for the year 2008-
2009 in which Reserve Jama was fixed at Rs.33,350/-. Three bidders had
taken part in the auction, the highest bidder at Rs.16,00,100/- by Sushil
Kumar and that one Lalan Kumar and Shri Ram Bilash Yadav who also
participated in the bid at Rs.5,00,000/- and Rs.10,00,000/- respectively.
At the time of Dak, the appellant-society which was present there accepted
the settlement under protest and deposited one third of the total bid
amount. The appellant-society then prayed for recalling the open bid for
the year 2008-2009 on the ground that the bid amount was very much higher
and also to fix the amount only with fifteen percent increase of the
previous years and for direction upon the respondent to adjust the amount
deposited by it in the future instalment. Request of the appellant-society
was declined; however, liberty was granted to the appellant-society that it
can avail next two settlements for consecutive years at the same settlement
amount without any further Jama or open bid.
4. The appellant-society then filed Writ Petition No.3646 of 2009
praying for quashing the order dated 16.10.2008 inviting open bid for
settlement of Ghurandera Kilagarai Ghat for the period 2008-2009 through
public auction. The appellant alleged that the bid amount was very much
higher than the amount on which ghats were being settled for the previous
years. Learned Single Judge disposed of the writ petition and remanded the
matter back to the Collector, Khagaria observing that the persons who bid
the amount were not really interested in taking the settlement and that the
appellant-society had taken the ghat under protest. The learned Single
Judge directed the authorities to re-consider the matter in the light of
various circulars of the State Government. Being aggrieved, respondent-
State of Bihar preferred appeal in LPA No.1457 of 2009 which was allowed by
the Division Bench holding that the record revealed that every year the
amount of bid has gone up and as such the court has no jurisdiction to go
into the disputed questions of fact with regard to the bid amount and that
it was for the appellant-society to work out its remedies before the
appropriate forum.
5. Learned counsel for the appellant-society Mr. Subhro Sanyal
submitted that bid amount of Rs.16,00,000/- for which the ghat was settled
is arbitrary and is very much on the higher side than the standardized
revision by fifteen percent of the amount over and above the amount fixed
in previous years and hence the respondents are obligated to re-fix the
amount. It was contended that the appellant-society had accepted the bid
only under protest and the Division Bench failed to consider the fact that
the appellant-society had reserved its right to challenge the public
auction Ghurandera Kilagarai Ghat by Circle Officer, Alauli and deposit of
one third amount under protest does not amount to acquiescence and waiver
of appellant's legal right.
6. Per contra, learned counsel for the respondents Mr.
Shivam Singh contended that the Circle Officer, Alauli not only accepted
the recommendation of the District Level Committee rather he has acted as
per the direction of the Government letter to go through open evaluation
process in order to augment the revenue of the State. The respondents
further contended that the appellant-society took the settlement of the
ghat on the amount assessed through open bid and as such appellant-society
is estopped from assailing the auction of the ghat by inviting bids.
7. We have carefully considered the rival contentions and perused
the impugned order and materials on record.
8. Pursuant to the auction notice dated 16.10.2008, auction of
Ghurandera Kilagarai Ghat was held on 27.10.2008 in which three persons
participated and the highest bid was at Rs.16,00,100/- by one Sushil
Kumar. By perusal of record of proceedings of auction of Ghurandera
Kilagarai Ghat (Annexure P/10), it is seen that at the time of Dak,
appellant-society was present there and its opinion on the highest Dak was
obtained and the appellant-society had then taken the settlement of the
said ghat under protest. Relevant portion of record of auction proceedings
of Ghurandera Kilagarai Ghat dated 27.10.2008, reads as under:
“The highest bid had done by the Dakvakta No. 3 Shri Sushil Kumar S/o Shri
Satya Narayan Pra.Yadav, R/o Govindpur Natoliya Sahebpur Kamal, Baigusarai.
At the time of Dak, the Alauli Zonal Bodh Traffic Society Ltd., Phoolwada,
Khagdiya was present there. Get his opinion on this highest Dak.
Ready to take with objection
Sd/-”
Even though the appellant-society had neither participated in the auction
nor submitted the bid, appellant-society's opinion was obtained on the
higher Dak and the appellant-society accepted the bid under protest for
Rs.16,00,000/-. Though, no plausible explanation is shown to us as to why
the appellant-society was given the contract when it had not participated
in the auction or submitted its bid, learned counsel for the appellant had
submitted that Sushil Kumar, who was the highest bidder and had given the
bid of Rs.16,00,100/-, did not come forward and it is in these
circumstances the appellant was offered the contract of the said ghat at
the aforesaid rate. Be that as it may, Sushil Kumar, who was the highest
bidder, did not question the settlement of ghat in favour of the appellant-
society and, therefore, such a question is not to be gone into in these
proceedings. Since the contract was awarded to the appellant-society and
insofar as the said award is concerned, nobody has challenged the validity
thereof, we are only called upon to decide as to whether the appellant-
society could question the settlement bid of Rs.16,00,000/- at which the
settlement of ghat was given to the appellant-society.
9. It emerges from the record that the reason for auctioning the said
ghat was that the Circle Officer, Alauli had accepted the recommendation of
the District Level Committee and acted as per the Government instruction
vide letter No.2526 dated 12.09.1978 to go through open auction process
which is mandatory for the settlement of the ghats for every third year. As
per the recommendation of the District Level Committee, in order to augment
the State revenue, the authorities are expected to invite bids through
auction process and ensure transparency in acceptance of the bids. The
auction process inviting the bids in the settlement of ghat cannot be said
to be arbitrary or in violation of government circulars. In auction, the
highest bid received is of Rs.16,00,000/- as mentioned above. Further, as
pointed out above, the appellant-society was not a bidder and did not
participate in the auction. However, still it was offered to have the ghat
settled in its favour on payment of Rs.16,00,000/- which was the highest
bid received. It agreed to do so but accepted the bid under protest. We
do not find any justifiable reason to challenge either the auction or the
aforesaid bid amount. Had the appellant-society refused, the only other
course of action was to invite the bids again. The amount of Rs.16,00,000/-
had a rationale behind it as it was the highest bid and, therefore, having
agreed to take the settlement of ghat for Rs.16,00,000/- the appellant-
society was not justified in challenging the auction of ghat by inviting
bids. More so, when Ghurandera Kilagarai Ghat was not the solitary ghat in
which the auction has been held but other ghats were also auctioned and
settled at much higher amounts.
10. Contention of the appellant-society is that in view of various
circulars of the Government, the upward revision of reserve Jama could only
be fifteen percent of the reserve Jama/settlement amount for the previous
years and the bid amount of Rs.16,00,000/- for the ghat in question is
arbitrary and un-reasonable. According to the appellant-society, Reserve
Jama Committee fixed the reserve Jama for settlement of Ghurandera
Kilagarai Ghat for the years 2005-2006, 2006-2007, 2007-2008 at Rs.28,750/-
Rs.29,000/- and Rs.33,500/- respectively.
11. For the reasons given above, we have no hesitation to reject the
aforesaid contention. It is re-emphasized that when the decision was taken
to go through the open auction process which was even otherwise justifiable
in order to augment the State revenue, the appellant-society cannot object
to the same and claim the settlement of ghat in its favour on payment of
15% of the reserved Jama/settlement amount for the previous years. In
fact, such a contention is not even available to the appellant-society
inasmuch as the decision of the respondents to go through the auction
process was never questioned or challenged by the appellant-society in any
judicial proceedings. On the contrary, it jumped to the offer of the
respondents and accepted the bid but, at the same time, put the uncalled
for condition that it was accepting the same under protest. Therefore, it
cannot now turn around and make out a case that the bid amount should have
been 15% of the reserved Jama/settlement for the previous years.
12. The appellant placed reliance upon the letter dated 12.04.1982
of the Joint Secretary, Department of Revenue & Land Reforms, Government of
Bihar addressed to Collector, Gopalganj stating that minimum fifteen
percent increase is to be made in the settlement of Jalkar keeping in mind
the development of Jalkar and rising prices of fish. The said letter dated
12.04.1982 deals with development of Jalkar and Fisheries-cum-Makhana.
Likewise, letter dated 09.03.2002 upon which the High Court based its order
stipulates that the settlement of ghats ought to be made only for three
years on the basis of reserve Jama. In the present case, the settlement
was already done for three years and thereafter the appellant-society was
bound to settle the ghat on the basis of open bid as per the direction of
the Government with a view to re-assess the valuation of the settlement and
the process of open bid was rightly adopted by the appellant-society which
was also necessary to enhance the revenue of the Government.
13. Likewise the circular dated 12.02.1981 which states that
instead of doing settlement of Jalkar through open bidding, it should be
made to the cooperative societies for every three years deals only with
Sairats pertaining to Fisheries-cum-Makhana. By perusal of the said
circular, it is seen that the District Fishery Officer and also Fishery
Officer from the level of Sub-Division are the members of the Committee
thereby indicating that the said circular is only with reference to
Fisheries-cum-Makhana. But so far as in the present case Ghurandera
Kilagarai Ghat, it is concerned with settlement of ghats for transportation
of men and material through water base. Contention of the respondents is
that the appellant-society was well aware of the higher economic viability
as through these ghats, maize transportation is being carried out for their
export centres from Khagria Railway Station.
14. As pointed out earlier, the appellant has not earlier challenged
the auction notice dated 16.10.2008. On the day of auction dated
27.10.2008, the appellant-society was present and when its opinion was
obtained on the highest Dak, the appellant-society accepted the settlement
of ghat for Rs.16,00,000/-. While so, it was not open to the appellant-
society to challenge the auction notice and to seek writ of mandamus to
direct the respondents to act as per the decision of the District Level
Reserve Jama Committee. As pointed out earlier, the Circle Officer accepted
the recommendation of the District Level Committee and gone through the
open evaluation process which is mandatory for settlement of ghats for
every third year after the evaluation of open bid process.
15. Be it noted, Ghurandera Kilagarai Ghat was not the only solitary
ghat auctioned, but auction was held for other ghats also and the bid
amount had gone much higher than the amounts at which the ghats were being
settled in the previous years. In fact, the appellant-society was
successful in offering the highest bid amount for other ghats at Rs.
20,00,000/-. Having participated and having emerged as the successful
bidder for other ghats, the appellant-society is not justified in
challenging the auction inviting open bids for Ghurandera Kilagarai Ghat.
The Division Bench rightly observed that every year the amount of bid has
gone up and therefore, the Court has no jurisdiction to go into such
disputed questions of fact with regard to bid amount. We do not find any
reason warranting interference with the impugned order.
16. It is to be pointed out that the appellant-society has deposited
only thirty per cent of the amount and even after serving three notices by
the Circle Officer Alauli, the rest of the amount has not yet been paid.
While granting stay of the impugned order, vide order dated 23.03.2012,
this Court directed the appellant-society to deposit a sum of Rs.2,00,000/-
. The respondents are at liberty to proceed against the appellant-society
to recover the amount due from the appellant-society.
17. In the result, the appeal is dismissed leaving the parties to
bear their respective costs.
….….....................CJI.
(T.S.THAKUR)
.….……....................J.
(A.K. SIKRI)
.……….....................J.
(R. BANUMATHI)
New Delhi,
February 26, 2016.
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