Haryana

Karnal

CC/87/2022

Surinder Gupta - Complainant(s)

Versus

The Estate Officer, Haryana Shehri Vikas Pradhikaran - Opp.Party(s)

Piyush Batra

20 Nov 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 87 of 2022

                                                        Date of instt.21.02.2022

                                                        Date of Decision:20.11.2023

 

Surinder Gupta aged 53 years son of Shri Raj Kumar Gupta, resident of H.No.811-A, Sector-7, Urban Estate, Karnal. (Aadhar No.9083 1786 1211)

                                               …….Complainant.

                                              Versus

 

1. The Estate Officer, Haryana Shehri Vikas Pradhikaran, Sector-12, Karnal.
2. The Chief Administrator, Haryana Shehri Vikas Pradhikaran, plot no.C-3, HUDA Complex, Sector-6, Panchkula, Haryana.

 

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik……Member

              Dr. Suman Singh…..Member

                   

Argued by: Shri Piyush Batra, counsel for complainant

Shri R.R. Sharma, counsel for the OPs

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that OPs decided to sell Booths, situated at Sector-5, Karnal, through e-auction and the complainant also decided to purchase one of Booth (without basement with storage on first floor) in the main market, Sector-7, Karnal for the purpose of establishing his business for earning the livelihood for himself as well as for his family. OPs fixed the base price of the abovesaid Booth, situated at Sector-5, Karnal as Rs.36,63,600/- and accordingly e-auction started at about 10.00 a.m. on 28.10.2021. Prior to giving the bid for the abovesaid booth, the complainant was obliged/directed to deposit a sum of Rs.1,83,200/- (earnest money) out of 5% base price of the abovesaid booth. Accordingly, complainant deposited the abovesaid amount of Rs.1,83,200/- through online payment in the account of OPs and thereafter, e-auction started. The complainant gave the bid for the abovesaid booth to the tune of Rs.41,88,600/- and thereafter no one gave the bid and the same was finalized in favour of the complainant being successful bidder and this fact was duly reflected in the online portal of the OPs. Thereafter, OPs directed the complainant to deposit 5% of the bid amount i.e. Rs.2,35,660/- with the OPs and the said amount was also deposited in the account of OPs on 29.12.2021, as demanded by the OPs and thereafter, OPs had to proceed further, but unfortunately, OPs issued one e.mail notice to the complainant on 16.02.2022 mentioning therein that his bid for e-auction booth, Sector-7, Karnal has been found below reserve price fixed for the property. In case he is agreed to bid of Rs.44,11,400/- then he has to deposit Rs.22830/- within a period of 48 hours. The aforesaid act of OPs by issuing the email dated 16.02.2022 is totally wrong, illegal and amounts to unfair trade practice on the part of the OPs. Hence complainant filed the present complaint seeking direction to the OPs to allot the Booth, situated at Sector-7, Karnal, at the settled sale price i.e. highest bid price and the OP may kindly be restrained not to demand the additional illegal amount, as fully mentioned in email notice sent to the complainant on 16.02.2022 by declaring the impugned notice to be wrong, illegal, null and void and not binding upon the rights of the complainant and OPs be further restrained from cancelling the allotment of complainant as well as re-allotting the booth in question and to pay Rs.15,00,000/- on account of mental pain, agony and harassment caused by the OPs to the complainant.                    

2.             On notice, OPs appeared and filed its written version, raising preliminary objection with regard to maintainability; mis-joinder and non-joinder of necessary parties; locus standi; cause of action and concealment of true and material facts. On merits, it is pleaded that complainant is not a consumer of the OPs till date. The complainant has just participated in the e-auction, full and final payment is yet to be made by the complainant and after that the booth in question is likely to be allotted to the complainant after completing all the formalities. So, the complainant cannot be termed as ‘consumer’ in any way or manner. Therefore this Commission has no jurisdiction to entertain and try the present complaint. It is further pleaded that the base price of the property in question @ Rs.36,63,600/- but reserve price has to be decided by the committee constituted for the purpose as per terms and conditions for e-auction as agreed by the complainant. As per terms and conditions of the e-auction, all the intended bidders were required to deposit the EMD. It is further pleaded that the successful bidder is required to deposit an amount equivalent to 10% of the quoted bid amount (including EMD already deposited).  It is further pleaded that at the time of intending to participate in the e-auction, all the intending bidders were required to go through the detailed terms and conditions for e-auction of residential/ institutional/ commercial properties/ building/sites on as is where is basis and in pursuance thereof the complainant agreed to abide by the said terms and conditions. Only thereafter, complainant is allowed to participate in the e-auction proceedings. There is a specific clause at sr. no.8 Reserve Price which reads as under:-

“Reserve Price: The reserve price shall be decided by the Committee constituted for the purpose. The reserve price shall remain confidential and shall be used for evaluating the highest bid for accepting or rejecting a bid”.

 

3.     The reserve price fixed by the Committee for the booth in question was Rs.44,11,400/-, so it is clear that there is nothing “new” or addition/alteration made by the OPs after auction process. The complainant after agreeing to the terms and conditions of the e-auction choose to participate in the e-auction. The complainant knowingly and intentionally has concealed the said fact in the complaint, he has no where disclosed the factum of terms and conditions of the e-auction/bid, so the complaint may kindly be dismissed on this score alone.  It is further pleaded that OPs are a Government functionary and as such it is subjected to various audits by various Government agencies including the Finance Department. There is no illegal demand from the side of OPs and the terms and conditions of auction were very much in the knowledge of complaint. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.C1, copy of auction detail, Ex.C2, copy of payment receipts Ex.C2 and Ex.C3, copy of messages Ex.C4 and Ex.C5, copy of e-mail dated 16.02.2022 Ex.C6 and closed the evidence on 18.11.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Rohit Kumar, Estate Officer E.RW1/A, copy of broucher Ex.R1, copy of terms and conditions Ex.R2 and closed the evidence on 11.08.2023 by suffering separate statement.

7.             We have heard complainant and learned counsel for the OPs and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for the complainant, while reiterating the contents of complaint, has vehemently argued that the OPs auctioned the booth in question and the complainant gave the high bid of Rs.41,88,600/- and was declared as highest bidder in the e-auction. The base price of the said property was Rs.36,63,600/-. Being highest/successful bidder, the complainant deposited further sum of Rs.2,35,660/- with the OPs. Instead of proceeding further, the OPs have intimated the complainant that they have fixed the reserve price of the booth as Rs.44,11,400/- instead of highest bid price of booth. He further argued that the OPs did not disclose that the reserve price would remain confidential and will be decided lateron by the competent authority. He further argued that now the complainant is ready to deposit the cost of the booth as per the reserve price and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that the base price of the property in question was Rs.36,63,600/- but reserve price has to be decided by the committee constituted for the purpose as per terms and conditions for e-auction as agreed by the complainant. He further argued that the reserve price fixed by the Committee for the booth in question was Rs.44,11,400/-. The complainant knowingly and intentionally has concealed the said fact in the complaint, he has no where disclosed the factum of terms and conditions of the e-auction/bid, He further argued that OPs are a Government functionary and as such it is subjected to various audits by various Government agencies including the Finance Department. There is no illegal demand from the side of OPs and prayed for dismissal of the complaint. Learned counsel for the OPs has relied upon the case law titled as State of Punjab Vs. Mehar Din CA 5861/2009 dated 02.03.2022 Citation: 2022 livelaw (SC) 235.

10.           We have duly considered the rival contentions of the parties.

11.           Both the parties have relied upon the terms and conditions of the e-auctions proceedings. As per terms and conditions of the e-auction, there were two price of property in question i.e. base price and reserve price.

12.           The complainant has alleged that the OPs have fixed base price of the property in question as Rs.36,63,800/- and as he gave the highest bid of Rs.41,88,600/-, he was declared as highest bidder but the OPs instead of proceeding further have intimated the complainant to deposit reserve price of i.e. Rs.44,11,400/-, which was fixed by the committee. On the other hand, the OPs had alleged that the base price of the property in question was Rs.36,63,800/- but reserve price has to be decided by the committee constituted for the purpose as per terms and conditions, thus, there is no deficiency in service on the part of the OPs.

13.          It is not disputed that the e-auction process in which the complainant has participated was governed by the e-auction terms and conditions. Certain clauses of the terms and conditions Ex.R1, that will be material for adjudication of the instant complaint are extracted as under:

"TERMS AND CONDITIONS FOR E-AUCTION OF RESIDENTIAL, INSTITUTIONAL AND COMMERCIAL SITES/BUILDING

       

A. DEFINITIONS:-

 

Base Price: The base price of a property put to auction shall be the current collector rate of that area of that financial year fixed by District Collector for that particular property including the factor of FAR. Bids for e- auction shall start from the base price. However, the base price is not necessarily the reserve price of a property.

 

2 to 5 xxxxx xxxxx xxxxx

6. LOI:- LOI means Letter of Intent which is issued to the successful bider on making the payment of 10% of the bid amount.

7 xxxxx xxxxx xxxxx

8. Reserve Price:- The reserve price shall be decided by the Committee constituted for the purpose. The reserve price shall remain confidential and shall be used evaluating the highest bid (for accepting or rejecting a bid).

 

14.           The intending bidder shall be required to deposit an earnest money equivalent to 5% (Five percent) of cost at base price of each property separately (for which the bidder intends to participate in e-auction) before participating in the e-Auction. The competent authority of HSVP reserves the right to accept or reject any bid or withdraw any or all the properties from e-auction or cancel/postpone the e-auction, without assigning any reason. The bidding is starts from the Base Price. The reserve price shall remain confidential and shall be used for evaluating the highest bid by the competent authority.

15.           In the event of default or breach or non- compliance of any of the terms and conditions as indicated above or for furnishing any wrong or incorrect information at any point of time of E-auction and afterwards, the Competent authority shall have the right to cancel the bid and forfeit whole amount of EMD deposited by the bidder. Meaning thereby, as per the terms and conditions hereinabove would clarify that the base price of a property being put to an auction would be the current Collector rate of that area of the relevant financial year. The base price would not necessarily be the reserve price of the property. The reserve price is to be determined by a committee constituted for such purpose. Furthermore, reserve price was to remain confidential and was the relevant parameter for evaluating the highest bid.  In this regard, we relied upon the case titled as Afcons Infrastructure Limited Vs. Nagpur Metrol Rail corporation Limited and another (2016) 16, SCC 818, wherein the Hon'ble Supreme Court had held that interference in the decision making process of the competent authority in accepting or rejecting the bid of a tenderer is permissible only if the decision making process is mala fide or is intended to favour someone. Likewise interference in such matters would not be warranted unless it is shown that the action of the authority concerned is so arbitrary or irrational that the Court could say that such action is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words the decision making process or the decision should be perverse and not merely faulty or incorrect or erroneous and Mehar Din’s case (supra) “Public Auction-Highest bidder has no vested right to have the auction concluded in his favour. State or authority is not bound to accept the highest tender of bid. The acceptance of highest bid and highest bidder is always subject to condition of holding public auction and the right of highest bidder is always provisional to examine in the context in different condition in which the auction has been held.

16.           Both the parties have not denied the terms and conditions of the e-auction and as per said terms and conditions, the OPs have right to fix the reserve price and the higher bidder will remain bound to pay the reserve price fixed by the competent authority. Thus, there is no deficiency in service on the part of OPs, while declaring the reserve price of the property higher than the bidder price. Moreover, judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides but in the present case it is the policy of the OPs to fix the reserve price by constituting a committee and the OPs is having right to decide the reserve price lateron. In this regard, we are placing reliance on the judgment titled as Jagdish Mandal Versus State of Orissa and others (2007) 14 SCC 517 wherein Hon’ble Supreme Court has held that judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is involved in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills grievances wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succor to thousands and millions and may increase the project cost manifold. 

17.           Thus, as a sequel to abovesaid discussion, the present complaint is devoid of merits and same deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced

Dated: 20.11.2023

                                                                President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

                  (Vineet Kaushik)      (Dr. Suman Singh)

                      Member                       Member