D.N. Patel, J. - (1.) THIS Letters Patent Appeal has been preferred against the judgment and order dated 18th December, 2008, passed by the learned single Judge in a writ petition bearing W.P.(C) No. 3374 of 2007, whereby, the writ petition was dismissed. Against this order of dismissal, the Appellant (original Petitioner) has preferred the present Letters Patent Appeal.
(2.) FOLLOWING questions have mainly, been raised by Appellant for consideration; 2.1 Whether State instrumentality (Respondent No. 1) has acted unfairly and arbitrarily in grant of contract of public interest to Respondent No. 4; 2.2 Whether the decision making process of State instrumentality was influenced by extraneous/irrelevant considerations; and 2.3 Whether the Court has power of judicial review, in the matters of commercial/contractual transactions, between State instrumentality with the private party (Respondent No. 4 herein). Factual Matrix: 3.1 Expression of Interest was published by the Jharkhand Stale Housing Board, Ranchi (Housing Board for the sake of brevity), inviting offers to develop the property of the Housing Board at Adityapur, Jamshedpur in a joint venture with the private developers. Express of Interest was floated on 13th November, 2005. The Appellant submitted its offer on 11th December, 2005 (Annexure 3 to the memo of appeal). Pursuant to the same, the Appellant was asked to attend the Pre -Bid discussion at the office of Respondent No. 2 on 1st February, 2006 and selected participants were asked by the Superintending Engineer of the Housing Board to give proposals with quotations, while providing the details of plots and scheme, by 18th May, 2006. This last date was extended by Respondent No. 2, asking the bidders to submit earnest money in the form of bank draft by 29th June, 2006. The Appellant submitted its offer along with the required bank draft as earnest money on 29th June, 2006 and thereafter, time and again the Appellant (original Petitioner) was called by Respondent No. 1 and on 24th August, 2006, Respondent No. 2 communicated the Appellant that its offer for Plot No. 6, earmarked for construction of residential as well as commercial complex, was found to be the highest and the Appellant was asked to show its financial credibility to meet the expenditure for such construction. Thereafter, Plot No. 6 was never allotted to the Appellant, though solvency certificates were given by the Appellant to Respondent No. 2 on 30th August, 2006 (Annexure 11 to the memo of appeal). Thereafter, several letters were written by the Appellant to Respondent Nos. 1 and 2 to issue the allotment order in respect of a land under Plot No. 6, situated at Adityapur, Jamshedpur. These letters are dated 29th March, 2007 (Annexure 12 to the memo of appeal), 10th April, 2007 (Annexure 13 to the memo of appeal), 10th May, 2007 (Annexure 14 to the memo of appeal) etc. Meanwhile the Board invited the second highest bidder, who is Respondent No. 4, who increased its offer whereas the Appellant, though was the highest offerer for the joint venture, was not called to increase its contribution in the joint venture. 3.2 On 25th April, 2007, ultimately Respondent No. 2 wrote a letter to the Appellant, communicating therein, that the original Petitioner/Appellant has not been selected for Plot No. 6. The original Petitioner/Appellant came to know under the Right to Information Act, 2005, that Respondent No. 4 has been allotted Plot No. 6, situated at Adityapur, Jamshedpur, for development, on 14th March, 2007. Thus, though the original Petitioner/Appellant was found to be the highest offerer for a joint venture, it has not been offered Plot No. 6. Thus, a writ petition bearing W.P.(C) No. 3021 of 2007 was preferred by the original Petitioner/Appellant for quashing the letter dated 25th April, 2007, whereby, the Appellant was communicated by Respondent No. 2 that it has not been selected for Plot No. 6, but, under the Right to Information Act, 2005, in June, 2007, the original Petitioner/Appellant came to know that now Respondent No. 4 has been selected. The writ petition was withdrawn, with a liberty to the original Petitioner/Appellant to file a fresh writ petition and, thereafter, another writ petition bearing W.P.(C) No. 3874 of 2007 was preferred, wherein, the letter dated 14th March, 2007, which was issued by the Housing Board to Respondent No. 4 was prayed to be quashed. This writ petition having been dismissed by judgment and order dated 18th December, 2008, the present Letters Patent Appeal has been preferred.
(3.) ARGUMENTS canvassed by the parties: 4.1 Mr. G.L. Rawal, Sr. Advocate appearing on behalf of the Appellant (original Petitioner) submitted that the Petitioner/Appellant had submitted its offer with all necessary documents and details in pursuance of an Expression of Interest, published by Respondent No. 2 for development of Plot No. 6, situated at Adityapur, Jamshedpur, in a joint venture with the Housing Board for residential as well as commercial complex. After inviting all the bidders, from the selected participants proposal with quotation was demanded, which was also given by the Petitioner/Appellant for Plot No. 6 and the Petitioner/Appellant was also asked to furnish earnest money in the form of bank draft, which was also given by the Appellant. Again, the offers made by the bidders were scrutinized and the Petitioner/Appellant was found to be the highest for Plot No. 6. as per the communication letter No. 1873 dated 24th August, 2006 (Annexure 10 to the memo of appeal). For a long time thereafter, though the Petitioner/Appellant demanded through several letters, Plot No. 6 was never allotted to the Petitioner/Appellant. These letters are at Annexure 12, 13 and 14 etc. to the memo of appeal and ultimately, on 25th April, 2007, Respondent No. 2 issued a letter to the Petitioner/Appellant that it has not been selected for Plot No. 6, situated at Adityapur, Jamshedpur, for the reasons that the papers pertaining to financial credibility were not deposited by the Appellant by 30th August, 2006. Mr. G.L. Rawal, Sr. Advocate appearing on behalf of the Petitioner/Appellant further submitted that the Appellant had submitted all the papers, pertaining to financial credibility on 30th August, 2006, including solvency certificates, showing sanction of terms loan of Rs. 35 Crores (Annexure 11 to the memo of appeal) and, in fact, the Petitioner/Appellant has already been allotted Plot No. 4, situated at Adityapur, Jamshedpur, which reflects the financial credibility of the Appellant. Therefore, there was no need for asking any papers pertaining to financial credibility. Moreover, this condition was never attached in the tender conditions and, therefore, on this ground, the selection of the Petitioner/Appellant, which was found to be the highest offerer for the joint venture, cannot be discarded, on the ground of non -supply of the papers, pertaining to financial credibility and, therefore, the letter dated 25th April, 2007 (Annexure 15 to the memo of appeal) deserved to be quashed and set aside. Conditions of tender cannot be altered or amended unilaterally by the Housing Board. In absence of any such condition in the tender for supply of the papers pertaining to financial credibility, selection of the Petitioner/Appellant for grant of Plot No. 6 cannot be discarded on this ground. 4.2 It is further submitted by Mr. G.L. Rawal, Sr. Advocate, that the reason which was never given in the letter dated 25th April, 2007 is now canvassed in the counter affidavit, filed by the Respondent -Housing Board in the writ petition. For the first time, in the counter affidavit a plea has been taken by the Respondent -Housing Board that the Petitioner/Appellant was not the highest offerer rather Respondent No. 4 was the highest offerer and, therefore, the selection of the Petitioner/Appellant was cancelled. This ground cannot be canvassed by the Respondent -Housing Board because this was never a ground in the letter of the Respondent -Housing Board dated 25th April, 2007 (Annexure 15 to the memo of appeal). Learned Counsel for the Petitioner/Appellant has relied upon a decision rendered by the Hon'ble Supreme Court in the case of Mohinder Singh Gill v. The Chief Election Commissioner : A.I.R. 1978 SC 851 and it is submitted that the case of the Respondent -Housing Board cannot be improved on affidavit by supplying the reasons, which were never mentioned in the impugned order, otherwise all non -speaking orders or invalid orders will be converted into speaking orders or valid orders, by passage of time. There is a material improvement by the Respondent -Housing Board in its counter affidavit. Thus, though the Petitioner/Appellant was found to be the highest offerer vide letter dated 24th August, 2006, the Petitioner/Appellant was not allotted Plot No. 6, situated at Adityapur, Jamshedpur. This letter has never been withdrawn or cancelled by the Respondent -Housing Board, even by letter dated 25th April, 2007 (Annexure 15 to the memo of appeal) it is only alleged against the Petitioner/Appellant that since the Petitioner/Appellant has not submitted papers pertaining to financial credibility, it is not selected. Thus, the fact remains, even on 25th April, 2007, that as per the Housing Board, the Petitioner/Appellant was the highest offerer, but, as there was no papers pertaining to financial credibility, the Appellant was not selected for Plot No. 6. Thus, the Petitioner/Appellant was the highest offerer even as per the Respondent -Housing Board, not only by letter dated 24th August, 2006, but, also by letter dated 25th April, 2007. 4.3 It is further contended by the learned Senior Advocate Mr. G.L. Rawal that Respondent No. 4 was allotted Plot No. 6 on 14th May, 2007 (Annexure 17 to the memo of appeal). Never Respondent -Housing Board has issued any letter to Respondent No. 4 that Respondent No. 4 is the highest offerer. It appears that Respondent No. 4 was constantly pursuing its matter by writing letters to the Respondent -Housing Board, after the Board has written a letter to the Petitioner/Appellant on 24th August, 2006. By this letter dated 24th August, 2006, the Housing Board communicated the Appellant that it was found to be the highest offerer and privately, the Respondent -Housing Board called 2nd highest offerer i.e. Respondent No. 4 for enhancement of the amount, which Respondent No. 4 did. It is submitted by the learned Counsel for the Appellant that, in fact, the Respondent -Housing Board ought to have called upon the highest offerer i.e. the Appellant for further negotiations for increasing the amount of its contribution to the Respondent -Housing Board, but, the Respondent -Housing Board has never called the Appellant and privately Respondent No. 4 was called to increase the amount. Had an opportunity been given to the Appellant, the Appellant is ready and willing to increase the amount to a tune of Rs. 5,00,00,000/ - (rupees five crores) whereas Respondent No. 4 has increased only Rs. 100,00,000/ - (rupees one crore). Learned Counsel for the Petitioner/Appellant has relied upon a decision, rendered by Hon'ble Supreme Court in the case of Ram and Shyam Co. v. State of Haryana : (1985) 3 SCC 267 as well as a decision, rendered in the case of Dutt Associates v. Indo Merchantiles Pvt. Ltd. : (1997) 1 SCC 53 as also a decision, rendered by Hon'ble Supreme Court in the case of Tata Cellular v. Union of India : A.I.R. 1996 SC 11 and submitted that the State authorities cannot invite one of the bidders and get the amount increased to give a contract to a selected bidder. In fact, all the bidders should have been called and, at lest, the Petitioner/Appellant must have been called by the Respondent -Housing Board, the Appellant being the highest offerer, for further negotiations, so that the Petitioner/Appellant can also get an opportunity to increase the amount. The Respondent -Housing Board has selectively called Respondent No. 4, who increased its offer and got the contract. This patently in violation of the principles laid down in the aforesaid judicial pronouncements. The Respondent -Housing Board, being an instrumentality of the State, has acted contrary to the public good and public interest and has acted unfairly, unjustly and unreasonably in its contractual, constitutional and statutory obligations or it really acted contrary to the constitutional guarantee, found under Article 14 of the Constitution of India. 4.4 Lastly, it is submitted by the learned Counsel for the Petitioner/Appellant that Respondent No. 4 has not done anything substantial upon Plot No. 6 so far, as is evident from a detailed letter written by the Respondent -Housing Board on 29th June, 2009 (Annexure 14 to I.A. No. 1989 of 2010 in the present Letters Patent Appeal). By this letter, it has been stated by the Respondent -Housing Board that from June, 2007 though two years have lapsed, plans for development of the property lave not been got approved Respondent No. 4 from the concerned Development Authority. See(sic) reminders have been given, though within three years the work was to be completed of the construction of residential as well as commercial complex i.e. from 21st June, 2007, but, still the work has not yet been started by Respondent No. 4. Learned Counsel for the Appellant submitted that Respondent No. 4, in fact, has not yet started the construction work. Photographs of the barren land of Plot No. 6, situated at Adityapur, Jamshedpur, are annexed at Annexure 25 of the I.A. No. 1989 of 2010, filed in the present Letters Patent Appeal. Thus, it is submitted by the learned Counsel for the Appellant that nothing substantially has been done by Respondent No. 4 for construction of residential as well as commercial complex over Plot No. 6, situated at Adityapur, Jamshedpur, in the joint venture and, therefore, let the letter dated 25th April, 2007, issued to the Appellant (Annexure 15 to the memo of appeal) as well as the letter dated 14th March, 2007, issued by the Respondent -Housing Board to Respondent No. 4 (Annexure 17 to the memo of appeal) be quashed and set aside and let the Petitioner/Appellant as well as Respondent No. 4 be called for further negotiations for offering the highest amount in the joint venture with the Respondent -Housing Board for construction of residential as well as commercial complex over Plot No. 6, situated at Adityapur, Jamshedpur. 4.5 Mr. S.K. Kapoor, learned Senior Advocate appearing on behalf of Respondent No. 4, submitted that, in fact, Respondent No. 4 was the highest offerer, which has offered 30.25% to the Respondent -Housing Board of the total plinth area of all the floors of residential as well as commercial units whereas the Petitioner/Appellant had quoted 30%. The letter issued by the Respondent -Housing Board to the Appellant dated 24th August, 2006 was a mistake and, therefore, Respondent No. 4 was the highest offerer and, therefore, the Respondent -Housing Board has selected Respondent No. 4 for construction over Plot No. 6 in joint venture with the Respondent -Housing Board. Learned Counsel for Respondent No. 4 has relied upon a decision, rendered by Hon'ble Apex Court in the case of Wander Ltd. v. Antox India P. Ltd. : (1990) Supp. SCC 727. He has also submitted that the Petitioner/Appellant has failed to submit papers pertaining to financial credibility within the stipulated time i.e. on or before 30th August, 2006 and, therefore also, Respondent No. 4 was selected for construction over Plot No. 6. It is further submitted by the learned Counsel for Respondent No. 4 that Respondent No. 4 has already increased its offer from Rs. 25,67,98,440/ - to Rs. 26,26,62,240/ -. Thus. Respondent No. 4 has offered Rs. 58,63,800/ - more after negotiation. Thus, approximately an amount of Rs. 59,00,000/ - has been increased by Respondent No. 4 after negotiation. This is evident from Annexure R -4/I of the counter affidavit, filed by Respondent No. 4 in the present Letters Patent Appeal. 4.6 Learned Counsel Mr. Sumeet Gadodia for Respondent 1, 2 and 3 submitted that the Court should remain slow in interfering with the contractual matters. Once the context is already allotted to Respondent No. 4 and as Respondent No. 4 has already started its construction work, now it is impossible to re -allot the contract to anyone. Moreover, it is submitted by he learned Counsel for the Respondent -Housing Board that the letter issued by the Respondent -Housing Board dated 24th August, 2006, to the Petitioner/Appellant, which is at Annexure 10 to the memo of appeal, was a mistaken letter. In fact, the Petitioner/Appellant was never the highest offerer. Respondent No. 4 has offered 30.25% of the entire constructed area where the Petitioner/Appellant has offered 30% and, therefore, H -1 was Respondent No. 4 and not the Petitioner/ Appellant. Moreover, Respondent No. 4 has increased its offer to the Respondent -Housing Board by approximately Rs. 59 lacs and if the FAR goes up to 3, then much more benefit will go to the Respondent -Housing Board from Respondent No. 4. Learned Counsel for the Respondent -Housing Board has relied upon a decision, rendered by Hon'ble Supreme Court in the case of Vividh Marbles (P) Ltd. v. Commercial Tax Officer : (2007) 3 SCC 580 and submitted that a mistaken letter, which was issued by the Housing Board, which is dated 24th August, 2006, cannot put the Appellant in any advantageous position. Moreover, it is submitted by Mr. Sumeet Gadodid, learned Counsel for the Respondent -Housing Board, that the papers pertaining to financial credibility from the Petitioner/Appellant were never received and what is alleged by the Petitioner/Appellant that it has forwarded the papers pertaining to financial credibility to the Housing Board on 30th August, 2006 is absolutely wrong and, in fact, the Housing Board has never received any papers pertaining to financial credibility from the Petitioner/Appellant and, therefore, the selection of the Petitioner/Appellant was rightly cancelled.;