Working As Regional Director, Verdan Foundation, Baunsi Prakhand, P.S. vs Patna

Learned counsel for the petitioner submits that the 2 Patna High Court CWJC No.203 of 2013 (2) dt.09-01-2013 reserved price fixed in the open auction was Rs. 2,88,650/-. It has been settled in favour of respondent no. 9 for Rs. 3,17,550/-, on a 10% increase. The petitioner is willing to pay more than double if not more of the reserved price. The respondents have wrongly granted the settlement in favour of respondent no. 9 at a lesser value causing loss of Government revenue also. Counsel for the State submitted that he has received instructions from the Additional Collector who has also supplied him a Photostat of the original records. It is submitted that under Government instructions, if a Co-operative Society was a bidder, preference had to be given to it over any individual, NGO or others. Respondent no. 9 is a registered Co-operative Society, the petitioner is at best an NGO. There is no error in the preference given to respondent no. 9 as a Co-operative Society. If there had been more than one Co-operative Society bidding then the issue of a higher bid may have been relevant. Referring to the Advertisement dated 30.11.2012 it is submitted that Clause- 3 provided in the event of a Co-operative Society being a bidder, preference had to be given if it was willing to accept the settlement at the reserve price. The fact that the petitioner may have been present during bidding or that the earlier bidding may have been adjourned at his request are not relevant as he was not eligible to be considered. Counsel for private respondent no. 9 submitted that the petitioner did not make any offer for higher deposit. It 3 Patna High Court CWJC No.203 of 2013 (2) dt.09-01-2013 was next submitted that under a Government circular dated 11/12.3.1980, a previous bidder for a period of three years was entitled to settlement at 10% enhancement which has been done presently. Relying on another instruction dated 14.3.1982 it is reiterated that preference had to be given to a Co-operative Society. Reliance has lastly been placed on an order in C.W.J.C. No. 112 of 2007 in support of the submission that if the petitioner did not participate in the bidding process and make a higher bid, he cannot come forward now and contend that he was willing to pay higher amount. In such a situation, the question of higher revenue that may have been available to the State is not relevant and the State is bound by acceptance of the highest bid at the earlier stage. Provisional Parwana has already been issued to respondent no. 9 and the Mela is to commence from 14.1.2013. The foremost issue would be the public interest to ensure maximum collection of revenue by settling the bid in favour of the highest offerer subject to compliance with the requirement of the law. Unless there be any interdict of the law or there be exceptional circumstances, the revenue interest of the State shall take paramount importance. Whenever an open bid is to be held and a public settlement made, obviously the attempt has to be made to obtain highest revenue. The submission on behalf of respondent no. 9 from the Government instruction dated 11/12.3.1980 need not hold up further 4 Patna High Court CWJC No.203 of 2013 (2) dt.09-01-2013 discussion in view of the specific instructions issued by the authorities with regard to the Baunsi Mela on 16.1.2008 that it be settled by open bid. There is no limitation or restriction prescribed in the latter notification that any settlement can be made to the earlier settlee merely on 10% higher amount. The contention of the State, the authority which makes the settlement, that the petitioner was not eligible for consideration, not being a Co-operative Society is not sustainable. Who were eligible to bid has to be determined from the language of the advertisement dated 30.11.2012. It does not refer to any circular even with regard to eligibility. Clause-1 makes an individual eligible. It may include an NGO also. Clause-3 only provides that if a Co-operative society was desirous it could be given the settlement at the reserved price on a preferential basis. It is difficult to hold that preference for settlement at the reserved price shall have to be given to a Co- operative society even if an individual or another was willing to pay a higher bid amount. It shall directly affect public interest which mandates settlement with the highest bidder for maximum revenue. If there was more than one Co-operative society bidding shall settlement be made with the society offering bid at the reserved rate notwithstanding that another society was ready to pay a higher amount. Preference could therefore be given to a Co-operative society other things being equal. That would mean the bid of both a Co-operative society and the individual being at 5 Patna High Court CWJC No.203 of 2013 (2) dt.09-01-2013 par when the former could be given preference. The meaning of the word “Preference” has been explained in ( 2002)4 SCC 16 (Bibhudatta Mohanty v. Union of India) as follows:- “12….However, the preference clause for higher qualification does not mean irrespective of fulfilment of other norms SSC- passed have to be preferred. Where any rule or guideline provides preference in respect of some higher qualification, it only means that all other requirements being equal, a person possessing higher educational qualification will be preferred. It cannot, however, be considered as the sole criterion for preference in selection and appointment.

13. The Tribunal did not properly appreciate the order of this Court in Secy. (Health) Deptt. of Health & F.W. v. Dr Anita Puri. Speaking for this Court Pattanaik, J. held: the post and “When an advertisement stipulates a the minimum particular qualification as qualification further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed…….” The order in C.W.J.C. No. 112 of 2007 distinguishable on its own facts. In that case, the petitioner alone had bid the highest amount. The respondent subsequently came forth with a higher offer. In the present case, it has already been noticed that the State opined that the petitioner was not eligible to be considered. The Court in the former case was not satisfied of the bona fides of the intervenor and any attempt by 6 Patna High Court CWJC No.203 of 2013 (2) dt.09-01-2013 them to factually participate in the bidding process holding that it was an afterthought. The State Government has promulgated the Bihar State Mela Authority Act, 2008 published in the Bihar Gazette dated 3.5.2008. Section 21 of the Act inter alia provides that in the discharge of its functions and duties it shall be bound by the questions of policy as the State Government may decide. Enhancement and availability of principles for higher revenue is undoubtedly a matter of policy. Section 8 dealing with the power and functions of the Authority empowers it to take decisions for proper functioning, regulation and management of the Mela and to decide policy for augmentation of revenue resources inter alia. Section 11 empowers the Authority to make recommendation for action against any officer or employee of the State Government associated with the management of a Mela. The Court is therefore of the concerned opinion that the matter is fit to be referred to the Bihar State Mela Authority to decide the question that if the tender notice permitted even individuals to participate, can participation be restricted to Co-operative Societies only on basis of any circulars contrary to the Advertisement and instruction dated 16.1.2008. The Authority shall also examine and take appropriate directions from the State Government as a matter of policy, that if an individual under Item-1 of the Advertisement is willing to pay higher amount, will the revenue interests of the State take a 7 Patna High Court CWJC No.203 of 2013 (2) dt.09-01-2013 back seat and become irrelevant and settlement must be made to a Co-operative Society under Clause-3 at the lesser reserved price only ignoring the revenue interests of the State. Since the Court is satisfied that the issue presently involved is raising far more important questions than simply the holding of a Mela, respondent no. 9 is restrained from holding the mela till the Bihar State Mela Authority does not hear the petitioner and respondent no. 9 and give appropriate directions and/or orders. Nothing precludes the authority from conducting the Mela itself in accordance with Section 8. Counsel for the petitioner and respondent no. 9 are agreed that they shall both appear before the Chairman of the Bihar State Mela Authority by day after tomorrow i.e., 11.1.2013. Keeping in mind the urgency of the matter it is expected that the Authority shall act expeditiously in the matter not only in the interest of the contesting parties but in the revenue interests of the State itself as also the public at large who may be expectantly waiting to participate in the Mela. The application stands disposed. P. Kumar/- (Navin Sinha, J)