LAW FOR ALL

Monday, January 30, 2017

in Gordhandas Bhanji AIR 1952 SC 16 : “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older.” There is no dispute from the aforesaid proposition. However, in the instant case reasons have been mentioned in the rejection order and the nature of reports has also been sufficiently explained. Thus the rejection of seven different bids in the auction reflects that there was due application of mind by the concerned authority and rejection could not be said to be illegal, arbitrary or sans of reason.- Plaintiff came to the court for mandatory injunction, for issuance of allotment letter without payment of court fee also. It was incumbent upon the plaintiff to pay the ad valorem court fee as prevailing and the valuation of the suit should not have been less than the bid amount of Rs.111.75 crores, as rightly held by the first appellate court. The plaintiff is directed to pay the ad valorem court fee not only before the trial court but also before the High Court. Plaintiff is directed to deposit the court fee within two months from today, as payable. 35. Resultantly, the appeal is allowed. The judgment and decree passed by the High Court is set aside and that of the first appellate court is restored. In the facts and circumstances of the case, we impose costs of Rs.5 lakhs on the plaintiff/respondent to be deposited as : Rs.2.5 lakhs in the Advocates’ Welfare Fund and Rs.2.5 lakhs in the Supreme Court Employees’ Welfare Fund within a period of two months from today.

ITEM NO.1A COURT NO.9 SECTION IVB

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

CIVIL APPEAL NO. 1016 OF 2017
((Arising out of SLP(C) No(s). 12166/2011)

HARYANA URBAN DEV. AUTHORITY & ORS. Petitioner(s)

VERSUS

ORCHID INFRASTRUCTURE DEVELOPERS P.LTD. Respondent(s)

Date : 27/01/2017 This MATTER was called on for Judgment today.

For Petitioner(s) Mr. Shyam Devan, Sr. Adv.
Mr. Anish Kumar Gupta, Adv.
Mr. Chandra Shekhar Suman, Adv.
Mr. R.K. Rajwanshi, Adv.
Ms. Deepshikha Bharati, Adv.
Mr. Sanjay Kumar Visen,Adv.
Mr. Anil Grover, AAG

For Respondent(s) Mr. Raja Chatterjee, Adv.
Ms. Nandini Ram Chandran, Adv.
Ms. R. Bhuyan, Adv.
Mr. Satish Kumar,Adv.

Hon'ble Mr. Justice Arun Mishra pronounced the judgment of the
Bench comprising His Lordship and Hon'ble Mr. Justice Amitava Roy.
The appeal is allowed. The judgment and decree passed by the
High Court is set aside and that of the first appellate court is restored.
In the facts and circumstances of the case, we impose costs of Rs.5 lakhs
on the plaintiff/respondent to be deposited as : Rs.2.5 lakhs in the
Advocates’ Welfare Fund and Rs.2.5 lakhs in the Supreme Court Employees’
Welfare Fund within a period of two months from today.

| (NEELAM GULATI) | (TAPAN KR. CHAKRABORTY) |
|COURT MASTER |COURT MASTER |

(Signed Reportable Judgment is placed on the file)
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1016 OF 2017
(Arising out of SLP [C] No.12166/2011)

Haryana Urban Development Authority & Ors. … Appellants

Vs.

Orchid Infrastructure Developers P. Ltd. … Respondent

J U D G M E N T

ARUN MISHRA, J.

1. Leave granted.
2. The appeal arises out of judgment and order dated 17.1.2011 passed by
the High Court of Punjab & Haryana at Chandigarh thereby setting aside the
judgment and decree of District Judge dated 29.11.2010 and restoring the
judgment and decree of Civil Judge passed on 14.10.2010. The plaintiff
Bhudeep Builders and Exporters Pvt. Ltd. were later renamed as M/s. Orchid
Infrastructure Developers P. Ltd. The plaintiff-respondent filed a suit for
declaration with consequential relief as against the appellants with regard
to rejection of bid relating to the commercial tower situated in Sector 29,
Urban Estate, Gurgaon, in area admeasuring 9.527 acres. The bid submitted
by the plaintiff was the highest of Rs.11,17,50,000/-. The reserve price
was Rs.106.65 crores. The main terms and conditions of the auction were as
under :
(i) 10% of the bid amount to be tendered on the spot at fall of hammer.
(ii) 15% of the bid money to be deposited within 30 days from the date of
issuance of allotment letter.
(iii) 75% of the amount to be paid within 60 days from issuance of
allotment letter as one time interest free payment or with interest in the
manner prescribed.
(iv) The Presiding Officer (Administrative Officer) reserved the right to
withdraw any property from the auction or reject any bid without assigning
any reason.
3. It is further averred in the plaint that the auction held on
24.5.2004 was presided over by the Administrator, Haryana Urban Development
Authority (for short ‘HUDA’). Reserve price had been approved by Chief
Administrator, HUDA. Though the reserved price for the other sites were
approved by the Administrator. In the plaint it was further averred that 27
persons deposited the security amount of Rs.50 lakhs for bidding and
various bidders actively participated in the bids. Ultimately the bid of
the plaintiff amounting to Rs.111.75 crores being highest was accepted.
Petitioner deposited 10% amount by various drafts on the fall of hammer.
Formal letter of allotment was not issued inspite of efforts made by the
plaintiff. Officials of HUDA were dragging their feet over the issue
without any rhyme or reason.
Plaintiff ultimately received memo dated 24.9.2004 purporting to
refund 10% amount Rs.11,17,50,000 deposited by the plaintiff at the time of
auction held on 24.5.2004 on the ground that the bid had not been accepted.
4. Plaintiff questioned the rejection of the bid on the ground of its
being illegal, unlawful, mala fide, arbitrary, discriminatory and violative
of principles of natural justice. The bid for the commercial tower was
adequate and above the reserved price. The plaintiff relied upon Regulation
6 regarding issuance of allotment letter by Chief Administrator. The
rejection of the bid is without any rhyme or reason. The order is non-
speaking. There was no material available with the defendant to conclude
that auction of property in question was made at a lower rate or that the
same would fetch a higher price in the event of re-auction. The Chief
Administrator alone was competent to decide about the bid and no delegation
of power to Administrator has been shown to the plaintiff. Mere baseless
apprehension harboured by the defendant that the auction could fetch a
higher rate, could not be said to be in public interest. If such action is
permitted, auction process shall be a never ending exercise. The plaintiff
valued the suit for declaration and consequential relief of mandatory
injunction at Rs.400 and paid the court fee of Rs.55. Plaintiff has prayed
for a declaration that memo dated 24.9.2004 rejecting the bid of the
plaintiff to be void ab initio, non est and illegal, and that plaintiff is
successful bidder of commercial tower measuring 9.527 acres situated in
Sector 29, Urban Estate, Gurgaon. Plaintiff further prayed for mandatory
injunction directing the defendants to issue formal letter of allotment
pertaining to the suit property in favour of the plaintiff and to complete
requisite formalities of allotment including delivery of possession and
sanction of site plan. Plaintiff further prayed for an injunction
restraining defendants from re-auctioning the suit property and from
creating any third party interest of any nature in respect of the suit
property.
5. The defendant HUDA in its written statement raised preliminary
objection that the civil court has no jurisdiction to entertain the present
suit in view of section 15(2) of Haryana Urban Development Authority Act,
1977 (hereinafter referred to as ‘the Act’). It was also submitted that the
suit was not maintainable in the present form, that the plaintiff has no
cause of action to file the suit and has not come to court with clean
hands, suit is liable to be rejected under Order 7 Rule 11 of the C.P.C.,
plaintiff is liable to pay ad valorem court fee on the sale consideration
of Rs.111.75 crores of the commercial site in question, the suit is barred
under section 41(h) of the Specific Relief Act. The plaintiff has not
availed the remedy of arbitration as per the rules, regulations and bye-
laws of HUDA. There is no concluded contract between the parties. Plaintiff
has accepted the terms and conditions of the auction in which it was
mentioned that the competent authority is entitled to accept or reject the
bid without assigning any reason. The auction was presided over by the
Administrator, HUDA. After auction in question was held complaints were
received regarding intimidation and threatening of bidders. The bid was not
accepted for the reason that the price of urban estates at other places
like Faridabad, Panipat, Panchkula etc. for similar kind of property was
higher. The bid in question was not acceptable as per prevalent market
price of the similar property in Gurgaon. The Presiding Officer i.e.
Administrator is fully competent to refuse or accept the bid. Competent
authority after going through the individual reports/comments/opinion of
the members of the Auction Committee comprising of Estate Officer, HUDA,
Gurgaon, Senior Accounts Officer, District Town Planner and District
Revenue Officer (representative of the Deputy Commissioner, Gurgaon) as
members under the Chairmanship of Administrator, HUDA. Administrator
thoroughly examined the observations and recommendations of the members of
the Auction Committee regarding not to accept the bid prices of big
commercial sites since these prices being apparently on the lower side
which was also examined by the Government at the Headquarters level. The
records of the entire auction proceedings including opinion of the Estate
Officer, Gurgaon, other members of the Auction Committee, Deputy
Commissioner and also after studying the reserve price and auction price
trends, a decision was taken by the competent authority not to accept the
bid prices vide their written report.
It was further contended by HUDA that Administrator is the competent
authority. Power to accept bid has been delegated to him by the competent
authority.
6. In view of the written statement the plaintiff filed a rejoinder. It
was denied that the civil court has no jurisdiction and bid price was not
inadequate. It also denied the delegation of power to Administrator, HUDA,
Gurgaon.
7. The trial court – Civil Judge, Junior Division, Gurgaon decreed the
suit vide judgment and decree dated 14.10.2010. Three witnesses were
examined by the plaintiff and on behalf of defendant HUDA. Shri
P.K.Ramanand, Assistant was examined. The trial court held that
Administrator, HUDA was not competent to reject the bid of the plaintiff.
As per Regulation 6 of Haryana Urban Development (Disposal of Land and
Buildings) Regulations, 1978 (hereinafter referred to as ‘the Regulations
of 1978’), the authority to accept or reject a bid was vested with Chief
Administrator, HUDA and delegation of power to Chief Administrator can only
be made by the State Government vide notification as per section 51(4) of
the Act. No notification has been placed on record to prove that the power
of Chief Administrator has been delegated to Administrator, HUDA. The
report on the basis of which bid had been rejected was not placed on
record. The trial court held that the plaintiff is entitled to mandatory
injunction for issuance of formal letter of acceptance of bid. The trial
court further held that the suit is maintainable. The payment of court fee
by the plaintiff was adequate as the suit was not for specific performance
of contract. The trial court further directed the defendants to issue
formal letter of allotment on completion of requisite formalities within
two months.
8. On first appeal being preferred in the court of District Judge,
Gurgaon the same was allowed vide judgment and decree dated 29.11.2010. The
suit was dismissed by the first appellate court. The first appellate court
has opined that the power of Chief Administrator has been delegated to
Administrator, HUDA. As is apparent from the letter written by Chief
Administrator to the Administrator. No legal and vested right accrued in
favour of the plaintiff by submission of the highest bid and 10% of the
amount on fall of hammer. Bid has not been finally accepted. The plaintiff
ought to have paid ad-valorem court fee. The first appellate court also
observed that no responsible officer of HUDA has entered the witness box
and only a junior ranking Assistant has been examined who was not present
when the auction was held. He was posted at Gurgaon on 2.10.2008. The first
appellate court has observed as under :
“However, the defendants have not produced any document whatsoever to prove
the above averment and nor has any responsible officer, including
defendants No.2 and 3, cared to step in the witness box to substantiate the
above referred plea and instead only one witness, and that too an Assistant
named P.K. Ramanan from the office of HUDA, Gurgaon who is a junior ranking
official was examined as DW1 who was admittedly not even present at the
time of the impugned auction because he has admitted during his cross-
examination that he came to be posted at Gurgaon only w.e.f. 8.8.2008. Non-
appearance of any responsible official of HUDA thus indicates some sort of
unholy news between certain quarters for which reason a copy of this
Judgment is ordered to be forwarded to the Chief Secretary to the
Government of Haryana for getting conducted an enquiry as to why such
course of conduct was adopted despite huge stakes running into several
crores. Was it intended to benefit the plaintiff by default. The Chief
Secretary to Government of Haryana be requested to acknowledge receipt of
the copy of the judgment.”

9. On the second appeal being preferred on 2.1.2011 in the High Court as
against the judgment and decree, the same has been allowed on 17.1.2011
within 15 days of it being filed. The High Court has restored the judgment
and decree of the trial court on the ground that there is no delegation of
power to the Administrator. The rejection by the Administrator was
inconsequential and was not a valid decision in the absence of irregularity
in auction the bid ought to have been accepted by the Chief Administrator,
HUDA and letter conveying acceptance ought to have been issued in favour of
the plaintiff. In view of Regulation 6(2) the Chief Administrator was
competent authority to take a final decision on the bid. No notification
has been issued by the State Government under section 51(4) of the Act.
The suit has been held to be maintainable. It has been rightly valued and
adequate court fee has been paid.
10. The judgment and decree of High Court has been questioned by filing
the appeal in this Court. An application has also been filed on behalf of
the appellant to take additional documents on record. HUDA for the first
time has filed notification dated 13.9.1989 issued by it under section 51
of the Act, delegating the functions in favour of various officers
indicating that the power has been delegated to the Administrator to accept
the auction bids for commercial/residential/industrial sites. Apart from
that, a judgment of Division Bench of the High Court of Punjab & Haryana in
CWP No.12753/2010 – Jitender Singh v. Haryana Urban Development Authority
has been placed on record in which the impugned decision of the High Court
in the present appeal has been held to be not laying down a good law and
has been overruled.
11. It was urged by Shri Shyam Divan, learned senior counsel appearing on
behalf of the appellant that Administrator was Presiding Officer, thus, had
the authority to accept or to refuse the bid not only as per terms and
condition No.4 of the tender notice but also as per the delegation made by
HUDA on 13.9.1989 under section 51 of the Act. Since the letter of
allotment has not been issued, there was no concluded contract between the
parties. Thus suit was not maintainable in the absence of concluded
contract for its enforcement. No allotment order was issued by the Chief
Administrator as per Regulation 6(2). Chief Administrator was only required
to issue allotment letter. Once bid has been rejected, there was no
occasion for the court to issue mandatory injunction. The rejection of the
bid was fully justified as prices fetched of 7 items were not adequate, and
no right accrued on the basis of submitting the highest bid.

12. Shri Abhishek Manu Singhvi and Shri Raju Ramchandran, learned senior
counsel appearing for the respondent strenuously contended that the
Administrator had forwarded the bid to the Chief Administrator for
acceptance. However, the Chief Administrator wrote back to the
Administrator that the Administrator should decide about the bid as power
was delegated to him. As per Regulation 6(2) the Chief Administrator was
required to decide about the acceptance or rejection of the bid. The
rejection of bid is not only arbitrary, unreasoned and no report has been
placed on record by HUDA as to why bid had been rejected. The bid was above
reserve price and there were several bidders. There being no better bid as
such the bid of the plaintiff ought to have been accepted. Rejection of the
bid without any reason cannot be said to be valid for which reliance has
been placed on M/s. Star Enterprises & Ors. v. City and Industrial
Development Corporation of Maharashtra Ltd. & Ors. (1990) 3 SCC 280,
Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New Delhi &
Ors. AIR 1978 SC 851, and Kalu Ram Ahuja & Anr. v. Delhi Development
Authority & Anr. (2008) 10 SCC 696. In the absence of any notification
being issued by the State Government under section 51(4) of the Act, the
power of the Chief Administrator could not have been delegated to the
Administrator. Thus rejection of the bid by the Administrator was
unauthorised. The delegation of power by HUDA was made under section 51(1)
whereas delegation was required under section 51(4).
In re : Maintainability of suit in absence of concluded contract :
13. Firstly, we examine the question whether there being no concluded
contract in the absence of acceptance of bid and issuance of allotment
letter, the suit could be said to be maintainable for the declaratory
relief and mandatory injunction sought by the plaintiff. The plaintiff has
prayed for a declaration that rejection of the bid was illegal. Merely by
that, plaintiff could not have become entitled for consequential mandatory
injunction for issuance of formal letter of allotment. Court while
exercising judicial review could not have accepted the bid. The bid had
never been accepted by concerned authorities. It was not a case of
cancellation of bid after being accepted. Thus even assuming as per
plaintiff’s case that the Administrator was not equipped with the power and
the Chief Administrator had the power to accept or refuse the bid, there
had been no decision by the Chief Administrator. Thus, merely by
declaration that rejection of the bid by the Administrator was illegal, the
plaintiff could not have become entitled to consequential relief of
issuance of allotment letter. Thus the suit, in the form it was filed,
was not maintainable for relief sought in view of the fact that there was
no concluded contract in the absence of allotment letter being issued to
the plaintiff, which was a sine qua non for filing the civil suit.
14. It is a settled law that the highest bidder has no vested right to
have the auction concluded in his favour. The Government or its authority
could validly retain power to accept or reject the highest bid in the
interest of public revenue. We are of the considered opinion that there was
no right acquired and no vested right accrued in favour of the plaintiff
merely because his bid amount was highest and had deposited 10% of the bid
amount. As per Regulation 6(2) of the Regulations of 1978, allotment letter
has to be issued on acceptance of the bid by the Chief Administrator and
within 30 days thereof, the successful bidder has to deposit another 15% of
the bid amount. In the instant case allotment letter has never been issued
to the petitioner as per Regulation 6(2) in view of non-acceptance of the
bid. Thus there was no concluded contract. Regulation 6 of the Regulations
of 1978 is extracted hereunder :
“6. Sale of lease of land or building by auction.- (1) In the case of sale
or lease by auction, the price/premium to be charged shall be such reserve
price/premium as may be determined taking into consideration the various
factors as indicated in sub-regulation (1) of Regulation 4 or any higher
amount determined as a result of bidding in open auction.
(2) 10 per cent of the highest bid shall be paid on the spot by the
highest bidder in cash or by means of a demand draft in the manner
specified in sub-regulation (2) of Regulation 5. The successful bidder
shall be issued allotment letter in Form ‘CC’ or ‘C-II’ by registered post
and another 15 per cent of the bid accepted shall be payable by the
successful bidder, in the manner indicated, within thirty days of the date
of allotment letter conveying acceptance of the bid by the Chief
Administrator; failing which the 10 per cant amount already deposited shall
stand forfeited to the Authority and the successful bidder shall have no
claim to the land or building auctioned.
(3) The payment of balance of the price/premium, rate of interest
chargeable and the recovery of interest shall be in the same manner as
provided in sub-regulations (6) and (7) of Regulation 5.
(4) The general terms and conditions of the auction shall be such as may be
framed by the Chief Administrator from time to tome and announced to the
public before auction on the spot.”

15. We are fortified in our view by a decision of this Court in Uttar
Pradesh Avas Evam Vikas Parishad & Ors. v. Om Prakash Sharma (2013) 5 SCC
182, the questions arose for its consideration that : whether there is any
vested right upon the plaintiff/bidder until the bid is accepted by the
competent authority in relation to the property in question? Merely because
the plaintiff is the highest bidder by depositing 20% of the bid amount
without there being approval of the same by the competent authority and it
amounts to a concluded contract in relation to the plot in question; and
whether the plaintiff could have maintained the suit in the absence of a
concluded contract ? Considering the aforesaid questions, this Court has
discussed the matter thus :
“30. In support of the said proposition, the learned Senior Counsel for the
defendant, Mr Rakesh Dwivedi has also placed reliance upon another decision
of this Court in State of U.P. v. Vijay Bahadur Singh (1982) 2 SCC 365. The
learned Senior Counsel has rightly placed reliance upon the judgment of
this Court in Rajasthan Housing Board case (2007) 1 SCC 477 which reads as
under: (SCC p. 483, para 9)
“9. This being the settled legal position, the respondent acquired no right
to claim that the auction be concluded in its favour and the High Court
clearly erred in entertaining the writ petition and in not only issuing a
direction for consideration of the representation but also issuing a
further direction to the appellant to issue a demand note of the balance
amount. The direction relating to issuance of the demand note for balance
amount virtually amounted to confirmation of the auction in favour of the
respondent which was not the function of the High Court.”
x x x x x In State of Orissa v. Harinarayan Jaiswal (1972) 2 SCC 36 case,
relevant paragraph of which reads as under: (SCC pp. 44-45, para 13)
“13. x x x x x There is no concluded contract till the bid is accepted.
Before there was a concluded contract, it was open to the bidders to
withdraw their bids (see Union of India v. Bhim Sen Walaiti Ram (1969) 3
SCC 146). By merely giving bids, the bidders had not acquired any vested
rights. ...” (emphasis supplied)
x x x x x
31. In view of the law laid down by this Court in the aforesaid decisions,
the learned Senior Counsel Mr Rakesh Dwivedi has rightly placed reliance
upon the same in support of the case of the first defendant, which would
clearly go to show that the plaintiff had not acquired any right and no
vested right has been accrued in his favour in respect of the plot in
question merely because his bid amount is highest and he had deposited 20%
of the highest bid amount along with the earnest money with the Board. In
the absence of acceptance of bid offered by the plaintiff to the competent
authority of the first defendant, there is no concluded contract in respect
of the plot in question, which is evident from letters dated 26-5-1977 and
8-7-1977 wherein the third defendant had rejected the bid amount deposited
by the plaintiff and the same was refunded to him by way of demand draft,
which is an undisputed fact and it is also not his case that the then
Assistant Housing Commissioner who has conducted the public auction had
accepted the bid of the plaintiff.” (emphasis supplied).

This Court has held that in the absence of a concluded contract which
takes place by issuance of allotment letter, suit could not be said to be
maintainable as there is no vested right in the plaintiff without approval
of the bid by the competent authority. Thus, in the wake of aforesaid
decision, in the absence of a concluded contract, the suit could not have
been decreed for mandatory injunction. It amounted to enforcing of contract
in the absence thereof.

16. In the light of the aforesaid discussion, it is evident that in the
absence of a concluded contract, i.e. in the absence of allotment letter
and acceptance of highest bid, the suit by the plaintiff was wholly
misconceived. Even if non-acceptance of the bid was by an incompetent
authority, the court had no power to accept the bid and to direct the
allotment letter to be issued. Merely on granting the declaration which was
sought that rejection was illegal and arbitrary and by incompetent
authority, further relief of mandatory injunction could not have been
granted, on the basis of findings recorded, to issue the allotment letter,
as it would then become necessary to forward the bid to competent
authority – Chief Administrator - for its acceptance, if at all it was
required.
In re : Competency of Administrator to accept/reject bid :
17. The plaintiff has come to the Court with the case that there was no
delegation of power to the Administrator. No doubt about it that the
delegation of power made by HUDA under section 51 of the Act has not been
placed on record before the courts below. It has been filed for the first
time in this Court. However, HUDA has placed on record delegation of power
to the Administrator by it as is apparent from the order dated 13.9.1989
issued by the Chief Administrator of HUDA in which it is mentioned that in
exercise of power conferred under section 51 of the Act, for the sake of
efficiency, speedy development and with a view to decentralize the
powers/functions the delegation at Annexure A were made by HUDA in its
meeting held on 3.1.1989 in favour of various officials/officers of HUDA.
The relevant portion of delegation made in order dated 13.9.1989 along with
Index is extracted hereunder :
“HARYANA URBAN DEVELOPMENT AUTHORITY
MANIMAJRA (UT), CHANDIGARH
ORDER.

In exercise powers conferred under section 51 of the Haryana Urban
Development Authority Act, 1977, in the interest of efficiency, speedy
development and with a view of decentralise the powers/functions, the
delegations at Annexure ‘A’ (Pages 1-16) are hereby made in favour of
various Officers of HUDA by the Haryana Urban Development Authority in its
meeting held on 03.01.1989.
Dated, Manimajra, the
13th Sep. 1989.
R.K. SINGH
CHIEF ADMINISTRATOR
HARYANA URBAN DEV. AUTHORITY”

“INDEX
DELEGATION OF FUNCTIONS/POWERS OF AUTHORITY AS INCORPORATED IN HARYANA
URBAN DEVELOPMENT AUTHORITY ACT, 1977.

“Delegation of Administrative and Financial powers made under Section 51 of
HUDA Act, 1977 on behalf of the Haryana Urban Development Authority:-

|Sr. |Sr. No. of |Nature of |Authority to |Extent of power |
|No. |item in |power: |who delegated |delegated |
| |Annexure II| | | |
| |of the | | | |
| |proposal | | | |
|1 |2 |3 |4 |5 |
| |xxx |xxx |xxx |xxx |
|60 |70 |Powers to |Chief |Full Powers. |
| | |accept the |Administrator | |
| | |auction bids| | |
| | |for |Administrator | |
| | |commercial/ | |Full powers |
| | |residential | |provided the |
| | |/ industrial| |highest bid is |
| | |sites | |more than the |
| | | | |reserve price and |
| | | | |minimum of 3 bids |
| | | | |have been |
| | | | |received. If a |
| | | | |site is not sold |
| | | | |even after three |
| | | | |attempts at a |
| | | | |price higher than |
| | | | |the reserve price |
| | | | |the administrators|
| | | | |may revise the |
| | | | |price downwards |
| | | | |upto maximum of |
| | | | |10% of the reserve|
| | | | |price. |

18. It is apparent that there had been delegation of power by HUDA to the
Administrator with respect to the power to accept the auction bids for
commercial/residential/industrial sites provided the highest bid is more
than the reserve price and minimum of three bids have been received. The
Administrator has also the power if the site is not sold in 3 attempts, to
revise the price downwards up to a maximum of 10% of the reserve price.
Thus plaintiff has not come to the court with clean hands and has
suppressed for the reasons best known to it, the aforesaid order of HUDA by
which delegation of power has been made. The fact that there was delegation
of power is also crystal clear from the communication exchanged between the
Administrator and the Chief Administrator. As the Administrator was
reluctant to accept the bid, as was the case in the case of fixation of
reserve price also, the Administrator considering the huge property, said
that the auction involved prime and big commercial sites, huge revenue is
involved and such a big auction has been carried out for the first time in
the State of Haryana, therefore, all the record pertaining to the auction
was sent to the Chief Administrator for scrutiny and approval at the level
of Chief Administrator, HUDA, Gurgaon. However, the Chief Administrator
also washed off his hands. He wrote back to the Administrator on 28.7.2004.
The decision to confirm or otherwise of a bid, should be taken only by a
competent authority whose order is appealable. Therefore, bids should be
considered by the competent authority and as the Administrator is the
competent authority to take the follow-up action, the Headquarters be
apprised of the decision taken. Thereafter, the Administrator had taken the
decision not to confirm the seven bids of seven properties. It is apparent
from the order dated 21.9.2004 that the Administrator after examining the
relevant aspects and the report, had decided to reject the seven bids
mentioned therein. The said letter of the Administrator is extracted
hereunder :
“From
Administrator
HUDA, Gurgaon
To
The Estate Officer
HUDA, Gurgaon

Memo no. 709
Dated: 21.9.04

Sub: Auction of Commercial Sites-5 sites of Shopping Mall, One Site of
Multiplex and one Site of Commercial Tower held on 24.5.2004 at Gurgaon.

Ref: Your letter No. 11592 dated 28.6.2004 and the comments submitted by
your office in the case files.

After examining the relevant aspects and reports submitted by your office
as well as keeping in view the contents of the letter No. 26559 dated
28.7.2004 received from Chief Administrator, HUDA, Panchkula, this office
exercising the powers delegated by the Authority has decided to reject the
following bids of Commercial Sites for which auction was held on 24.5.2004:-

|Sr.|Sector|Particular|Sr. No. of|Area in|Reserve |Highest |Remarks |
| | |s |site |Sq. |Price (in |Bid (In | |
| | | | |Mtr. |rupees) |rupees) | |
|1. |29 |Commercial|Commercial|9.527 |106.65 Cr.|111.10 |Highest |
| | |Tower |Tower |Acre | |Cr. |bid |
| | | | | | | |rejected|
|2. |29 |Shopping |Adjoining |16500 |28.78 Cr. |30.15 |-do- |
| | |Mall |Leisure | | |Cr. | |
| | | |Valley | | | | |
| | | |Park | | | | |
|3. |29 |-do- |C-5A |5865.60|10.12. Cr.|10.61 |-do- |
| | | | | | |Cr. | |
|4. |29 |-do- |C-9 Corner|7820.80|14.84 Cr. |15.46 |-do- |
| | | | | | |Cr. | |
|5. |29 |-do- |C-10 |7820.80|14.84 Cr. |15.51 |-do- |
| | | |Corner | | |Cr. | |
|6. |55-56 |-do- |-- |3850.00|6.72 Cr. |7.15 Cr.|-do- |
|7. |29 |Multiplex |-- |2700.00|4.69 Cr. |5.07 Cr.|-do- |

Bid sheets for the above mentioned sites as received from your office are
returned herewith.

Sd/-
Administrator

HUDA, Gurgaon”

19. The Administrator had also mentioned in his letter that there was
delegation of power to him. The letter from the Chief Administrator also
indicated that the Administrator was armed with the power. That apart, when
we see the terms and condition No.4 of the tender notice, subject to which
auction was held, provided thus :
“4. The presiding officer reserves the right to withdraw any property from
the auction or reject any bid without assigning any reason.”

20. Admittedly, the Presiding Officer was the Administrator, HUDA. Thus,
as per the terms of the auction also, the Administrator was having the
power to accept or reject the bid. That the bid was more than the reserve
price and there were more than 3 bidders, is not disputed. Thus, in our
opinion, the Administrator had the power to reject the bid as per the
delegation made to him on 13.9.1989.
21. The learned counsel representing the plaintiff-respondent vehemently
contended that there was no delegation of power under section 51(4) and it
was the State Government only who could have delegated the power of the
Chief Administrator as found by the High Court. As delegation had been made
by HUDA under section 51(1) of the Act of 1977, it was incumbent upon the
plaintiff to question it and assail the same. However, the plaintiff had
feigned ignorance as to delegation on its part which does not inspire
confidence as the line of arguments advanced on its behalf that no
delegation was there under section 51(4) was clearly grounded upon the fact
that the delegation made under section 51(1) was in fact to the knowledge
of the plaintiff that is why the aforesaid argument had been advanced and
unfortunately learned counsel for HUDA also conceded that there was no
delegation of power made by the State Government under section 51(4). This
was done by overlooking the delegation dated 13.9.1989, the factum whereof
has not been controverted by the learned counsel appearing on behalf of the
respondent in any manner whatsoever. In the absence of having questioned
delegation made by HUDA under section 51(1) of the Act, plaintiff could not
have succeeded in the suit.
22. The plaintiff has not questioned the delegation of power before the
courts below in any manner whatsoever. We decline to examine the submission
raised by learned counsel for the plaintiff in this Court that there is no
delegation of power under section 51(4) and the power of the Chief
Administrator could have been delegated only by the State Government not by
HUDA under section 51(1) as per its order dated 13.9.1989. In the absence
of challenge to legality of delegation order dated 13.9.1989, and the
plaintiff being guilty of suppressio veri, it is not entitled to urge the
aforesaid submission so as to invalidate the statutory delegation of power
made by HUDA under section 51(1).
23. In view of the aforesaid fact-situation, it is apparent that the
Administrator had the power to reject a bid, not only being the Presiding
Officer as per terms and condition N0.4 of auction but otherwise also he
had the power, as discussed above. Thus, the decision of the High Court in
setting aside the auction on the aforesaid ground cannot be said to be
legally sustainable.
In re : Legality of rejection of bid :
24. Coming to the question whether the Administrator had rejected the bid
in an illegal or arbitrary manner, the learned counsel for the plaintiff
has submitted that the bid had been rejected by an unreasoned order, as
such it was an arbitrary rejection. Learned counsel has drawn our attention
to the communication dated 24.9.2004 which has been communicated by the
Estate Officer to the plaintiff in which it has been mentioned that the bid
has not been accepted, hence earnest money had been refunded. However, this
communication of the decision reflects only the return of the cheque
pursuant to the decision of the Administrator. The order passed by the
Administrator is apparent from the communication of the Administrator made
to Estate Officer, HUDA on 21.9.2004 which has been extracted above. It is
apparent from the rejection order that the reports submitted were
considered and decision was taken not to accept the bids with respect to
auction of seven properties. It was not a case of singular rejection of the
bid made by the plaintiff alone. Six other bids were also not accepted. The
reason for rejection has been made clear in para 15 of the written
statement filed by HUDA. The relevant portion is extracted hereunder :
“The action of not accepting the bid is very much sustainable in the eyes
of law as the prices fetched by the auction was not in consonance with the
prices fetched in other urban estates like Faridabad and Panchkula for
similar kind of property. The bid prices received for the above said site
was also not on the rising trend as per the prevalent market prices of the
similar property in Gurgaon. The judicial view had been taken by the
competent authority to safeguard the revenue interest of HUDA. The price
of the site in question fetched in Gurgaon was on lower side as compared to
the prices fetched in Panchkula, Faridabad and Panipat. The statistical
date for analysing the trend of price rising and revenue fetched was
considered by the competent authority and it was revealed that the price
fetched by the said auction was on lower side. Remaining para to the
contrary is wrong and denied. x x x x x
The competent authority after going through the individual
report/comments/opinion of the Members of the Auction Constituted
Committee, comprising of Estate Officer, HUDA, Gurgaon, Senior Accounts
Officer, District Town Planner and District Revenue Officer (Representative
of the Deputy Commissioner, Gurgaon) as Members under the Chairmanship of
Administrator, HUDA, Gurgaon, thoroughly examined the observations and
recommendations of the Member of the Auction Committee regarding not to
accept the bid prices of big commercial site, since these prices being on
apparently lower side which was examined by the Government at the
Headquarters level. The entire records of the entire auction proceedings,
including the opinion of the Estate Officer, Gurgaon, other members of the
Auction Committee and Deputy Commissioner, Gurgaon’s report and also after
studying the reserve price and auction price trends, decision was taken by
the competent authority not to accept the bid prices vide their detailed
report. Remaining para to the contrary is wrong and hence denied.”

25. Thus, it is apparent that the report and recommendations of the
Auction Committee consisting of 5 members, was not to accept the bids of
big commercial sites as the prices fetched were on lower side which was
examined by the Government at the Headquarters level. Considering the
auction trends and also taking into consideration the higher prices fetched
at Panipat, Panchkula and Faridabad, it was decided to reject the seven
bids. Thus, there was due application of mind.
26. In our opinion when it is apparent from the communication that the
reports were considered and what was contained in the report was very much
pleaded in the written statement, mere non-production of report was not of
any significance in the instant case. We are satisfied that the rejection
of the bid by the Administrator was absolutely proper and justified and was
beyond the pale of judicial scrutiny. The Administrator had the right to
reject the bids and he had rejected it on sufficient ground, duly
considering the materials on record as is apparent from the communication
dated 21.9.2004. In the interest of the public, revenue of the State and in
the interest of HUDA the huge property was saved from being plundered.
27. This Court in the case of State of Uttar Pradesh & Ors. v. Vijay
Bahadur Singh & Ors. (1982) 2 SCC 365 has laid down that there is no
obligation to accept the highest bid. The Government is entitled even to
change its policy from time to time according to the demands of the time.
It was observed thus :
“3. It appears to us that the High Court had clearly misdirected
itself. The Conditions of Auction made it perfectly clear that the
Government was under no obligation to accept the highest bid and that no
rights accrued to the bidder merely because his bid happened to be the
highest. Under Condition 10 it was expressly provided that the acceptance
of bid at the time of auction was entirely provisional and was subject to
ratification by the competent authority, namely, the State Government.
Therefore, the Government had the right, for good and sufficient reason, we
may say, not to accept the highest bid but even to prefer a tenderer other
than the highest bidder. The High Court was clearly in error in holding
that the Government could not refuse to accept the highest bid except on
the ground of inadequacy of the bid. Condition 10 does not so restrict the
power of the Government not to accept the bid. There is no reason why the
power vested in the Government to refuse to accept the highest bid should
be confined to inadequacy of bid only. There may be a variety of good and
sufficient reasons, apart from inadequacy of bids, which may impel the
Government not to accept the highest bid. In fact, to give an antithetic
illustration, the very enormity of a bid may make it suspect. It may lead
the Government to realise that no bona fide bidder could possibly offer
such a bid if he meant to do honest business. Again the Government may
change or refuse its policy from time to time and we see no reason why
change of policy by the Government, subsequent to the auction but before
its confirmation, may not be a sufficient justification for the refusal to
accept the highest bid. It cannot be disputed that the Government has the
right to change its policy from time to time, according to the demands of
the time and situation and in the public interest. If the Government has
the power to accept or not to accept the highest bid and if the Government
has also the power to change its policy from time to time, it must follow
that a change or revision of policy subsequent to the provisional
acceptance of the bid but before its final acceptance is a sound enough
reason for the Government’s refusal to accept the highest bid at an
auction…”

28. In Laxmikant & Ors. v. Satyawan & Ors. (1996) 4 SCC 208, this Court
has laid down that in the absence of completed contract when the public
auction had not culminated to its logical end before confirmation of the
bid, no right accrued to the highest bidder. This Court has laid down as
under :

“4. Apart from that the High Court overlooked the conditions of
auction which had been notified and on basis of which the aforesaid public
auction was held. Condition No. 3 clearly said that after the auction of
the plot was over, the highest bidder had to remit 1/10 of the amount of
the highest bid and the balance of the premium amount was to be remitted to
the trust office within thirty days “from the date of the letter informing
confirmation of the auction bid in the name of the person concerned”.
Admittedly, no such confirmation letter was issued to the respondent.
Conditions Nos. 5, 6 and 7 are relevant:
“5. The acceptance of the highest bid shall depend on the Board of
Trustees.
6. The Trust shall reserve to itself the right to reject the highest or any
bid.
7. The person making the highest bid shall have no right to take back his
bid. The decision of the Chairman of the Board of Trustees regarding
acceptance or rejection of the bid shall be binding on the said person.
Before taking the decision as above and informing the same to the
individual concerned, if the said individual takes back his bid, the entire
amount remitted as deposit towards the amount of bid shall be forfeited by
the Trust.”
From a bare reference to the aforesaid conditions, it is apparent and
explicit that even if the public auction had been completed and the
respondent was the highest bidder, no right had accrued to him till the
confirmation letter had been issued to him. The conditions of the auction
clearly conceived and contemplated that the acceptance of the highest bid
by the Board of Trustees was a must and the Trust reserved the right to
itself to reject the highest or any bid. This Court has examined the right
of the highest bidder at public auctions in the cases of Trilochan Mishra
v. State of Orissa (1971) 3 SCC 153, State of Orissa v. Harinarayan Jaiswal
(1972) 2 SCC 36, Union of India v. Bhim Sen Walaiti Ram (1969) 3 SCC 146
and State of U.P. v. Vijay Bahadur Singh (1982) 2 SCC 365. It has been
repeatedly pointed out that State or the authority which can be held to be
State within the meaning of Article 12 of the Constitution is not bound to
accept the highest tender or bid. The acceptance of the highest bid is
subject to the conditions of holding the public auction and the right of
the highest bidder has to be examined in context with the different
conditions under which such auction has been held. In the present case no
right had accrued to the respondent either on the basis of the statutory
provision under Rule 4(3) or under the conditions of the sale which had
been notified before the public auction was held.”

29. In Meerut Development Authority v. Association of Management Studies
& Anr. (2009) 6 SCC 171, this Court has laid down that a bidder has no
right in the matter of bid except of fair treatment in the matter and
cannot insist for further negotiation. The Authority has a right to reject
the highest bid. This Court has laid down thus :
“27. The bidders participating in the tender process have no other right
except the right to equality and fair treatment in the matter of evaluation
of competitive bids offered by interested persons in response to notice
inviting tenders in a transparent manner and free from hidden agenda. One
cannot challenge the terms and conditions of the tender except on the
abovestated ground, the reason being the terms of the invitation to tender
are in the realm of the contract. No bidder is entitled as a matter of
right to insist the authority inviting tenders to enter into further
negotiations unless the terms and conditions of notice so provided for such
negotiations.
x x x x x
29. The Authority has the right not to accept the highest bid and even to
prefer a tender other than the highest bidder, if there exist good and
sufficient reasons, such as, the highest bid not representing the market
price but there cannot be any doubt that the Authority’s action in
accepting or refusing the bid must be free from arbitrariness or
favouritism.”

30. Reliance has been placed on behalf of the respondent on a decision of
this Court in M/s. Star Enterprises & Ors. v. City and Industrial
Development Corporation of Maharashtra Ltd. & Ors. (1990) 3 SCC 280. The
relied upon portion is extracted hereunder :

“10. In recent times, judicial review of administrative action has
become expansive and is becoming wider day by day. The traditional
limitations have been vanishing and the sphere of judicial scrutiny is
being expanded. State activity too is becoming fast pervasive. As the State
has descended into the commercial field and giant public sector
undertakings have grown up, the stake of the public exchequer is also large
justifying larger social audit, judicial control and review by opening of
the public gaze; these necessitate recording of reasons for executive
actions including cases of rejection of highest offers. That very often
involves large stakes and availability of reasons for actions on the record
assures credibility to the action; disciplines public conduct and improves
the culture of accountability. Looking for reasons in support of such
action provides an opportunity for an objective review in appropriate cases
both by the administrative superior and by the judicial process. The
submission of Mr Dwivedi, therefore, commends itself to our acceptance,
namely, that when highest offers of the type in question are rejected
reasons sufficient to indicate the stand of the appropriate authority
should be made available and ordinarily the same should be communicated to
the concerned parties unless there be any specific justification not to do
so.”

No doubt about it that there have to be some reasons for rejection of
the bid which are adequately present in the instant case as discussed
hereinabove. The decision is of no help to espouse the cause of the
plaintiff.

31. Reliance has also been placed on a decision of this Court in Kalu Ram
Ahuja & Anr. v. Delhi Development Authority & Anr. (2008) 10 SCC 696 in
which this Court has laid down that the highest bid was rejected without
assigning any reason and there was no record showing that the decision was
based on rational and tangible reasons and was in public interest. In the
instant case we are satisfied from the order that the reports were
considered and what were the reports, has been made clear in the reply
filed by the respondents which has not been controverted. In the instant
case merely the bid being above the reserve price, was not a safe criteria
to accept the same.

32. In Mohinder Singh Gill & Anr. v. The Chief Election Commissioner, New
Delhi & Ors. (1978) 1 SCC 405, this Court has laid down that when a
statutory functionary makes an order, its validity must be judged by the
reasons so mentioned and cannot be supplemented by fresh reasons in the
shape of affidavit or otherwise. This Court has held thus :

“8. The second equally relevant matter is that when a statutory
functionary makes an order based on certain grounds, its validity must be
judged by the reasons so mentioned and cannot be supplemented by fresh
reasons in the shape of affidavit or otherwise. Otherwise, an order bad in
the beginning may, by the time it comes to court on account of a challenge,
get validated by additional grounds later brought out. We may here draw
attention to the observations of Bose, J. in Gordhandas Bhanji AIR 1952 SC
16 :

“Public orders, publicly made, in exercise of a statutory authority
cannot be construed in the light of explanations subsequently given by the
officer making the order of what he meant, or of what was in his mind, or
what he intended to do. Public orders made by public authorities are meant
to have public effect and are intended to affect the actings and conduct of
those to whom they are addressed and must be construed objectively with
reference to the language used in the order itself. Orders are not like
old wine becoming better as they grow older.”

There is no dispute from the aforesaid proposition. However, in the
instant case reasons have been mentioned in the rejection order and the
nature of reports has also been sufficiently explained. Thus the rejection
of seven different bids in the auction reflects that there was due
application of mind by the concerned authority and rejection could not be
said to be illegal, arbitrary or sans of reason.

33. We are constrained to observe in the instant case that with respect
to reserve price also, there was a hitch to fix and approve it right from
the word go. It was a case of auction of big commercial tower having a huge
area of 9.527 acres. Only the reserve price of the same was forwarded for
fixation to the Chief Administrator, whereas the reserve prices of other
properties were fixed by the Administrator. When the bids were received,
the Administrator considering the huge stakes involved, forwarded the
matter to the Chief Administrator. However, the Chief Administrator washed
off his hands and did not decide it and sent the matter back to the
Administrator, clearly indicating that the Administrator was delegated with
the power to decide the bids. Thus, under compelling circumstances and duly
considering the reports, the Administrator had taken the decision to reject
the bids not only of the plaintiff but also six others. For the first time
in the history of State of Haryana, such big properties were put to hammer
on the prices indicated. The hitch in fixing the reserve price also
indicates that the reserve price was not determined in a fair manner in the
instant case. Not only the plaintiff but HUDA also did not place the
delegation of power on record of the courts below. None of the officials of
HUDA had been examined. Only an Assistant – a junior ranking person had
been examined who was not posted there when the auction was held and came
only in 2008. As the property was a commercial tower in Sector 29, Gurgaon,
with huge commercial complex, the first appellate court was right in
dismissing the suit.
34. Plaintiff came to the court for mandatory injunction, for issuance of
allotment letter without payment of court fee also. It was incumbent upon
the plaintiff to pay the ad valorem court fee as prevailing and the
valuation of the suit should not have been less than the bid amount of
Rs.111.75 crores, as rightly held by the first appellate court. The
plaintiff is directed to pay the ad valorem court fee not only before the
trial court but also before the High Court. Plaintiff is directed to
deposit the court fee within two months from today, as payable.
35. Resultantly, the appeal is allowed. The judgment and decree passed by
the High Court is set aside and that of the first appellate court is
restored. In the facts and circumstances of the case, we impose costs of
Rs.5 lakhs on the plaintiff/respondent to be deposited as : Rs.2.5 lakhs in
the Advocates’ Welfare Fund and Rs.2.5 lakhs in the Supreme Court
Employees’ Welfare Fund within a period of two months from today.

…………………………….J.
(Arun Mishra)

New Delhi; …………………………..J.
January 27, 2017. (Amitava Roy)

Thursday, January 26, 2017

Order VII Rule 11(a) of the Code. As held by this Court in Virender Nath Gautam v. Satpal Singh and others[2], at paragraph-52: “52. The High Court, in our considered opinion, stepped into prohibited area of considering correctness of allegations and evidence in support of averments by entering into the merits of the case which would be permissible only at the stage of trial of the election petition and not at the stage of consideration whether the election petition was maintainable and dismissed the petition. The said action, therefore, cannot be upheld and the order deserves to be set aside.” As we have been taken through the averments in the election petition and we are satisfied that the petition has disclosed a cause of action, it is not necessary to remit the petition for a fresh enquiry in that regard. The appeal is however allowed, the impugned order is set aside and the election petition is remitted to the High Court to try it on merits expeditiously, and being one filed in the year 2013, preferably within a period of four months.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4080 OF 2014

KULDEEP SINGH PATHANIA … APPELLANTS (S)

VERSUS

BIKRAM SINGH JARYAL … RESPONDENT(S)

J U D G M E N T

KURIAN, J.:

Chapter III of Part VI of The Representation of the People Act, 1951
(hereinafter referred to as “the Act”) deals with trial of election
petitions. Under Section 86(1) of the Act, “the High Court shall dismiss an
election petition which does not comply with the provisions of Section 81
or Section 82 or Section 117”. Section 100 of the Act provides for grounds
for declaring election to be void. Section 100(1)(d)(iii) of the Act
provides that an election of a returned candidate can be declared to be
void if the High Court is of the opinion that the result of the election,
in so far as it concerns a returned candidate, has been materially affected
by the improper reception, refusal or rejection of any vote or the
reception of any vote which is void. Section 81 provides for institutional
requirements including limitation and Section 117 provides for deposit of
security for costs. Section 83, under Chapter II, deals with contents of
an election petition. Under Section 83(1)(a) of the Act, “an election
petition shall contain a concise statement of material facts on which the
petitioner relies”. Under Order VII Rule 11(a) of the Code of Civil
Procedure, 1908 (hereinafter referred to as “the Code”), a plaint shall be
rejected where it does not disclose a cause of action and under Order XIV
Rule 2(2), the court may deal with the preliminary issue on jurisdiction of
the court and bar to the suit created by any law in force. These are the
provisions relevant for consideration of the present case.

The appellant lost election from Bhattiyat Assembly Constituency of
Himachal Pradesh Legislative Assembly held in 2012 by a margin of 111
votes. He filed an election petition mainly on the grounds under Section
100(1)(d)(iii) of the Act. Of the six issues settled, issues 2 to 5 were
treated as preliminary issues, of which, issues 2 and 3 related to cause of
action:

“2) Whether the election petition is liable to be dismissed in limine for
lack of material facts and particulars, as alleged?

3) Whether the election petition is not maintainable for want of any
cause of action, as alleged?”

Appellant is aggrieved since his petition has been dismissed, based on the
findings on the preliminary issues that the election petition lacked in
material facts as required under Section 83(1)(a) of the 1951 Act and as
such, did not disclose any cause of action.

As far as the averments in the election petition are concerned, it is not
necessary for us to refer to the same in extenso since they have been
summarized in paragraph-27 of the impugned judgment, which reads as
follows:

“27. The “violations” alleged by the petitioner during poling and counting
of votes can be grouped in the following three categories, which shall be
dealt with one by one:-

Exercise of dual right of franchise by a voter and discrepancy between the
EVM record and the record maintained in Form 17-A at polling station No.92-
Kamla;

Improper reception of 30 postal ballot papers; and
Discrepancy regarding 100 postal ballot papers-whether 597 or 697?”

The High Court dealt with the violations referred to above extensively so
as to find out whether a cause of action is made out, but committed a grave
error by considering the explanations offered in the replies filed by the
respondents. All the three violations have been discussed meticulously by
the High Court with reference to the replies furnished by the respondents
and the court came to the conclusion that the petition did not disclose any
cause of action since it lacked material facts. The High Court ventured
into such an elaborate enquiry in the light of the pleadings in the
replies, to see whether the result of the election has been materially
affected, apparently or rather mistakenly, under Order XIV Rule 2.

Order XIV deals with settlement of issues and determination of suit on
issues of law or on issues agreed upon. Order XIV Rule 2 provides for
disposal of a suit on a preliminary issue and under sub-Rule (2) of Rule 2,
if the court is of opinion that a case or part thereof can be disposed of
on an issue of law only, it may try that issue first, in case it relates to
jurisdiction of the court or bar to entertaining the suit. After the 1976
amendment, the scope of a preliminary issue under Order XIV Rule 2(2) is
limited only to two areas, one is jurisdiction of the court, and the other,
bar to the suit as created by any law for the time being in force. The
whole purpose of trial on preliminary issue is to save time and money.
Though it is not a mini trial, the court can and has to look into the
entire pleadings and the materials available on record, to the extent not
in dispute. But that is not the situation as far as the enquiry under Order
VII Rule 11 is concerned. That is only on institutional defects. The court
can only see whether the plaint, or rather the pleadings of the plaintiff,
constitute a cause of action. Pleadings in the sense where, even after the
stage of written statement, if there is a replication filed, in a given
situation the same also can be looked into to see whether there is any
admission on the part of the plaintiff. In other words, under Order VII
Rule 11, the court has to take a decision looking at the pleadings of the
plaintiff only and not on the rebuttal made by the defendant or any other
materials produced by the defendant.

It appears, the High Court committed a mistake in the present case, since
four out of the six issues settled were taken as the preliminary issues.
Two such issues actually are relatable only to Order VII Rule 11 of the
Code, in the sense those issues pertained to the rejection at the
institution stage for lack of material facts and for not disclosing a cause
of action. Merely because it is a trial on preliminary issues at the stage
of Order XIV, the scope does not change or expand. The stage at which such
an enquiry is undertaken by the court makes no difference since an enquiry
under Order VII Rule 11(a) of the Code can be taken up at any stage.

Thus, for an enquiry under Order VII Rule 11 (a), only the pleadings of the
plaintiff-petitioner can be looked into even if it is at the stage of trial
of preliminary issues under Order XIV Rule 2(2). But the entire pleadings
on both sides can be looked into under Order XIV Rule 2(2) to see whether
the court has jurisdiction and whether there is a bar for entertaining the
suit.

In the present case, the issue relates to an enquiry under Order VII Rule
11(a) of the Code, and hence, there is no question of a preliminary issue
being tried under Order XIV Rule 2(2) of the Code. The court exercised its
jurisdiction only under Section 83(1)(a) of the Act read with Order VII
Rule 11(a) of the Code. Since the scope of the enquiry at that stage has to
be limited only to the pleadings of the plaintiff, neither the written
statement nor the averments, if any, filed by the opposite party for
rejection under Order VII Rule 11(a) of the Code or any other pleadings of
the respondents can be considered for that purpose.

In Mayar (H.K.) Ltd. and others v. Owners & Parties, Vessel M.V. Fortune
Express and others[1], this Court has dealt with a similar issue. To the
extent relevant, paragraph-12 reads as follows:

“12. From the aforesaid, it is apparent that the plaint cannot be rejected
on the basis of the allegations made by the defendant in his written
statement or in an application for rejection of the plaint. The court has
to read the entire plaint as a whole to find out whether it discloses a
cause of action and if it does, then the plaint cannot be rejected by the
court exercising the powers under Order 7 Rule 11 of the Code. Essentially,
whether the plaint discloses a cause of action, is a question of fact which
has to be gathered on the basis of the averments made in the plaint in its
entirety taking those averments to be correct. A cause of action is a
bundle of facts which are required to be proved for obtaining relief and
for the said purpose, the material facts are required to be stated but not
the evidence except in certain cases where the pleadings relied on are in
regard to misrepresentation, fraud, wilful default, undue influence or of
the same nature. So long as the plaint discloses some cause of action which
requires determination by the court, the mere fact that in the opinion of
the Judge the plaintiff may not succeed cannot be a ground for rejection of
the plaint. …”

It is not necessary to load this judgment with other judgments dealing
with this first principle of Order VII Rule 11(a) of the Code. As held by
this Court in Virender Nath Gautam v. Satpal Singh and others[2], at
paragraph-52:

“52. The High Court, in our considered opinion, stepped into prohibited
area of considering correctness of allegations and evidence in support of
averments by entering into the merits of the case which would be
permissible only at the stage of trial of the election petition and not at
the stage of consideration whether the election petition was maintainable
and dismissed the petition. The said action, therefore, cannot be upheld
and the order deserves to be set aside.”

As we have been taken through the averments in the election petition and we
are satisfied that the petition has disclosed a cause of action, it is not
necessary to remit the petition for a fresh enquiry in that regard.

The appeal is however allowed, the impugned order is set aside and the
election petition is remitted to the High Court to try it on merits
expeditiously, and being one filed in the year 2013, preferably within a
period of four months. We make it clear that we have not expressed any
opinion on the merits of the case.

There shall be no order as to costs.

..……………………….J.
(KURIAN JOSEPH)

.……………………….J.
(A.M. KHANWILKAR)

NEW DELHI;
JANUARY 24, 2017.
-----------------------
[1] (2006) 3 SCC 100

[2] (2007) 3 SCC 617

-----------------------
9

WHETHER THE VALUE FOR PECUNIARY JURISDICTION -VS- COURT FEE IS ONE AND THE SAME

AP Court Fee and Suits Valuation Act

CHAPTER 4 COMPUTATION OF FEE

19. Fee how computed :- The fee payable under this Act shall be computed in accordance with the provisions of this Chapter, Chapter VI, Chapter VIII and Schedules I and II.

20. Suits for money :- In a suit for money (including a suit for damages, or compensation, or arrears of maintenance, of annuities, or of other sums payable periodically), fee shall be computed on the amount claimed.

21. Suits for immovable property :- Subject to the other provisions of this Act, in a suit relating to immovable property, fee shall be computed on three-fourths of the market value of the property.

22. Suits for maintenance and annuities :- In the suits hereinafter mentioned, fee shall be computed as follows :-

(a) in a suit for maintenance, on the amount claimed to be payable for one year;

(b) in a suit for enhancement or reduction of maintenance, on the amount by which the annual maintenance is sought to be enhanced or reduced;

(c) in a suit for annuities or other sums payable periodically, on five times the amount claimed to be payable for one year: Provided that, where the annuity is payable for less than five years, the fee shall be computed on the aggregate of the sums payable .

23. Suits for movable property :-

(1) In a suit for movable property other than documents of title, fee shall be computed-

(a) where the subject-matter has a market value, on such value; or

(b) where the subject-matter has no market value, on the amount at which the relief sought is valued in the plaint or at which such relief is valued by the Court, whichever is higher.

(2) (a) In a suit for possession of documents of title, fee shall be computed on one fourth of the amount or of the market value of the property secured by the document where the plaintiffs title to the money or the property secured by the document is denied: Provided that where such denial relates only to a portion of the amount or property, fee shall be computed on one-fourth of such portion of the amount or on one-fourth of the market value of such portion of the property.

(b) In a suit for possession of documents of title, where the plaintiffs title to the money or the property secured by the document is not denied, fee shall be computed on the amount at which the relief sought is valued in the plaint or at which such relief is valued by the Court whichever is higher.

24. Suits for declaration :-

In a suit for a declaration with or without consequential relief, not falling under section 25 –

(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the movable property or three fourths of the market value of the immovable property or on rupees three hundred, whichever is higher.

(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees three hundred, whichever is higher;

(c) where the prayer relates to the plaintiffs exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other things and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or at which such relief is valued by the Court, whichever is higher;

(d) in other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or at which such relief is valued by the Court, whichever is higher.

26. Suits for injunction :-

In a suit for injunction-

(a) where the relief sought relates to any immovable property, and where the plaintiffs title to the property is denied, fee shall be computed on one-half of the market value of the property or on rupees two hundred, whichever is higher;

(b) where the relief sought relates to the plaintiffs exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or at which such relief is valued by the Court, whichever is higher;

(c) in any other case, whether the subject-matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or at which such relief is valued by the Court, whichever is. higher.

AP Civil Courts Act

Section 5 Jurisdiction of the Judges of the City Civil Courts in original suits and proceedings

(1) The pecuniary jurisdiction of the Chief Judge and an Additional Chief Judge shall, subject to the provisions of the Code of Civil Procedure, 1908 and the other provisions of the Act, extend to all original suits and proceedings of a civil nature including land acquisition original petitions, the amount or value of the subject matter of which exceeds rupees ten lakhs.

(2) The pecuniary jurisdiction of Senior Civil Judge shall extend to all like suits and proceedings of a Civil nature including land acquisition original petitions not otherwise exempted from his cognizance under any other law for the time being in force, the amount or value of the subject matter of which exceeds rupees one lakh but does not exceed rupees ten lakhs.

(3) The pecuniary jurisdiction of Junior Civil Judge shall extend to all like suits and proceedings not otherwise exempted from his cognizance under any other law for the time being in force, the amount or value of the subject matter of which does not exceed rupees one lakh.

Section 16 Jurisdiction of District Judge, Senior Civil Judge and Junior Civil Judge in original suits and other proceedings

(1) The pecuniary jurisdiction or a District Judge, shall subject to the provisions of the Code of Civil Procedure, 1908 and the other provisions of this Act, extend to all original suits and proceedings of Civil nature including Land Acquisition original petitions, the amount or value of the subject matter of which exceeds rupees ten lakhs.

(3) The pecuniary jurisdiction of Junior Civil Judge shall extend to all like suits and proceedings, not otherwise exempted from his cognizance under any other law for the time being in force, the amount or value of the subject matter of which does not exceed rupees one lakh.

It is generally true that there can be two valuations, one for the purpose of Court fees and another for the purpose of jurisdiction as held in Gunna Venkataratnam v. Gunna Kesava Rao (1988(1) ALT 649).

But the position with regard to a suit for injunction, the value of the suit for the purpose of jurisdiction and for the purpose of Court-fees is one and the same in the suit for injunction in view of Section 26(c) and Section 50(1) of the Act, as up held in 1996 [2] ALT 194.

SATHEEDEVI v. PRASANNA & ANR. [2010] INSC 376 (7 May 2010)

Sections 24, 25, 27, 29, 30, 37, 38, 45 & 48 etc, specifically provide that market value of the property involved in the suit is to be taken as basis for valuation
We have considered the respective submissions. Sections 7(1) (2) (3) (3A) (4), 25(a) (b), 27(a), 29, 30, 37(1) (3), 38, 40, 45 and 48 of the Act which have bearing on the issue raised by the appellant, read as under:
"7. Determination of market value (1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.
(2) The market value of agricultural land in suits falling under Section 25(a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government.
(3) The market value of a building shall in cases where its rental value has been entered in the registers of any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint.
6 (3A) The market value of any property other than agricultural land and building falling under sub-sections (2) and (3) shall be the value it will fetch on the date of institution of the suit.
(4) Where the subject-matter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of the restricted or fractional interest and the value of the restricted or fractional interest shall bear the same proportion to the market value of the absolute interest in such property as the net income derived by the owner of the restricted or fractional interest bears to the total net income from the property.
25. Suits for declaration.- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 26- (a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees one thousand whichever is higher;
(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees one thousand, whichever is higher;
27. Suits for injunction.- In a suit for injunction- (a) Where the reliefs sought is with reference to any immovable property, and (i) where the plaintiff alleges that his title to the property is denied, or (ii) where an issue is framed regarding the plaintiff's title to the property, fee shall be computed on one-half of the market value of the property or on rupees five hundred, whichever is higher;
29. Suits for possession under the Specific Relief Act, 1877.- In a suit for possession of immovable property under Section 9 of the Specific Relief Act, 1877 (Central Act 1 of 7 1877), fee shall be computed on one-third of the market value of the property or on rupees one hundred and fifty, whichever is higher.
30. Suits for possession not otherwise provided for.- In a suit for possession of immovable property not otherwise provided for, fee shall be computed, on the market value of the property or on rupees one thousand, whichever is higher.
37. Partition suits (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share.
(2) xxx xxx xxx (3) Where, in a suit falling under sub-section (1) or sub- section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at half the rates specified in sub-section (2), according as such defendant has been excluded from possession or is in joint possession.
38. Suits for joint possession.- In a suit for joint possession of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession, fee shall be computed on the market value of the plaintiff's share.
40. Suits for cancellation of decrees, etc.- (1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be-- 8 if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;
if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.
(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property, or share or on the amount of the decree, whichever is less.
Explanation.- A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section.
45. Suits under the Survey and Boundaries Act.-In a suit under Section 14 of the Madras Survey and Boundaries Act, 1923, Section 13 of the Travancore Survey and Boundaries Act of 1094, or Section 14 of the Cochin Survey Act, II of 1074, fee shall be computed on one-half of the market value of the property affected by the determination of the boundary or on rupees one thousand, whichever is higher.
48. Interpleader suits.(1) In an interpleader suit, fee shall be payable on the plaint at the rates specified in Section 50.(2) Where issues are framed as between the claimants, fee shall be payable computed on the amount of the debt or the money or the market value of other property, movable or immovable, which forms the subject-matter of the suit. In levying such fee, credit shall be given for the fee paid on the plaint; and the balance of the fee shall be paid in equal shares by the claimants who claim the debt or the sum of money or the property adversely to each other.(3) Value for the purpose of determining the jurisdiction of Courts shall be the amount of the debt, or the sum of money or the market value of other property to which the suit relates."

9. Section 7 (iv), (iv-A) (as inserted by Madras Act of 1922) and (v) of the Court-fees Act, 1870 (for short, `the Court-fees Act'), which have been considered in various judgments of Madras High Court relied upon by learned counsel for the respondents reads as under:- "7. Computation of fees payable in certain suits.- The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:- "xxx xxx xxx (iv) In suits- for movable property of no market-value.-(a) for moveable property where the subject-matter has no market-value, as, for instance, in the case of documents relating to title, to enforce a right to share in joint family property.-(b) to enforce the right to share in any property on the ground that it is joint family property, for a declaratory decree and consequential relief.-(c) to obtain a declaratory decree or order, where consequential relief is prayed, for an injunction.-(d) to obtain an injunction, for easements.-(e) for a right to some benefit (not herein otherwise provided for) to arise out of land, and for accounts.-(f) for accounts- according to the amount at which the relief sought is valued in the plaint or memorandum of appeal;
In all such suits the plaintiff shall state the amount at which he values the relief sought (iv-A) In a suit for cancellation of a decree for money or other property having a money value or other document securing money or other property having such value, the valuation should be according to the value of the subject-matter of the suit and such value shall be if the whole decree is sought to be cancelled, the amount or value of the property for which the decree was passed, and if a portion of the decree is sought 1 to be cancelled, such part of the amount or value of the property.
(added by Madras Act of 1922) for possession of land, houses and gardens.- (v) In suits for the possession of land, houses, and gardens - according to the value of the subject-matter; and such value shall be deemed to be- where the subject-matter is land, and- (a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Collector's register as separately assessed with such revenue;and such revenue is permanently settled - ten times the revenue so payable;(b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid;and such revenue is settled, but not permanently - five times the revenue so payable;(c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the year next before the date of presenting the plaint - fifteen times such net profits;but where no such net profits have arisen therefrom - the amount at which the Court shall estimate the land with reference to the value of similar land in the neighbourhood;(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above-mentioned - the market-value of the land:"

In view of our analysis of the relevant statutory provisions, it must be held that the judgments of the Division Bench of Madras High Court and of the learned Single Judges in Venkata Narasimha Raju v. Chandrayya (supra), Navaraja v. Kaliappa Gounder (supra), Arunachalathammal v.Sudalaimuthu Pillai (supra) and Andalammal v. B. Kanniah (supra) as also the judgment of the learned Single Judge of Andhra Pradesh High Court in Allam Venkateswara Reddy v. Golla Venkatanarayana (supra) lay down correct law.
1995 (1) CTC 521, (1995) IIMLJ 357 In my view, the said principle has no application to the fact situation on hand and the learned Subordinate Judge has committed an error in applying the ratio of those decisions to the case on hand. Obviously such a mistake has been committed by the learned Subordinate Judge on the assumption that half of the market value of the property as originally given namely Rs. 12,500/- on which Court - fee has been paid would be decisive of the question of the pecuniary jurisdiction of the Court and that therefore the Sub-Court which can entertain only suits in excess of the claims o more than Rs. 15,000/- of value could not entertain the suit as such. The plaint averments would go to show hat Court-fee computed on one-half of the market value of the property namely Rs. 12.500/- came to be paid in this case on the basis of the valuation given before the Court below that the market value of the property was Rs. 2,000/- for purpose of an under Section 25(b) of the Tamilnadu court-fees and suits Valuation Act. 1955. If that be the factual position and there can be no serious controversy over the said factual position, having regard to Section 53(2) of the Act the market value of the property given only shall be the basis for determining the pecuniary jurisdiction of the Court and not the value adopted for the purpose of payment of Court-fee by virtue o specific mandate contained Section 25(b) of the Act. In view of the above, the learned Subordinate Judge ought to have seen that for purpose of determining the pecuniary jurisdiction of the Court in respect of the plaint filed in this suit, it is the market value of the property as given namely Rs. 25.000/- that should be the guiding factor or the basis. Thus viewed, the suit filed will be within the pecuniary jurisdiction of the Sub-Court, Thiruvallur. The conclusion arrived at is contrary to law and cannot be countenanced by this Court. Hence, he order of the Court below is set aside and the learned Subordinate Judge is directed to restore proceedings to his file and dispose of I.A. No. 702 of 1994 on merits, and in accordance with law before proceeding with the matter further.

LAW FOR ALL

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Monday, January 30, 2017

Thursday, January 26, 2017

WHETHER THE VALUE FOR PECUNIARY JURISDICTION -VS- COURT FEE IS ONE AND THE SAME

SATHEEDEVI v. PRASANNA & ANR. [2010] INSC 376 (7 May 2010)