Hardip Singh Vs. Sh. Kanwaljit Singh Monga - Court Judgment

Excerpt:
- administrative law - government contract: [vijender jain, c.j., rajive bhalla & sury kant, jj] government contract rejection of highest bid challenge as to held, state has no dominus status to dictate unilateral terms and conditions when it enters into contract. its actions must be reasonable, fair and just in consonance with rule of law. as a necessary corollary thereto, state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. the state is free to enter into a contract just like any other individual and the contract shall not change its legal character merely because other party to contract is state. though no citizen possesses a legal right to compel state to enter into a contract, yet latter can neither pick and choose any person arbitrarily for entering into such agreement nor can it discriminate between persons similarly circumstanced. similarly, where breach of contract at hands of state violates fundamental rights of a citizen or its refusal to enter into a contract is contrary to statutory provisions or public duty, judicial review of such state action is inevitable. likewise, if state enters into a contract in consonance with article 299 rights of the parties shall be determined by terms of such contract irrespective of fact that one of the parties to it is a state or a statutory authority. for these precise reasons the equitable doctrine of promissory estoppel has been made applicable against the government, as against any other private individual, even in cases where no valid contract in terms of article 299 was entered into between the parties. hence, if government makes a representation or a promise and an individual alters his position by acting upon such promise, the government may be required to make good that promise and shall not be allowed to fall back upon the formal defect in the contract, though subject to well known limitations like larger public interest. the state, thus, has no dominus status to dictate unilateral terms and conditions when it enters into contract and its actions must be reasonable, fair and just and in consonance with rule of law. as a necessary corollary thereto state cannot refuse to confirm highest bid without assigning any valid reason and/or by giving erratic, irrational or irrelevant reasons. -- consumer protection act, 1986 [c.a. no. 68/1986]. articles 14 & 300a: government contract noon-acceptance of highest bid held, it does not result in taking away right to property of highest bidder highest bid, per se, unless it is accepted by competent authority, and consequential sale certificate is issued, does not grant the highest bidder right to property of type which is protected under article 300a right to property is limited to confer highest bidder the right to challenge action of appropriate authority in refusing to accept highest or other bids. [air 1984 p&h 282 (fb) explained] articles 14 & 226: government contract rejection of highest bid held, highest bidder has locus standi to maintain writ petition and assail action of state government or its authorities by contending that his bid has been turned down for arbitrary, illegal or perverse reasons however in such matters, heavy onus would like on petitioner bidder to establish his allegations as state action shall always be presumed to be in accordance with law - february 8, 1991, and he observed that the respondent was reported to have refused to receive summons sent by ordinary mode as well as the one sent under registered cover. munadi as well as affixation were reportedly done on february 23, 1991, and report sent to the court. it appears that on april 18, 1991, an application was moved on behalf of the landlord that the tenant had been duly served for february 8, 1991, inasmuch as he had refused to accept service of ordinary summons as well as those issued through registered ad cover and since he had failed to file an affidavit seeking leave to defend within 15 days of the service of summons upon him, an order of ejectment be passed against him. suffice it to say that under the proviso to section 18(8) of the act it is open to the high court to interfere if it is satisfied that the order passed by the controller under section 18-a is not according to law. 5. coming to the merits of the matter, no lengthy discussion is required to show that the service effected on the tenant on 12/15th january, 1991, was not good service, for the simple reason that the rent controller himself did not feel satisfied about the service being valid. it may also be noted that the court can order service of summons in such other manner as the court thinks fit under rule 20. it was in pursuance of the power under order 5 rule 20 that the rent controller directed fresh summons to be served by affixation as well as munadi.ordera.p. chowdhri, j.1. this revision is directed against order dated may 31, 1993, of the rent controller, amritsar, allowing an application made by the landlord during the pendency of proceedings under section 13-a of the east punjab rent restriction act, 1949 (hereinafter referred to as 'the act'), as amended by act 2 of 1985.2. the material facts are that the respondent instituted a petition for ejectment of the petitioner under section 13-a on december 3, 1990, before the rent controller, amritsar. in terms of section 18-a, the rent controller directed issuance of summons in the ordinary mode and simultaneously under, registered ad cover for february 8, 1991. the report dated 15th, 1991, on the summons, under the usual mode, was that the addressee would not accept the same without consulting his lawyer. the a.d. cover was returned with the report dated january 12, 1991, that in spite of several attempts to serve the same, the addressee was not available and it was, therefore, returned as refused. the case came up before the rent controller on the date fixed i.e. february 8, 1991, and he observed that the respondent was reported to have refused to receive summons sent by ordinary mode as well as the one sent under registered cover. it was further directed by the rent controller that the respondent be summoned again through munadi (proclamation) and affixation for april 2, 1991. summons were accordingly issued afresh in the prescribed form. munadi as well as affixation were reportedly done on february 23, 1991, and report sent to the court. on april 2, 1991, the tenant put in appearance through his counsel, who filed a memo, of appearance and the matter was adjourned to april 18, 1991, when an affidavit was filed by the tenant seeking leave to contest the petition. the case was adjourned to may 9, 1991, for filing a reply and further proceedings. it appears that on april 18, 1991, an application was moved on behalf of the landlord that the tenant had been duly served for february 8, 1991, inasmuch as he had refused to accept service of ordinary summons as well as those issued through registered ad cover and since he had failed to file an affidavit seeking leave to defend within 15 days of the service of summons upon him, an order of ejectment be passed against him. it further appears that the said application remained pending and the matter was adjourned from time to time. ultimately the application was taken upon for hearing and the same has been disposed of by the impugned order dated may 31, 1993, by the rent controller. it has been held that the tenant had been duly served on january 12, 1991, when there is a report of refusal on the registered a.d. cover. he was also held to have been duly served on january 15, 1991, when he refused to accept service of summons sent through the ordinary mode, on the ground that he would first consult his lawyer. it was also held that in any case the service was duly effected to the tenant on february 23, 1991, when he was served through munadi and affixation in pursuance of the order of the court. in view of the above conclusion, it was held that the tenant was not entitled to any fresh opportunity for filing an affidavit and the case was posted for hearing on the basis of the affidavit already filed by the respondent-tenant on april 18, 1991. aggrieved by the order, the tenant has preferred this revision.3. mr. t.n. gupta, learned counsel for the landlord, took a preliminary objection that the present revision is not maintainable on two counts. firstly, it has been submitted that under proviso to under section 18-a(8) of the act, the power of the high court are narrower compared to the powers under section 15 of the act, and interference is possible only if there is an error of law. no such error having been bought out, revision was not competent. the second submission of mr. gupta is that by the impugned order, the learned rent controller has not held that the tenant had lost his right to make an application for leave to defend the petition for ejectment and in that sense the present revision petition is premature.4. i am unable to accept either these submissions. it is not necessary to compare powers of the high court under section 15 of the act with those contained in the provision to sub-section (8) of section 18-a of the act. suffice it to say that under the proviso to section 18(8) of the act it is open to the high court to interfere if it is satisfied that the order passed by the controller under section 18-a is not according to law. the expression 'order not according to law' is of very wide amplitude and it cannot be given a restricted meaning to confine its application to question of mere jurisdiction etc. with regard to the second submission of mr. gupta, it may be pointed out that by the order in question, the learned rent controller has purported to take a view which would practically seal the fate of the tenant. in the impugned order it has been held firstly that due service was effected on the tenant on 12/15th january, 1991. secondly, it was further held that, in any case, service was duly effected on february 23, 1991, when substituted service was effected. if these finding are allowed to stand unchallenged, what may follow can be easily he seen. the irresistible conclusion, therefore, is that the findings vitally affect the rights of the tenant and the petition cannot, therefore, be considered to be either without purpose or premature. the preliminary objection is, therefore, decided against the landlord.5. coming to the merits of the matter, no lengthy discussion is required to show that the service effected on the tenant on 12/15th january, 1991, was not good service, for the simple reason that the rent controller himself did not feel satisfied about the service being valid. this is clear from the order recorded by the rent controller on february 8, 1991, when instead of declaring the service to valid, he directed fresh service by munadi and affixation. it may be pointed out here that section 13-a was inserted in the act by amendment in the year 1985 to give immediate relief to specified landlords who require the demise premise for their own occupation on account of their retirement from service. in order to effectuate this intention, special procedure was laid down in section 18-a. in sub section (3)(a) of section 18-a, the legislature directed that summons shall be simultaneously issued in three modes, namely, (a) the ordinary mode, (b) under registered ad cover and (c) by affixation. it was further made clear that the provisions of the code of civil procedure given in order 5 of the code of civil procedure will govern matter of service. a perusal of the provisions of order 5 cpc makes it clear that where service cannot be effected by the ordinary mode and/or by registered ad cover under the rules, preceding rule 20, the court is empowered to order substituted service, which includes service by affixation. it may also be noted that the court can order service of summons in such other manner as the court thinks fit under rule 20. it was in pursuance of the power under order 5 rule 20 that the rent controller directed fresh summons to be served by affixation as well as munadi. according to the report, this was effected on february 23, 1991. prima facie, the report has to be accepted. in the facts and circumstances of the case, therefore, the learned rent controller appears to be right that service was duly effected on the tenant on february 23, 1991. it is apparently beyond the scope of the present proceedings to express any view as to the consequences of the finding that prima facie service was effected on the tenant on february 23, 1991, as the rent controller has yet to address himself to that question and give a decision after hearing the parties.6. for the foregoing reason, the revision petition is partly accepted to the extent indicated above. it is made clear that if the question of due service of the tenant on february 23, 1991, on the ground that, in fact, no munadi of affixation was done, is raised before the rent controller, the same shall be decided according to law uninfluenced by the observations made in this order, which are intended for an effectual disposal of the present revision petition only. the revision petition is disposed in these terms.

Judgment:
ORDER

A.P. Chowdhri, J.

1. This revision is directed against order dated May 31, 1993, of the Rent Controller, Amritsar, allowing an application made by the landlord during the pendency of proceedings under Section 13-A of the East Punjab Rent Restriction Act, 1949 (hereinafter referred to as 'the Act'), as amended by Act 2 of 1985.

2. The material facts are that the respondent instituted a petition for ejectment of the petitioner under Section 13-A on December 3, 1990, before the Rent Controller, Amritsar. In terms of Section 18-A, the Rent Controller directed issuance of summons in the ordinary mode and simultaneously under, registered AD cover for February 8, 1991. The report dated 15th, 1991, on the summons, under the usual mode, was that the addressee would not accept the same without consulting his lawyer. The A.D. cover was returned with the report dated January 12, 1991, that in spite of several attempts to serve the same, the addressee was not available and it was, therefore, returned as refused. The case came up before the Rent Controller on the date fixed i.e. February 8, 1991, and he observed that the respondent was reported to have refused to receive summons sent by ordinary mode as well as the one sent under registered cover. It was further directed by the Rent Controller that the respondent be summoned again through munadi (proclamation) and affixation for April 2, 1991. Summons were accordingly issued afresh in the prescribed form. Munadi as well as affixation were reportedly done on February 23, 1991, and report sent to the Court. On April 2, 1991, the tenant put in appearance through his counsel, who filed a memo, of appearance and the matter was adjourned to April 18, 1991, when an affidavit was filed by the tenant seeking leave to contest the petition. The case was adjourned to May 9, 1991, for filing a reply and further proceedings. It appears that on April 18, 1991, an application was moved on behalf of the landlord that the tenant had been duly served for February 8, 1991, inasmuch as he had refused to accept service of ordinary summons as well as those issued through registered AD cover and since he had failed to file an affidavit seeking leave to defend within 15 days of the service of summons upon him, an order of ejectment be passed against him. It further appears that the said application remained pending and the matter was adjourned from time to time. Ultimately the application was taken upon for hearing and the same has been disposed of by the impugned order dated May 31, 1993, by the Rent Controller. It has been held that the tenant had been duly served on January 12, 1991, when there is a report of refusal on the Registered A.D. cover. He was also held to have been duly served on January 15, 1991, when he refused to accept service of summons sent through the ordinary mode, on the ground that he would first consult his lawyer. It was also held that in any case the service was duly effected to the tenant on February 23, 1991, when he was served through munadi and affixation in pursuance of the order of the Court. In view of the above conclusion, it was held that the tenant was not entitled to any fresh opportunity for filing an affidavit and the case was posted for hearing on the basis of the affidavit already filed by the respondent-tenant on April 18, 1991. Aggrieved by the order, the tenant has preferred this revision.

3. Mr. T.N. Gupta, learned counsel for the landlord, took a preliminary objection that the present revision is not maintainable on two counts. Firstly, it has been submitted that under proviso to under Section 18-A(8) of the Act, the power of the High Court are narrower compared to the powers under Section 15 of the Act, and interference is possible only if there is an error of law. No such error having been bought out, revision was not competent. The second submission of Mr. Gupta is that by the impugned order, the learned Rent Controller has not held that the tenant had lost his right to make an application for leave to defend the petition for ejectment and in that sense the present revision petition is premature.

4. I am unable to accept either these submissions. It is not necessary to compare powers of the High Court under Section 15 of the Act with those contained in the provision to Sub-section (8) of Section 18-A of the Act. Suffice it to say that under the proviso to Section 18(8) of the Act it is open to the High Court to interfere if it is satisfied that the order passed by the Controller under Section 18-A is not according to law. The expression 'order not according to law' is of very wide amplitude and it cannot be given a restricted meaning to confine its application to question of mere jurisdiction etc. With regard to the second submission of Mr. Gupta, it may be pointed out that by the order in question, the learned Rent Controller has purported to take a view which would practically seal the fate of the tenant. In the impugned order it has been held firstly that due service was effected on the tenant on 12/15th January, 1991. Secondly, it was further held that, in any case, service was duly effected on February 23, 1991, when substituted service was effected. If these finding are allowed to stand unchallenged, what may follow can be easily he seen. The irresistible conclusion, therefore, is that the findings vitally affect the rights of the tenant and the petition cannot, therefore, be considered to be either without purpose or premature. The preliminary objection is, therefore, decided against the landlord.

5. Coming to the merits of the matter, no lengthy discussion is required to show that the service effected on the tenant on 12/15th January, 1991, was not good service, for the simple reason that the Rent Controller himself did not feel satisfied about the service being valid. This is clear from the order recorded by the Rent Controller on February 8, 1991, when instead of declaring the service to valid, he directed fresh service by munadi and affixation. It may be pointed out here that Section 13-A was inserted in the Act by amendment in the year 1985 to give immediate relief to specified landlords who require the demise premise for their own occupation on account of their retirement from service. In order to effectuate this intention, special procedure was laid down in Section 18-A. In sub Section (3)(a) of Section 18-A, the legislature directed that summons shall be simultaneously issued in three modes, namely, (a) the ordinary mode, (b) under registered AD cover and (c) by affixation. It was further made clear that the provisions of the Code of Civil Procedure given in Order 5 of the Code of Civil Procedure will govern matter of service. A perusal of the provisions of Order 5 CPC makes it clear that where service cannot be effected by the ordinary mode and/or by registered AD cover under the rules, preceding Rule 20, the Court is empowered to order substituted service, which includes service by affixation. It may also be noted that the Court can order service of summons in such other manner as the Court thinks fit under Rule 20. It was in pursuance of the power under Order 5 Rule 20 that the Rent Controller directed fresh summons to be served by affixation as well as munadi. According to the report, this was effected on February 23, 1991. Prima facie, the report has to be accepted. In the facts and circumstances of the case, therefore, the learned Rent Controller appears to be right that service was duly effected on the tenant on February 23, 1991. It is apparently beyond the scope of the present proceedings to express any view as to the consequences of the finding that prima facie service was effected on the tenant on February 23, 1991, as the Rent Controller has yet to address himself to that question and give a decision after hearing the parties.

6. For the foregoing reason, the revision petition is partly accepted to the extent indicated above. It is made clear that if the question of due service of the tenant on February 23, 1991, on the ground that, in fact, no munadi of affixation was done, is raised before the Rent Controller, the same shall be decided according to law uninfluenced by the observations made in this order, which are intended for an effectual disposal of the present revision petition only. The revision petition is disposed in these terms.