# Gaya Prasad Upadhyay v. State of U.P. and others

- **Citation:** (2001) 2 ILRA 52
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-11-20
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaya-prasad-upadhyay-v-state-of-u-p-and-others-39735
- **Pages:** 6

## Text

52 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
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By the Court

1. Heard counsel for the petitioner
and learned Government Counsel.

2. The petitioner is challenging the
impugned
detention
order
dated
20.11.2000 under the N.S.A. (Annexure 3
to the writ petition). Several arguments
have been raised before us but in our
opinion one argument is itself sufficient
for this petition to succeed, that is, that it
is a case of breach of law and order and
not public order. A perusal of the grounds
of detention (Annexure 4 to the petition)
shows that the dead body of one Pintoo
was found and a case under Section 302
was registered. It is very significant that
the petitioner was not named in the F.I.R.
(copy of which is Annexured). The
distinction between law and order and
public order is well known as it has been
discussed in a large number of cased
decided by the Supreme Court and this
Court. It is well settled that a detention
order can be passed not for breach of law
and order but for the breach of public
order vide State of U.P. vs. Hari Shankar
Tiwari A.I.R. 1987 S.C. 998. In the
present case we are of the opinion that
there was breach of law and order but not
of public order. No doubt the grounds of
detention mentions that public order was
breached, but we have not to go merely
by what the authorities say, otherwise in
every case the authorities can say that
there was breach of public order and that
will be the end of the matter. The court
has to make its own determination as to
whether there was breach of public order.
3. In view of the above the petition
is allowed. The impugned order dated
20.11.2000 is quashed. The petitioner
shall be released forthwith unless he is
required
in
some
other
preventive
detention or criminal case.
Petition Allowed.

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2All] Gaya Prasad Upadhyay V. State of U.P. and others

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By the Court

1. This writ petition under Article
226 of the Constitution has been filed
praying that the order dated 8.10.1999
passed by the Commissioner, Allahabad
Division, Allahabad, awarding contract of
collection of toll over Kara pantoon
bridge/ferry over river Ganga in District
Pratapgarh to Vinod Kumar Pandey,
respondent no. 4 may be quashed.

The main ground on which the
contract awarded to respondent no. 4 has
been assailed is that the same was done.
Without any advertisement and without
inviting any tender, and on the basis of
the private negotiations. The facts averred
in the writ petition are not clear and are
confusing. The complete facts have been
given
in
the counter affidavit and
supplementary counter affidavit sworn by
Vinod
Kumar
Singhal,
Assistant
Engineer, Construction Division, Public
Works Department (hereinafter referred to
as the PWD), Pratapgarh, which have
been filed on behalf of respondent no. 3.
Since these are the only affidavits filed on
behalf of the State agencies, namely,
respondent no. 1 to 3 and no facts to the
contrary have been stated in the counter
affidavit filed by Vinod Kumar Pandey,
respondent no. 4, we will decide the writ
petition on the basis of the facts stated
therein.

2. The PWD makes arrangement for
a pantoon bridge/ferry over river Ganga at
Kara Ghat in district Pratapgarh. The right
to realise toll over the said bridge/ferry is
let out in accordance with the Northern
India Ferries Act, 1878 (in short, the Act).
An advertisement was published on
2.8.1997 inviting tenders for realisation of
toll
over
the
aforesaid
pantoon
bridge/ferry for a period of three years. In
pursuance to the advertisement 5 tenders
were submitted. However, 4 tenders were
not found to be in order. The tender
submitted by Sri Sarvesh Kumar Misra
alone was found to be in order and the
Executive Engineer, PWD, Pratapgarh,
forwarded
the
papers
to
the
Commissioner, Allahabad Division, for
his sanction. The commissioner vide his
order dated 4.11.1997 held that as there
was only one tender, it would not be
proper to award the contract on its basis.
He accordingly directed that fresh tenders
be invited. This order was challenged by
Sarvesh Kumar Misra by filing C.M. Writ
Petition no. 688 of 1998 in which the
State
was
directed
to
file
counter
affidavit. On the application for grant of
interim relief it was directed that any step
taken by the respondents in pursuance to
the order of the Commissioner dated
4.11.1997 will be subject to the result of
the writ petition. In pursuance to the order
of the Commissioner, fresh advertisement
was issued in three newspapers inviting
tenders upto 3 p.m. on 13.1.1998, which
were to be opened at 3.30 p.m. in
presence of the tenderers. This time also
there was only one valid tender which
was submitted by Vinod Kumar Pandey,
respondent no. 4 and he had made an
offer of Rs. 7 lakhs per year (Rs.
21,00,000/- for three years). It is averred
in paragraph 9 of the counter affidavit that
the papers were not forwarded to the
54 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
Commissioner, as there was only one
tender and the amount offered by him was
less than the amount of Rs. 7.5 lakhs
offered in the earlier advertisement.
Subsequently, respondent no. 4 enhanced
his offer to Rs. 8 lakhs and then the
Executive Engineer vide his letter dated
31.5.1999 forwarded the papers with his
recommendation to the Commissioner and
the same was accepted by him by his
order dated 5.10.1999 and the contract
was awarded to respondent no. 4.

3. A copy of the advertisement by
which
tenders
were
invited
upto
13.1.1998 has been filed as annexure -
CA-4 to the counter affidavit. Condition
nos. 2 and 3 of the advertisement provide
that the tenderer will have to give security
of Rs. 1 lakh in the form of Fixed Deposit
Receipt of a nationalised Bank of
National Savings Certificate pledged in
favour of the Executive Engineer and the
period of validity of the tender was three
months only. The copies of the two letters
sent by the Executive Engineer, PWD,
Pratapgarh,
to
the
Commissioner,
Allahabad
Division,
Allahabad
on
31.5.1999 and 27.9.1999 have been filed
as annexures CA-6 and CA-7 to the
counter affidavit. It is mentioned therein
that as there was only one valid tender
which was of respondent no. 4 and he had
made an offer of Rs. 7 lakhs only, which
was less than the offer of Rs. 7.5 lakhs
made
in
pursuance
of
the
earlier
advertisement dated 2.8.1997, the papers
had not been forwarded for approval. It is
also mentioned that respondent no. 4 had
taken back the Fixed Deposit Receipt
which had been submitted by him by way
of security in September,1998, but he had
again submitted the same on 27.5.1999
and, consequently, prior to the said date, it
was
not
possible
to
make
any
recommendation in his favour. However,
as he had submitted the Fixed Deposit
Receipts on 27.5.1999 and had also
agreed to enhance the amount of offer to
Rs. 8 lakhs per year, the papers were
being forwarded for approval. It appears
that
thereafter
the
Commissioner,
Allahabad Division, passed an order on
5.10.1999 for awarding the contract to
respondent no. 4. The case of the
petitioner that he had submitted a tender
offering Rs. 10 lakhs per year is denied in
praragraph
5
of
the
supplementary
counter affidavit. It is also stated therein
that after the tender had been opened, the
petitioner moved an application on the
next day, i.e. on 14.1.1998 offering Rs.
10,16,670 per year (Rs. 30,50,000/- for 3
years).

4. As stated earlier, condition no. 2
of
the
advertisement
notice
clearly
provided that a tenderer shall have to
furnish a security of Rs. 1 lakh by way of
Fixed Deposit Receipts of a nationalised
bank or National Saving Certificates
pledged in favour of the Executive
Engineer, and in absence of such a
security, the tender shall not be taken into
consideration. In condition no. 3 it was
mentioned that the period of validity of
the tender shall be three months. The facts
mentioned above show that respondent
no. 4 submitted the tender on 13.1.1998
and, therefore, its validity expired on
13.4.1998. He also withdrew the Fixed
Deposit Receipts of Rs. 1 lakh which had
been submitted by way of security on
3.9.1998. Therefore, in the eyes of law,
there was no valid tender in existence
after 13.4.1998 and after withdrawal of
security on 3.9.1998 there was no tender
at all by respondent no. 4 which could be
taken into consideration. A very curious
procedure was adopted here by the
2All] Gaya Prasad Upadhyay V. State of U.P. and others

Executive Engineer and respondent no. 4
was permitted to furnish security again
after about 9 months i.e. on 27.5.1999.
There appears to have been private
negotiations
between
the
executive
engineer and respondent no. 4, and he
seems to have enhanced his offer to Rs. 8
lakhs. Thereafter, a letter was sent by the
Executive Engineer to the Commissioner,
Allahabad
Division,
on
27.9.1999
recommending
that
the
tender
of
respondent no. 4 be accepted, which was
actually done by the Commissioner vide
his order dated 5.10.1999. The respondent
no. 4 having withdrawn his security on
3.9.1998, his tender, which was merely an
offer to take the contract, came to an end
and there was no question of revival of
the same after 8 months. No decision was
taken on the tender made y respondent no.
4 within the period of three months,
which was the period of validity of tender.
After he had withdrawn his security on
3.9.1998, the tender made by him also
stood withdrawn and ceased to be a valid
tender. The authorities acted wholly
illegally in thereafter entering into private
negotiations with respondent no. 4, giving
him an opportunity to furnish security
again and in accepting the fresh offer
made by him. The only proper course
after 3.9.1998 was to issue a fresh
advertisement. The award of contract to
respondent no. 4 on these facts will
clearly amount to grant of contract by
way of private negotiations and without
any advertisement.

5. It is noteworthy that the executive
engineer himself has written in his letter
dated 27.9.1999 that as respondent no. 4
had withdrawn his security, it was not
possible to make any recommendation in
his favour and forward the papers till such
time he again furnished the security. Soon
after fresh security had been furnished by
respondent no. 4 on 27.5.1999 the
executive engineer forwarded the papers
to Commissioner on 31.5.1999. Another
reason given in this forwarding letter is
that from April,1998 March,1999 the tolls
had been realised by the department it and
the income had been only Rs. 4,02,040/-
and now respondent no. 4 had made an
offer of Rs. 8 lakhs. This can hardly be a
ground to award contract to respondent
no. 4. If the employees of the department
had not discharged their duty properly or
had misappropriated the amount realised
or they were handicapped on account of
some reasons, it can be no ground to
award contract to respondent no. 4 by way
of private settlement. It is the own case of
the respondents ( paragraph 5 of the
supplementary counter affidavit of the
Assistant Engineer) that the petitioner
sent an application on the very next day
i.e. on 14.1.1998 offering Rs. 10,01,667/-
per year (Rs. 30,50,000/- for three years).
The offer made by the petitioner was
obviously much higher than the offer
made by respondent no. 4, and if the
amount offered was the sole criteria, there
was no reason why an opportunity was
not given to the petitioner to fulfil the
other requirements of the advertisement.
It may be noted here that the case of the
petitioner is that he could not submit a
tender on 13.1.1998 as he was forcibly
prevented by criminal elements to submit
tender and he sent the copy of the tender
on the same day through Fax and had
moved an application on the very next
day.

6. The advertisement provided that
the tenders would be opened on 13.1.1998
and the period of validity of tender would
be three months. The recommendation in
favour of respondent no. 4 has been made
56 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
by
the
executive
engineer
to
the
Commissioner for the first time on
31.5.1999 and then again on 27.9.1999
and the order in his favour has been
passed by the Commissioner on 5.10.1999
long after the expiry of the period of
validity of the tender. Respondent no. 4
having
withdrawn
his
security
on
3.9.1998, his tender could not be taken
into
consideration
view
of
clear
stipulation to the effect in condition no. 2
of the advertisement. In the opening part
of the advertisement, it was mentioned
that a defective, conditional or incomplete
tender shall not be considered. After
withdrawal of security the offer made by
respondent no. 4 came to an end, and
whatever has been done subsequent
thereto, was a case of a fresh offer by
respondent no.4. All proceedings taken
after 3.9.1998 have obviously been done
by way of private negotiations, and they
cannot be treated to have been done in
pursuance of the advertisement which had
been issued. It is well-settled that where
the State is awarding contracts, it should
be done only after an advertisement, so
that public at large gets an opportunity to
participate and there is fair competition.
In Fertilizer Corporation Kamagar Union
Vs. Union of India. AIR 1981 SC 344, at
350, a Construction Bench observed as
follows:

"......we want to make it clear that
we do not doubt the bona fides of the
authorities, but as far as possible, sales of
public property, when the intention is to
get the best price, ought to take place
publicly. The vendors are not necessarily
bound to accept the higher or any other
offer, but the public at least gets the
satisfaction that the Government has put
all its cards on the table."

7. In State of U.P. Vs. Shiv Charan
Sharma AIR 1981 SC 1722, the dispute
was with regard to grant of lease for
excavating sand and minor minerals. It
was observed that the State should sell the
right by public auction and not on
application of a party as public auction
with open participation and a reserved
price guarantees public interest being
fully subserved. In Khilodhar Vs. Addl.
District Magistrate (RA), Allahabad and
others, 1987 ALJ 590, a Division Bench
of this Court, speaking through K.J.
Shetty,CJ (as his lordship then was) held
as follows with regard to grant of fisheries
rights:

"When
the
statute
prescribes
particular procedure for disposing of
certain rights the authorities should not be
permitted to circumvent that procedure.
The disposal of any right by public
auction is a wholesome procedure. It is
advisable to follow that procedure even if
it has not been specifically prescribed but
when prescribed it must be faithfully
followed. It must not be disregarded."

8. In Union of India Vs. Hindustan
Development Corporation, AIR 1994 SC
988, it was observed that the Government
while entering into contracts or issuing
quotas is expected not to act like a private
individual but should act in conformity
with certain healthy standards and norms.
An action should not be arbitrary,
irrational or irrelevant. It was further held
that in the matter of awarding contracts
inviting tender is considered to be one of
the fair ways. Thus, it is well-settled by a
catena of decisions that while entering
into cont4acts or granting other form of
largesse the Government cannot act
arbitrarily at it sweet-will and it cannot
chose to deal with any person as it
2All] M/s Hindustan Ferro & Inds. Ltd and another V. Debt Recovery Tribunal and another
pleases. An open auction guarantees
fairness as everyone gets a chance to
participate and the Government gets the
best price for its goods.

9. The facts of the case in hand
clearly show that the authorities of the
State have gone out of their way to help
respondent no. 4 in the matter and have
awarded contract to him in a wholly
illegal
manner.
The
order
of
the
Commissioner dated 5.10.1999 awarding
the contract to respondent no. 4 cannot,
therefore, be sustained and is liable to set
aside.

10. In the result, the writ petition
succeeds and is hereby allowed. The order
dated
5.10.1999
passed
by
the
Commissioner,
Allahabad
Division,
awarding the contract to respondent no. 4
to realise the toll on Kara Ghat in district
Pratapgarh
is
hereby
quashed.
The
authorities are directed to issue a fresh
advertisement and proceed in accordance
with law expeditiously, preferable within
one month from today, for awarding the
contract to realise the toll in question on
Kara Ghat in district Pratapgarh. In order
to avoid any public hardship and loss to
public exchequer, it is further directed
that respondent no. 4 shall be permitted to
continue to realise toll on the ghat in
question till a fresh arrangement is made.
He shall pay the amount for the period for
which he will collect the toll which shall
be calculated on the basis of Rs. 8 lakhs
per year.

Petition Allowed.

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By the Court

1. The woodcut profile of the case of
the petitioner no. 1, a company duly
registered under the Companies Act,
1956, carrying on the business of
manufacturing Ferro Silicon and of which
the petitioner no. 2 is the director is that
an agreement was executed in 1990
between
petitioner
company
and
respondent no. 2 - State Bank of India,
Industrial Finance Branch, Sarvodaya