MOHD SHAFI CHANGAL Vs. STATE OF J&K

JUDGEMENT

(1.) THE Administrator, Municipal Council, Sopore in pursuance of a decision to put the collection of entry fee (contract of Sopore Adda) to auction, issued a notice inviting offers. The process so initiated clinched in allotment of contract in favour of respondent No. 5, which became subject matter of OWP No. 323/2003. The writ petition was dismissed on 22.09.2003 by Learned Single Judge. The said judgement is called in question by medium of this LPA by the writ petitioner (appellant herein) on the ground of denial of right of consideration. Considering the controversy in the light of objections filed by the respondents in opposition to the admissibility of the writ petition, it transpires that the appellant had failed to pay the call deposit worth Rs. 16,000/ -, thus rendered ineligible for participation in the auction. The stance of the respondents received approval of the Learned Single Judge, consequently, dismissal of the writ petition.

(2.) WE are not going to disturb the finding of fact yet with a view to safe guard the public interest, we are inclined to intervene in the matter. What persuades us to take such course of action is traceable to the record of the Municipal Council. In this behalf, it needs to be taken note of that on 03.12.2003 when we heard this matter, it was deemed appropriate to direct the learned counsel for the official respondents to produce the record relating to the subject matter of the writ petition. Record was produced on 04.12.2003. Its bare perusal reveals that the bid was kept open till 24.05.2003 to explore the possibility of raising the auction amount. It also shows that the auction was postponed on earlier occassions but postponement may not have much relevance to the issue involved, therefore, we would like to skip over. Reverting to the controversy, it is evident that the phraseology used in the decision to keep the bid open was recorded on 24.05.2003 or on any other date subsequent there to, where as it should date back to 07.05.2003, the date on which the auction is said to have ben conducted. If it is a fact that the official respondents had decided not to settle the bid on 07.05.2003 and keep it open, they were supposed to reflect the decision in the record and ask the participants publicly to come up with higher bids. Conversely, they have kept the decision close to their chest.

(3.) WE are at a loss to understand as to how did they expect to receive the higher bids without notifying the decision to those who had participated in the bid. We had called both the Administrator and Executive Officer to the Court to help us to the relevant page of the departmental file indicating that the decision was taken on 07.05.2003 to keep the bid open. But the record relied upon has failed them. Admittedly, they have not made their decision public. There is also no document even worth the name on the file, which would suggest grant of an opportunity to the participants to revise their offers by raising the bid amount. These facts speak volumes hinting at lack of fairness, making the public interest a causality. We, therefore, contemplated to proceed against the Administrator and the Executive Officer for abuse of power resulted by their failure to be just and fair, a bounden duty of a public authority. Yet we choose to take a lenient view, for, the allotment has not been acted upon, obviously the benefit has not flown to anyone. Nonetheless, we are loath to approve of the method, the respondents have adopted in the process of allotment of the contract, resultantly, this LPA succeeds. It is accordingly allowed. The order of the Learned Single Judge dated 22.09.2003 is set aside with a direction to the Municipal Council, Sopore to conduct the auction afresh inviting offers through media strictly in accordance with rules governing the field, ensuring vide publicity. Needless to say that if the authorities find any other mode profitable to the Council and in the public interest, be it one to make collection of entry fee by the Council itself they shall be free to go for it.