- (1.) AMITAVA Lala, J. This appeal is arising out of an interim order of injunction passed under Order XXXIX, Rule 1 of the Code of Civil Procedure (hereinafter in short called as "c. P. C. ") by Civil Judge (Senior Division), Varanasi on 29th March, 2007 in a suit being Original Suit No. 1220 of 2006, Neeraj Upadhyaya v. Managing Director & Anr.
(2.) THE fact remains that the appellant No. 2 is collecting toll tax from the concerned bridge constructed as per the scheme of the State Government. From 2002 to 2004 the collections were Rs. 8,37,04,210. 00, Rs. 8,51,80,415. 00 and Rs. 8,77,22,695. 00, but in 2005 and 2006 the collections of toll tax were Rs. 7,09,14,305. 00 and Rs. 7,42,59,505. 00. After enquiry the appellants found that because of diversion of vehicles the income by way of toll tax was substantially reduced. However, with effect from 1st January, 2007 additional toll tax of Rs. 5/- was introduced. In any event, the appellants explored the possibility of engaging a private enterprise for the purpose of collection of toll tax. A decision was taken and a tender was floated. THE floor-price of the tender was fixed at Rs. 9,00,00,000. 00 since the corporation itself was able to earn upto the extent of Rs. 8,77,00,000. 00. THE respondent No. 1 submitted the tender with the earnest money offering a bid of Rs. 6,72,01,000. 00, which was the highest bid. THE corporation refused to accept such price since it was much below not only than the floor-price but also than the highest collection of toll tax made by the corporation itself. It is well settled by now that the highest tenderer cannot claim any right to get a tender as a matter of course, therefore, he cannot compel a Governmental authority to give so. Moreover, in the facts and circumstances, it is not feasible for a Governmental authority to accept such tender, which will ultimately cause loss of public revenue, if engaged, not only for the quoted price but also on account of payment of agents' commission. The only ground, which could have been taken by the respondent, is that whether ground of refusal is backed by any cogent reason or not because in a case of contract or no contract the Governmental authority will have to act fairly, reasonably and without any discrimination. This principle is well settled in many judgments particularly in AIR 1990 SC 1031, Mahabir Auto Stores & Ors. v. Indian Oil Corporation & Ors. , and thereafter upto the date. Assuming for the moment, the aggrieved feels that he has legitimate expectation that his tender will be accepted by the corporation, he could have, at best, move to the High Court under Article 226 of the Constitution of India to apply the high prerogative writ thereunder for the purpose of sending the matter back to the Governmental authority for consideration of cause applying the principles of equitable justice, but he cannot have any accrued right to compel a Governmental authority to accept his tender against the above factual background by way of suit. In a suit question of law and equity both are to be taken into account. Therefore, when law does not exist, equity alone cannot withstand.
(3.) AGAINST this background, a suit, being Original Suit No. 1220 of 2006, was instituted in the Civil Court in the nature of suit for injunction praying inter alia as follows (as per the translated copy of the plaint supplied by the party): "a. The defendant No. 1 be restrained by the decree of permanent injunction to the effect the performed legal auction dated 16-12- 2006 be not cancelled on the contrary if the highest bid of the plaintiff is less the after negotiation, stopping the toll tax collection, according to Government order, the toll tax collection on the bridge in question, the defendant No. 1 transfers the same to the plaintiff or during the pendency of case the defendant after doing negotiation with plaintiff, fixing the instalment day by day on total amount obtained in one year, on paying 186/2 crore by the plaintiff to the defendant No. 1 or depositing the fixed security amount, from the date of payment according to rules the work of toll tax collection the defendant No. 1 transfers to plaintiff. The plaintiff will deposit the fixed installment for day by day on the beginning of every week in the office of defendant No. 1. B. Issue any other relief which this Hon'ble Court may deem fit in favour of plaintiff against the defendant No. 1. C. Award the total cost of case to the plaintiff from the defendant set No. 1. " Immediately after filing of the suit, the contesting respondent herein had filed an interlocutory application praying inter alia similar relief and at an interim stage on 4th January, 2007 following order was passed (as per translated copy supplied by the party) : "the defendant may file the statement of collection in the Court made earlier within 15 days. The plaintiff on account of being highest bidder the collection of 9 crore per year on the basis of proportionate day by day toll tax collection is ordered. The defendant may issue licence for toll tax collection after getting deposited advance money of 15 days from the plaintiff. This arrangement is made temporarily till the application 6-C is decided finally, and seeing the loss of revenue and burden on the public, is being made. If the plaintiff does not comply it the plaintiff will have no right to collect toll tax. The record be produced for 2-3-2007 for disposal. ";