VAISHWI INFRASTRUCTURE PRIVATE LIMITED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition is filed under Article 226 of the Constitution of India praying for following reliefs:

(2.) This petition is filed by the petitioner, who is preferred bidder of e-auction conducted by Gandhinagar Urban Development Authority ('GUDA' for the sake of brevity) in respect of Final Plot No.127 (sale for commercial) admeasuring 12573 sq meters on a long term lease of 99 years by way of online e-auction. The petitioner being the highest bidder, in accordance with the terms and conditions of Request For Proposal (RFP) and general terms and conditions of the tender, was issued an intimation letter dtd. 16/3/2021 whereby, as per the terms of tender, he has been asked to deposit 10% amount of bid within 10 days thereof and remaining 90% of the amount, the petitioner was required to deposit within 30 days thereof. The said intimation further reveals that if no amount is deposited, as aforesaid, the amount deposited so far, as per the terms of tender, will be forfeited and action in accordance therewith would be initiated. It is further made clear in that intimation that it may not be treated as allotment of plot or it may not be presumed that possession thereof is given. It is coming out from the record that several communications were made by the petitioner seeking extension of time and it is extended on so many occasions. Despite the same, the petitioner has failed to deposit the bid amount. Neither 10%, which was required to be deposited is paid within 10 days of the letter of intimation nor 90% remaining amount, which was required to be deposited within 30 days thereof, is paid. The respondent-authority was constrained to, vide communication dtd. 14/10/2021, forfeit the Earnest Money Deposit on the petitioner's failure to pay the amount within time limit mentioned in the payment schedule of RFP as per Condition No.22.1 and 22.4. Despite petitioner being preferred bidder in accordance with that terms, since 180 maximum days as per the terms and conditions of RFP /tender was over, despite further prayer for extension of time was made by the petitioner, it came to be declined and the respondent-authority was constrained to pass the aforesaid order forfeiting the Earnest Money Deposit. In the aforesaid background, though the petitioner is a successful bidder, having failed to deposit the amount offered by him as per the payment schedule, order for forfeiture of Earnest Money Deposit in accordance with the terms of RFP /tender came to be passed.

(3.) Mr. Yatin Oza, Senior Advocate, learned Counsel assisted by Mr. Masoom K. Shah, learned advocate for the petitioner, submitted that though advertisement by the respondent-authority for the aforesaid plot in question was for sale, the petitioner was misguided when communication is made that the lease deed for 99 years is required to be executed instead of sale deed. With a view to support his aforesaid submission, he drew attention of the Court to page 44 of the compilation that the authority took a decision to sell the plot in question when Land Price Fixing Committee of the authority determined the market price per sq meter as premium price /base price as mentioned in that minutes of meeting of Land Price Fixing Committee of the respondent authority. Drawing attention of the Court to the document downloaded from the website of the auctioning authority, a copy of the Winner Report specifying the auction detail and item details as Item No.1 is approved for sale. He has further drawn attention of the Court to the map of plot in question, which is part of RFP /tender terms, which is also reflecting the plot in question as sale for commercial purpose. Further drawing attention of the Court to the title of page 22, which is part of instructions to the bidder in a tender condition, again the plot in question is shown to be sale for commercial. On the basis of the aforesaid instances, Mr. Yatin Oza, Senior Advocate, learned Counsel assisted by Mr. Masoom Shah, learned advocate for the petitioner, submitted that the RFP /tender conditions runs counter to the decision of the authority to sell the plot when tender was floated for the purpose of 99 years lease of the plot in question. Therefore, it is submitted that the authority could not have offered the plot in question on lease instead of outright sale. With a view to justify the non-payment of amount of bid, it is submitted that the petitioner participated in the bid considering it to be a plot, which is offered for outright sale and not on lease, and therefore, it is submitted that Clauses 9 and 10 in instructions to bidder /applicants when plot in question is offered providing lease period to be 99 years from the date of possession of the plot and determining the lease rent on annual basis to be paid in advance for a total period of 20 years plus GST, as per the terms of lease deed at the time of final payment as also Condition No.13 at Annexure B the terms and conditions of lease and development of plot provides "the lessee shall not mortgage or transfer or part with permission or sublet the premises or apportion there or without the permission of GUDA" on the ground that instead of outright sale, as reflected from the aforesaid submission made in earlier paragraph, the tender was floated and conditions provided for plot in question came to be granted on long term lease of 99 years, and therefore, it is against that declaration and decision, and therefore, Clauses 9, 10 and 13, as aforesaid, are illegal and required to be quashed and set aside.