JUDGMENT
1. Ravi S. Dhavan, J.--By this petition the petitioner finds himself aggrieved in not being able to perform a contract for collecting passenger tax within the municipal limits of the newly created district Chhatrapati Shahujt Maharaj Nagar. The petitioner is seeking a direction by a writ of mandamus that the District Magistrate, the Additional District Magistrate and the Nagar Palika Parishad, Cnitrakut Dham. Karvi, district Chhatrapati Shahuji Maharaj Nagar, be restrained from interfering in the petitioner's realising the entry tax on the basis of an accepted auction bid, as the highest bidder. On this circumstance, there is no issue. The Court is of the opinion that such a writ ought not to be issued for no other reason than that it may not he possible for the Court to monitor the functioning of the contract, more so after the respondents have circumvented, failed and frustrated the contract of collecting tolls at the toll barriers. But this may not be misunderstood that the petitioner does not have a case.
2. What the petitioner is contending is that after finalising the public contract, the respondents have changed the rules of the game, and the game now cannot be played under the original terms.
3. The Court has heard learned counsel for the petitioner, Mr. C. B. Singh, learned counsel for the State of U. P. and the Collector. Mr. U. K. Pandey, the standing counsel, and learned counsel for the Nagar Palika Parishad. Karvi. Mr. Rakesh Pandey.
4. The last auction in context was scheduled for 21.3.1998. Earlier, it had been postponed several times. At this auction, the petitioner gave the highest bid of Rs. 17,72,000. The bid was finalised in petitioner's favour but some one made an objection to the Additional District Magistrate, the respondent No. 2 claiming that he instead had made the highest bid. Thus, the auction was cancelled. The petitioner had deposited Rs. 4,43,000, representing 1/4th of the amount on which his bid had been accepted and he was obliged to deposit this amount under the terms and conditions. This amount was deposited on 25.3.1998. The sanction was not granted in favour of the petitioner by the respondents. Instead a fresh notification dated 1.4.1998 was published. This notification announced a fresh auction the next day, i.e., 2.4.1998. On this notice to re-auction the matter was published in the Amar Ujala, Kanpur, a daily newspaper, on 1.4.1998. The advertisement is Annexure '5' to the writ petition. On 2.4.1998, the date of the auction, the petitioner was the highest bidder again. This time the petitioner's bid stood at Rs. 25,33,000. In accordance with terms of the auction, the petitioner was required to make a deposit of l/4th of the amount on which he had bid. As the petitioner's money from the previous auction lay in deposit, thus, he was required to deposit the additional sum of Rs. 1,90,250. The amount which the petitioner deposited at the earlier auction was Rs. 4,43,000. The additional amount at the subsequent auction represented Rs. 1,90,250. The total amount now in deposit is Rs. 6,33,250, representing l/4th of the auction bid. Hereinafter, the petitioner was under the impression that he would carry out the contract finalised by the last auction, for collecting entry tax from the barriers of the district. But, this was not to be.
5. The authority letter which was issued to the petitioner to proceed with the contract assigned to him is dated 4.4.1998. This is appended as Annexure-'8' to the writ petition. In this authority letter, it was indicated to the petitioner that while he may realise the entry tax at the barriers of the town, but he will not put up barriers which would facilitate stopping of vehicles and realisation of this tax. The fact that realisation of the entry tax now became impossible as he was not vested with an authority as an agent of the State to stop the vehicles for realisation of the entry tax, the petitioner found that the contract was becoming impossible for performance. It was in these circumstances that the petitioner filed the present writ petition on 16.4.1998. On 17.4.1998 this matter came before this Court when time was given to the learned standing counsel to obtain instructions, regard being had to the nature of the controversy. Both sets of respondents have filed counter-affidavits. The District Magistrate has filed a counter-affidavit on behalf of himself and the Additional District Magistrate. On behalf of the Nagar Palika, Chitrakoot Dham, Karvi, respondent No. 3, the Chairman has evaded responsibility of filing an affidavit and instead has deputed his clerk to reply to the petition. In so far as the Nagar Palika's affidavit is concerned, the Court has no hesitation in declaring that this affidavit as a pleading is without responsibility.
6. The contentions as have been made by the two sets of respondents in the counter-affidavit are identical. The counter-affidavits are similar as if they have been filed in concert. The submissions of the respondents are : The earlier auction had a stipulation that there would be barriers provided for the petitioner to collect entry tax. The subsequent auction notice of 1.4.1998 did not refer to any toll barriers. Thus, both the standing counsel U. P, and counsel for the Nagar Palika Parishad contend that, by implication, it must be understood that there was a condition precedent that there would be no barriers. This deduction does not meet the logic of any public auction on a notice that there would be a public auction the next day. It fs on record that there was no adequate notice for the public auction and, thus, no reasonable period was provided between the notice to auction and the auction itself. It is during such a reasonable period or gap that the intending bidder will examine the record and the conditions on which the contract will be assigned by a bid, should the auction go in favour of the bidder. Further in the facts and circumstances of this case, haste in conducting the auction within twenty four hours of the notice did not provide the petitioner with a fair opportunity to apprise himself on how the conditions of this auction were different from the earlier auction.
7. No businessman will spend Rs. 25 lacs without fully understanding the terms and conditions of the auction. In the second notice to re-auction both the notice and the auction were rash. There was no specific condition that it be noted that whereas the earlier auction facilitated the subject matter of the contract for collecting tax at barriers, it was to be understood that hereinafter there would be no barriers and the petitioner would be at his risk to collect the entry tax in whatsoever manner he may please. The petitioner does not have authority nor sovereign powers to collect tax without authorised barriers.
8. What the respondents are suggesting in the second notice of auction, dated 1.4.1998 rescheduling an auction the next day, is the principle of caveat emptor (purchaser beware). Regard being had to the circumstances of the present case, in fact, the second notice to re-auction should have been more clear and explicit specifying that the contract being put up for auction is for collection of entry tax without barriers, notwithstanding the bye-laws.
9. Now it is being suggested in argument by the standing counsel. U. P. that the petitioner should challenge the Government order by which the barriers were eliminated. This Government order is dated 26.2.1998. What the respondents are contending is more litigation and encouraging litigation. Suggesting that the Government order be challenged in High Court's writ jurisdiction is a misplaced unethical argument. The Government order of 26.2.1998 had indicated that there would be no barriers. The purpose was a new policy to encourage free trade a step to move towards a liberalised economy so that the trade and industry is not obstructed at every municipal barrier to pay tolls and taxes an impediment to free trade. If such was the stipulation of the Government order to not to put barriers, then, the contract to collect entry tax should not have been put to public auction at all. The auctions were illegal if this Government order stated that entry tax was not to be realised.
10. The contract stood frustrated in so far as the Government order is concerned. The bye-laws, which the petitioner has appended as Annexure-9 were notified by a Gazette Notification dated 6.12.1997. Clause 5 clearly states that the entry tax will be realised by setting up barriers.
11. The petitioner now faces a situation that whereas the bye-laws required the realisation of entry tax at the barriers, the auction notice on which the respondents rely was published in a rush and hurry and did not mention barriers. The petitioner had participated in the second auction with a sum of Rs. 4,43,000 lying in deposit, otherwise liable to be refunded. Again the petitioner was the highest bidder in the second auction. He has now deposited Rs. 1,90,250 more. With the deposit of the latter amount, the petitioner has deposited a sum of Rs. 6,33,250. In addition he was required to deposit Rs. 2,00,000, as security money. The total amount which lies with the respondents is Rs. 8,33,250. Now it is being suggested to the petitioner by the respondents that the petitioner may file a suit for the refund and recovery of this amount. These are games which go against equity. By changing the rules of the game from one that entry tax will be realised with the aid of barriers to no barriers, the respondents have frustrated the contract and rendered it impossible in performance.
12. In these circumstances, after having perused the pleadings exchanged and having heard parties at length, this Court is of the view that the second auction of the respondents carried impossible conditions not authorised and inconsistent with the bye-laws, The bye-laws still require that entry tax is to be realised with the aid of barriers. The Court cannot require the petitioner to challenge the Government order. If the respondents rely on this Government order, then they cannot have the consideration of the contract after having rendered the contract impossible in performance. The manner in which the second auction was done and the amount realised from the petitioner is unjustified. The petitioner is entitled to refund of the amount which remained in deposit with the respondents. The respondents will have one month time from the date a certified copy of this order is placed before them to refund the amounts in deposit with interest at the rate of twelve per cent.
13. The petition is allowed with Rs. 5,000 as costs on respondent No. 3, the Nagar Palika Parishad. Chitrakoot Dham, Karvi, district Chhatrapati Shahuji Maharaj Nagar. Costs on respondent Nos. 1 and 2, the Slate of U. P, and Collector, Chhatrapati Shahuji Maharaj Nagar, will be normal as scheduled.
14. The petition is allowed with costs.