Silence Amounts To Aceptance

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CWP No. 11367 of 2011
Jafar Khan v. Distt. Audit Officer-cum-Liquidator
2019 SCC OnLine HP 1269
In the High Court of Himachal Pradesh at Shimla

(BEFORE TARLOK SINGH CHAUHAN, J.)
Jafar Khan .…. Petitioner;

v.
Distt. Audit Officer-cum-Liquidator and Another .…. Respondents.
CWP No. 11367 of 2011
Decided on August 13, 2019, [Judgment reserved on: 08.08.2019]
Advocates who appeared in this case :
For the Petitioner: Mr. Ajit Sharma and Mr. Prashant Sharma, Advocates.
For the Respondents: Mr. K.B. Khajuria, Advocate, for respondent No. 1.
None for respondent No. 2.
The Judgment of the Court was delivered by
TARLOK SINGH CHAUHAN, J.:— The petitioner was one of the prospective buyers in
an auction that the proceedings whereof were eventually finalized in favour of
respondent No. 2 and aggrieved thereby has filed the instant petition for the grant of
following substantive relief:
“That the bid finalized in favour of respondent No. 2 pursuant to the auction
having taken place on 3.8.2011 with regard to the property referred to in auction
notice dated 22.7.2011 published in the local news paper annexed as Annexure P-1
may kindly be quashed and set-aside and the respondent No. 1 be directed to
conduct fresh auction of the property in question in accordance with law and
established procedure as approved by law.”
2. Brief facts giving rise to the filing of the present writ petition are that the auction
notice was published in the local newspaper on 22.07.2011 inviting tenders for sale of
properties mentioned therein that were belonging to the ‘Govind Sagar Matasya
Sahakari Vipanan Avam Apurti Sang Ltd., Bilaspur, District Bilaspur’.
3. Auction notice (Annexure P-1) reads as under:
“Translated copy of Annexure P-1
AUCTION NOTICE
It is hereby informed to the general public that the Govind Sagar fisheries
Cooperative M&S Federation Limited Bilaspur (H.P.) has decided to put to auction
property situate on land measuring 1033 sq feet constituting two storied building
with an ice plant and machinery and a shop on ‘as and where’ basis through
sealed/open bids. The Deputy Commissioner has issued the requisite permission
vide letter No. BLS-RRB-7(58)-26574 dated 30-06-2011 for the same.
The bid shall reach the office of the undersigned on or before 2-08-2011 by 5 PM
(BY HAND). The same shall be opened before the Asstt. Registrar, Co-operative
Societies, Bilaspur on 3rd August, 2011 at 11 AM after the open bid is over. The
Committee shall have the right to accept or reject the binds on the following terms
and conditions:
1. Every bidder shall at the time of tender/open auction deposit earnest amount
of Rs. 50,000/- by way of draft in the name of the Department. This amount
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shall be adjusted towards the final payment else shall be returned. The bids
shall be opened in the presence of all the bidders and the highest bidder shall
deposit the 25% of the highest bid on spot.
2. That if any bidder wants to inspect the property can contact Sh. Shyam Lal
Sharma on his mobile number 9318743536 from 11.00 am to 4.00 pm on any
working day.
3. If the bidder is non-Himachali or non-agriculturist then shall seek permission
under Section 118 of the Land Tenancy and Land Reform Act and the bidder
falling under this category shall have to deposit 90% of the highest bid
amount on the spot and remaining 10% when he takes over the possession.
4. If the highest bidder recuses from the highest bid the earnest money shall
stand forfeited.
5. All the other conditions and information shall be informed at the time of open
auction and tender.
SIGNED
Distt. Audit Officer-cum-Liquidator, The Govind Sagar Fisheries Cooperative, M&S
Federation LTD., Distt. Bilaspur (H.P.).”
4. Quotation rate (Annexure P-2) reads thus:
“No. 2 dated 30-07-11
Cost Rs. 500/- (Non-refundable)
OFFICE OF THE DISTRICT AUDIT OFFICER-CUMLIQUIDATOR, THE GOVIND
SAGAR FISHERIES COOP. M&S FEDERATION, LTD., BILASPUR, DISTT. BILASPUR
(HIMACHAL PRADESH).
PRICE SCHEDULE FOR PARTICIPATING IN AUCTION
(To be filled by the tenderer)
(While filling up this schedule the contractors are requested to go through
detailed conditions of the NIT)
Earnest Money: Rs. 50,000/- (Rupees Fifty Thousand)
From:
JAFAR KHAN
s/o Sh. Beer Din, r/o
Rouara Sector, Bilaspur (H.P.).
To
The District Audit Officer-cum-Liquidator,
The Govind Sagar Fisheries Coop. M&S Federation, Ltd; Bilaspur, Distt. Bilaspur
(H.P.).
Subject: Quotations/rates for sale of land, building, Plant and Machinery.
Sir,
Reference tender No. 2 Dated 30-07-11.
I/We quote rates with reference to above mentioned NIT No.
Sr. No. Description Quantity Area Rate Amount
of items
1. Land of Plot -- 1033 Sqr. -- ---
at Meat Feet
Market
Bilaspur,
Khasra No.
21/01
2. 1 Shop 1 (as is, 86.08 Sqr. 11,50,700/ 11,50,700/
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where is Mtrs. - -
basis)
3. Ice Plant -do- 145.39 Sqr. -- --
Mtrs.
4. Compressor, -do- -- 1,81,500/- 1,81,500/-
condenser
and allied
fittings with
paneling
and pipe
line
Name of the Tenderer
Address
JAFAR KHAN
S/o Sh. Beer Din
Rouara, Sector-3
BILASPUR (HP)”
5. The grievance of the petitioner is that property was put to sale on 03.08.2011
and instead of being auctioned separately, were auctioned as one composite unit,
whereas, the petitioner as per the tender form had only applied for items No. 2 and 4
i.e. one shop and compressor, condenser and allied fittings with panelling and pipe
line, but respondent No. 1 allowed respondent No. 2 to make composite bid, which
resulted in low price being fetched for the property and, therefore, an undue favour
has been shown in favour of respondent No. 2.
6. Respondent No. 1 has contested the petition by filing reply wherein preliminary
objections regarding suppression of material facts, estoppel etc. have been taken. On
merits, it is averred that the auction of the entire property was done through an open
bid, so that the same may have fetched highest price.
7. Likewise, respondent No. 2 has also contested the petition by filing separate
reply where preliminary objections regarding non-joinder of necessary party, estoppel
etc. have been raised. These objections have further been elaborated in reply on
merits and the same need not be referred at this stage.
8. I have heard the learned counsel for the parties and gone through the records of
the case.
9. A perusal of the quotation rate (Annexure P-2) undoubtedly reveals that four
properties have been mentioned therein. But, there is nothing in the auction notice
(Annexure P-1) to suggest that each of these properties was to be sold separately.
10. In case, the petitioner was really serious in bidding for two items, then he
would have definitely offered a bid, but the records reveal that no bid was made by
the petitioner despite his being present there. All the proceedings took place in front
of the petitioner, yet he never objected to the same. Having participated in the
proceedings (though not bidding) with his eyes wide open, the petitioner cannot now
turn around and question the bidding process.
11. What is more intriguing is that it took more than four months to the petitioner
to approach this Court which casts a serious doubt on his bonafides.
12. It is an old saying that “silence amounts to acceptance”. Long period of silence
and inaction on the part of the petitioner amounts to acquiescence and estoppel, more
particularly, when there is no explanation for his long silence.
13. Lastly, it would be noticed that the petitioner did not participate in the auction,
but the bid quoted by him for items No. 2 and 4 was barely Rs. 11,50,700/- and Rs.
1,81,500/-, respectively, whereas, respondent No. 2 gave the highest bid of Rs.
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35,00,100/- for the entire items No. 1 to 4.

14. Now, in case, the petitioner was really serious and bonafide in bidding, then he
at the time when the case came up before this Court, for the first time, on 22.12.2011
could have conveniently stated that he is ready to offer the higher price than offered
by respondent No. 2 and such offer could have been put-forth even at any such
subsequent date thereto, but the petitioner failed to do so.
15. Though, its altogether a different question whether the bid at that stage could
have been considered, but nonetheless, it would have reflected upon the bonafides of
the petitioner.
16. In view of the aforesaid discussion, there is no merit in this writ petition and
the same is accordingly dismissed, leaving the parties to bear their own costs. Pending
application, if any, also stands disposed of.
———
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SCC Online Web Edition, © 2022 EBC Publishing Pvt. Ltd.

Page 1 Monday, June 06, 2022

CWP No. 11367 of 2011

Jafar Khan v. Distt. Audit Officer-cum-Liquidator

2019 SCC OnLine HP 1269

In the High Court of Himachal Pradesh at Shimla

Jafar Khan .…. Petitioner;

35,00,100/- for the entire items No. 1 to 4.

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