Ram Lal Vs. Ramanand Meena and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/762999
SubjectCommercial
CourtRajasthan High Court
Decided OnSep-25-1996
Case NumberS.B. Civil Revision Petition Nos. 458 and 708 of 1996
Judge R.S. Kejriwal, J.
Reported in1996(2)WLN129
AppellantRam Lal;ramanand Meena and ors.
RespondentRamanand Meena and ors.;ram Lal
Cases ReferredSmt. Vimla Devi v. Jang Bahadur
Excerpt:
rajasthan minor mineral concession rules, 1986 - rule 34(g)--25% bid security amount--deposit of--amount not deposited either by plaintiff or defendant on same day--held royalty collection cannot be granted to any of them;the word 'immediately' in clause (g) of rule 34 connotes and implies that the deposit should be made without undue delay and within such convenient time as is reasonably requisite for doing the thing same day with all convenient speed excluding the possibility of rendering the other associated corresponding act and performance of duty as nugatory;(b) constitution of india - article 226--alternative remedy and rajasthan minor mineral concession rules, 1986--jurisidction of civil court--held, no alternate remedy is provided in rules and jurisdiction of civil court is not barred;the amount has to be deposited the same day by a person who is provisionally selected highest bidder. admittedly neither the plaintiff nor the defendant ram lal deposited the amount the same day. under such circumstances, royalty collection contracted can not be granted to any of them ;(c) words & phrases - word 'immediately' in rule 36(g)--meaning of;i do not agree with the submission of counsel for the petitioner that alternate remedy is provided under the mining rules and as such the jurisdiction of the civil court is barred ;revision partly allowed - - the plaintiff-non- petitioner failed to deposit the amount on 30.1.1996. under these circumstances the second highest bidder shri ram lal was called and he deposited the amount as per rules. provided further that where the second bidder failed to deposit the amount of bid and/or security, the third highest bidder may be sleeted as provisionally selected bidder, if the bid amount of the third bidder is not less than 10% of the bid amount of the first bidder. here the other associated corresponding act and duty cast upon the mining engineer conducting the auction as envisaged under clause (g) of rule 34 of the rules is to provisionally select second highest bidder on failure to deposit the amount by the first highest bidder and so on.r.s. kejriwal, j.1. the aforesaid revisions have been directed against the order dated 8.3.1996, passed by learned additional district judge no. 2, alwar, reverising the order dated 14.2.1996, passed by civil judge (junior division) alwar, and allowing the application of temporary injunction filed by the plaintiff-non-petitioner.2. the brief relevant facts of the case are that the auction for grant of royalty collection contract took place on 30.1.1996. the plaintiff-non-petitioner ramanand gave a bid of rs. 3,50,000/- which was the highest. the mining engineer accepted the same and asked the plaintiff-non-petitioner to deposit 25% of the bid amount and security amount. the amount was not deposited by the plaintiff-non-petitioner on the same day. on 31.1.1996, the plaintiff- non-petitioner, on the opening of the office, submitted an application to the mining engineer for depositing the amount of rs. 1,75,000/- but the mining engineer refused to deposit the amount. under such circumstances the plaintiff-non-petitioner sent a telegram in this connection to the mining engineer on the same day. on the same day the mining engineer gave a notice to the defendant-petitioner ram lal for depositing 25% amount of his bid, as his bid was the second highest and security amount. this notice was received by defendant ram lal the same day. he deposited the amount on the next day i.e. on 1.2.1996. on 2.2.1996, the plaintiff-non-petitioner filed a suit for injunction against the state of rajasthan and the mining engineer, alwar. he also filed an application under order 39 rules 1 and 2 read with section 151 c.p.c.3. later on ram lal was also impleaded as defendant in the suit. the civil judge, junior division and judicial magistrate, alwar, vide his order dated 14.2.1996, dismissed the application submitted by the plaintiff-non-petitioner. the plaintiff-non- petitioner filed an appeal, which was allowed by learned additional district judge no. 2, alwar, vide order dated 8.3.1996. against this order, the defendant ram lal has filed civil revision no. 458/1991 and the state of rajasthan and the mining engineer, alwar, have filed civil revision no. 708/96.4. mr. ranjan, counsel for the defendant-petitioner submits that the lower appellate court committed serious illegality in setting-aside the order of trial court which was neither perverse nor capricious. he submits that on this ground the revision deserves to be allowed. in support of his arguments, he placed reliance on a judgment of this court, reported in smt. vimla devi v. jang bahadur 1977 rlw 326.5. his second submission is that efficacious alternate remedy is available to the plaintiff-non-petitioner under the rajasthan mining mineral concession rules, 1986 (hereinafter referred to as the 'rules'). he submits that the plaintiff can be awarded compensation and as such no injunction can be granted against the defendants.6. his third submission is that no injunction in the mandatory form can be granted at interlocatory stage. he also submits that as the application of the plaintiff non-petitioner for interlocatory/mandatory injunction was rejected by the trial court, the plaintiff-non-petitioner should have filed a revision. the appeal submitted by him was not maintainable. he further submits that the plaintiff has no prima-facie case. the learned additional district judge no. 2, alwar, exceeded his jurisdiction in setting-aside the order of the trial court.7. mr. k.k. sharma, counsel for the state of rajasthan & mining engineer, alwar, supported the contention of mr. ranjan. he further submits that the bid of the plaintiff was accepted on 30.1.1996, under clause (g) of rule 34 of the rules. he was required to deposit 25% amount of the bid and the security amount immediately after the bid was accepted. the plaintiff-non- petitioner failed to deposit the amount on 30.1.1996. under these circumstances the second highest bidder shri ram lal was called and he deposited the amount as per rules. he submits that the word 'immediately' has been defined in black's law dictionary which means 'without interval of time' or without any delay or lapse of time'. he prayed that the revision be accepted, the order of the additional district judge no. 2, alwar, be set-aside and the order of the trial court be maintained.8. on the other hand, shri b.k. agarwal, counsel for the plaintiff-non-petitioner submits that the order of the trial court was perverse and as such the additional district judge no. 2, alwar, was justified in setting-aside the same. the authority reported in vimla devi's case (supra) is not applicable to the facts of the present case. he submits that on account of misconstruction of rule 34(g) of the rules, the bid in favour of the plaintiff-non-petitioner has been cancelled by the mining engineer. the petitioner approached the mining engineer on 31.1.1996, for depositing the amount but the mining engineer refused to accept the amount. under these circumstances, he submitted an application to the mining engineer on the same day and also gave a telegram. the telegram was also received by the mining engineer on the same day. under these circumstances his submission is that the mining engineer should have accepted the amount which was offerred without any delay. he submits that the case of defendant ram lal before the trial court was that the amount can be deposited on the next day but as the plaintiff did not deposit the amount on the next day and as such the defendant ram lal was called for depositing the amount. he submits that the word 'immediately does not mean the same day but within reasonable time. he further submits that if the word immediately means the same day, the defendant ram lal also did not deposit the amount the same day but deposited the amount on 1.2.96. as such the amount of ram lal should not have been accepted and he should not have been granted royalty collection contract. further more the bid of shri ram lal was only for rs. 3,40,000/-. the state government has also suffered financial loss. this aspect was not taken into consideration by the trial court. he submits that remedy under the rules is not appropriate remedy. the jurisdiction of the civil court is not barred. the plaintiff submitted his application both for prohibitory and mandatory injunction and as such the appeal filed against the order passed by the trial court was maintainable. he also cited certain judgments.9. i heard counsel for the parties and gone through the record, and the judgments on which reliance has been placed by counsel for the parties.10. it is not in dispute that auction for royalty collection contract took place on 30.1.1996, and the bid of the plaintiff non-petitioner was the highest. it is also not in dispute that the plaintiff non-petitioner did not deposit the amount the same day. he approached the mining engineer the next day i.e. 31.1.1996, and requested him to accept the amount and when he refused to accept the amount he submitted an application and also gave a telegram the same day. it is also not in dispute that the mining engineer served a notice on the defendant ram lal on the same day for depositing l/4th amount of his bid and security amount. the notice was received by ram lal at about 5.00 p.m. the same day as admitted by him and he deposited the l/4th amount of his bid and security amount on 1.2.1996. the suit was filed on 2.2.1996. in the application submitted under order 39 rules 1 and 2 read with section 151 c.p.c. the plaintiff-non-petitioner prayed not only for mandatory injunction but also prohibitory injunction. that application was rejected by the trial court. as the application was both for mandatory and prohibitory injunction, in my opinion a miscellaneous appeal was maintainable.clause (g) of rule 34 of the rules reads as below:(g) on completion of auction, the result will be announced & provisionally selected bidder shall immediately deposit the security money and bid amount in advance as under:(i) if the yearly bid amount does not exceed rs. 10000/- it shall be immediately deposited in full.(ii) if the yearly bid amount exceeds rs. 10000/- but does not exceed rs. 10 lacs, 25% of the bid amount shall be deposited immediately as first quarterly instalment. other quarterly instalments shall be deposited in advance on the date specified in the agreement.(iii) if the yearly bid amount exceeds rs. 10 lacs, it shall be recovered in twelve monthly instalments but the first instalment shall not be less than rs. 2.50 lacs and shall be deposited immediately. the remaining bid amount shall be deposited in eleven equal monthly instalments by 10th of each month in advance.(iv) if the yearly bid amount does not exceeds rs. 10 lacs, security deposit shall be 25% of the bid amount.(v) if the yearly bid amount exceeds rs. 10 lacs, security deposit shall be rs. 2.5 lacs or 12.5% of bid amount whichever is more.(vi) the security money shall be adjusted in the last instalment if the contract is completed without any lapse on part of the contractor.(vii)the highest bidder in the auction, shall be provisionally selected bidder for grant of the contract.provided that where the highest bidder fails to deposit the bid amount and/or security as mentioned in this clause, the second, highest bidder may be selected as provisionally selected bidder, if the bid amount of the amount highest held is not less than 10% of the bid amount of the first bidder.provided further that where the second bidder failed to deposit the amount of bid and/or security, the third highest bidder may be sleeted as provisionally selected bidder, if the bid amount of the third bidder is not less than 10% of the bid amount of the first bidder.(emphasis supplied)12. clause (g) provides that on completion of auction the result will be announced and provisionally selected bidder shall immediately deposited the security money and bid amount in advance as mentioned in its sub-clauses. first proviso of this clause provides that where the highest bidder fails to deposit the bid amount and/or security as mentioned in its sub-clauses, the second highest bidder may be selected as provisionaly selected bidder, if the bid amount of the second highest bidder is not less than 10% of the bid amount of the first bidder.13. second proviso provides that where the second bidder fails to deposit the amount of bid and/or security, the third highest bidder may be selected as provisionally selected bidder, if the bid amount of the third bidder is not less than 10% of the bid amount of the first bidder.14. clause (g) provides that the provisionally selected bidder shall immediately deposit the security amount and the bid amount. it does not speak that highest bidder shall immediately deposit the amount. it speaks that provisionally selected bidder shall deposit the amount. the provisionally selected bidder may be the first highest bidder, the second highest bidder or the third highest bidder, meaning thereby that the whole exercise has to be done immediately soon after the result of auction is pronounced. it can not be postponed for any other date. the word 'immediately' in clause (g) of rule 34 connotes and implies that the deposit should be made without undue delay and within such convenient time as is reasonably requisite for doing the thing same day with all convenient speed excluding the possibility of rendering the other associated corresponding act and performance of duty as nugatory. here the other associated corresponding act and duty cast upon the mining engineer conducting the auction as envisaged under clause (g) of rule 34 of the rules is to provisionally select second highest bidder on failure to deposit the amount by the first highest bidder and so on. the trial court misconstrued the clause (g) of rule 34 of the rules. according to the trial court the first highest bidder has to deposit the amount on the same day but the second highest bidder can deposit the amount later on. in my opinion the approach of the trial court was erroneous. further more, there is no provision under the rules that in case the first highest bidder fails to deposit the amount on the same day, a notice will go to the second highest bidder. according to my considered opinion the amount has to be deposited the same day by a person who is provisionally selected highest bidder. admittedly neither the plaintiff nor the defendant ram lal deposited the amount the same day. under such circumstances, royalty collection contracted can not be granted to any of them.15. the judgment delivered by this court and reported in vimla devi's case (supra) is not applicable to the facts of the present case. i do not agree with the submission of counsel for the petitioner that alternate remedy is provided under the mining rules and as such the jurisdiction of the civil court is barred. the lower appellate court has committed serious illegality in directing the mining engineer to give royalty collection contract to the plaintiff respondent. in my opinion the order passed by the lower appellate court deserves to be set-aside to this extent.16. consequently, i allow the revisions in part, set-aside the order of the lower appellate court directing the mining engineer to give royalty collection contract to the plaintiff- non- petitioner but maintain the order of the said court, by which it restrained the mining engineer for giving royalty collection contract to the defendant ram lal. the mining engineer is directed to re-auction the royalty collection contract in accordance with the mining rules.
Judgment:

R.S. Kejriwal, J.

1. The aforesaid revisions have been directed against the order dated 8.3.1996, passed by learned Additional District Judge No. 2, Alwar, reverising the order dated 14.2.1996, passed by Civil Judge (Junior Division) Alwar, and allowing the application of temporary injunction filed by the plaintiff-non-petitioner.

2. The brief relevant facts of the case are that the auction for grant of royalty collection contract took place on 30.1.1996. The plaintiff-non-petitioner Ramanand gave a bid of Rs. 3,50,000/- which was the highest. The Mining Engineer accepted the same and asked the plaintiff-non-petitioner to deposit 25% of the bid amount and security amount. The amount was not deposited by the plaintiff-non-petitioner on the same day. On 31.1.1996, the plaintiff- non-petitioner, on the opening of the office, submitted an application to the Mining Engineer for depositing the amount of Rs. 1,75,000/- but the Mining Engineer refused to deposit the amount. Under such circumstances the plaintiff-non-petitioner sent a telegram in this connection to the Mining Engineer on the same day. On the same day the Mining Engineer gave a notice to the defendant-petitioner Ram Lal for depositing 25% amount of his bid, as his bid was the second highest and security amount. This notice was received by defendant Ram Lal the same day. He deposited the amount on the next day i.e. on 1.2.1996. On 2.2.1996, the plaintiff-non-petitioner filed a suit for injunction against the State of Rajasthan and the Mining Engineer, Alwar. He also filed an application under Order 39 Rules 1 and 2 read with Section 151 C.P.C.

3. Later on Ram Lal was also impleaded as defendant in the suit. The Civil Judge, Junior Division and Judicial Magistrate, Alwar, vide his order dated 14.2.1996, dismissed the application submitted by the plaintiff-non-petitioner. The plaintiff-non- petitioner filed an appeal, which was allowed by learned Additional District Judge No. 2, Alwar, vide order dated 8.3.1996. Against this order, the defendant Ram Lal has filed Civil Revision No. 458/1991 and the State of Rajasthan and the Mining Engineer, Alwar, have filed Civil Revision No. 708/96.

4. Mr. Ranjan, counsel for the defendant-petitioner submits that the Lower Appellate Court committed serious illegality in setting-aside the order of trial court which was neither perverse nor capricious. He submits that on this ground the revision deserves to be allowed. In support of his arguments, he placed reliance on a judgment of this Court, reported in Smt. Vimla Devi v. Jang Bahadur 1977 RLW 326.

5. His second submission is that efficacious alternate remedy is available to the plaintiff-non-petitioner under the Rajasthan Mining Mineral Concession Rules, 1986 (hereinafter referred to as the 'Rules'). He submits that the plaintiff can be awarded compensation and as such no injunction can be granted against the defendants.

6. His third submission is that no injunction in the mandatory form can be granted at interlocatory stage. He also submits that as the application of the plaintiff non-petitioner for interlocatory/mandatory injunction was rejected by the trial court, the plaintiff-non-petitioner should have filed a revision. The appeal submitted by him was not maintainable. He further submits that the plaintiff has no prima-facie case. The learned Additional District Judge No. 2, Alwar, exceeded his jurisdiction in setting-aside the order of the trial court.

7. Mr. K.K. Sharma, counsel for the State of Rajasthan & Mining Engineer, Alwar, supported the contention of Mr. Ranjan. He further submits that the bid of the plaintiff was accepted on 30.1.1996, under Clause (g) of Rule 34 of the Rules. He was required to deposit 25% amount of the bid and the security amount immediately after the bid was accepted. The plaintiff-non- petitioner failed to deposit the amount on 30.1.1996. Under these circumstances the second highest bidder Shri Ram Lal was called and he deposited the amount as per rules. He submits that the word 'immediately' has been defined in Black's Law Dictionary which means 'without interval of time' or without any delay or lapse of time'. He prayed that the revision be accepted, the order of the Additional District Judge No. 2, Alwar, be set-aside and the order of the trial Court be maintained.

8. On the other hand, Shri B.K. Agarwal, counsel for the plaintiff-non-petitioner submits that the order of the trial Court was perverse and as such the Additional District Judge No. 2, Alwar, was justified in setting-aside the same. The authority reported in Vimla Devi's case (supra) is not applicable to the facts of the present case. He submits that on account of misconstruction of Rule 34(g) of the Rules, the bid in favour of the plaintiff-non-petitioner has been cancelled by the Mining Engineer. The petitioner approached the Mining Engineer on 31.1.1996, for depositing the amount but the Mining Engineer refused to accept the amount. Under these circumstances, he submitted an application to the Mining Engineer on the same day and also gave a telegram. The telegram was also received by the Mining Engineer on the same day. Under these circumstances his submission is that the Mining Engineer should have accepted the amount which was offerred without any delay. He submits that the case of defendant Ram Lal before the trial court was that the amount can be deposited on the next day but as the plaintiff did not deposit the amount on the next day and as such the defendant Ram Lal was called for depositing the amount. He submits that the word 'immediately does not mean the same day but within reasonable time. He further submits that if the word immediately means the same day, the defendant Ram Lal also did not deposit the amount the same day but deposited the amount on 1.2.96. As such the amount of Ram Lal should not have been accepted and he should not have been granted royalty collection contract. Further more the bid of Shri Ram Lal was only for Rs. 3,40,000/-. The State Government has also suffered financial loss. This aspect was not taken into consideration by the trial court. He submits that remedy under the rules is not appropriate remedy. The jurisdiction of the Civil Court is not barred. The plaintiff submitted his application both for prohibitory and mandatory injunction and as such the appeal filed against the order passed by the trial court was maintainable. He also cited certain judgments.

9. I heard counsel for the parties and gone through the record, and the judgments on which reliance has been placed by counsel for the parties.

10. It is not in dispute that auction for royalty collection contract took place on 30.1.1996, and the bid of the plaintiff non-petitioner was the highest. It is also not in dispute that the plaintiff non-petitioner did not deposit the amount the same day. He approached the Mining Engineer the next day i.e. 31.1.1996, and requested him to accept the amount and when he refused to accept the amount he submitted an application and also gave a telegram the same day. It is also not in dispute that the Mining Engineer served a notice on the defendant Ram Lal on the same day for depositing l/4th amount of his bid and security amount. The notice was received by Ram Lal at about 5.00 p.m. the same day as admitted by him and he deposited the l/4th amount of his bid and security amount on 1.2.1996. The suit was filed on 2.2.1996. In the application submitted under Order 39 rules 1 and 2 read with Section 151 C.P.C. the plaintiff-non-petitioner prayed not only for mandatory injunction but also prohibitory injunction. That application was rejected by the trial court. As the application was both for mandatory and prohibitory injunction, in my opinion a miscellaneous appeal was maintainable.

Clause (g) of Rule 34 of the rules reads as below:

(g) On completion of auction, the result will be announced & provisionally selected bidder shall immediately deposit the security money and bid amount in advance as under:

(i) If the yearly bid amount does not exceed Rs. 10000/- it shall be immediately deposited in full.

(ii) If the yearly bid amount exceeds Rs. 10000/- but does not exceed Rs. 10 lacs, 25% of the bid amount shall be deposited immediately as first quarterly instalment. Other quarterly instalments shall be deposited in advance on the date specified in the agreement.

(iii) If the yearly bid amount exceeds Rs. 10 lacs, it shall be recovered in twelve monthly instalments but the first instalment shall not be less than Rs. 2.50 lacs and shall be deposited immediately. The remaining bid amount shall be deposited in eleven equal monthly instalments by 10th of each month in advance.

(iv) If the yearly bid amount does not exceeds Rs. 10 lacs, security deposit shall be 25% of the bid amount.

(v) If the yearly bid amount exceeds Rs. 10 lacs, security deposit shall be Rs. 2.5 lacs or 12.5% of bid amount whichever is more.

(vi) The security money shall be adjusted in the last instalment if the contract is completed without any lapse on part of the contractor.

(vii)The highest bidder in the auction, shall be provisionally selected bidder for grant of the contract.

Provided that where the highest bidder fails to deposit the bid amount and/or security as mentioned in this clause, the second, highest bidder may be selected as provisionally selected bidder, if the bid amount of the amount highest held is not less than 10% of the bid amount of the first bidder.

Provided further that where the second bidder failed to deposit the amount of bid and/or security, the third highest bidder may be sleeted as provisionally selected bidder, if the bid amount of the third bidder is not less than 10% of the bid amount of the first bidder.

(Emphasis supplied)

12. Clause (g) provides that on completion of auction the result will be announced and provisionally selected bidder shall immediately deposited the security money and bid amount in advance as mentioned in its sub-clauses. First proviso of this clause provides that where the highest bidder fails to deposit the bid amount and/or security as mentioned in its sub-clauses, the second highest bidder may be selected as provisionaly selected bidder, if the bid amount of the Second highest bidder is not less than 10% of the bid amount of the first bidder.

13. Second proviso provides that where the second bidder fails to deposit the amount of bid and/or security, the third highest bidder may be selected as provisionally selected bidder, if the bid amount of the third bidder is not less than 10% of the bid amount of the first bidder.

14. Clause (g) provides that the provisionally selected bidder shall immediately deposit the security amount and the bid amount. It does not speak that highest bidder shall immediately deposit the amount. It speaks that provisionally selected bidder shall deposit the amount. The provisionally selected bidder may be the first highest bidder, the second highest bidder or the third highest bidder, meaning thereby that the whole exercise has to be done immediately soon after the result of auction is pronounced. It can not be postponed for any other date. The word 'immediately' in Clause (g) of Rule 34 connotes and implies that the deposit should be made without undue delay and within such convenient time as is reasonably requisite for doing the thing same day with all convenient speed excluding the possibility of rendering the other associated corresponding act and performance of duty as nugatory. Here the other associated corresponding act and duty cast upon the Mining Engineer conducting the auction as envisaged under Clause (g) of Rule 34 of the Rules is to provisionally select second highest bidder on failure to deposit the amount by the first highest bidder and so on. The trial court misconstrued the Clause (g) of Rule 34 of the Rules. According to the trial court the first highest bidder has to deposit the amount on the same day but the second highest bidder can deposit the amount later on. In my opinion the approach of the trial Court was erroneous. Further more, there is no provision under the rules that in case the first highest bidder fails to deposit the amount on the same day, a notice will go to the second highest bidder. According to my considered opinion the amount has to be deposited the same day by a person who is provisionally selected highest bidder. Admittedly neither the plaintiff nor the defendant Ram Lal deposited the amount the same day. Under such circumstances, royalty collection contracted can not be granted to any of them.

15. The judgment delivered by this Court and reported in Vimla Devi's case (supra) is not applicable to the facts of the present case. I do not agree with the submission of counsel for the petitioner that alternate remedy is provided under the Mining Rules and as such the jurisdiction of the Civil Court is barred. The Lower Appellate Court has committed serious illegality in directing the Mining Engineer to give royalty collection contract to the plaintiff respondent. In my opinion the order passed by the Lower Appellate Court deserves to be set-aside to this extent.

16. Consequently, I allow the revisions in part, set-aside the order of the Lower Appellate Court directing the Mining Engineer to give royalty collection contract to the plaintiff- non- petitioner but maintain the order of the said Court, by which it restrained the Mining Engineer for giving royalty collection contract to the defendant Ram Lal. The Mining Engineer is directed to re-auction the royalty collection contract in accordance with the Mining Rules.