Gurdial and anr. Vs. Kulwant Rai - 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 lawnirmal singh, j. 1. the facts for the disposal of this civil revision are that the respondent filed a suit for declaration to the effect that plaintiff-respondent has become the owner by the efflux of time as wadhawa ram mortgaged the property with him vide mortgage deed dated 11.1.1965. the petitioners contested the suit and controverted the allegations by filing the written statement.2. respondent led the evidence. petitioners were called upon to lead their defence evidence by affording eight opportunities. then the evidence was closed by order. the case was fixed for rebuttal arguments and at that stage, petitioners moved an application under order 6 rule 17 cpc for amendment of the written statement and set up a counter claim. the proposed amendments of written statement and the counter claim are as under;-'i) that in the end of para no. 3 of the pre-objection of the written statement the following is to added:- that the defendant no. 1 gurdial singh has reconstructed the total house upto second storey and he constructed two rooms on ground floor and two rooms on first floor and spent rs. four lacs and defendant no. 2 also reconstructed his portion of house and constructed two rooms on ground floor and spent rs. two lacs, just after the purchase of house and the plaintiff has never objected the same. ii) that in the end of para no. 6 of the written statement on merits the following is to be added:- that defendants had paid the mortgage money to the plaintiff just after the purchase of suit land and the plaintiff assured to give writing about the payment on the back of the sale deed, but he has not given the writing and taking advantage of oral payment by he defendant he is claiming non payment of mortgage money. though the defendants had paid the mortgage money of rs. 1750/- to the plaintiff. even otherwise it is a usufructuary mortgage, and if this hon'bfe court reached to the conclusion that no amount of mortgage money has been paid, the defendants are ready to make the payment in this hon'ble court of the said mortgage amount. the defendants are owners in possession of the suit land vide sale deed dated 26.8.1987 and 15.10.1987 and the plaintiff has no right, title or interest to file the suit. counter claim:- 1. that though the defendants have paid the mortgage money of rs. 1750/- to the plaintiff orally. even otherwise the mortgage is usufructuary mortgage and thee is no time limit for redeeming the same and the defendants are ready to pay the amount of rs. 1750/- of mortgage money to the plaintiff, if this hon'ble court reached to the conclusion that no amount was paid by the defendants to the plaintiff. than the defendant be allowed to deposit the said amount of mortgage money in this hon'ble court and the suit property be ordered to be redeemed' 3. plaintiff-respondent contested the application. after hearing the learned counsel for the parties, the learned civil judge (jr. division) kurukshetra vide order dated 12.10.2000 dismissed the application.4. after hearing the learned counsel for the parties and perusing the record, i am of the considered opinion that there is no illegality or irregularity in the impugned order.5. the petitioners-defendants want to set up a counter claim by pleading that they have paid mortgage money amounting to rs. 1750/- to the plaintiff orally. the petitioners have not stated in the application in which month and year the mortgage money was paid and have got the land redeemed.6. on the other hand, the case of the respondent is that he has became the owner of property in dispute by the efflux of time as wadhwa ram had mortgaged the property with him vide mortgage deed dated 11.1.1965. a party cannot be allowed to set up a case which is barred by time. admittedly wadhwa ram had mortgaged the property in the year 1965. if subsequently the petitioners have paid rs. 1750/- orally, then they ought to have taken this stand in the written statement. the petitioners cannot set up a counter claim by amending the written statement when claim is barred by time. furthermore petitioners are taking a contradictory plea by way of amendment and in the oral defence. the petitioners were afforded 8 opportunities to lead their defence but despite that the petitioners have not led any evidence in defence as there was no defence with the petitioners. the petitioners are seeking amendment with ulterior motive only to delay the proceedings.7. for the reasons recorded above, there is no merit in this civil revision. the same is hereby dismissed with costs of rs. 3,000/-.