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Laiqa Khanam & Another v. Second/Iind A.D.J. & Another - WRIT - C No. 49740 of 2005  RD-AH 6567 (29 November 2005)
Court No. 37
Civil Misc. Writ Petition No. 49740 of 2003
Etawah Sahkari Matsya Jeevi Samiti Ltd. Versus State of U.P. and others
Hon. R. K. Agrawal, J.
Hon. ( Mrs.) Saroj Bala, J.
By means of the present writ petition, under Article 226 of the Constitution of India, the petitioner seeks a writ, order or direction in the nature of certiorari quashing the impugned orders dated 28.10.2003 and 29.10.2003 (Annexure-11 and Annexure-12 to the writ petition) passed by the District Magistrate, Jalaun at Orai and Sachiv, Auction Committee/AD.M., Jalaun. The petitioner further seeks a writ, order or direction in the nature of mandamus directing the respondents not to give effect to the cancellation order dated 28.10.2003 and not re-auction the fishery contract of the river Sindh Pahuj of District Jalaun for the year 2003-04 and permit the petitioner to carry out fishing on the basis of auction held on 25.8.2003. The petitioner by way of writ of mandamus further seeks that the respondents be directed not to insist upon the payment of stamp duty of Rs.77,880/- and to get the agreement executed on stamp paper of Rs.100/-.
The basic features which require to be noticed by us are as under :
The petitioner is a registered co-operative society of local professional poor fishermen engaged in the profession of fishing. In pursuance of publication of auction notice dated 16.7.2003 for auction of fishing contract for the year 2003-04 in Sindh Pahuj River the petitioner participated in the auction held on 21.7.2003. The petitioner deposited a sum of Rs., 25,000/- as security money for participation of auction in respect of Sindh Pahuj River and was the highest bidder. In accordance with the terms and conditions of the auction deposit of half of the amount of highest bid was to be made immediately on fall of hammer and remaining half of the amount was to be deposited after the approval of the auction before execution of agreement. Condition no. 3 of the auction provided that the highest bidder shall deposit the entire amount of the contract from the date of approval of the auction and production of duly signed agreement for execution and in case of default the auction shall be cancelled and the security money will be forfeited. The petitioner deposited half of the amount of auction bid i.e. Rs.04,43,000/- besides security money of Rs.25,000/- but failed to deposit remaining half of the amount of the auction bid. The auction was cancelled for non-compliance of the terms and conditions by the District Magistrate, Jalaun vide order dated 28.10.2003 (Annexure-11 to the writ petition). After cancellation of the auction, the Sachiv, Auction Committee/A.D.M. (Finance) issued a public notice for re-auction of fishery right in Sindh Pahuj River by order dated 29.10.2003 (Annexure-12 to the writ petition). Both these orders have been challenged by the petitioner in the present writ petition.
The contention of the respondents is that the petitioner having not deposited the remaining half of the auction money and having not filed stamp paper for the purpose of execution of agreement, despite reminders, the auction was cancelled and the amount deposited by him was fortified. A fresh publication notice was issued for the auction of fishery rights in Sindh Pahuj River. According to the respondents the petitioner having committed the breach of the terms and conditions of the contract, the auction was rightly cancelled. The contention of the respondents is that Original Suit No. 218 of 2003 Etawah Sahkari Matsya Jeevi Samit Ltd. Versus Sachiv, Neelami Samiti and others is pending before the court of Civil Judge (Senior Division) Orai and the petitioner after being unsuccessful in getting the relief from the civil court has approached this Court by concealing these facts.
The petitioner in its rejoinder affidavit reiterating the facts stated in the writ petition has stated that the demand of stamp duty was illegal as the petitioner was not required to deposit the stamp duty under the government orders (Annexure-7 and Annexure-8 to the writ petition). The petitioner has contended that Original Suit No. 218 of 2003 filed on wrong legal advice has been withdrawn. The order of the court directing the withdrawal of the suit is Annexure-R.A. 2 to the rejoinder affidavit.
We have heard Sri M.M. D. Agarwal, learned counsel for the petitioner and Sri A.N. Shukla, learned Standing Counsel.
The learned counsel for the petitioner inviting our attention to the condition no. 3 of the auction (Annexure-3 to the writ petition) submitted that forfeiture of half of the amount of auction bid amounting to Rs.04,43,000/- is arbitrary, irrational and illegal. Learned counsel argued that in case of breach of condition no. 3 the security money alone was to be forfeited.
The learned counsel for the respondents submitted that according to condition no. 5 the decision of the District Magistrate being final, it cannot be challenged by the petitioner.
We have given our thoughtful consideration to the submissions advanced on behalf of both the parties.
There is no denying the fact that the petitioner participated in the public auction of fishery rights in Sindh Pahuj River and was declared as highest bidder. The petitioner deposited a sum of Rs.25,000/- as security money before participating in the auction. After approval of the auction half of the auction money amounting to Rs.04,43,000/- was deposited by him vide receipt no. 100200 dated 25.8.2003 (Annexure-5 to the writ petition). The terms and conditions No. 3 of the auction (Annexure-3 to the writ petition) provides that terms of fishing shall be counted from the date of approval of the auction of highest bidders depositing the entire auction money within a month from the date of approval of auction and on production of duly signed agreement for execution. In default, the auction was to be cancelled and the security money had to be forfeited. The respondent no. 2 by the impugned order dated 28.10.2003 while cancelling the auction for the year 2003-04 has forfeited half of the amount of highest bid, i.e. Rs.04,43,000/-. In case of breach of terms and conditions of the auction only security money was to be forfeited. In view of these facts the impugned order forfeiting half of the amount of highest bid, i.e. Rs.04,43,000/- is illegal, arbitrary and irrational.
In view of the following discussion, the writ petition succeeds and is hereby allowed. The respondents are directed to refund the amount of Rs.04,43,000/- to the petitioner within a period of two weeks from the date of production of a certified copy of this order. The other reliefs claimed by the petitioner in the writ petition have become infructuous with efflux of time.
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