1.0 By way of present petition, the petitioner has inter alia prayed for the following reliefs :
9(B) that this Hon'ble Court will be pleased to issue appropriate writ, order or direction to quash and set aside the decision of the respondents herein of sale of the properties of the 2nd respondent Trust situated at village Pahadiexar, Goregoan Subarban District Mumbai comprising of CTS No.23, 24, 25 and 26;
(C) that this Hon'ble Court will be pleased to direct the respondents to consider and/or to accept the petitioner's offer to purchase the said property comprising in CTS No.23, 23/1 to 23/9, 24, 24/1 to 24/8, 25, 25/1 to 25/9, 26, 26/1 to 26/9 of Village Pahadiexsar Goregaon Subarban District Mumbai an of the 2nd respondent Trust' 2.0 The facts of the case, if put in a nutshell, are ut infra :
2.1 The respondent No.2 is a Public Charitable Trust initially registered by Registration No.B-790-Bharuch under the provisions of the Bombay Public Trusts Act, 1950, and thereafter, after coming into force the Wakf Act, 1995, it was registered under the Gujarat State Wakf Board with the same Registration No.B-790-BH.
2.2 Since the four buildings occupied and inhabited by about 131 tenants were not fetching handsome income of rent to meet with the religious and charitable expenses of the Trust, it was resolved by the Board of Trustees of the respondent No.2-Trust to obtain the permission for sale of the said properties and consequent thereupon the respondent-Trust made an application for seeking permission to sell the said properties in the larger interest of Wakf in the year 2008.
2.3 The respondent No.1, in its meeting convened at Gandhinagar on 26th May 2007, took a decision to permit the sale of the said Wakf Properties by way of public auction through the publication of notice in two Gujarati dailies, two Marathi dailies and two English daily newspapers. The said decision and directions were communicated to the respondent No.2-Trust on 17th July 2009.
2.4 In pursuance of the said decision and directions, the respondent No.2-Trust published a notice of public auction by giving advertisements in the concerned daily newspapers dated 07th August 2009 inviting tenders from the interested purchasers so as to reach the office of the respondent No.1 on or before 15th August 2009 and the date of opening of the tenders so received was 17th August 2009. Thereafter, since the dates were required to be changed, the same were notified in all the aforesaid newspapers. The date for accepting the tenders was changed from 15th August 2009 to 25th September 2009 and the date of opening of the tenders was fixed on 29th September 2009.
2.5 The representative of the respondent No.2-Trust attended the office of the respondent No.1 on 29th September 2009 and at that time, the respondent No.2 came to know that in all three tenders were received by the respondent No.1. The same were opened in presence of the Chairman of the respondent No.1 as well as the representatives of the respective tenderers. Out of the said three tenderers, only two had quoted their rates; the third one had simply filed his objections. However, both the aforesaid tenderers had not accompanied their tenders with the demand draft of EMD of Rs.87,60,000/- which was the specific mandatory condition notified in the advertisement itself. The petitioner had violated two conditions of tender viz. (i) not sending the demand draft and (ii) the cheque was addressed in favour of Wakf Board. The minutes of the tender opening process was prepared and sent to the respondent-Trust on 07th October 2009 intimating that since the tenders are not in accordance with the conditions of the advertisement, they have been rejected. The respondent No.1 vide its letter bearing No.9735/09 dated 07th October 2009 also ordered the respondent No.2, (i) to inform the tenderers about their tenders having been rejected; (ii) to send the cheque deposited by the tenderers by way of Registered Post A.D.; and (iii) to initiate process of inviting fresh tenders.
2.6 The respondent-Trust republished the notice in Gujarati, Marathi and English daily newspapers. The said advertisements notified the dates of inviting the fresh tenders so as to reach the office of the respondent-Trust on or before 16th November 2009. The opening date of the tenders was fixed of 19th November 2009. It was clearly specified in the said notices that the fresh tenders with the requisite demand draft should be sent. The reasons for the rejection of the earlier tenders were also disclosed in the said advertisements. In addition to the same, the petitioner, who had earlier filled in the tender but had not sent the demand draft, was separately intimated by way of Registered Post A.D. about the new date of sending the tender.
2.7 According to the petitioner, later on the petitioner came to know that the respondent-Board has taken a decision to grant permission for sale of the said property to a Bombay based party for a sum of Rs.8.5 crores. Therefore, the petitioner addressed an application to the respondent No.1-Board that the petitioner is ready and willing to purchase the said property for the offer submitted by him i.e. Rs.9.25 crores and, therefore, the decision for sale of the properties of the respondent-Trust, may be reconsidered and the property may be ordered to be sold to the petitioner. On 04th January 2010, the petitioner submitted another application requesting for supply of the documents, including the decision to reject the petitioner's offer to buy the property for a consideration of Rs.9.25 crores, which is more higher. However, all in vain and, therefore, this petition.
3.0 Mr.P.S.
Champaneri, learned advocate appearing with Mr.M.I.A. Shaikh for the petitioner, has vehemently submitted that the decision of the respondent-Trust in not accepting the offer of the petitioner is a camouflage since none of the tenderers fulfilled the conditions enumerated in the tender form. It is submitted that none of the tenderers submitted the demand draft to the respondent-Trust along with their tenders. The ground on which the tender of the petitioner was rejected, has not been adhered to in the case of the other tenderers subsequently.
3.1 Mr.Champaneri has also relied upon the affdavit-in-rejoinder filed by the petitioner and has submitted that the powers under Section 51 of the Wakf Act are to be exercised in accordance with the underlined objects of the enactment of the Act. It is submitted that the respondent-Trust is selling the properties of the Trust by giving go by to the pre-requisite conditions of the tender, which is de hors the provisions of Section 51 of the Wakf Act.
3.2 It is submitted that one of the pre-requisite conditions of the tender was to submit a Demand Draft of the amount equivalent to 10% of the price offered, which was to be submitted upto the last date of submission of the tender. The respondent No.3 had not submitted the Demand Draft for the said amount till last date in a sealed cover, however, the same was tendered on 18th November 2009 after consideration of his tender offer, which itself shows that the respondent No.2-Trust has acted arbitrarily in disposing of its properties in a surreptitious manner and not in consonance with the provisions of Section 51 of the Wakf Act as well as the conditions laid down in the tender notice. Hence, this petition.
4.0 Mr.Mihir Joshi, learned Senior Counsel appearing with Mr.K.R. Joshi, learned advocate for the respondent No.3, relying upon the affidavit-in-reply filed by the respondent No.3, has submitted that in pursuance of the decision dated 07th October 2009 whereby the tender form of the petitioner had been rejected, now the petitioner has missed the bus since the petitioner though was intimated by the respondent-Trust, has not filled in the tender form in respect of the second advertisement published by the respondent-Trust.
4.1 It is submitted that the petitioner is not at all a 'party to the fresh tender procedure', initiated by the respondent No.2 at the instance of the respondent No.1 after the first tender procedure came to an end by annulment of all the offers in the meeting of the respondent No.1 held on 07th October 2009.
4.2 It is submitted that though the petitioner was intimated well in advance vide letter dated 19th October 2009 at Annexure-C that 'the fresh notice is being published inviting tenders so as to reach on or before 16th November 2009 in the office of Matliwala Charitable Trust, Bharuch', the petitioner has failed to participate in the fresh tender process. Thus, when the petitioner had never participated in the second round and abstained from it, he was not and is not a party to the entire tender process, which has been carried out afresh on the basis of the advertisements dated 22nd October 2009. It is submitted that the respondent No.3 has submitted his offer well in advance on 15th November 2009 and had also submitted a cheque of 10% of the offer amount since its Bankers have no branch in Bharuch, however, the same was immediately replaced by the Demand Draft dated 18th November 2009, which was duly accepted.
4.3 It is submitted that in pursuance of the subsequent fresh advertisement dated 22nd October 2009, the offers were processed; on 29th December 2009 it was decided to accept the tender of the respondent No.3 and thereafter, the entire process of tender was completed by 07th January 2010 since the offer of the respondent No.3 was accepted and it promised to pay the amount of consideration determined between the parties. Thus, the petitioner has filed the petition on 13th January 2010 i.e.just within a week from the date of completion of the tender process, which itself shows the mala fide conduct on the part of the petitioner to stall the entire fresh tender process.
4.4 It is submitted that when the petitioner has not participated in the subsequent afresh process, he has no locus standi to challenge the decision of the respondents. It is submitted that since the petitioner has chosen not to enter into the fresh tender process, he cannot be termed as an 'aggrieved' or 'affected' party, and so, now he cannot make grievance after having waived his right to agitate and given up the interest by desisting from entering into the fresh tender process and thereby, the respondent No.3 has prayed for dismissal of the petition in limine.
5.0 Mr.P.C.
Kavina, learned Senior Counsel appearing with Mr.P.P. Majmudar, learned advocate for the respondent No.2-Trust, has relied upon the affidavit-in-reply filed on behalf of the respondent No.2 and has reiterated what is stated in it and thereby, prayed for dismissal of the petition with exemplary costs.
6.0 Having heard the learned counsel appearing for the respective parties and perusing the documentary evidence available on record as well as the reply affidavits and the rejoinder affidavit filed on behalf of the respective parties, it transpires that the petitioner is not at all a party to the fresh tender procedure initiated by the respondent No.2. The petitioner was intimated well in advance vide letter dated 19th October 2009 that the fresh notice is being published inviting tenders, however, the petitioner never participated in the second round and abstained from it and, thus, the petitioner was not and is not a party to the entire tender process, which has been carried out afresh on the basis of the advertisements dated 22nd October 2009. It is relevant to note that the respondent No.3 has submitted his offer on 15th November 2009 and also submitted a cheque of 10% of the offer amount, however, the same was immediately replaced by the Demand Draft dated 18th November 2009. Further, since the petitioner has chosen not to enter into the fresh tender process, he cannot be said to be an aggrieved or affected party. Now the petitioner has missed the bus and so he is not entitled to any relief from this Court.
6.1 At this stage, Mr.Mihir Joshi, learned Senior Counsel appearing with Mr.K.R. Joshi for the respondent No.3, makes a statement at the Bar that the respondent No.3 is prepared to pay the same price which has been offered by the petitioner, without prejudice to its rights and contentions regarding maintainability of the present petition as well as the locus of the petitioner.
6.2 In pursuance of the aforesaid statement made by the learned Senior Counsel appearing for the respondent No.3, Mr.P.C. Kavina, learned Senior Counsel appearing with Mr.P.P. Majmudar, learned advocate for the respondent No.2-Trust, has submitted that if the matching offer to the offer made in the petition is achieved, the respondent-Trust will accept the same.
6.3 As against the aforesaid statements, Mr.P.S. Champaneri, learned advocate appearing with Mr.M.I.A. Shaikh, for the petitioner, has submitted that the petitioner is even ready to increase the offer given by him. However, I am not inclined to convert this Court into an Auction Court, especially when the petitioner has neither participated in the tender process nor has he paid any amount by way of earnest money. In fact, he has no locus to challenge the tender process. In that view of the matter, the offer given by the petitioner referred to in the petition is not entertained. It is, however, made clear that this Court had even called upon the petitioner to deposit an amount of Rs.10 crores (Rupees Ten Crores only) by way of a Demand Draft to the Registry of this Court by tomorrow i.e. 06th February 2010, sharp at 10-30 a.m., but the petitioner has not been able to do so. Therefore, prima facie the bona fide of the petitioner is also doubtful. It is the say of the petitioner that on account of very short span of banking hours left, he wanted some time. In fact, if the petitioner is the genuine buyer, the said amount ought to have been there in his account.
6.4 Even the contention of the respondent No.3 regarding locus standi of the petitioner on account of the petitioner's not participating in the fresh tender process, is required to be accepted and therefore, it will not be appropriate for this Court to entertain this petition. Therefore, only on the ground that the petitioner has not applied in the fresh tender process, I am not inclined to entertain this petition. Further, this Court had issued notice only with a view to see that the respondent-Trust would be fetching an additional amount of Rs.49 lakhs (Rupees Forty Nine Lakhs only) by way of sale of the said properties. In that view of the matter, it will not be appropriate for this Court to convert this petition into an Auction Petition instead of a writ petition when the petitioner has missed the bus. It is pertinent to note that after the decision of the respondent No.1-Board, which was conveyed to the petitioner, the respondent No.2-Trust has spent a huge amount after publication of the advertisements in the concerned daily newspapers and if now the present petition is entertained, again the very expenses will have to be incurred by the respondent-Trust and, therefore, it will not be possible for this Court to exercise discretionary powers.
7.0 For the foregoing reasons, the present petition fails and is, accordingly, dismissed. Notice is discharged with no order as to costs. The interim relief granted earlier stands hereby vacated.
8.0 It is, however, made clear that the respondent No.3 will abide by the statement made on behalf of respondent No.3 before this Court that the respondent No.3 will now pay an amount of Rs.9.25 crores (Rupees Nine Crores and Twenty Five Lakhs only) towards the sale consideration of the properties in question of the respondent No.2-Trust. The petition stands disposed of accordingly.
(K.S.
Jhaveri, J) Aakar Top