Smt. Bugli Devi Vs. Additional Civil Judge (Sr. Division) and ors. - 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 - it is also stated that an application was made by the defeated candidate that returning officer be summoned for verifying the original seals put on the ballot papers but he was not summoned as it was not considered to be necessary to do so. tampering was, therefore, clearly subsequent and if there is tampering subsequent to counting, order of recounting could not be passed. 11. in view of the judgment of the apex court in jagannath's case (supra) recounting cannot be ordered or upheld if tampering had taken place after the original counting since recount was not justified as subsequent to original counting, tampering appears to have taken place, order of recounting as well as result thereof are set aside and election petition is dismissed.adarsh kumar goel, j.1. respondent no. 2 (hereinafter referred to as the election petitioner filed an election petition under section 176(4) (b) of the haryana panchayati raj act, 1994 (for short, the act), calling in question election of the petitioner (hereinafter referred to as the returned candidate) to the post of sarpanch of village patti kalayana, district panipat, held on 16.3.2000.2. the petitioner had secured 1797 votes while respondent no. 2 secured 1772 votes, another candidate smt. nirmala devi secured 82 votes and there were 144 rejected votes.3. case of the election petitioner was that 105 votes cast in her favour were wrongly included in 144 rejected votes (para 3 of the election petition). it was further alleged that 28 invalid votes were wrongly counted as valid votes of the returned candidate in-spite of objections by the counting agent of the election petitioner. prayer was made that recounting should be done by the court. the trial court ordered recounting as a result of which votes secured by the election petitioner were found to be 1770, two less than the original result while votes of the returned candidate were found to be 1716, 81 less than the original result. number of rejected votes went up by 78 while 5 votes were found to be less compared to the total votes mentioned in the original result.4. case of the returned candidate was that reduction of his votes was on account of counting of valid votes cast in his favour as rejected votes as such votes now had double marks. since double marking was subsequent to original counting, recounting was not justified. reliance is placed on the judgment of the supreme court in jagannath rao v. rai kishare, a.i.r. 1972 s.c. 447.5. on 5.4.2001, when the case came up for hearing, it was pointed out on behalf of the petitioner that 56 votes were valid votes which were counted in favour of the petitioner but were subsequently tampered with by putting double stamp and on account of this, order of recounting was vitiated. this court directed that an affidavit be filed as to how tampering has taken place. an affidavit dated 13.4.2001 was filed to the effect that tampering appeared to have been done when the record was in custody of the district election officer or when the record was in custody of the court as no vote with double marking could have been declared valid. after considering the said affidavit, notice was issued and comments of the concerned court were also called for. vide order dated 29.5.2001, ballot papers received in sealed cover were ordered to be opened and rejected votes were ordered to be sorted out in the presence of joint registrar (judicial). joint registrar in the presence of learned counsel for the parties opened the bag containing ballot papers. he found 8 sealed packets of ballot papers of polling station nos. 5 to 12. the joint registrar found that it was not clear which were the ballot papers rejected by the returning officer and which were those rejected by the tribunal/trial court. however, those signed by the tribunal were put in envelop 'b' and those not signed by the tribunal put in envelop 'a'. comments of the presiding officer have also been received to the effect that recounting was done as a result of earlier order dated 11.9.2000 against which a revision petition was dismissed by this court on 22.3.2001 and before recounting statement of counsel for the parties was recorded to the effect that record of the election had been opened in their presence and no doubt was expressed about tampering of the packets and during recounting, nothing was found which may suggest that record had been tampered with. it is also stated that an application was made by the defeated candidate that returning officer be summoned for verifying the original seals put on the ballot papers but he was not summoned as it was not considered to be necessary to do so.6. learned counsel for the petitioner submitted that votes which were counted as valid votes and have been rejected by the court, should not be treated as rejected as double marking was subsequent tampering. two seals one clockwise and the other anticlockwise could not be original as only one seal either clockwise or anti-clockwise is provided at the time of voting and if tampering is prior to original counting, the same would have been easily noticed at the time of counting. tampering was, therefore, clearly subsequent and if there is tampering subsequent to counting, order of recounting could not be passed. learned counsel for the election petitioner submitted that the trial court has recorded a finding in its order dated march 30, 2001 that election record was opened and was inspected by the counsel for the parties who found that seals of the record were intact except two packets which were earlier opened in some other election and resealed by the court and seals of the said two packets were intact bearing signatures of the presiding officer and, therefore, it cannot be held that tampering of votes had taken place subsequent to the earlier counting.7. learned counsel for the returned candidate submitted that merely because in the presence of the counsel for the parties, seals were intact did not mean that there had been no tampering. he also submitted that no recounting was sought and returning officer was not called to show as to in whose custody, the record remained after the original counting and whether double sealing on certain votes could be there originally or was subsequent tampering.8. i have considered the submission and perused the record.9. main question is whether double sealing of the ballots had taken place after the original counting or before that. if double sealing had taken place prior to the original counting, order of the trial court has to be upheld as the votes which were liable to be rejected were not wrongly rejected. on the other hand, if double sealing has taken place after the original counting, the votes were valid at the time of original counting and recounting could not be ordered when tampering had taken place for any reason.10. learned counsel for the petitioner submitted that only possible inference was that tampering had taken place subsequently as till result was declared, neither party would be interested in or be in a position to do double sealing and double sealing would have been noticed at the time of counting which is done in the presence of representatives of all the candidates. if such a tampering had been seen, the same would have been brought on record by the aggrieved party. merely because the double sealed tampered ballots were recovered from a sealed envelope received from the record of the returning officer, was not conclusive of there having been no tampering after the declaration of the result. though, learned counsel for the election petitioner submitted that sealed covered having been opened in presence of counsel by the trial court, it should be presumed that they were kept after original counting.11. in view of the judgment of the apex court in jagannath's case (supra) recounting cannot be ordered or upheld if tampering had taken place after the original counting since recount was not justified as subsequent to original counting, tampering appears to have taken place, order of recounting as well as result thereof are set aside and election petition is dismissed.12. the petition is disposed of accordingly.