# M/s Gaur Arunima Impex Int. Pvt. Ltd., New Delhi v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-01-15
- **Case number:** Civil Misc. Writ Petition No. 563 of 2015
- **Bench:** Arun Tandon, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-gaur-arunima-impex-int-pvt-ltd-new-delhi-v-state-of-u-p-ors-43270
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.-226Cancellation
of
higher
bid-petitioner
committed
default
in
payment
of
installments
for
about
7
years-only
reasons disclosed pendency of civil suitas well as interim order passed by High
Court-plots in question not free from all
encumbrances held-misconceived if so
petitioner could have withdraw his claim
of hither bid, or to got stay vacated-but
once choose to press claim of higher bidon
default-cancellation-held
properpetition dismissed.
Held: Para-11, 12 and 13

## Text

174
 INDIAN LAW REPORTS ALLAHABAD SERIES
taken by him in this respect to the
Registrar General of this Court for being
placed before me within three months
from the date of receipt of a certified copy
of this Court.
38. The Registrar General of this
Court is directed to send a copy of this
order to the Chief Secretary of State of
U.P. and to the concerned trial court for
information and its compliance forthwith.
39.
The
present
482
Cr.P.C.
application stands allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.01.2015
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
Civil Misc. Writ Petition No. 563 of 2015
M/s Gaur Arunima Impex Int. Pvt. Ltd.,
New Delhi
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri W.H. Khan, Sri Atul Mehra
Counsel for the Respondents:
C.S.C., Sri A.P. Srivastava
Constitution
of
India,
Art.-226Cancellation
of
higher
bid-petitioner
committed
default
in
payment
of
installments
for
about
7
years-only
reasons disclosed pendency of civil suitas well as interim order passed by High
Court-plots in question not free from all
encumbrances held-misconceived if so
petitioner could have withdraw his claim
of hither bid, or to got stay vacated-but
once choose to press claim of higher bidon
default-cancellation-held
properpetition dismissed.
Held: Para-11, 12 and 13
11. If the petitioner was aggrieved in any
manner with the non-information of the
injunction, which was granted in the matter
of delivery of possession and therefore,
mislead in offering the highest bid, which
had been approved, the proper course
available to the petitioner was to have
withdrawn his bid on the plea of ground of
wrong information about the status of the
plots. But he has chosen not to do so. On
the contrary he wanted to stic to his offer,
he only desired waving of the penal interest
as is reflected from the prayer clause in
Complaint Case No. 327 of 2013 (Supra). In
this petition also there is no such prayer.
12. The other course open to him was to
make an application in the pending writ
petition and to have got the interim
order vacated. Mere pendency of the writ
petition no. 887 of 2008 cannot be the
cause for non-deposit of the balance bid
amount as per its offer.
13.
We may record that terms of the
contract
entered
into
between
the
petitioner
and
the
Housing
and
Development Board, as per highest bid
accepted were binding and did not stand
diluted because of pendency of writ
petition filed by Sukhbir Singh referred
to above in any manner. The liability of
the petitioner to deposit the money in
terms of the bid offered by him and in
accordance with the terms agreed upon
at the time of auction, could not have
been avoided in the garb of pendency of
the writ petition filed by a third party.
Case Law discussed:
AIR 1989 SC 1076; AIR 1977 SC 1496; AIR
1980 SC 738; AIR 1981 SC 1368; (2006) 8
SCC 647.
(Delivered by Hon'ble Arun Tandon, J.)
1. Heard Sri W.H. Khan, learned
Senior Advocate assisted by Sri Atul
Mehra, learned counsel for the petitioner,
Sri A.P. Srivastava, learned counsel for
1 All] M/s Gaur Arunima Impex Int. Pvt.Ltd., New Delhi Vs. State of U.P. & Ors.
175
respondent-U.P.
Housing
And
Development Board and learned Standing
Counsel for the State-respondents.
2. U.P. Housing and Development
Board published an advertisement on 3rd
July, 2008 for sale of four plots under the
category, institutional land demarcated for
office only.
3.
Petitioner, before this Court, took
part in the auctions, which were held on
15th July, 2008 and offered the highest bid
for plot no.14/I.N.S./Office-3 on 45 meter
Road,measuring 1584.52 square meters. Bid
offered by the petitioner was approved and
allotment of the plot was made in his favour
under letter dated 12th August, 22008 for
total price of Rs. 10,78,26,586/-. Petitioner
deposited only 10% of the bid money. No
installments were deposited thereafter for
the reason that three plots situated over
Khasara No. 433/2, Village Prahlad Garhi
were submit matter of suit proceedings
bearing Original Suit No. 327 of 2003
instituted by one Sukhbir Singh along with
others against Utter Pradesh Housing &
Development Board. According to the
petitioner, he was mislead by the Housing
and Development Board, while assuring in
the advertisement that the land was free
from all encumbrances. It was brought to
the notice of the petitioner that Sukhbir
Singh had filed a writ petition before the
High Court being Writ Petition No. 887 of
2008 (Under Article 227 of the Constitution
of India (Sukhbir Singh & Others vs.
Additional District Judge & Others) in the
matter of grant of temporary injunction in
the pending suit. The High Court had
passed an order dated 18th September, 2008
to the following effect:
"As interim measure, the respondents
are restrained from making any auction in
pursuance
of
advertisement
dated
1.8.2008, contained in Annexure-II of the
writ petition, so far as it pertains to the
plot of petitioners. They are also
restrained from making delivery of
possession to any third party, if at all
auction has been held in respect of the
plot of the petitioners."
4. From the records, it is apparent
that a notice dated 16th November, 2012
was issued to the petitioner demanding
balance
consideration
of
Rs.
10,29,26,586/- along with interest to the
tune of Rs. 4,47,99,572/-. Petitioner
instead of depositing the money in
response
to
the
notice
so
issued,
approached
the
National
Consumer
Disputes Redressal Commission, New
Delhi by means of Consumer Complaint
No. 327 of 2013 and the reliefs prayed for
in the said complaint case read as follows:
"a. Set aside the impugned demand
of interest of Rs. 4,47,99,572/- out of the
total demand of Rs. 14,77,26,158, as
mentioned in notice dated 16.11.2012 and
further allow the complainant to deposit
the balance sale consideration of Rs.
10,29,26,586/- pursuant to schedule of
time prescribed in the letter of allotment
dated 12.08.2008, with an undertaking
that no matter whatsoever is sub-judice
before any Court of law with regard to the
plot in question and plot in question is
free from all charges/encumbrances.
b. Award compensation/damages on
account of escalation in the rates of
material/labour after holding an enquiry
as required under Order XX of Code of
Civil Procedure.
c. Award compensation of Rs. 2.00
lacs on account of mental harassment.
d. Pass an interim order directing
the respondent not to cancel and further
176
 INDIAN LAW REPORTS ALLAHABAD SERIES
allot, sale, create, mark any third party
interest in the aforesaid plot.
e. Pass such and further order(s) as
this Hon'ble Court may deem fit in the
present facts and circumstances."
5.
The complaint case came to be
rejected by the National Consumer Disputes
Redressal Commission vide order dated
11th November, 2013 on the ground that
petitioner does not answer the description of
"consumer". Petitioner thereafter filed a writ
petition before the Delhi High Court being
Writ Petition (C) 1891 of 2014, which has
been got dismissed vide order dated 26th
March, 2014 with liberty to approach the
Court having territorial jurisdiction in the
matter.
Therefore,
the
petitioner
has
approached this Court by means of the
present writ petition with following reliefs:
"i. to call for the records and issue a
writ, order or direction in the nature of
certiorari to quash the allotment letter
dated 21.10.2014 issued in favour of
respondent no.4 (Annexure no. 23 to the
writ petition);
ii. to call for the records and issue a
writ, order or direction in the nature of
certiorari to quash the order dated
17.12.2013 as stated in the letter dated
1.1.2015 (Annexure no. 20 to the writ
petition) and the respondents be directed
to bring on record the order dated
17.12.2013 before the Hon'ble court;
iii. to issue a writ, order or direction
in the nature of mandamus directing the
respondents not to demand the balance
amount, interest and penal amount till the
dispute inter-se between Sukhvir Singh
and other and Uttar Pradesh Awas Evam
Vikas Parishad, is resolved;
iv. to issue any such other and
further writ, order or direction which this
Hon'ble Court may deem fit and proper
under the facts and circumstances of the
case; and
v. to award the cost of the petition in
faour of the petitioner."
6. We may first deal with the prayer
made by the petitioner for quashing of the
order dated 17th December, 2013, as has
been noticed in the letter dated 1st
January, 2015 enclosed as Annexure-20 to
the present writ petition.
7. It is apparent that after offering
the highest bid as noticed herein above
and after depositing only 10% of the bid
money in pursuance thereof in the year
2008, for the last 7 years, petitioner has
not deposited even a single penny with
the respondent-Housing and Development
Board in garb of pendency of the writ
petition filed by Sukhbir Singh detailed
above and the interim order passed
therein.
8. It is admitted on record that the
petitioner did not make any attempt to
deposit the installments in accordance
with the agreed terms and even today,
there is no offer to deposit the money with
interest as demanded.
9. What has been contended before
this Court is that since the land was
encumbered, the respondent-Housing and
Development Board could not have put
the same for auction and therefore, the
petitioner is justified in not depositing the
money in terms of the bid offered, in the
alternative, demand of penal interest is
unjustified. According to the petitioner,
since under the order of the High Court,
delivery of possession was stayed, it was
1 All] M/s Gaur Arunima Impex Int. Pvt.Ltd., New Delhi Vs. State of U.P. & Ors.
177
advised not to deposit the balance amount
of the bid.
10. We may record that in the order
of the High Court dated 18th September,
2008 itself, it has been noticed that the
property has already been put to auction
and the matter has been finalized.
11. If the petitioner was aggrieved in
any manner with the non-information of
the injunction, which was granted in the
matter of delivery of possession and
therefore, mislead in offering the highest
bid, which had been approved, the proper
course available to the petitioner was to
have withdrawn his bid on the plea of
ground of wrong information about the
status of the plots. But he has chosen not
to do so. On the contrary he wanted to stic
to his offer, he only desired waving of the
penal interest as is reflected from the
prayer clause in Complaint Case No. 327
of 2013 (Supra). In this petition also there
is no such prayer.
12. The other course open to him
was to make an application in the pending
writ petition and to have got the interim
order vacated. Mere pendency of the writ
petition no. 887 of 2008 cannot be the
cause for non-deposit of the balance bid
amount as per its offer.
13. We may record that terms of the
contract
entered
into
between
the
petitioner
and
the
Housing
and
Development Board, as per highest bid
accepted were binding and did not stand
diluted because of pendency of writ
petition filed by Sukhbir Singh referred to
above in any manner. The liability of the
petitioner to deposit the money in terms
of the bid offered by him and in
accordance with the terms agreed upon at
the time of auction, could not have been
avoided in the garb of pendency of the
writ petition filed by a third party.
14. The Apex Court has repeatedly
held that writ proceedings under Article
226 of the Constitution of India cannot be
resorted to for the purposes of avoiding
contractual obligations (Ref. Bareilly
Development Authority & anr Vs. Ajay
Pal Singh & ors, AIR 1989 SC 1076. M/s.
Radha Krishna Agarwal & ors Vs. State
of Bihar & ors, AIR 1977 SC 1496;
Premji Bhai Parmar & ors Vs. Delhi
Development Authority & ors, AIR 1980
SC 738; and The Divisional Forest
Officer Vs. Bishwanath Tea Co. Ltd., AIR
1981 SC 1368.).
15. We are of the considered opinion
that in the facts of the case the petitioner
has committed default in payment of the
installments in violation to the terms
agreed upon between the parties. The
respondent-Housing and Development
Board is justified in cancelling the
acceptance of the bid of the petitioner and
in forfeiting the earnest money which it
had so deposited.
16. Since only one view is possible
on the admitted facts, issue of opportunity
of hearing having not been afforded to the
petitioner is not of much relevance. The
Apex Court in the case of In Punjab
National Bank and others. Vs. Manjeet
Singh and another (2006) 8 SCC 647, has
opined as follows:-
"The principles of natural justice
were also not required to be complied
with as the same would have been an
empty formality. The Court will not insist
on compliance with the principles on
natural justice in view of the situation
178
 INDIAN LAW REPORTS ALLAHABAD SERIES
where the factual position or legal
implication arising thereunder is disputed
and not where it is not in dispute or
cannot be disputed. If only one conclusion
is possible, a writ would not issue only
because there was a violation of the
principles of natural justice".
17. Once the Court comes to the
conclusion that the petitioner has lost his
rights in the matter of allotment of the
plot in question because of the canellation
of the same, subsequent auction of the
plot in favour of third person cannot be
objected to by the petitioner on the
ground that there is an interim order in the
matter of delivery of possession in respect
of the plot in question, inasmuch as that
would be an issue between the person,
who has filed the said writ petition before
the High Court referred to above, and the
respondent Housing and Development
Board and the subsequent allottee.
18. Learned counsel for the
petitioner then contended that in respect
of an other person, who had been allotted
the land similarly situate, respondentHousing and Development Board has
taken a decision to refund the earnest
money even after they had committed
default in payment of the installments as
agreed upon at the time of auction.
19. If such is the situation, the
petitioner is at liberty to make an
application before respondent no.3, which
shall be dealt with in the same manner as
it has been dealt with in respect of other
person similarly situate if any.
20. With the aforesaid observations,
the present writ petition is disposed of.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.12.2014
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.
Special Appeal No. 723 of 2014
Smt. Jhamania 3634(S/S01991) Appellant
Versus
Chief
Accounts
Examination
Officer
Cooperative & Anr.
.Respondents
Counsel for the Appellant:
Shree Prakash Singh
Counsel for the Respondents:
C.S.C.
High Court Rule-Chapter VIII Rule 5Appeal against judgment-refusing to
condone delay-in restoration applicationpetitioner being aged about 59 years
continued in service without being aware
of the fact of dismissal of writ petition in
default-petitioner
being
class
4th
employee-cause found sufficient-delay
condoned-dismissal
without
notice
opportunity-held-principle
of
natural
justice violated.
Held: Para-7 & 11
7. As indicated above, the matter is very
old and is of the year
1991. The
appellant is a lady, who has continued in
service as a class-IV employee. In our
considered opinion, the dispensation of
her service, at the fag end of her career,
would be a travesty of justice and would
also be inequitable. The explanation
given by the appellant in support of the
delay condonation for restoring the
matter appears to be bona fide inasmuch
as she was getting salary till September,
2014. This explanation does not appear
to have been appropriately considered
by
the
learned
single
Judge
while
proceeding to reject the restoration
application. We, therefore, find sufficient
grounds that were available and were