reject the aforesaid contention. It is re-emphasized that when the
decision was taken to go through the open auction process which
was even otherwise justifiable in order to augment the State
revenue, the appellant-society cannot object to the same and claim
the settlement of ghat in its favour on payment of 15% of the
reserved Jama/settlement amount for the previous years. In fact,
such a contention is not even available to the appellant-society
inasmuch as the decision of the respondents to go through the
auction process was never questioned or challenged by the
appellant-society in any judicial proceedings. On the contrary, it
jumped to the offer of the respondents and accepted the bid but, at
the same time, put the uncalled for condition that it was accepting
the same under protest. Therefore, it cannot now turn around and
make out a case that the bid amount should have been 15% of the
reserved Jama/settlement for the previous years.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1853 OF 2016
(Arising out of SLP(C) No.8448 of 2012)
ALAULI ANCHAL BOAT TRAFFIC COOPERATIVE
SOCIETY LTD., PHULTORA AND ANR. ....Appellants
Versus
STATE OF BIHAR AND ORS. ….Respondents
Citation:(2016)6 SCC296
R. BANUMATHI, J.
2. This appeal assails an order dated 15.12.2011 passed by
the Division Bench of the High Court of Judicature at Patna
allowing Letters Patent Appeal No.1457 of 2009 setting aside the
order of the learned Single Judge and declining to interfere with the
order of the Collector dated 16.10.2008, auctioning Ghurandera
Kilagarai Ghat and direction to the appellant-society to deposit the
balance bid amount of Rs.10,80,000/- for the year 2008-2009 for
settlement of the said ghat.
3. A public notice dated 16.10.2008 was issued by the
Zonal Officer, Alauli for auction of Ghurandera Kilagarai Ghat for
the year 2008-2009 in which Reserve Jama was fixed at
Rs.33,350/-. Three bidders had taken part in the auction, the
highest bidder at Rs.16,00,100/- by Sushil Kumar and that one
Lalan Kumar and Shri Ram Bilash Yadav who also participated in
the bid at Rs.5,00,000/- and Rs.10,00,000/- respectively. At the
time of Dak, the appellant-society which was present there
accepted the settlement under protest and deposited one third of
the total bid amount. The appellant-society then prayed for
recalling the open bid for the year 2008-2009 on the ground that
the bid amount was very much higher and also to fix the amount
only with fifteen percent increase of the previous years and for
direction upon the respondent to adjust the amount deposited by it
in the future instalment. Request of the appellant-society was
declined; however, liberty was granted to the appellant-society that
it can avail next two settlements for consecutive years at the same
settlement amount without any further Jama or open bid.
4. The appellant-society then filed Writ Petition No.3646 of
2009 praying for quashing the order dated 16.10.2008 inviting
open bid for settlement of Ghurandera Kilagarai Ghat for the period
2008-2009 through public auction. The appellant alleged that the
bid amount was very much higher than the amount on which ghats
were being settled for the previous years. Learned Single Judge
disposed of the writ petition and remanded the matter back to the
Collector, Khagaria observing that the persons who bid the amount
were not really interested in taking the settlement and that the
appellant-society had taken the ghat under protest. The learned
Single Judge directed the authorities to re-consider the matter in
the light of various circulars of the State Government. Being
aggrieved, respondent-State of Bihar preferred appeal in LPA
No.1457 of 2009 which was allowed by the Division Bench holding
that the record revealed that every year the amount of bid has gone
up and as such the court has no jurisdiction to go into the
disputed questions of fact with regard to the bid amount and that it
was for the appellant-society to work out its remedies before the
appropriate forum.
5. Learned counsel for the appellant-society Mr. Subhro
Sanyal submitted that bid amount of Rs.16,00,000/- for which the
ghat was settled is arbitrary and is very much on the higher side
than the standardized revision by fifteen percent of the amount
over and above the amount fixed in previous years and hence the
respondents are obligated to re-fix the amount. It was contended
that the appellant-society had accepted the bid only under protest
and the Division Bench failed to consider the fact that the
appellant-society had reserved its right to challenge the public
auction Ghurandera Kilagarai Ghat by Circle Officer, Alauli and
deposit of one third amount under protest does not amount to
acquiescence and waiver of appellant's legal right.
6. Per contra, learned counsel for the respondents
Mr. Shivam Singh contended that the Circle Officer, Alauli not only
accepted the recommendation of the District Level Committee
rather he has acted as per the direction of the Government letter to
go through open evaluation process in order to augment the
revenue of the State. The respondents further contended that the
appellant-society took the settlement of the ghat on the amount
assessed through open bid and as such appellant-society is
estopped from assailing the auction of the ghat by inviting bids.
7. We have carefully considered the rival contentions and
perused the impugned order and materials on record.
8. Pursuant to the auction notice dated 16.10.2008,
auction of Ghurandera Kilagarai Ghat was held on 27.10.2008 in
which three persons participated and the highest bid was at
Rs.16,00,100/- by one Sushil Kumar. By perusal of record of
proceedings of auction of Ghurandera Kilagarai Ghat (Annexure
P/10), it is seen that at the time of Dak, appellant-society was
present there and its opinion on the highest Dak was obtained and
the appellant-society had then taken the settlement of the said ghat
under protest. Relevant portion of record of auction proceedings of
Ghurandera Kilagarai Ghat dated 27.10.2008, reads as under:
“The highest bid had done by the Dakvakta No. 3 Shri Sushil
Kumar S/o Shri Satya Narayan Pra.Yadav, R/o Govindpur
Natoliya Sahebpur Kamal, Baigusarai. At the time of Dak, the
Alauli Zonal Bodh Traffic Society Ltd., Phoolwada, Khagdiya was
present there. Get his opinion on this highest Dak.
Ready to take with objection
Sd/-”
Even though the appellant-society had neither participated in the
auction nor submitted the bid, appellant-society's opinion was
obtained on the higher Dak and the appellant-society accepted the
bid under protest for Rs.16,00,000/-. Though, no plausible
explanation is shown to us as to why the appellant-society was
given the contract when it had not participated in the auction or
submitted its bid, learned counsel for the appellant had submitted
that Sushil Kumar, who was the highest bidder and had given the
bid of Rs.16,00,100/-, did not come forward and it is in these
circumstances the appellant was offered the contract of the said
ghat at the aforesaid rate. Be that as it may, Sushil Kumar, who
was the highest bidder, did not question the settlement of ghat in
favour of the appellant-society and, therefore, such a question is
not to be gone into in these proceedings. Since the contract was
awarded to the appellant-society and insofar as the said award is
concerned, nobody has challenged the validity thereof, we are only
called upon to decide as to whether the appellant-society could
question the settlement bid of Rs.16,00,000/- at which the
settlement of ghat was given to the appellant-society.
9. It emerges from the record that the reason for auctioning
the said ghat was that the Circle Officer, Alauli had accepted the
recommendation of the District Level Committee and acted as per
the Government instruction vide letter No.2526 dated 12.09.1978
to go through open auction process which is mandatory for the
settlement of the ghats for every third year. As per the
recommendation of the District Level Committee, in order to
augment the State revenue, the authorities are expected to invite
bids through auction process and ensure transparency in
acceptance of the bids. The auction process inviting the bids in the
settlement of ghat cannot be said to be arbitrary or in violation of
government circulars. In auction, the highest bid received is of
Rs.16,00,000/- as mentioned above. Further, as pointed out above,
the appellant-society was not a bidder and did not participate in
the auction. However, still it was offered to have the ghat settled in
its favour on payment of Rs.16,00,000/- which was the highest bid
received. It agreed to do so but accepted the bid under protest. We
do not find any justifiable reason to challenge either the auction or
the aforesaid bid amount. Had the appellant-society refused, the
only other course of action was to invite the bids again. The
amount of Rs.16,00,000/- had a rationale behind it as it was the
highest bid and, therefore, having agreed to take the settlement of
ghat for Rs.16,00,000/- the appellant-society was not justified in
challenging the auction of ghat by inviting bids. More so, when
Ghurandera Kilagarai Ghat was not the solitary ghat in which the
auction has been held but other ghats were also auctioned and
settled at much higher amounts.
10. Contention of the appellant-society is that in view of
various circulars of the Government, the upward revision of reserve
Jama could only be fifteen percent of the reserve Jama/settlement
amount for the previous years and the bid amount of
Rs.16,00,000/- for the ghat in question is arbitrary and unreasonable.
According to the appellant-society, Reserve Jama
Committee fixed the reserve Jama for settlement of Ghurandera
Kilagarai Ghat for the years 2005-2006, 2006-2007, 2007-2008 at
Rs.28,750/- Rs.29,000/- and Rs.33,500/- respectively.
11. For the reasons given above, we have no hesitation to
reject the aforesaid contention. It is re-emphasized that when the
decision was taken to go through the open auction process which
was even otherwise justifiable in order to augment the State
revenue, the appellant-society cannot object to the same and claim
the settlement of ghat in its favour on payment of 15% of the
reserved Jama/settlement amount for the previous years. In fact,
such a contention is not even available to the appellant-society
inasmuch as the decision of the respondents to go through the
auction process was never questioned or challenged by the
appellant-society in any judicial proceedings. On the contrary, it
jumped to the offer of the respondents and accepted the bid but, at
the same time, put the uncalled for condition that it was accepting
the same under protest. Therefore, it cannot now turn around and
make out a case that the bid amount should have been 15% of the
reserved Jama/settlement for the previous years.
12. The appellant placed reliance upon the letter dated
12.04.1982 of the Joint Secretary, Department of Revenue & Land
Reforms, Government of Bihar addressed to Collector, Gopalganj
stating that minimum fifteen percent increase is to be made in the
settlement of Jalkar keeping in mind the development of Jalkar and
rising prices of fish. The said letter dated 12.04.1982 deals with
development of Jalkar and Fisheries-cum-Makhana. Likewise,
letter dated 09.03.2002 upon which the High Court based its order
stipulates that the settlement of ghats ought to be made only for
three years on the basis of reserve Jama. In the present case, the
settlement was already done for three years and thereafter the
8Page 9
appellant-society was bound to settle the ghat on the basis of open
bid as per the direction of the Government with a view to re-assess
the valuation of the settlement and the process of open bid was
rightly adopted by the appellant-society which was also necessary
to enhance the revenue of the Government.
13. Likewise the circular dated 12.02.1981 which
states that instead of doing settlement of Jalkar through open
bidding, it should be made to the cooperative societies for every
three years deals only with Sairats pertaining to Fisheries-cumMakhana.
By perusal of the said circular, it is seen that the
District Fishery Officer and also Fishery Officer from the level of
Sub-Division are the members of the Committee thereby indicating
that the said circular is only with reference to Fisheries-cumMakhana.
But so far as in the present case Ghurandera Kilagarai
Ghat, it is concerned with settlement of ghats for transportation of
men and material through water base. Contention of the
respondents is that the appellant-society was well aware of the
higher economic viability as through these ghats, maize
transportation is being carried out for their export centres from
Khagria Railway Station.
14. As pointed out earlier, the appellant has not earlier
challenged the auction notice dated 16.10.2008. On the day of
9Page 10
auction dated 27.10.2008, the appellant-society was present and
when its opinion was obtained on the highest Dak, the appellantsociety
accepted the settlement of ghat for Rs.16,00,000/-. While
so, it was not open to the appellant-society to challenge the auction
notice and to seek writ of mandamus to direct the respondents to
act as per the decision of the District Level Reserve Jama
Committee. As pointed out earlier, the Circle Officer accepted the
recommendation of the District Level Committee and gone through
the open evaluation process which is mandatory for settlement of
ghats for every third year after the evaluation of open bid process.
15. Be it noted, Ghurandera Kilagarai Ghat was not the only
solitary ghat auctioned, but auction was held for other ghats also
and the bid amount had gone much higher than the amounts at
which the ghats were being settled in the previous years. In fact,
the appellant-society was successful in offering the highest bid
amount for other ghats at Rs. 20,00,000/-. Having participated
and having emerged as the successful bidder for other ghats, the
appellant-society is not justified in challenging the auction inviting
open bids for Ghurandera Kilagarai Ghat. The Division Bench
rightly observed that every year the amount of bid has gone up and
therefore, the Court has no jurisdiction to go into such disputed
questions of fact with regard to bid amount. We do not find any
10Page 11
reason warranting interference with the impugned order.
16. It is to be pointed out that the appellant-society has
deposited only thirty per cent of the amount and even after serving
three notices by the Circle Officer Alauli, the rest of the amount has
not yet been paid. While granting stay of the impugned order, vide
order dated 23.03.2012, this Court directed the appellant-society to
deposit a sum of Rs.2,00,000/-. The respondents are at liberty to
proceed against the appellant-society to recover the amount due
from the appellant-society.
17. In the result, the appeal is dismissed leaving the parties
to bear their respective costs.
….….....................CJI.
(T.S. THAKUR)
.….……....................J.
(A.K. SIKRI)
.……….....................J.
(R. BANUMATHI)
New Delhi,
February 26, 2016.
11
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