Gopal Dass Vs. Pawan Kumar 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 - cx as well as the intention of the parties, that the plaintiff was given a rasta alongwith the southern dole of both the khasra numbers, so that the plaintiff should have an ingress/outgress to his khasra no. this clearly envisages if a rasta is traced from the southern dole of khasra no. only clerical/typographical one, which can be well corrected by invoking the provisions of section 151/152 cpc.s.d. anand, j.1. the controversy between the parties is as under:2. the parties were litigating in a suit for permanent injunction pending in the court of learned civil judge (senior division), jagadhri. they announced to the court that they had come to terms. a documented compromise (annexure p-l) was placed on record. the learned trial court passed a decree on the basis thereof. thereafter, the plaintiff therein (respondent no. 1 before this court) filed a plea under section 152 read with section 151 cpc for correction of a particular rect. number indicated in the impugned compromise. the averment was that the aforementioned rect. number had been inadvertently mentioned as 27/10 in place of correct rect. number 28/10. infact, the averment proceeded that there is no rect. number corresponding to the recorded numbers.3. the plea for rectification was contested by the defendant petitioner, however, the learned trial court allowed the plea vide impugned order dated 21.10.2004. in the course of the impugned order, the learned trial court held that 'both the suits were contested and the main grudge of the plaintiff in both the suits was to reach the khasra no. 7 of rect. no. 27 which was the land of the plaintiff and there was no rasta to that land. thereafter, compromise ex.cx was reached between the parties which was signed by both the parties, dated 23.01.1999 and the same was produced in the court.... from the perusal of the compromise ex.cx as well as the intention of the parties, that the plaintiff was given a rasta alongwith the southern dole of both the khasra numbers, so that the plaintiff should have an ingress/outgress to his khasra no. 7, 8 of rect. no. 27 from the rasta left the time of consolidation, as is clear from the copy of aks-sajra placed on file. this clearly envisages if a rasta is traced from the southern dole of khasra no. 6 of rect. no. 27 to reach the khasra nos. 7 & 8 of rect. no. there is no khasra no. 10 of rect. no. 27 in that line, rather khasra no. 10 of rect. no. 28 falls on the eastern side of khasra no. 6 of rect. no. 27 which has been mentioned in the compromise ex.cx but there is no khasra no. 10 of rect. no. 27 even existed in the revenue estate of village rapri, tehsil jagadhri, district yamuna nagar. only clerical/typographical one, which can be well corrected by invoking the provisions of section 151/152 cpc.'4. mr. ml. sarin, learned senior counsel appearing on behalf of the petitioner, argued that the approach of the learned trial court is invalid particularly when it was not even the plea on behalf of the plaintiff-respondent that there was any typographical or clerical error (in noticing the averred rect. number) on the part of the court.5. in support of the averment that any error on the part of the parties could not form the basis of exercise of jurisdiction under section 152/151 c.p.c., learned counsel relied upon jayalakshmi coelho v. oswald joseph coelho : a.i.r. 2001 s.c. 1084 : 2001(4) s.c.c. 181.6. the learned counsel, appearing on behalf of the respondents argued that the impugned compromise/agreement was void (in terms of the provisions of section 20 of the indian contract act) on the face of it as both the parties were under mistake 'as to matter of fact essential to the agreement'.7. there can be no difference of opinion about the fact that the correction of a clerical or typographical error is authorised in terms of the provisions of section 152 cpc. the only condition precedent in that behalf is that the error must have occurred on the part of the court. if an error occurs on the part of a party, resort cannot be had to the provisions of section 152 cpc. likewise, if there is a case where a party makes an averment that the contract is void in terms of section 20 of the indian contract act, 1872, the parties shall have to obtain a declaration from the civil court about the invalidation thereof, in that eventuality too, a resort to the provisions of section 152 cpc. shall, in any case, not be called for.8. by the very nature of things, a compromise is a consensual act as between the parties to a cause. the parties compromising the matter announce the factum thereof to the court and would make a plea for disposal of the cause on the basis thereof. in the allowance of the compromise plea, the court would be merely putting its seal upon the terms and conditions of the compromise already arrived at between the parties. the only job of the court would be to validate it after satisfying itself that the compromise was not in violation of the public policy etc. if any party to the compromise has to wriggle out of the compromise, for one reason or the other, it has to go for a civil suit to obtain invalidation thereof. on a plea of the present category being filed, the learned trial court would not be justified in proceeding to adjudicate upon the validity or otherwise of an averment made by a party with regard to an alleged mistake of fact having occurred in the impugned compromise. the exercise of that jurisdiction would be the prerogative of the civil court wherein the validity of the compromise itself is challenged.9. in the light of the foregoing discussion, the petition shall stand allowed. the impugned order dated 21.10.2004 shall stand set aside. if the plaintiff-respondent has a grievance, he may have the recourse to the proper remedy available to him under the law.