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SATYEN VAIDYA, J. –

By way of instant petition, the petitioner has prayed for quashing of communication dated 07.11.2023 (Annexure P-4) issued by 4th respondent whereby the tender awarded in favour of petitioner on 17.01.2023 was cancelled. The petitioner has also sought directions for revival of award dated 17.01.2023 (Annexure P-3) in his favour.

2. Brief facts necessary for adjudication of petition are that respondent No.4 invited bids for grant of a shop in District Ayurvedic Hospital, Una for sale of medicines. The last date for submission of bids was 16.01.2023 and bids were to be opened on 17.01.2023 at 2.30 P.M. Petitioner participated in the aforesaid process. His offer to pay rent @ Rs.1,65,500/- per month was accepted vide letter dated 17.01.2023 (Annexure P-3).

3. One Shri Sandeep Kashyap challenged the award of tender in favour of petitioner by way of CWP No. 602 of 2023 before this Court inter alia on the ground that the petitioner was a defaulter and had been black listed.

4. During the pendency of CWP No. 602 of 2023 the 4^th respondent issued impugned communication Annexure P-4 dated 07.11.2023, on the basis of said communication learned Single Judge disposed of CWP No. 602 of 2023 vide order dated 08.11.2023 in following terms:-

“4. Taking into consideration the fact that the auction process/tender, which was the subject matter of the present writ petition, now stands rescinded, this petition has lost its efficacy and the same is according closed.

5. It is goes without saying that in case respondent-Department intends to auction the shop in issue, afresh, then the same be done expeditiously. Needless to say that the private respondent is at liberty to challenge the order of rescinding the process, if so advised.”

5. Thereafter, the petitioner has filed this petition for the reliefs as noticed above.

6. The petitioner has assailed the impugned communication dated 07.11.2023 on the ground being arbitrary and illegal. It has been contended that the impugned communication dated 07.11.2023 did not reflect any adverse circumstance against the petitioner and thus, the vested rights of the petitioner have been prejudiced that too without adherence to the principle of natural justice.

7. The respondents have filed their reply and have admitted that the tender was awarded in favour of petitioner on 17.01.2023 and the petitioner had deposited an amount of Rs.1,98,600/- on 20.01.2023. It is submitted that on 21.01.2023 one Shri Sandeep Kashayap had submitted a complaint to 5th respondent alleging that the petitioner had been declared defaulter by SDO (Civil), Una and was not eligible to submit his bid in pursuance to the offer inviting bids floated by 4^th respondent. It is further submitted that in pursuance to said complaint, clarification was sought from 3rd respondent, who vide communication dated 31.01.2023 had confirmed that the petitioner had been black listed.

8. We have heard learned counsel for the parties and have also gone through the entire record carefully.

9. The notice inviting tender Annexure P-1 and the award of tender in favour of petitioner vide Annexure P-3 stood cancelled vide impugned communicated dated 07.11.2023, Annexure P-4, on the following grounds:-

(i) Due to pendency of CWP No. 602 of 2023 in this Court; and

(ii) The shop had previously been let out to M/s Anand Medical Store @ Rs.14,000/- per month whereas by way of new tender the shop had been allotted @ Rs.1,65,000/- per month and in this manner Rogi Kalyan Samiti, District Ayurvedic Hospital, Una was suffering loss of Rs.1,50,000/- per month.

10. Evidently, the cancellation of the tender was not for the reason that the petitioner allegedly was a defaulter or had been black listed. It being so, it does not lie in the mouth of the respondents to contest the claim of the petitioner by terming him as black listed, when such ground was not the reason for cancellation of tender. Reference can be made to the celebrated judgment of Hon’ble Supreme Court in the case of Mohinder Singh Gill & Anr. vs. The Chief Electoral Commissioner, New Delhi and others, (1978)1 SCC 405 of which the following paragraphs deserve extraction:-

“8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji, AIR 1952 SC 16:-

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."

Orders are not like old wine becoming better as they grow older.

A Caveat.

9. We must, in limine, state that-anticipating our decision on the blanket ban on litigative interference during the process of the election, clamped down by Article 329(b) of the Constitution-we do not propose to enquire into or pronounce upon the factual complex or the (1) A.I.T. 1952 S.C. 16. lesser legal tangles, but only narrate the necessary circumstances of the case to get a hang of the major issues which we intend adjudicating. Moreover, the scope of any actual investigation in the event of controversion in any petition under Article 226 is ordinarily limited and we have before us an appeal from the High Court dismissing a petition under Article 226 on the score that such a proceeding is constitutionally out of bounds for any court, having regard to the mandatory embargo. in Article329(b). We should not, except in exceptional circumstances, breach the recognised, though not inflexible, boundaries of Article 226 sitting in appeal, even assuming the maintainability of such a petition. Indeed, we should have expected the High Court to have considered the basic jurisdictional issue first, and not last as it did, and avoided sallying forth into a discussion and decision on the merits, self-contradicting its own holding that it had no jurisdiction even to entertain the petition. The learned Judges observed :

"It is true that the submission at serial No. 3 above in fact relates to the preliminary objection urged on behalf of respondents 1 and 3 and should normally have been dealt with & St but since the contentions of the parties on submission No. 1 are inter-mixed with the interpretation of Article 329(b) of the Constitution, we thought it proper to deal with them in the order in which they have been made."

This is hardly a convincing alibi for the extensive per incuriam examination of facts and law gratuitously made by the Division Bench of the High Court, thereby generating apprehensions in the appellant's mind that not only is his petition not maintainable but he has been damned by damaging findings on the merits. We make it unmistakably plain that the election court hearing the dispute on the same subject under section 98 of the R.P. Act, 1951 (for short, the Act) shall not be moved by expressions of opinion on the merits made by the Delhi High Court while dismissing the writ petition. An obiter binds none, not even the author, and obliteration of findings rendered in supererogation must alley the appellant's apprehensions. This Court is in a better position than the High Court, being competent, under certain circumstances, to declare the law by virtue of its position under Article 141. But, absent such authority or duty, the High Court should have abstained from its generosity. Lest there should be any confusion about possible slants inferred from our synoptic statements, we clarify that nothing projected in this judgment is intended to be an expression of our opinion even indirectly. The facts have been set out only to serve as a peg to hang three primary constitutional issues which we will formulate a little later.”

11. Even otherwise, the respondents have not been able to substantiate their plea that the petitioner had been black listed. Though, reliance has been placed on document Annexure R-1, however, from perusal of the contents thereof, no inference in support of such contention can be drawn. Rather, the specific stand of the third respondent in CWP No. 602 of 2023 was that the petitioner had neither been declared defaulter nor black listed as claimed by the petitioner in the said petition.

12. In light of what has been discussed above, we have no hesitation to hold that the impugned communication, Annexure P-4, was arbitrarily issued. It did not mention any reason adverse to the petitioner. Petitioner could not be punished for a writ petition filed by a third person. Similarly, the loss suffered by the respondents by not being able to let out the shop to the petitioner was on account of their own defaults and the petitioner again could not be blamed for the same.

13. Thus, we allow the petition and quash the communication dated 07.11.2023, Annexure P-4, being arbitrary and hence violative of Articles 14 of the Constitution. The bids invited vide Annexure P-1 were for the year 2023-24 only, with a stipulation that the period could be extended by two years at the option of the respondents. The condition of extension of period being contingent cannot be taken into consideration, therefore, the period for which the bids were invited has already elapsed and for such reason second relief as prayed by the petitioner cannot be granted. We, however, find it to be a fit case to burden the respondents with costs of Rs.2,00,000/- (Rupees Two Lacs only) to be paid to the petitioner for compensating him for the loss caused to him without justifiable reason.

14. Accordingly, the instant petition is disposed of in above terms. Pending applications, if any, also stand disposed of.

Order accordingly.

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