(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr.Vivek Mapara, learned counsel appearing for the petitioner and Mr.R.M.Meena, learned counsel appearing for the respondent.
2. The respondent issued a tender notice dated 4.11.2011 for auction of several plots of land. In accordance with tender notice, the petitioner deposited 10% amount towards price bid and submitted his tender as was required by the respondent. The tenders were opened on 28.11.2011 wherein the petitioner was found to be the sole bidder for allotment of plot. Thereafter, the petitioner approached the respondent for issuance of acceptance letter so that the amount could be deposited by the petitioner. But the allotment was not finalised and the bid was not accepted by the respondent. Therefore, after 1.1/2 months,the petitioner wrote a letter on 9.1.2012 to the respondent withdrawing his bid and prayed that his earnest money 10% of price deposited by him be refunded. After this letter was written by the petitioner withdrawing his bid, the respondent gave a reply on 18.1.2012 informing the petitioner that if the petitioner wants, their bid can be accepted and the remaining amount may be deposited within a period of 30 days. However, by letter dated 10.2.2012, which was served on the petitioner on 13.2.2012, the respondent has accepted the bid of the petitioner. The petitioner sent a notice to the respondent that once bid has been withdrawn by the petitioner, it could not be accepted by the respondent and by order dated 23.2.2012, the respondent have forfeited 10% earnest money deposited by the petitioner alongwith their bid. The petitioner has challenged the order by which their amount has been forfeited and claimed the refund of the amount.
3. The respondent has urged that since bids were sent to higher authorities for approval, therefore, bid could not be finalised earlier and before bid could be accepted, the petitioner has withdrawn the bid. It is further urged that if this Court allows refund of amount, then it will amount to granting money decree to the petitioner. Learned counsel for the petitioner has placed reliance on the decision of the Supreme Court in Suganmal v. State of Madhya Pradesh and others AIR 1965, SC, 1740, in which the Apex Court has held that normally a petition praying for refund of money is not maintainable and the parties should approach civil court. Para-9 of the judgment is extracted below:
"9. Mr.Sinha relies on the fact that under section 4(5) of the Act, the decision of the Registrar is made final, subject to the appellate decision, if any; and he also refers to the right of instituting a suit reserved by section 8. His argument is that if any person who claims interest in the property which is alleged to be Trust property fails to satisfy the Registrar about his claim, he can file a suit under section 8(1). Section 8(1) allows a suit to be filed, subject to the condition prescribed by it and the right to file such suit is given to a working trustee, or a person having interest in the trust or any property found to be trust property. The respondent is interested in the property in suit which is found to be trust property and since it did not avail itself of the right to file a suit within the specified time, the order passed by the Registrar must be held to be final and conclusive against its claim. If finality does not attach to such an order, even after six months have expired within the meaning of section 8 (1), then the provision contained in section 4(5) will serve no purpose whatever. That is the manner in which Mr.Sinha has presented his case before us."
3. We agree with this decision. It is not disputed that the petitioner has made a bid and deposited 10% earnest money and before bid could be accepted by the respondent, the bid has been withdrawn and refund has been claimed. The respondent could not arbitrarily accept the bid of the petitioner and thereafter forfeit 10% earnest money deposited by the petitioner. The arbitrary action of the respondent could not be treated to be justified. Since the respondent have acted arbitrarily in accepting the bid, therefore, acceptance of the bid by the respondent and forfeiting of the 10% amount of earnest money deposit cannot be upheld and deserves to be set aside and the amount is to be refunded to the petitioner. The decision of the Apex Court in Suganmal (Supra) is not applicable to the facts of the instant case.
4. In the result, this petition succeeds and is allowed. The orders dated 10.2.2012 and 23.2.2012 passed by the respondent Annexure-E and Annexure-G respectively to the writ petition are quashed. A writ of mandamus is issued to the respondent to refund the 10% earnest money/price bid deposit amount deposited by the petitioner within a period of one month from today. Rule is made absolute.
(V.M.SAHAI,J) (G.B.SHAH,J) ***vcdarji