Darka Daughter of Prem Raj Vs. Hardewa - 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 - 3. challenge in this revision is to the order dated 18.4.1983, vide which execution petition filed by the present petitioner was dismissed, as she had failed to obtain a succession certificate prior to the institution of the execution petition. 11,200/- and costs of the suit, as assessed by the learned trial court, on or before 30.6.1982, the decree would stand fully satisfied.swatanter kumar, j.1. this case has been on the regular board of this court since last week. learned counsel for the respondent has not appeared despite repeated calls. resultantly, this court has no option but to proceed with the hearing of the matter.2. i have heard the learned counsel for the petitioner at some length.3. challenge in this revision is to the order dated 18.4.1983, vide which execution petition filed by the present petitioner was dismissed, as she had failed to obtain a succession certificate prior to the institution of the execution petition.4. undisputed facts are that the suit for recovery of rs. 14,000/- was instituted by gaja nand against hardewa. during the pendency of the suit gaja nand is stated to have died and darka was brought on record, as decree was passed on 2.7.1981. thereafter the defendant filed an appeal, which resulted in passing of a compromising order dated 7.9.1981 between hardewa and darka. as per the compromise decree, if the defendant pays a total sum of rs. 11,200/- and costs of the suit, as assessed by the learned trial court, on or before 30.6.1982, the decree would stand fully satisfied. as the said compromise was not adhered to, darka filed execution petition for executing the decree for its full amount. in this execution petition, hardewa filed objection of 9.10.1982 stating that as no succession certificate had been obtained under section 214 of the indian succession act, 1925, the execution petition is not maintainable. this objection was accepted by the learned execution petition was dismissed.5. the submission raised on behalf of the petitioner herein, is no more resintegra and has been settled by the division bench of this court, which is binding upon this court. thus it would not be necessary for a person to obtain succession certificate before filing an execution petition.6. mere fact that debt would be treated as an asset of the deceased, per se would not make it obligatory on a party, to obtain a succession certificate as condition precedent for institution and/or continuation of execution proceedings. under the provisions of order 22 rule 5 of the code of civil procedure, the court is under obligation to determine as to who is the legal representative of the deceased and to grant relief in terms thereof. reference can be made to the judgment of division bench of this court in the case titled as inder sain and anr. v. nan singh, (1991-2)100 p.l.r. 640, where the court has held as under:-'when the petitioners were impleaded as legal representatives in the suit itself the provisions of section 214 or para 3 of the punjab and haryana rules, vol. ii ch. 6(b) would not be applicable. it was not at all necessary for the petitioners to obtain succession certificate to enable them to file application for execution of the decree in which they were already decree holders. there is no requirement of obtaining succession certificate, as provided in order 22 of the civil p.c., to enable the legal representatives of the deceased party to the suit to be substituted as such. as decree holders they were fully entitled to file application for execution of the decree. section 214 is not at all applicable.'7. in view of the above settled principle of law, the impugned order suffers from an error of jurisdiction and is liable to be set aside.8. for the reasons aforestated, this revision is accepted. the impugned order dated 18.4.1983 is set aside. the learned executing court is directed to proceed with the exepetition in accordance with law.