JUDGMENT A.A. Desai and D.R. Chaudhary, JJ.
1. Instant is the application filed by the applicant (respondent No. 3), hereinafter referred to as the applicant with the prayer to recall the ex parte order dated 20-7-1999 passed by this Division Bench and to direct respondent Nos. 1 and 2 not to interfere in realisation of Tahbazari for Ramo Devi Chauraha Market, Kanpur Nagar, Kanpur in pursuant to the impugned order. The applicant has filed an affidavit in pursuant to the order of this Court, herein referred to as the affidavit and supplementary affidavit respectively. No reply to the aforesaid affidavits has been filed either by the petitioner or by respondent Nos. 1 and 2.
2. On 10-9-1999 this Court passed order thus 'put up the case on Wednesday i.e., on 15-9-1999'. Both the Counsel for the parties shall file their supplementary affidavit. State shall file its counter affidavit in the meantime. The case, however, came up on 16.9.1999 and this Court passed an order 'the case be put up on 21.9.1999 at 1.30 p.m. in the Chamber. The petitioner shall present personally in the Court. The case accordingly came up on 21.9.1999. The petitioner was not present though he was directed to be present personally before the Court.
3. We have heard Sri S.K. Singh, the learned Counsel who has put in appearance for the petitioner and Sri R.C. Singh, the learned Counsel for the applicant. The learned Standing Counsel is present. None appeared for respondent Nos. 1 and 2.
4. In para 13 of the affidavit filed in support of the recall application it is averred that 'till passing of the order dated 20-7-1999 no notice was served upon the respondent No. 3. In para 16 of the affidavit the applicant has stated that 'till the passing of the order dated 20-7-1999 neither the respondent No. 3 had received any notice about the aforesaid writ petition, nor afforded any opportunity of hearing to the respondent No. 3, hence the petitioner obtained the order behind the back of the respondent No. 3 on 20-7-1999, which is in violation of the principle of natural justice and the same is liable to be set aside.' In paras 17 and 18 of the affidavit the applicant has further submitted that the petitioner has obtained the order dated 20-7-1999 by concealing the material facts and the petitioner has not come with the clean hands before this Court. The averments aforesaid contained in the affidavit have not been disputed either on facts or in law by the petitioner or by respondent Nos. 1 and 2.
5. On the strength of the averments aforesaid learned Counsel for the applicant submitted that the applicant has been deprived of a valuable right of an opportunity of hearing and as such the order dated 20.7.1999 is violative of principle of natural justice. We have perused the record and find substance in the submissions of the learned Counsel for the applicant.
6. In para 22 of the affidavit filed in support of the application for recall of order dated 20.7.1999, the applicant has stated that the District Magistrate, Kanpur Nagar has issued a character certificate in his favour on 24.4.1999 which is Annexure B to the affidavit. In Para 24 of the affidavit the applicant has stated that he has submitted the character certificate well within item i.e., 30.4.1999 before respondent No. 1 and on receipt of the character certificate respondent No. 2 vide his order dated 18.5.1999 approved the tender/work of applicant and also accepted the character certificate. The applicant was permitted to realise Tahbazari in pursuant to the order dated 18.5.1999 after execution of an agreement between respondent No. 2 and the applicant. In para 28 it is further stated that the tender of the applicant, being the highest was accepted and the petitioner's tender was lowest and he was placed at third position. By the averments aforesaid the applicant disputed the averment contained in the writ petition. Therefore, this Court granted time to learned Counsel for the parties to file their affidavits in support of their respective case. The applicant has filed the affidavit but no affidavit has been filed by the petitioner.
7. In para 4 of the supplementary affidavit the name of co-tenders have been mentioned alongwith amount offered by them. From the averment, it is manifestly clear that the applicant is the highest bidder who has offered Rs. 4,05,000/- and the petitioner was the third highest bidder who offered Rs. 3,82,000/-. In para 6 of the supplementary affidavit it has been stated that none of the co-tenderers possesses character certificate issued by the Collector. The condition of submitting the character certificate, however, was relaxed by the respondent No. 2. All the four tenderers submitted the character certificates issued by the dignitory other than the District Magistrate. The tender of the petitioner was accompanied by the character certificate issued by the M.T.A. He also mentioned in the tender that the character certificate of the District Magistrate is not ready. In para 9 of the affidavit it has been stated that the petitioner has also availed the opportunity of relaxation, therefore, he cannot challenge the auction proceedings. The averments of the supplementary affidavit have also not been disputed by filing any counter-affidavit by the petitioner or by respondent Nos. 1 and 2.
8. In para 28 of the writ petition, the petitioner has stated that 'he has complied all the terms and conditions laid down for submitting his tender before the respondent No. 2 and on the other hand the respondent No. 3 had submitted that defective tender'. In relief clause of the writ petition at point No. (II), the petitioner has sought a relief of writ, order or direction in the nature of mandamus, commanding and directing the respondent Nos. 1 and 2 to accept the petitioner's tender for Rs. 3,82,500/- submitted before the respondent No. 2 on 26-3-1999 being the highest bidder. The averments of the writ petition referred to above have been seriously disputed by the applicant by means of the uncontroverted affidavits. Those averments are fake.
9. In the facts and circumstances stated above, we are of the view that the petitioner has obtained the order dated 20.7.1999 by concealing the correct fact and by stating incorrect facts to the Court. The recall application, therefore, deserves to be allowed. The petitioner, who has deliberately misled the Court and has not appeared in person on the date fixed in compliance of the order of this Court, deserves severe penalty.
10. In the result the recall application is allowed. The order dated 20.7.1999 is recalled. Respondent Nos. 1 and 2 are directed to restore the contract of collection of Tahbazari settled in favour of the applicant respondent No. 3. The respondents may also consider financial loss sustained by the applicant (respondent No. 3) during the period the order dated 20.7.1999 has been operative. Considering the prayer of Sri S.N. Singh, learned Counsel for the petitioner for taking lenient view in imposing penalty, we direct respondent Nos. 1 and 2 to pass appropriate orders to 'black list' the petitioner Kamendra Singh for a period of one year. In view of the above the writ petition dismissed.