Delhi District Court
Municipal Corporation Of Delhi vs M/S Everest Enterprises Pvt. Ltd on 25 August, 2007
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IN THE COURT OF SMT. PINKI
ADDITIONAL DISTRICT JUDGE DELHI
MCA 48/07
IN THE MATTER OF:
MUNICIPAL CORPORATION OF DELHI
THROUGH ITS COMMISSIONER,
TOWN HALL, CHANDNI CHOWK,
DELHI - 110007. .....PETITIONER
VERSUS
M/S EVEREST ENTERPRISES PVT. LTD.,
REGD OFFICE-2ND FLOOR, E-46/12,
OKHLA INDUSTRIAL AREA,
NEW DELHI,
THROUGH ITS DIRECTOR
SH. ANKUR .....RESPONDENT
DELHI DEVELOPMENT AUTHORITY,
THROUGH ITS VICE-CHAIRMAN,
VIKAS SADAN,
NEW DELHI .........NON CONTESTING /
PROFORMA RESPONDENT
DATE OF INSTITUTION: 08.06.2007
DATE OF RESERVING THE ORDER: 06.08.2007
DATE OF ORDER: 25.08.2007
Contd.....
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ORDER
1. Aggrieved by order dated 02.06.2007 passed by Ld. Civil Judge the appellant/defendant/MCD has filed the present appeal on 04.06.2007 during summer vacation and received by way of assignment in this court on 02.07.2007.
2. I have heard Ms. Madhu Tewatia, Advocate Ld. counsel for appellant/defendant/MCD and Sh. Viraj R. Dattar, Advocate Ld. counsel for respondent/plaintiff and carefully perused the record. I have carefully perused the trial court record as well as the impugned order. I have given my considerable thought to the submissions putforth by learned counsel for parties and I have carefully perused the authorities cited at bar.
3. The respondent/plaintiff/Everest Enterprises Pvt. Ltd. was assigned work order vide letter no.
Contd.....
-3-264/VO(HQ)/2005 dated 22.07.2005 from Veterinary Officer, Head Quarter, MCD following directions of the Hon'ble High Court of Delhi dated 13.07.2005 in Civil Writ Petition no. 3791/2000 titled Common Cause Society. Vs. UOI & Others for the work relating to providing of micro chips to the cattle which shall be put either for auction or for deportation to Gosadans at the rate of Rs. 500/- per cattle. The micro chips were also to be provided in the cattle available in different Gosadans in Delhi in order to have proper identification. These micro chips have the details in respect of bidders / cattle ID Number/ address etc. in case of auction cattle while name of Gosadans concerned/cattle ID Number etc. in case of cattle is deported to Gosadans in Delhi.
4. It was with the object that it will help to detect easily the status of the cattle if the same was earlier seized has again being brought back by anyone and kept in Delhi and/or released from the Gosadans besides certification of cause of death of the cattle in the Gosadans by the Zonal Veterinary Contd.....
-4-Officers of the Narela and Najafgarh Zones of the MCD in respect of Gosadans falling within the jurisdiction of these two Municipal Zones against ID numbers of the cattle.
5. Respondent/plaintiff was requested to deploy their representatives at the Baprola Municipal Cattle Pond as well as in each of the gosadans for the purposes of inserting micro chip for the cattle from 27.07.2005. Payment was to be made against billing after proper verification. This letter dated 22.07.2005 copy of which has been placed on page- 659 of the trial court record, had been issued with the prior approval of the Commissioner, MCD.
6. As per resolution no. 799 dated 30.03.2006 copy of which is on page 665 of the trial court record the work was for the period from 27.07.2005 to March, 2006. The resolution also mentions that the cattle which were standing and available in the various Gosadans in Delhi have also been got identified through micro chips. The rates and agency for the Contd.....
-5-next year has to be decided through tender. This resolution no. 799 item no. 18 is with reference to Commissioner's Letter No. F33/DO/1803/C&C dated 28.02.2006.
7. It is also clear that the work order dated 22.07.2005 was not by means of tendering process. It was a step towards containing problem of stray cattle and removal of illegal dairies. After that the plaintiff/ respondent continued the work. The correspondence was exchanged between the parties.
8. The Additional Commissioner, Health and Revenue passed order dated 28.09.2006 for carrying out survey by the Zonal Veterinary Officers alongwith respondent/plaintiff to verify 1377 illegal dairies running in the Urban areas who have booked dairy plots at the Ghoga Dairy Colony. This order mentions direction of Commissioner that Administrative Officers of the Zone shall also participate in this survey as one of the team members. They were directed to Contd.....
-6-associate themselves with Veterinary Officer and respondent/ plaintiff. Copy of this letter is on page 667 of the trial court record.
9. Copy of letter dated 29.09.2006 from Veterinary Officer, Head Quarter is on page 669 of the trial court record which is addressed to respondent / plaintiff requesting to ensure their representative to report regularly to the Zonal Veterinary Officers of every Municipal Zone of MCD from 30.09.2006 till the survey is accomplished.
10. Letter dated 04.10.2006 from Veterinary Officer, Head Quarter has further requested the respondent/plaintiff to ensure their representative to report immediately to the Zonal Veterinary Officers on regular basis under intimation to the Department. It has been mentioned as top priority. Copy of this letter is on page 671 of the trial court record.
11. The meeting notice dated 12.10.2006 from Veterinary Officer, Head Quarter is pertaining to Contd.....
-7-meeting dated 16.10.2006 in order to discuss issue pertaining to verification of illegal dairies (owners of whom have booked dairy plots under Ghoga Dairy Colony Project of the MCD). It has been for the Director of respondent / plaintiff also to attend the meeting. The copy of letter dated 08.12.2006 from Director Veterinary Services addressed to Director of respondent / plaintiff is placed on page 675 of the trial court record which mentions regarding furnishing of data pertaining to identification of rounded up cattle through micro chips as well as verification of mortality of cattle in the various Gosadans/Gaushalas. In this letter it has been mentioned regarding letter no. 115/VO(HQ)/2006 dated 12.05.2006 to continue the work relating to identification of rounded up cattle through micro chips at the existing approved rate of Rs. 500/- per cattle per micro chip plus Rs. 200/- per visit per site (Baprola Municipal Cattle Pond/ Gosadans/Gaushalas in Delhi) towards conveyance charges. This letter also mentions that the respondent/ plaintiff is supposed to furnish the data Contd.....
-8-pertaining to number of cattle so far identified through micro chips as well as details pertaining to mortality of cattle in each and every Gosadans/Gaushalas so that department could be aware as well as able to reconcile the records. The respondent/plaintiff was requested to furnish the data as well as separate CDs. The data which was asked far from the respondent was:
(a) Number of cattle so far identified by the respondent from July, 2005 onwards in Gosadans/Gaushalas date and month wise,
(b) Number of Cattle identified by respondent through micro chips so far which have been auctioned to the bidders at the Baprola Municipal Cattle Pond date and month wise, and
(c) Details pertaining to the mortality of cattle in Gosadans/Gaushalas date and month wise.
12. A copy of letter dated 15.12.2006 from Veterinary Officer, Head Quarter addressed to Director respondent has been placed on page 677 of the trial court record. As per that reference of letter dated 11.12.2006 of the respondent/ plaintiff has Contd.....
-9-been made. As per that letter respondent/ plaintiff all the relevant information had already been submitted alongwith bills in the office of Veterinary Officer, Head Quarter from time to time since the inception of the project. The letter dated 15.12.2006 mentions that it is not correct and as a matter of fact perusal of record reveals that no CDs containing the requisite information have been furnished to the office of Veterinary Officer, Head Quarter. The respondent had been again requested to furnish the requisite information alongwith separate CDs / soft copies to the department.
13. Yet another letter dated 25.01.2007 from Veterinary Office, Head Quarter addressed to Director of respondent / plaintiff has been placed on record. Copy of this letter is on page 679 of the trial court record. Vide this letter certain bills have been returned to respondent due to the reasons mentioned in those letters. Certain reasons mentioned are "bill is not verified for payment from the respective Zonal Veterinary Officers of the Contd.....
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Municipal Zones and is having just non verified rubber stamp on account of Veterinary Officer (RZ) etc. The bill has also not been pre-receipt on behalf of respondent/plaintiff''. The objection is for raising the bill under the signature of director of respondent / plaintiff etc.
14. The communication dated 29.01.2007 from Veterinary Officer, Head Quarter mentions regarding auctioning of impounded buffaloes and their progeny including identification of rounded up cows and their progeny through micro chips and Timarpur Municipal Cattle Pond. Copy of this is on page 681 of the trial court record.
15. Letter dated 05.02.2007 from Veterinary Officer, Head Quarter addressed to director of respondent/plaintiff is on page 683 of the trial court record which refers to letter dated 08.12.2006 and 15.12.2006 requesting respondent / plaintiff to furnish information alongwith separate CDs alongwith soft copies of data. As per this letter nothing has been Contd.....
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heard so far. The respondent had been once again requested for furnishing the requisite information alongwith soft copies and CDs. This letter also mentions that no CDs containing the requisite data have been furnished in the office of Veterinary Officer, Head Quarter.
16. Again letter dated 09.02.2007 was issued by Veterinary Officer, Head Quarter which has been addressed to the director of respondent/plaintiff. Copy of the same is on page 685 of the trial court record. This also mentions regarding letter dated 07.02.2007 from respondent/plaintiff vide which it was stated that respondent shall not be carrying out dairy mortality verification in Gosadans/Gaushalas from 09.02.2007 due to non payment of dues. In letter dated 09.02.2007 the Veterinary Officer,Head Quarter had mentioned for providing details of the work done by respondent/ plaintiff for which they have already received the payment from MCD including furnishing of information alongwith separate CDs / soft copies of the data to the MCD.
Contd.....
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17. The circular dated 22.02.2007 from Veterinary Officer, Head Quarter has been placed on page 689 of the trial court record. It mentions regarding proper identification of the rounded up bulls (checking reappearance thereof on the roads of Delhi including proper verification of their mortality, against the identification numbers contained in the micro chips), the rounded up bulls (including bulls which are presently available in the Gosadans/Gaushalas) be identified by micro chips through respondent/ plaintiff at the existing approved rate of Rs. 500/- per bull. This circular has been issued under the approval of Commissioner MCD and order is with effect from 01.03.2007.
18. The communication dated 28.02.2007 from Veterinary Officer, Head Quarter addressed to director of respondent/plaintiff, is also on record on page 691 of trial court record. As per this communication also it has been mentioned that the requisite information and CDs and soft copies have Contd.....
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not been received. This communication has also mentioned that five bills of the respondent were found in order amounting to Rs. 14,21,300/- which have been processed for payment out of which payment of Rs. 4,84,698/- has already been made. Three bills amounting to Rs. 4,07,400/- were incomplete and have been returned for completing in all respects. This communication also mentioned that until and unless the requisite information alongwith CDs and soft copies are made available by respondent / plaintiff the MCD shall not be able to clear the bills and release the payments.
19. The communication dated 22.03.2007 from Veterinary Officer, Head Quarter is also for asking the respondent / plaintiff to furnish the requisite information and CDs / soft copies. The respondent had been asked to collect part payment of Rs. 85,051/- against furnishing requisite information alongwith CDs/soft copies. It is on page 693 of the trial court record.
Contd.....
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20. The letter dated 02.04.2007 from Director Veterinary Services addressed to respondent/ plaintiff had been asking respondent/plaintiff to discontinue the services with immediate effect. The direction to discontinue the work is on the basis that the work of respondent/plaintiff had not been found to be upto the mark. Five different reasons for the same have been mentioned in the letter including the reason that respondent/plaintiff had failed to furnish data in the form of CDs and soft copies relating to identification of cattle through micro chips as well as verification of mortality in various Gosadans/Gaushalas. This is on page 695 of the trial court record.
21. The short tender notice dated 18.04.2007 has been issued by Veterinary Officer, Head Quarter wherein the following condition has been mentioned, copy of the same is on page 699 of the TCR:-
''Any individual/ agency/ organization/ firm etc., who has earlier been Contd.....
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debarred by MCD and/or by any Govt. Department/Organization & / or whose contract / services have been terminated / discontinued due to any reasons, shall not be allowed to participate in the tendering process for this purpose.
22. The tender notice was published in the newspapers. Copy of clipping of Times of India dated 20.04.2007 has been placed on page 703 of the trial court record. The copy of agreement dated 10.05.2005 entered into on behalf of Municipal Corporation of Delhi and Sh. A. Anand, Director of respondent/plaintiff has been placed on record by respondent/plaintiff before the Ld. Trial Court. Copy is on page 389 of the trial court record.
23. The respondent/plaintiff has filed copies of letters dated 17.10.2006, 25.01.2007, 30.01.2007, 05.02.2007, 07.02.2007, 08.02.2007, 14.02.2007, 20.02.2007, 21.02.2007 etc. from respondent/plaintiff addressed to Additional Commissioner (Health) and Veterinary Officer, Head Quarter etc. mentioning Contd.....
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various grievances of respondent/plaintiff.
24. The communication dated 25.01.2007 is regarding Operational Hurdles/ Corrupt Practices by Veterinary Service Department etc. The communication dated 30.01.2007 is regarding release of payment. The communication dated 05.02.2007 is addressed to the Additional Commissioner, MCD that respondent/plaintiff shall not be carrying out daily mortality verification in the Gosadans/Gaushalas of Govt. of NCT of Delhi from 09.02.2007 onwards if the entire payments are not released to respondent/plaintiff. The communication dated 07.02.2007 also mentions regarding not carrying daily mortality verification from 09.02.2007. It is on page 489 of the trial court record. The communication dated 08.02.2007 is also regarding stopping of work. It is on page 471 of the trial court record. The communication dated 14.02.2007 is regarding harassment at the time of release of part payment. The communication dated 20.02.2007 and 21.02.2007 are also with respect to problem of payment and Contd.....
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acceptance of bills.
25. The copy of the minutes of the meeting dated 17.01.2007 have been placed on page 527 of the trial court record. This meeting was attended by Sh. A. Anand, Director of respondent/plaintiff and Sh. Ankur also the representative of respondent/plaintiff. These minutes at serial no. 8 mentions the following: -
''Since the representatives from Everest Enterprises Pvt. Ltd., New Delhi failed to explain the position, Additional Commissioner (Health) directed to reiterate the laid-down instructions in this regard to all concerned for ensuring compliance and also asked representatives of M/s Everest Enterprises Pvt. Ltd., New Delhi to rectify the discrepancies/ short-comings of the bills furnished in this behalf.''
26. The communication dated 23.01.2007 from respondent/plaintiff addressed to Director, Veterinary Services is also regarding informing the appellant/defendant that respondent/plaintiff shall not be carrying out daily mortality verification from Contd.....
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09.02.2007, if the entire payments are not released to them. As per that bills have not been cleared since June, 2006 for micro chip identification and for mortality verification since August, 2005. The communication dated 18.01.2007 and 09.01.2007 are also regarding release of payments.
27. The communication dated 18.12.2006 is on page 559 of the trial court record asking the appellant/defendant/MCD to issue written order with instructions to all concerned Zonal Veterinary Officers in order to avoid ambiguities in future. The communication dated 06.11.2006 mentions regarding difficulty of respondent/plaintiff to discharge their duty and for release of payment.
28. The reply dated 09.03.2004 from Additional Commissioner, Health addressed to Chief Secretary, MCD following complaint by respondent/plaintiff mentions regarding request to respondent/plaintiff from time to time to furnish certificate pertaining to verification of mortality from Gosadans/Gaushalas so Contd.....
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that bills could also be processed for payment. The respondent/plaintiff has never provided any certificate to this effect. Due to non cooperative attitude for verification of illegal dairies adopted by respondent/plaintiff the Commissioner, MCD had to constitute three member Committee in each zone of MCD to carry out the verification of illegal dairies before their relocation to the Ghoga Dairy Colony as directed by the Hon'ble High Court. The respondent/plaintiff had deliberately delayed verification of cattle at Timarpur Cattle Pond on one pretext or the other. The various communications have also been mentioned in the letter. It has also been mentioned that it will not be in the interest of the corporation to continue with M/s Everest Enterprises Pvt. Ltd. Action is being contemplated to terminate the agreement with this company and hire some suitable hands for this purpose.
29. The communication dated 03.04.2007 from respondent/plaintiff addressed to Director Veterinary Services is on page 603 of the trial court record. This Contd.....
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communication is in response to letter dated 02.04.2007 from appellant/MCD. In this communication letter dated 22.07.2005 has been referred by respondent/plaintiff itself, that it is only work order issued by the Corporation. In this letter agreement dated 21.09.2005 has also been mentioned. It has also been mentioned in this letter that due to lack of infrastructure and other related requirements the work was a physical impossibility. In this letter also again it has been mentioned that details have already been attached and submitted bill each bill and as such are available with the department. It also mentions asking appellant/MCD to withdraw the communication dated 02.04.2007 within a period of 24 hours. Even it mentions that order dated 28.03.2007 is without any authority of law. The respondent/plaintiff has also mentioned that they are continuing with the verification process and the MCD shall be liable in terms of the agreement to pay for the same.
Contd.....
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30. The communication dated 04.04.2007 addressed to the appellant/MCD also mentions that respondent/plaintiff proceeded to continue with the installation of micro chips on 03.04.2007. Copy of complaint of respondent/plaintiff dated 12.04.2007 addressed to the Prime Minister of India has also been filed.
31. The copy of agreement dated 21.09.2005 filed by plaintiff is on page 641 to 651 of the trial court record. This has been executed between the Veterinary Officer, Head Quarter, Municipal Corporation of Delhi, Town Hall, Delhi and M/s Everest Enterprises Pvt. Ltd.
32. Annexure G on page 389 to 401 of the trial court record has also been filed by the plaintiff which is agreement dated 10.05.2005. this agreement is executed between the Director, Veterinary Services Department for and on behalf of the Municipal Corporation of Delhi, Town Hall, Delhi and Sh. A. Contd.....
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Anand, Director, Everest Enterprises Pvt. Ltd. Copies of agreements dated 21.09.2005 and 10.05.2005 have been filed by plaintiff. The appellant/MCD has denied the execution of agreement dated 21.09.2005 which is on page 641 to 651 of the trial court record. It has been submitted that this agreement has not been executed by the appellant/MCD. The Veterinary Officer in his individual capacity cannot execute agreement for and on behalf of Municipal Corporation of Delhi, the words for and on behalf of the Municipal Corporation of Delhi have been mentioned in agreement dated 10.05.2005. The stand of appellant/MCD is that no such agreement dated 21.09.2005 had been executed.
33. After the letter dated 02.04.2007 vide which respondent/plaintiff M/s Everest Enterprises Pvt. Ltd. had been communicated that the work of respondent/plaintiff had not been found to be upto the mark. Different reasons have been mentioned. Including one of the five reasons that Contd.....
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respondent/plaintiff failed to furnish the data in the form of CDs and soft copy relating to the identification of cattle through micro chips as well as verification of mortality in various Gosadans/Gaushalas. In this communication it has also been communicated that respondent/plaintiff have been directed to discontinue their work with immediate effect. This discontinuation of work is qua work order dated 22.07.2005. After that the short tender notice dated 18.04.2007 had been issued for the purpose of identification of rounded up cattle using unique cattle identifier micro chip to be inserted in the stomach of the cattle as well as towards verification of mortality of cattle in various Gosadans/Gaushalas. Copy of this short tender notice is on page 699 of the trial court record. This tender notice mentions regarding the condition that individual / agency etc. who has earlier been debarred by MCD and or by any government department / organization or whose contract / services have been terminated / discontinued due to any reason shall not be allowed to participate in the Contd.....
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tendering process.
34. Following this the plaintiff has filed Suit No. 199/07 on 02.05.2007 praying for the following relief:
a) pass decree of declaration thereby declaring the office order dated 02.04.2007 bearing no.
858/DVS/2007, whereby plaintiff company has been asked to discontinue the work of installation of microchip in the stomach of cattle and identification as well as verification of mortality of cattle at various Gosadan/Goshalas as null and void and which invariably has resulted in cancellation of contract dated 10.05.2005 awarded to plaintiff company;
b) pass decree of permanent
injunction thereby retraining the
defendant, its officers, agents, officials, employees servants etc. from acting upon or taking any steps in pursuance of office order dated 02.04.2007 and also to permanently stay the operation of office order dated 02.04.2007.
c) pass decree of permanent
injunction thereby permanently
restraining defendant, its officers, servants, employees, agents, etc. from retendering the work of installation of microchip in the stomach of the stray Contd.....
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cattle for identification as well as verification of mortality of cattle at various Gosadan and Goshalas to any other agency, company etc;
d) pass decree of mandatory injunction thereby directing defendant to allow plaintiff company to discharge its duties, function and responsibilities as detailed and enumerated in the contract dated 10.05.2005;
35. Alongwith this suit the interim injunction application dated 01.05.2007 under Order XXXIX Rule 1 & 2 read with Section 151 CPC had been filed praying for the following relief: -
a) grant ex-parte ad-interim stay in favour of plaintiff and against the defendant thereby restraining the defendant, its officers, agents, officials employees servants etc. from acting upon or taking any steps in pursuance of office order dated 02.04.2007 and also to stay the operation of office order dated 02.04.2007 till the disposal of the suit;
b) grant ex-parte ad-interim stay in favour of plaintiff and against the defendant thereby restraining the defendant, its officers, agents, officials employees servants etc. from from retendering the work of installation of Contd.....
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microchip in the stomach of the stray cattle for identification as well as verification of mortality of cattle at various Gosadan and Goshalas to any other agency, company etc. till the disposal of the suit.
36. Ld. Trial Court vide its order dated 02.05.2007 has granted ex-parte interim relief in the following words: -
''..................Thereforetill the next date of hearing application of the plaintiff is allowed and ex-parte ad-interim injunction is passed against defendant MCD and the operation of the order dated 02.04.2007 is stayed till the next date of hearing. The defendants are further restrained from re-tendering the work of installation of microchip and from pursuing the fresh tender notice dated 18.04.2007 till the next date of hearing..........''
37. This interim injunction application dated 01.05.2007 was rejected by the Ld. Trial Court vide order dated 19.05.2007.
Contd.....
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38. Following order dated 19.05.2007 the respondent/plaintiff preferred civil writ petition no. 4206/2007 titled M/s Everest Enterprises Pvt. Ltd. Vs. Municipal Corporation of Delhi. This writ petition was dismissed as withdrawn with liberty to raise the issue raised in the writ petition by filing an application in the suit, as per order dated 29.05.2007 passed by Hon'ble Mr. Justice S. Murlidhar, Judge Delhi High Court. Copy of this order is on page 174-175 of the trial court record. In this writ petition no. 4206/07 and CM No. 7889/2007 the respondent/plaintiff had prayed for the following relief: -
(a) issue an appropriate writ, order or direction calling for the records of the STN dated 18.04.2007 (Annexure P-1) and after perusal, quash and set aside the same insofar as any clause or restriction contained therein has the effect of debarring or blacklisting the Petitioner or in any manner preventing his bid in response to the invitation being considered;
(b) issue an appropriate writ, order or direction from opening the sealed bid received in response to the STN dated 18.04.2007 without the Petitioner first being permitted to submit its technical Contd.....
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and financial bid and the said bid being opened alongwith other bids;
39. Following order dated 29.05.2007 the respondent/plaintiff filed second interim injunction application under Order XXXIX Rule 1 & 2 read with Section 151 CPC without date, on 30.05.2007 praying for the following relief:
''(a)Direct the defendant to supply unto the plaintiff a tender application/form and permit the plaintiff to submit the tender in terms of Short Tender Notice dated 18.04.2007 within a period of 24 hours, to be opened on 04.06.2007 or any other date alongwith the other tenders.
(b) Restrain the Defendants from opening the sealed bids received in response to the Short Tender Notice dated 18.04.2007 without first permitting the plaintiff to submit hi bid in terms of the said Short Tender Notice and without considering the bid of the plaintiff alongwith the other bids received.''
40. This application has been decided by Ld. Civil Judge vide order dated 02.06.2007 which has Contd.....
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been impugned by the appellant/defendant/MCD.
41. The second interim injunction application has been allowed granting the following relief by the Ld. Trial Court:
''......accordinglyapplication U/o 39 Rule 1 & 2 CPC of the plaintiff is allowed and defendant MCD is directed to provide the tender application to the plaintiff on 04.06.2007 within the working hours under acknowledgment and plaintiff be allowed to submit the tender application form with the defendant on or before 06.07.2007 and till then MCD is directed not to open the sealed bids. MCD will consider the tender form of the plaintiff alongwith other tenders. It is made clear that the final decision to whom the tender is to be awarded is the sole discretion of the MCD but MCD will consider the tender form of plaintiff also. MCD is at liberty to open the sealed bids on any date after 06.07.2007. It is made clear that in case if the defendant feels the need of inviting fresh tenders then in that case defendant is at liberty to invite fresh tenders but in that case the plaintiff will be allowed to participate in the tender/bid process and will not be black listed or barred from participating in the fresh tender.'' Contd.....
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42. Aggrieved by order dated 02.06.2007 vide which the second interim injunction was allowed, the present appeal has been filed by appellant/defendant /MCD.
43. The short question in controversy to be decided in this appeal is;
''Whetherthe condition mentioned in short tender notice dated 18.04.2007 amounts to black listing M/s Everest Enterprises Pvt. Ltd.?
44. As per Ld. counsel for appellant the respondent/plaintiff was performing work following work order dated 22.07.2005 and it was without tender process. This work order was for the period from 27.07.2005 to March, 2006. This work order has been cancelled on 02.04.2007 and NIT /Short tender notice dated 18.04.2007 was issued. The condition mentioned in short tender notice dated 18.04.2007 is not for any individual. This condition is legal and valid condition because it applies to all uniformly and similarly circumstanced contractors. The Contd.....
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respondent/plaintiff had not been specifically oust from taking part in the tender process. Therefore, it is not malafide also. This condition does not tentamount to blacklisting. There has to be specific order for blacklisting. The respondent/plaintiff has been asked to discontinue its work vide letter dated 02.04.2007 and it was as the work of respondent/plaintiff was not found to be upto the mark. Even the Ld. Trial Court in its order dated 19.05.2007 has mentioned regarding unsatisfactory performance of respondent/plaintiff. It has got finality that it was work order and not contract. It has also been submitted that till now respondent/plaintiff had not supplied Rs. 20/- CD which can be of help in order to verify the information as to how much work and details thereof has been carried by the respondent/plaintiff. It has also been submitted by Ld. counsel for appellant that the order dated 02.04.2007 vide which respondent/plaintiff had been asked to discontinue the work has not been challenged till date. It has not been challenged even in the Hon'ble High Court. She has submitted that she Contd.....
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also admits that for blacklisting principles of natural justice have to be observed. But this is not the case of blacklisting, therefore, there was no question of observing principles of natural justice. It has further been submitted that there is separate list of blacklisted contractors and name of the respondent/plaintiff is not mentioned in that blacklist. Moreover, respondent/plaintiff is still continuing the contract with regard to Ghoga Dairy following execution of contract dated 10.05.2005. That contract is not subject matter before the Ld. Civil Judge. In case the respondent/plaintiff was blacklisted he could not have continued with the contract for Ghoga Dairy. It has further been submitted that his matter is still under consideration for the purpose of finally deciding whether termination for want of performance was proper. Ld. counsel for appellant has submitted that condition of NIT dated 18.04.2007 has never been challenged in the plaint as well as the application. This present condition is legal and valid condition because it applies to all uniformly and similarly circumstanced contractors. This Contd.....
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condition is legal and valid. There has to be specific order for blacklisting. There is no such order in this case. There is no balance of convenience which tilts in favour of respondent/plaintiff and respondent/plaintiff will not suffer irreparable loss or injury which cannot be compensated in terms of money. There is finding of Ld. Trial Court that it was not work order but contract is because of section 201 to 203 of the DMC Act. NIT condition only debarred but it is not blacklisting. Finding of Trial Court in this regard is wrong. It has further been submitted that the agreement dated 21.09.2005 which is on page 641 of the trial court record is fabricated document. The Veterinary Officer had executed this agreement, but, it is not for and on behalf of MCD. The Veterinary Officer who had signed in personal capacity has been charge sheeted. Ld. counsel for appellant has further submitted that the court cannot look into the condition of tender. She has submitted that evidence stage has not come. The impugned order is illegal and contrary to law. Ld. Civil Judge has not Contd.....
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discussed the Tata Cellular case. He has only mentioned Tata Cellular, therefore, it is gross legal error. This court has to consider Tata Cellular judgement. She has further submitted that since there is no challenge of tender condition. She has submitted that aspect of unsatisfactory work performance clearly shows that balance of convenience is not in favour of respondent/plaintiff even though plaintiff may or may not be lowest bidder. Cancellation of work order has not been challenged. The cancellation of work order was perfectly valid as per Ld. Civil Judge which order is now final. She has submitted that balance of convenience cannot be that work awarded to same contractor whose work had not been found to upto the mark which will affect pubic interest. Regarding irreparable loss she has submitted that the condition is legal and applies at all. Seven technical bids have been received. During her rebuttal arguments it has been submitted that it has not been argued how tender condition applicable uniformly to all is illegal. There is reasonable classification. Unless the court Contd.....
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hold that this condition amounts to blacklisting, consequence of blacklisting does not arise. There is list of approved contractors and had he been blacklisted he would not have continued Ghoga Dairy work. This condition is not casting slur. The MCD will suffer irreparable loss if they award contract to such a contractor. She has submitted that about Rs. 34 lacs have not been paid for want of CDs/ soft copy for verification of the bills. Same work order cannot be given to similar person in public interest. It is a distinct class. Plaintiff is not the only pioneer in the field. She has further submitted that there is no complete ban in this case. There has been barred for participation qua tendering.
45. Ld. counsel for appellant/defendant/MCD has relied on the following judgement: -
1. Tata Cellular Vs. Union of India, (1994) 6 Supreme Court Cases 651 Contd.....
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46. Ld. counsel for respondent/plaintiff had submitted that the tender notice dated 18.04.2007 only bars the respondent/plaintiff. There is no one else except the respondent/plaintiff who is equipped with all this. Even in the previous year the respondent/plaintiff was T1 and L1 i.e. best technical bid and lowest financial bid. He has submitted that despite order dated 02.06.2007 till date MCD has not opened the bid. Plaintiff is pioneer in this field in India. Balance of convenience tilts in favour of respondent/plaintiff. As per MCD the communication dated 22.07.2005 is work order but as per respondent/plaintiff it is contract. He has further submitted that no prejudice will be caused on MCD on plaintiff's participation. In this case it is in pubic interest. Plaintiff has introduced this technology in India. He has also raised question as to why the MCD has not opened the bid till date. He has submitted that MCD also knows that plaintiff is the pioneer in this field and will be the lowest bidder. He has submitted that when the government cannot pick and choose Contd.....
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it will be violation of Article 19 of the Constitution of India. He has further submitted that the cancellation of work order and NIT dated 18.04.2007 is only to debar the plaintiff from participating in tender process. He has further submitted that no right has been created in favour of the plaintiff by way of the impugned order. Prima facie it is the case of blacklisting. Plaintiff had already participated following impugned order. There is subsisting contract for same purpose of Ghoga Dairy but for stray cattle work it has been terminated. He has further submitted that actually in his case it is the plaintiff who had been T1 and L1. He has further submitted that anything which require civil consequences, principles of natural justice have to be followed. Regarding Tata Cellular case relied by Ld. counsel for appellant / MCD he has submitted that in that judgement two of the tenders out of eight were quashed. He has also argued as to what is the reason why MCD is not opening the tender.
Contd.....
- 38 -
47. Ld. counsel for respondent has relied on the following judgements:
1. Wander Ltd, and Another Vs. Antox India P. Ltd., 1990 (Supp) Supreme Court Cases 727
2. The Printers (Mysore) Private Ltd. Vs. Pothan Joseph, AIR 1960 SC 1156, [1960] 3 SCR 713
3. Erusian Equipment and Chemicals Vs. State of W.B., (1975) 1 SCC 70
4. Aditya Oil Company Vs. Indian Oil Corporation Ltd. and Another, 2007 (93) DRJ 729
5. Well Protect Manpower Service Pvt. Ltd. Vs. Delhi Development Authority & Others, 117 (2005) Delhi Law Times 293 (DB)
48. Para-94 of judgement titled Tata Cellular Vs. Union of India, (Supra) reads as under:
''Theprinciples deducible from the above are:
1. The modern trend points to judicial restraint in administrative action.
Contd.....
- 39 -
2. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
3. The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
4. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
5. The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere.
However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
Contd.....
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6. Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
Based on these principles we will examine the facts of this case since they commend to us as the correct principles.''
49. Fourth principle mentioned in Para-94 of the Tata Cellular Vs. Union of India, (Supra) is with regard to terms of invitation to tender. It has been held that the terms of the invitation to the tender cannot be open to judicial scrutiny. The fifth principle is with regard to the test by application of Wednesbury principle of reasonableness. It has been held that the decision must be free from arbitrariness, it should not be affected by bias or actuated by malafides.
50. First judgment titled Wander Ltd, and Another Vs. Antox India P. Ltd., (supra) relied by Ld. counsel for respondent/plaintiff has mentioned regarding object of interlocutory injunction for Contd.....
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preservation of status quo. He has also argued that the Appellate Court cannot interfere with the exercise of discretion of the court of first instance and substitute its own discretion. With due respect the authority relied by ld. counsel for respondent/plaintiff is not disputed. However, it is not of any help to the respondent/plaintiff in the instant case.
51. Para-9 of judgement titled Wander Ltd, and Another Vs. Antox India P. Ltd., (supra) deals with object of interlocutory injunction in the following words: -
''.........The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated ''.....isto protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding Contd.....
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need of the defendant to be protected against injury resulting from having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience lies.'' The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercise what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from, those that apply to a case where the defendant is yet to commence his enterprise, are attracted.''
52. Para-14 of judgement titled Wander Ltd, and Another Vs. Antox India P. Ltd., (supra) deals with exercise of discretion by the Appellate Court in the following words:
''.........Insuch appeals, the appellate court will not interfere with the exercise or discretion of the court of first Contd.....
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instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant of refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have been taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J, in Printers (Mysore) Private Ltd. Vs. Pothan Joseph (SCR) 721:
''.....These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. Vs. Jhanaton '........thelaw as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well Contd.....
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established, and any difficulty that arises is due only to the application of well settled principles in an individual case.''
53. The second judgement relied by Ld. counsel for respondent/plaintiff titled The Printers (Mysore) Private Ltd. Vs. Pothan Joseph, (Supra) has been referred in Wander Ltd, and Another Vs. Antox India P. Ltd., (supra) also especially in para-14 of Wander Ltd, and Another Vs. Antox India P. Ltd., (supra).
54. The third judgment titled Erusian Equipment and Chemicals Vs. State of W.B., (Supra) has also been heavily pressed by Ld. counsel for respondent/plaintiff while supporting his case to be that of blacklisting. Regarding blacklisting the law laid down in this judgement is not disputed. Even Ld. counsel for appellant / defendant/MCD has no doubt regarding law relating to blacklisting. She had mentioned during the course of her submission in this Contd.....
- 45 -
regard also. This judgement in the facts and circumstances of this is not applicable since the instant case is not covered as case of blacklisting for the reasons to be mentioned in succeeding paragraphs.
55. Para-12 of judgement titled Erusian Equipment and Chemicals Vs. State of W.B., (Supra) reads as under:
''............Article14 speaks of equality before the law and equal protection of the laws. Equality of opportunity should apply to matters of public contracts. The State has the right to trade. The State has there the duty to observe equality. An ordinary individual can choose not to deal with any person. The Government cannot choose to exclude persons by discrimination. The order of blacklisting has the effect of depriving a person of equality of opportunity in the matter of public contract. A person who is on the approved list is unable to enter into advantageous relations with the Government because of the order of blacklisting. A person who has been dealing with the Government in the matter of sale and purchase of materials has a legitimate interest or Contd.....
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expectation. When the State acts to the prejudice of a person it has to be supported by legality.''
56. Para -14, of this judgement titled Erusian Equipment and Chemicals Vs. State of W.B., (Supra) reads as under: -
''The State can enter into contract with any person it chooses. No person has a fundamental right to insist that the Government must enter into a contract with him. A citizen has a right to earn livelihood and to pursue any trade. A citizen has a right to claim equal treatment to enter into a contract which may be proper, necessary and essential to his lawful calling.''
57. Para-15, of this judgement titled Erusian Equipment and Chemicals Vs. State of W.B., (Supra) reads as under:
''Theblacklisting order does not pertain to any particular contract. The blacklisting order involves civil consequences. It casts a slur. It creates a barrier between the persons blacklisted and the Government in the matter of transactions. The black lists are ''instruments of coercion.'' Contd.....
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58. Para-16, of this judgement titled Erusian Equipment and Chemicals Vs. State of W.B., (Supra) reads as under:
''Inpassing an order of blacklisting the Government department acts under what is described as a standardised code. This is a code for internal instruction. The Government departments make regular purchases. They maintain list of approved suppliers after taking into account the financial standard of the firm, their capacity and their past performance. The removal from the list is made for various reasons........''
59. Para-17, of this judgement titled Erusian Equipment and Chemicals Vs. State of W.B., (Supra) reads as under: -
''...........The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with any one but if it does so, it must do so fairly without discrimination and without unfair procedure. Reputation is a part of a person's Contd.....
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character and personality. Blacklisting tarnished one's reputation.''
60. Para-18, of this judgement titled Erusian Equipment and Chemicals Vs. State of W.B., (Supra) reads as under: -
''Exclusion of a member of the public from dealing with a State in sales transactions has the effect of preventing him from purchasing and doing a lawful trade in the goods in discriminating against him in favour of other people. The State can impose reasonable conditions regarding rejection and acceptance of bids or qualifications of bidders. Just as exclusion of the lowest tender will be arbitrary, similarly exclusion of a person who offers the highest price from participating at a public auction would also have the same aspect of arbitrariness.''
61. Para-19, of this judgement titled Erusian Equipment and Chemicals Vs. State of W.B., (Supra) reads as under:
''.........Aduty to act fairly can be Contd.....
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interpreted as meaning a duty to observe certain aspects of rules of natural justice. A body may be under a duty to give fair consideration to the facts and to consider the representations but not to disclose to those persons details of information in its possession. Sometimes duty to act fairly can also be sustained without providing opportunity for an oral hearing. It will depend upon the nature of the interest to be affected, the circumstances in which a power is exercised and the nature of sanctions involved therein.''
62. Para-20, of this judgement titled Erusian Equipment and Chemicals Vs. State of W.B., (Supra) reads as under: -
''Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist.'' Contd.....
- 50 -
63. The fourth authority relied by Ld. counsel for respondent/plaintiff titled Aditya Oil Company Vs. Indian Oil Corporation Ltd. and Another, (Supra) is also not disputed. But in the facts and circumstances of this case it is not of any help to the respondent/plaintiff. In this case also Erusian Equipment and Chemicals Vs. State of W.B., (Supra) has been referred.
64. Para-21 of authority titled Aditya Oil Company Vs. Indian Oil Corporation Ltd. and Another, (Supra) reads as under: -
''One of the cardinal rules of administrative functioning impinging upon the rights of citizens or a group of individuals is the duty to adopt a fair procedure and give adequate opportunity to the party likely to be effected by any adverse decision. The question is whether the respondents breached such principles. It is well established that requirements of natural justice and fair play mandate that an adverse order ought to be preceded by a show cause notice and adequate opportunity. Such notice too has to be specific and inform the concerned Contd.....
- 51 -
party about the particulars of the allegations and the tentative action proposed. The object of these is to elicit information and explanation so that the decision maker takes cognizance of such factors, which are vital in the decision making process. The recent trend in administrative law is to place emphasis not merely on the form of hearing as much as the fairness in the procedure adopted. This is because court have increasingly felt that natural justice ought not to be imprisoned in pre-conceived moulds or straight jackets. Yet, one of the fundamental principles is the requirement to follow a fair procedure.''
65. The fifth authority relied by Ld. counsel for respondent/plaintiff titled Well Protect Manpower Service Pvt. Ltd. Vs. Delhi Development Authority & Others, (Supra) is also not disputed. With due respect it is also not of any help to the respondent/plaintiff. This authority also refers to Erusian Equipment and Chemicals Vs. State of W.B., (Supra) especially in para-14 para-20 of Erusian Equipment and Chemicals Vs. State of W.B., (Supra) has also been referred.
Contd.....
- 52 -
66. Para14 of authority titled Well Protect Manpower Service Pvt. Ltd. Vs. Delhi Development Authority & Others, (Supra) reads as under: -
''There is no gainsaying that any order or decision in matters involving civil consequences has to be made consistently with rules of natural justice. A ''civil consequence'' is an infraction of not merely property or personal rights but also of material deprivations and non-pecuniary damages [See: Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner & Ors, (1978) 1 SCC 405 para 66]. It is true that the rules of natural justice can neither be cast in a rigid mould nor put in a legal strait-jacket. They ''arenot cut and dried. They vary indefinitely'', said Lord Denning M.R. In Regina v. Home Secretary, Ex. P. Santillo, (1981) Q.B.
778. Thus, the principles of natural justice are flexible and have to be adopted to the circumstances prevailing in any particular case.
Nonetheless, it is an elementary principle of natural justice that parties affected by any order should have the right of being heard and making representations against the order. It is an equally implied principle of rule of law that any order having civil consequence should be passed only after following the principles of natural justice [See: Raghunath Thakur v. State of Bihar, (1989) 1 SCC 229].
Contd.....
- 53 -
Undoubtedly blacklisting of any person in respect of business ventures entails serious civil consequences for his future business and, therefore, any authority taking such a decision must act in accordance with the principles of natural justice. While dealing with a similar issue in Erusian Equipment & Chemicals Vs. State of West Bengal & Anr. (1975) 1 SCC 70. Their Lordships of the Supreme Court observed thus:
''Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist.''
67. I rely on the following authority: -
1. Dalit Manav Uthan Sansthan Vs. Commissioner, Municipal Corporation of Delhi & Ors., 142 (2007) Delhi law Times 497
68. Our own High Court in recently decided case titled Dalit Manav Uthan Sansthan Vs. Contd.....
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Commissioner, Municipal Corporation of Delhi & Ors. (Supra) has dealt with award of contract for cooked mid-day meals.
69. Para-46 of judgement titled Dalit Manav Uthan Sansthan Vs. Commissioner, Municipal Corporation of Delhi & Ors. (supra) has dealt with Tata Cellular Vs. Union of India, (Supra) in the following words: -
''........As to what precisely is 'Wednesbury' unreasonableness or irrationality, was discussed in four paragraphs of Tata Cellular (Supra). It would be useful to extract a quotation, (occurring in para 79, page 679, SCC reports of Tata Cellular), describing the scope of such irrationality or unreasonableness from R.V. Tower Hamlets London Borough Council, ex p Chetnik Developments Ltd., 1988 (1) All ER 961:
''The court is entitled to investigate the action of the local authority with a view to seeing whether or not they have taken into account matters which they ought not to have taken into account, or, conversely, have refused to take into account or neglected to take into account matter which they ought to Contd.....
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take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority had kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the Court can interfere.''
70. Para-47 of judgement titled Dalit Manav Uthan Sansthan Vs. Commissioner, Municipal Corporation of Delhi & Ors. (supra) reads as under: -
''TheCourt in India have consistently followed the decision in Tata Cellular, in cases involving award of tenders, policy formulation by the State or public agencies, etc. In subsequent decisions, it has been held that Courts can interfere when the policy or the award of contract is arbitrary, or discriminatory, is mala fide or it has no nexus with the object it seeks to achieve [Ref. Air India Ltd. Vs. Cochin International Airport Ltd., II (2000) SLT 3=I (2000) CLT 337 (SC)=(2000) 2 SCC 617; Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corpn. V (2000) SLT 244=(2000) 5 SCC 287; Directorate of Education Vs. Educomp Datamatics Ltd., II (2004) SLT Contd.....
- 56 -
540=(2000) 4 SCC 19; Global Energy Ltd. Vs. Adani Exports Ltd., IV (2005) SLT 196=2005 (4) SCC 435; and M/s Master Marine Services (P) Ltd. Vs. Metcalfe and Hodgkinson, III (2005) SLT 664=2005 (6) SCC 138].''
71. In Para-50 of judgement titled Dalit Manav Uthan Sansthan Vs. Commissioner, Municipal Corporation of Delhi & Ors. (supra) Hon'ble Mr. Justice S. Ravindra Bhat, Judge Delhi High Court has dealt with mala fides, or malice. It reads as under: -
''Asheld earlier, every executive decision or policy can be tested in judicial review, on grounds of 'Wednesbury' unreasonableness, discrimination, arbitrariness, mala fide, illegality and irrelevant considerations. Mala fides, or malice, as the expression is more commonly known, was defined in Smt. S.R. Venkataraman Vs. Union of India, 1979 2 SCC 491, as follows:
''Itis not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is however, quite different. Viscount Haldane described it as follows in Shearer Vs. Shields: -
Contd.....
- 57 -
'Aperson who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently.'' Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.'' ''Likewise, in State of A.P. and others Vs. Goverdhanlal Pitti, III (2003) SLT 48=II (2003) CLT 172 (SC)=(2003) 4 SCC 739, the Supreme Court observed:
''12.The legal meaning of malice is ill- will or spite towards a party and any indirect or improper motive in taking an action'.This is sometimes described as 'malicein fact'. 'Legalmalice'or 'malicein law'means 'somethingdone without lawful excuse'.In other words, 'itis an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others'. (See Words and Phrases Legally Defined, 3rd Edn., London Butterworths, Contd.....
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1989.)
13. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object. Prof. Wade in his authoritative work on Administrative Law (8th Edn., at p. 414) based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State can be described mala fide if it seeks to 'acquireland'for a purpose not authorised by the Act....''
72. It is pertinent to mention that even though the communication dated 03.04.2007 of respondent/plaintiff mentions that all details are already attached and submitted with each bill and as such are available with the department. The MCD has time and again taken the stand that CDs/ soft copies with regard to identification of cattle through micro chips as well as verification of mortality in various Gosadans/Gaushalas have not been provided till date i.e. when the arguments were heard. Ld. counsel for respondent/plaintiff did not Contd.....
- 59 -
submit anything on this aspect and did not utter even a single word with respect to non supply of CDs. Since micro chips are being inserted in the stomach of cattle the data to be provided by respondent/plaintiff has to be verified by the appellant/MCD for the purpose of payment. Only because some payments might have been made without such verification does not entitle the respondent/plaintiff to receive payment without such verification. Verification of bills has to be made prior to payment. The only way to verify the bills is the details to be provided by the respondent/plaintiff as to the identification of cattle through micro chips as well as verification of mortality in various Gosadans/Gaushalas. Until and unless there is some material before the concerned officer to verify the bills, it is not possible to make the payment. In case there is some irregularity to the fact that some payments have been made earlier without verification or without asking respondent/plaintiff the details of the work done Gosadan/Goshalas, date and monthwise etc. It does not give right to the Contd.....
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respondent/plaintiff to press for payments without cooperating the appellant/MCD in order to supply the details of his bills.
73. The various communications of appellant/MCD asking respondent/plaintiff to furnish the details have been placed on record of the trial court record. The communication dated 08.12.2006, 15.12.2006 are on page 675 and 677 of the trial court record respectively. The communication dated 15.12.2006 specifically mentions regarding incorrectness of letter dated 11.12.2006 from the respondent/plaintiff and it specifically mentions that as a matter of fact perusal of record reveals that no CDs containing the information have been furnished to the office of Veterinary Officer, Head Quarter.
74. The communication dated 05.02.2007 is on page 683 of the trial court record. It also mentions regarding non furnishing of the information i.e.:
(a) Number of cattle so far identified by Contd.....
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respondent/plaintiff from July, 2005 onwards Gosadans/Gaushalas date and month wise,
(b) Number of cattle identified by respondent/plaintiff through micro chips which have been auctioned to the bidders at the Baprola Municipal Cattle Pond, date and month wise.
(c) Details pertaining to mortality of cattle Gosadan/Goshala, date and month wise.
75. The communication dated 09.02.2007 copy of which is on page 685 of the trial court record. It mentions regarding the payment already received by the respondent/plaintiff from MCD for providing such details of the work done and for furnishing information alongwith separate CDs / soft copies of the data to the MCD. This communication also refers to the previous communication dated 08.12.2006, 15.12.2006 & 05.02.2007 etc. Even the communication dated 28.02.2007 regarding non furnishing of data has been placed on record on page 691 of the trial court record.
76. This all shows that CDs/ soft copies have not been provided by the respondent/plaintiff with Contd.....
- 62 -
regard to requisite information asked for by the appellant/defendant/MCD.
77. The record also clearly shows that the agreement dated 10.05.2005 was pursuant to resolution no. 668 dated 30.03.3005 of the Standing Committee vide which NIT was published, tenders were floated and this agreement is with regard to new dairy colony at Ghoga (Narela). Copy of this agreement is from page 389 to 399 of the trial court record. This agreement dated 10.05.2005 has been referred in the main suit especially prayer (a) and (d) but keeping in view the communication dated 02.04.2007 vide which the respondent/plaintiff had been directed to discontinue work with immediate effect. It is clear that this work was following the work order dated 22.07.2005, therefore, the communication dated 02.04.2007 copy of which is on page 695 and 697 of the trial court record is not with respect to agreement dated 10.05.2005. The work order dated 22.07.2005 copy of which is on page 659 Contd.....
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of the trial court record is with respect to the work relating to providing of micro chips to the cattle which shall be put either for auction or for deportation to Gosadans/Gaushalas. The micro chips were also to be provided in the cattle at present available in different Gosadans/Gaushalas in Delhi in order to have proper identification. This clearly shows that this work order dated 22.07.2005 is for a Gosadans/Gaushalas and not Ghoga Dairy, Narela. Moreover, it was w.e.f. 27.07.2005. This work order also mentions that payment shall be made against billing after proper verification. The work order is pursuant to direction of the Hon'ble High Court dated 13.07.2005 in Civil Writ Petition no. 3791/2000 titled Common Cause Society Vs. Union of India & Ors. The details regarding micro chips has been mentioned in work order dated 22.07.2005 in the following words: -
''Themicro chips shall have the details in respect of bidders/cattle ID number, address etc. in case of auctioned cattle while name of the Gosadans concerned/cattle ID number, etc. in case the cattle is deported to the Gosadans, in Delhi and/or are presently available in the Contd.....
- 64 -
Gosadans. This will help to detect easily the status of the cattle if the same was earlier seized has again been brought back by any one and kept in Delhi and /or released from the Gosadans, besides certification of cause of death of the cattle in the Gosadans by the Zonal Veterinary Officers of the Narela and Najafgarh Zones of the MCD in respect of the Gosadans falling within the jurisdictions of these two Municipal Zones, against ID numbers of the cattle.''
78. The resolution no. 799 item no. 18 which is on page 665 of the TCR mentions about this work order from 27.07.2005 to March, 2006. It also mentions that rates and agency for next year will be decided through tender.
79. From all this it is clear that the grievance of respondent/plaintiff was only with respect to the work related to Gosadans/Gaushalas pursuant to work order dated 22.07.2005. Para 2 of the communication dated 08.12.2006 which is on page 675 of the trial court record has mentioned regarding continuity of this work, vide letter no.
115/VO(HQ)/2006 dated 12.05.2006. Moreover, after Contd.....
- 65 -
issuance of letter dated 02.04.2007 directing respondent/plaintiff to discontinue its work with immediate effect, the short tender notice dated 18.04.2007 was issued, which is on page 699 of the trial court record. The condition has been mentioned in this tender notice. As per the condition any individual / agency / orgainzation / firm etc who has earlier been debarred by MCD and / or by any government department / organization and/or whose contract / services have been terminated / discontinued due to any reason, shall not be allowed to participate in the tendering process. The tender is with respect to work of identification of rounded up cattle including bulls, using Unique cattle identifier Micro Chips (to be inserted in the stomach in the cattle) as well as verification of mortality of cattle in the various Gosadans/Gaushalas etc. within the jurisdiction of the Municipal Corporation of Delhi for the year 2007-08.
80. The careful perusal of the condition imposed in this short tender notice dated 18.04.2007 Contd.....
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clearly shows that this condition is general condition. It is not only for the respondent/plaintiff. The condition shows that there is reasonable classification. It is not to single out any particular agency / individual / firm etc. All those who have earlier been debarred by MCD or by any other Government Department / Organization or whose contracts / services have been terminated / discontinued due to any reason have not been allowed to participate in the tendering process. The arguments of Ld. counsel for appellant/MCD has force in submitting before the court that this condition does not tentamount to blacklisting as respondent/plaintiff's matter is still under consideration for the purpose of finally deciding whether termination for want of performance was proper. Moreover, since the respondent/plaintiff has not been specifically oust it does not amount to malafide or arbitrary ouster of the respondent/plaintiff from participating in the tender vide short tender notice dated 18.04.2007.
81. Merely because respondent/plaintiff is the Contd.....
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pioneer in this field does not give right to the respondent/plaintiff to continue the work which was being assigned to respondent/plaintiff by way of work order dated 22.07.2005 which was for the period from 27.07.2005 to March, 2006 and vide letter dated 12.05.2006 respondent/plaintiff was again asked to continue the work. The letter dated 12.05.2006 has not been placed on record by any of the parties for the reasons best known to them, however, it has been referred in para 2 of communication dated 08.12.2006 of MCD which is on page 675 of the trial court record. This continuity of work does not give respondent/plaintiff right to continue the work even though he is pioneer but despite he being pioneer respondent/plaintiff is not responding to the request of MCD for providing detailed information Gosadans/Gaushalas date and month wise for total work done by the respondent/plaintiff. This information was also required for the purpose of verification of the bills. This information/CDs could have also been provided/produced before the Ld. Trial Court or this court especially when it has been Contd.....
- 68 -
argued by Ld. counsel for appellant that these CDs have not been provided till date. The respondent/plaintiff was not obliging the appellant/MCD by performing the work assigned to it by way of work order dated 22.07.2005. This work order was pursuant to directions passed by Hon'ble High Court of Delhi vide order dated 13.07.2005 and respondent/plaintiff was to receive payment for the work performed by it.
82. I am afraid, the respondent/plaintiff has tried to confuse the matter by mentioning contract dated 10.05.2005 qua new dairy colony, Ghoga (Narela). Even though the grievance in this case actually is qua the work order dated 22.07.2005 which was for the period from 27.07.2005 to March, 2006 and further continued.
83. The respondent/plaintiff has been directed to discontinue with immediate effect vide communication dated 02.04.2007. The contract dated 10.05.2005 is not at all connected with work Contd.....
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order dated 22.07.2005.
84. Even though it is well settled proposition of law that for blacklisting principles of natural justice have to be applied. The aggrieved person has to be given hearing. But in the instant case in my considered view, since considering the matter in toto it is clear that this condition is only for not participating in tender dated 18.04.2007, it is not a condition for not participating in any of the other works.
85. Moreover, admittedly respondent/plaintiff is still continuing with the work with regard to Ghoga Dairy, Narela for which agreement dated 10.05.2005 was executed. I am of the considered view that this does not amount to blacklisting the respondent/plaintiff. Had the respondent/plaintiff be blacklisted, the respondent/plaintiff could not have been allowed to continue work of Ghoga Dairy Narela. Merely because the respondent/plaintiff was T1 and L1 in the earlier tender does not grant him right Contd.....
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to continue this work or to perform on his whims and fences. The rules and procedure have to be followed by the government department as well as the private individual. Monopoly cannot be claimed by the respondent/plaintiff mentioning that respondent/plaintiff is the pioneer in this field. There are seven bids which have been received by the department as per record and as per submission of Ld. counsel for appellant/MCD. The technical expertise does not give right to respondent/plaintiff when the previous conduct prima facie show that respondent/plaintiff has not cooperated with appellant/defendant for the purpose of verification. The public money is involved in such payments. The public exchequer cannot be burdened by way of making payment on the basis of unverified bills. Bills have to be verified. Merely once at the initial stage on the directions of Hon'ble High Court respondent/plaintiff has been awarded work, does not give legal right to respondent/plaintiff to continue the same. The rules / procedure have to be followed by the government department for awarding Contd.....
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contract. The condition laid down in the short tender notice dated 18.04.2007 prima facie does not amount blacklisting the respondent/plaintiff.
86. Moreover, it is also clear that the order dated 02.04.2007 directing respondent/plaintiff to discontinue the work with immediate effect has been challenged mentioning that it has resulted in cancellation of contract dated 10.05.2005. Whereas the order dated 02.04.2007 has no bearing on contract dated 10.05.2005 as has already been discussed in detail. The condition of short tender / NIT dated 18.04.2007 has also not been challenged by respondent/plaintiff. On page 11 of order dated 19.05.2007 the Ld. Civil Judge has also mentioned that the work order dated 22.07.2005 was executed between the MCD and plaintiff and on bare reading of section 201 to 203 of the DMC Act, 1957 the work order is not contract.
Contd.....
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87. Perusal of relief prayed in the plaint and the interim injunction application which was allowed by way of the impugned order, it is clear that the relief prayed in the second interim injunction application filed on 30.05.2007 i.e. the application which was allowed by the impugned order under challenge is not ancillary to the relief prayed in the main suit. This relief is not covered in the relief prayed in the main suit. Relief prayed in the main suit nowhere mentions regarding short tender notice dated 18.04.2007. Only in para-48 of the plaint tender notice dated 18.04.2007 is having reference. Mere averment in the plaint does not entitle the respondent/plaintiff to seek relief. Relief has to be specifically worded in the main suit.
88. In this background, I am of the considered view that since for the foregoing reasons the condition mentioned in short tender notice dated 18.04.2007 does not amount to blacklisting. The cancellation of work order and short tender notice dated 18.04.2007 is not only to debar the Contd.....
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respondent/plaintiff from participating in the tender notice but it was also to debar individual / agencies which are similarly placed. The respondent/plaintiff has no right. Moreover, in view of Tata Cellular Vs. Union of India, (Supra) the court cannot look into the terms of the tender and the respondent/plaintiff has not challenged the condition of the tender. It is clear that there is reasonable classification. There is no malafide or arbitrariness on the part of MCD. I am of the opinion that Ld. Trial Court has erred in holding that order dated 02.04.2007 amounts to blacklisting the respondent/plaintiff.
89. The respondent/plaintiff has no legal right, the order dated 02.04.2007 does not amount to blacklisting the plaintiff, there is reasonable classification while imposing the condition in the short tender notice dated 18.04.2007. This condition is general in nature. Hence, there is no prima facie case in favour of the plaintiff.
Contd.....
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90. Keeping in view the unsatisfactory work performance and non providing of details of work done/ information sought by MCD balance of convenience tilts in favour of appellant/defendant/MCD.
91. Such general conditions can be imposed, therefore, plaintiff will not suffer irreparable loss/injury which cannot be compensated in terms of money.
92. Therefore, the appeal is allowed and the impugned order dated 02.06.2007 passed by Ld. Trial Court is set aside. Parties are directed to appear before the Ld. Trial Court on 31.08.2007.
93. Copy of order be sent alongwith TCR.
94. Appeal file be consigned to Record Room. Announced in the open court on 25.08.2007 (PINKI) ADDITIONAL DISTRICT JUDGE DELHI Contd.....
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MCA 48/07 25.8.2007 Present: Proxy counsel for parties.
Vide separate order announced in the open court the appeal is allowed and impugned order dated 02.06.2007 passed by Ld. Trial Court is set aside. Parties are directed to appear before the Ld. Trial Court on 31.08.2007.
Copy of order be sent alongwith TCR. Appeal file be consigned to Record Room.
(PINKI) ADDITIONAL DISTRICT JUDGE DELHI/ 25.8.2007 Contd.....