Jharkhand High Court
Bharat Coking Coal Limited Through Its ... vs At Dev Pl Jv Through Its Authorised ... on 9 May, 2014
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 160 of 2014
Bharat Coking Coal Limited through its
Deputy General Manager (Legal), Dhanbad... ... ... Appellant
Versus
SupremeDev PL (JV), Dhanbad & Ors. ... ... Respondents
with
L.P.A No. 159 of 2014
Bharat Coking Coal Limited through its
Deputy General Manager (Legal), Dhanbad... ... ... Appellant
Versus
ATDev PL (JV), Dhanbad & Ors. ... ... Respondents
For the Appellants : Mr. M.L. Verma, Sr. Advocate
Mr. Anupam Lal Das, Advocate
Mr. Indrajit Sinha, Advocate
(In both cases)
For the Respondents : Mr. Ajit Kumar Sinha, Sr. Advocate
Mr. Ajit Kumar, Advocate
(In L.P.A No. 160 of 2014)
Mr. Anil Kumar Sinha, Sr. Advocate
Mr. Mukesh Kumar Sinha, Advocate
(In L.P.A No. 159 of 2014)
P R E S E N T
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
th
C.A.V. on: 01.05.2014 Pronounced on: 9
May, 2014
R. Banumathi, C.J.
&
Shree Chandrashekhar, J.: Challenging interim order dated 05.03.2014 granting
"status quo" in W.P.(C) No. 526 of 2014 and W.P.(C) No. 533 of
2014, the appellant BCCL has filed these Letters Patent Appeals.
2. In both cases, Shri M.L. Verma, the learned Senior
Counsel assisted by Mr. Indrajit Sinha and Mr. Anupam Lal Das,
Advocates, advanced arguments on behalf of the appellant. Mr. Ajit
Kumar Sinha, the learned Senior Counsel assisted by Mr. Ajit
Kumar, Advocate, represented the respondents in L.P.A. No. 160 of
2
2014 and Mr. Anil Kumar Sinha, the learned Senior Counsel
assisted by Mr. Mukesh Kumar Sinha, Advocate, made submissions
on behalf of the respondents in L.P.A. No. 159 of 2014. On
21.04.2014, the matter was listed for admission, when the learned counsel for the parties submitted that since the Writ Petitions are listed on 23.04.2014, they would jointly make a request to the learned Single Judge for taking up the Writ Petitions and therefore, the matter was adjourned for 29.04.2014. On 29.04.2014, the learned counsel appearing for the parties informed the Court that on 23.04.2014, though the matter was listed before the learned Single Judge and order on the applications filed by the parties have been passed, the Writ Petitions could not be heard finally and it has been posted for hearing on 13.05.2014. Mr. M.L. Verma, the learned Senior Counsel appearing for the appellant, urged that since there is urgency in the matter, the Letters patent Appeals may be finally heard and decided by this Court and therefore, the matter was heard on 30.04.2014 and 01.05.2014.
Facts:
L.P.A. No. 160 of 2014
3. The Writ Petition, W.P.(C) No. 526 of 2014 was filed by SupremeDev PL (JV) for quashing order dated 27.11.2013 contained in Ref. No. BCCL/CED/GM(C)/Debar3/201314/1264 issued by General Manager (Civil), Bharat Coking Coal Limited in so far as, it covers the writ petitioner which is a Joint Venture with M/s Dev Multicom Pvt. Ltd. A further prayer for a direction to the 3 respondents to open the price bid of the tender notice contained in Ref. No. BCCL/CED/TC/NIT37/201314/967 dated 2021.09.2013 and to allow the writ petitioner to participate in the ongoing tenders subject to final outcome of the Writ Petition, has also been made. The firms namely, M/s Supreme Infrastructure India Ltd.
and M/s Dev Multicom Pvt. Ltd. claiming themselves to be reputed companies formed a Joint Venture in the name and style of SupremeDev PL (JV) through a Joint Venture agreement dated 30.10.2013. In response to the tender notice vide Ref. No. BCCL/CED/TC/NIT37/201314/967 dated 2021.09.2013 for an estimated cost of Rs.345,62,82,879.10, which was subsequently revised vide corrigendum dated 02.11.2013 to Rs.349,20,06,739.20 for construction of MultiStoreyed (G+8) BType, CType and DType quarters at Jagjiwan Nagar, CCWO Colony, the respondent Joint Venture submitted its bid. On 15.11.2013, the technical bid of all the participants namely, (i) Indu Infrastructure Ltd. (ii) KCPLUnity JV and, (iii) SupremeDev PL (JV) were opened and the technical bid of Indu Infrastructure Ltd. was rejected. The other participants namely, KCPLUnity JV and SupremeDev PL (JV), the respondent herein, were found qualified. However, the price bid of the respondent Joint Venture was not opened and the single bid of KCPLUnity JV was accepted even though, price quoted by the respondent Joint Venture is much lower than the price quoted by KCPLUnity JV. Neither any showcause notice was 4 issued nor any opportunity was afforded to the respondent Joint Venture before taking a decision not to open the price bid of the respondent Joint Venture. It is stated that the action of the appellant would cause loss of several crores to BCCL and the action of the appellant BCCL is unfair, unjust and arbitrary besides, being actuated with malice in law.
L.P.A. No. 159 of 2014
4. A Joint Venture in the name and style of ATDev PL (JV) was formed by M/s Avinash Transport and M/s Dev Multicom Pvt. Ltd. by executing Joint Venture agreement on 31.08.2013. For the work of hiring of HEMM for removal, overburden and extraction and transportation of coal from V/VI/VII/VIII Seams of patch K, Dhasan Colliery of Kusunda Area, a tender notice vide Ref. No. BCCL/GM(CMC)/FHEMMOS/2013/1093 dated 31.07.2013 was issued by the appellantBCCL. The contract value for the said work is Rs.24,53,96,368. The respondentJoint Venture submitted its bid and the technical bid was opened on 07.09.2013 in which the respondent was declared qualified. Vide letter dated 28.11,2013, the respondent was informed that the price part (Part II) of the tender would be opened on 02.12.2013 at 11 A.M. Though, the price bid was opened on 23.12.2013, the respondent's price bid was not opened and one Dhansar Engineering which also participated by submitting bid was declared lowest (LI) although, the price quoted by the respondent is lower by Rs. Two crores Twenty lacs in 5 comparison to the price quoted by the said Dhansar Engineering. Neither any showcause notice was issued nor any opportunity was afforded to the respondent Joint Venture before taking a decision not to open the price bid of the respondent Joint Venture. It is stated that the action of the appellant would cause loss of several crores to the appellant BCCL and the action of the appellant is unfair, unjust and arbitrary. Therefore, the respondent was constrained to move this Court in W.P.(C) No. 533 of 2014 challenging order dated 27.11.2013 in so far as, it covers and included the writ petitioner, an independent Joint Venture. The writ petitioner further prayed for a direction to open the petitioner's price bid in relation to tender notice No. 134 bearing Ref. No. BCCL/GM(CMC)/FHEMMOS/2013/1093 dated 31.07.2013 and to allow the petitioner to participate in the ongoing tenders subject to final outcome of the Writ Petition.
SUBMISSIONS:
5. Mr. M.L. Verma, the learned Senior Counsel appearing for the appellant, submitted that order dated 05.03.2014 passed by the learned Single Judge granting "status quo" in the matter affects the valuable rights of the appellantBCCL. In a contractual matter, the Court is required to examine a prima facie case, balance of convenience and irreparable loss which may be caused to a party before the Court besides, keeping in mind the public interest involved in the matter. It is further submitted that in tender matters 6 like the ones in the present case which involve substantial public interest, the learned Single Judge is not right in granting order of "status quo", which has been extended and kept alive on subsequent dates of hearing. It is further submitted that in so far as, judicial review of an administrative action/order is concerned, the jurisdiction of the Writ Court is confined to examining the process of decision making only and the merits of the matter cannot be examined by the Court and while so, the learned Single Judge is not right in granting an order of "status quo" vide order dated 05.03.2014.
6. Referring to the Joint Venture agreement dated 30.10.2013 between M/s Supreme Infrastructure India Ltd. and M/s Dev Multicom Pvt. Ltd., the learned Senior Counsel has submitted that the Joint Venture is a camouflage for obtaining the award of tender which could not have been awarded to Dev Multicom Pvt. Ltd., for the reason that by order dated 27.11.2013 the said Company has been debarred from participating in any tender process. In the Joint Venture agreement dated 30.10.2013, it is indicated that Dev Multicom Pvt. Ltd. would have 60% share in the Joint Venture and it is the lead partner. It is pointed out that the Joint Venture namely, Gopalka Dev Joint Venture participated in the tender notice issued vide NIT Ref. No. BCCL/CED/TC/NIT 8/201314/66 dated 23.04.2013 and on verification of the records, it was found that M/s Shashi Kant Gopalka submitted forged 7 documents. Vide letter dated 2729.07.2013, a showcause notice was issued to Gopalka Dev Joint Venture for using forged and fake credentials to secure the contract fraudulently and by order dated 27.11.2013, M/s Dev Multicom Pvt. Ltd. and M/s Shashi Kant Gopalka were debarred from participating in any tender of BCCL for a period of three years. Both the said Joint Venture partners were also disqualified from participating in any other pending tender of BCCL whether participating in individual capacity or with any other partner/Joint Venture. Relying on order dated 03.04.2014 in L.P.A. No. 119 of 2014 with L.P.A. No. 122 of 2014 and the order dated 27.01.2014 in L.P.A. No. 18 of 2014, the learned Senior Counsel for the appellant submitted that the issue in the present Letters Patent Appeals is squarely covered by the said decisions of this Court.
7. It is further submitted that in the Writ Petitions filed by the respondents in both the Letters Patent Appeals, order dated 27.01.2014 was suppressed by them and the order of "status quo"
dated 05.03.2014 has been obtained by suppressing a material fact from the court and therefore, the impugned order dt. 05.03.2014 is liable to be set aside. The learned Senior Counsel has finally urged that the impugned order dated 05.03.2014 requires interference by this Court and it can be mandated by the Court that in the event of the writ petitioners succeeding before the Writ Court, they would be suitably compensated in terms of money. He relied on the 8 decisions of the Hon'ble Supreme Court reported in (1999) 1 SCC 492, (2014) 3 SCC 493, (2012) 11 SCC 257, (2005) 8 SCC 438, (1981) 4 SCC 8, (2007) 14 SCC 517 and (2010) 6 SCC 303.
8. Mr. Ajit Kumar Sinha, the learned Senior Counsel appearing for the respondent in L.P.A. No 160 of 2014 has submitted that the present Letters Patent Appeals are not maintainable. By the impugned order dated 05.03.2014, neither the proceeding in I.A. No. 952 of 2014 before the Writ Court has been terminated nor the right of the parties has been determined. Since the impugned order granting "status quo" does not satisfy the requirement of "judgment", as it lacks the trappings of finality, Clause 10 of the Letters Patent of Patna High Court is not attracted. It is further submitted that the order passed by this Court on 03.04.2014 in L.P.A. No. 119 of 2014 with L.P.A. No. 122 of 2014 is not binding on the respondent in the present case, as the orders passed by the Division Bench of this Court in L.P.A. No. 195 of 2011 and L.P.A. No. 202 of 2010 have not been considered in the order dated 03.04.2014 and the decisions of the Hon'ble Supreme Court in "Midnapore Peoples' Coop. Bank Ltd. & Ors. Vs. Chunilal Nanda & Ors.", reported in (2006) 5 SCC 399 and "Central Mine Planning and Design Institute Ltd. Vs. Union of India & Anr.", reported in (2001) 2 SCC 588 were not brought to the notice of this Court.
9. It is submitted that order in L.P.A. No. 18 of 2014 was pronounced by this Court on 27.01.2014 and the Writ Petition 9 being W.P.(C) No. 526 of 2014 was filed on 29.01.2014 and by that time a copy of order dated 27.01.2014 in L.P.A. No. 18 of 2014 was not made available therefore, a copy of the said order was not annexed with the Writ Petition though, in the Writ Petition, filing of W.P.(C) No. 7455 of 2013 by M/s Dev Multicom Pvt. Ltd. has been disclosed. It is further submitted that since the impugned order 05.03.2014 was passed in presence of the counsel for the respondents, the allegation of obtaining the order of "status quo" by suppressing a material fact from the Court, is not correct. Alleging malafide on the part of the appellant, it is submitted that the appellantBCCL wants to favour a Company namely, KCPL Unity (JV), which in the absence of the respondent Joint Venture became single tenderer. The Company namely, Unity Infra Projects Ltd., a lead partner in KCPL Unity (JV) has been blacklisted vide order dated 27.05.2013 by Karnataka Power Corporation Limited and it gave a false undertaking on affidavit while submitting its bid in the tender notice dated 2021.09.2013. Ignoring the order of blacklisting of Unity Infra Projects Ltd., a lead partner in KCPL Unity (JV) and ignoring the guidelines of the Central Vigilance Commission for not awarding tender in cases of single bid, the appellantBCCL decided to open the single price bid and award the contract to the said Company.
10. Narrating the instances of malafide action on the part of the appellant, it is submitted that initially, an order was passed by 10 the General Manager (Civil), which was subsequently withdrawn vide order dated 19.03.2014 signed on 20.03.2014 and on the same day, the Chairman passed another order dated 20.03.2014 affirming debarment of the respondentJoint Venture on the ground that Dev Multicom Pvt. Ltd. was a partner in Gopalka Dev Joint Venture, which has been debarred by order dated 27.11.2013 for producing forged credentials. It is submitted that a petition seeking initiation of criminal contempt for filing a false affidavit in the Court has been filed and in the said proceeding, the Chairman has tendered apology taking a plea of human error. It is finally submitted that, since the appellant has already filed I.A No. 1814 of 2014 and I.A. No. 1816 of 2014 seeking recall of order dated 12.03.2014 and only the initial order of statusquo dated 05.03.2014 has been impugned in the present Letters Patent Appeals, this Court may not entertain the present Letters Patent Appeals. It is further submitted that the present Letters Patent Appeals have been filed against order dated 05.03.2014 and the subsequent orders passed by the Writ Court on 09.04.2014 and 23.04.2014 have not been challenged therefore, the Letters Patent Appeals are fit to be dismissed.
DISCUSSIONS :
Re: Maintainability of the Letters Patent Appeal
11. Mr. Ajit Kumar Sinha, the learned Senior Counsel appearing for the respondent Joint Venture (in L.P.A. No. 160 of 2014) has submitted that the order of status quo dated 05.03.2014 11 lacks the trappings of a judgment and since the Interlocutory Application being I.A. No. 952 of 2014 is still pending, the proceeding has not been finally terminated and thus, the impugned order dated 05.03.2014 cannot be said to be a "judgment" so as to attract Clause 10 of the Letters Patent of Patna High Court.
12. The contention of the respondent is liable to be rejected. The dictionary meaning of the word "status quo" indicates the existing state of things at any given date (Wharton's Law Lexicon). In Black's Law Dictionary (7th Edn.), "status quo" has been stated to mean the situation that currently exists. In Black's Law Dictionary, the word "stay" has been indicated to mean, "postponement or halting of a proceeding, judgment or the like".
In "Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Assn.", reported in (1992) 3 SCC 1, the Hon'ble Supreme court has observed that stay of operation of an order means the order which has been stayed would not be operative from the date of the passing of the stay order.
13. The word "stay" has been assigned a meaning which in many situations would coincide with the meaning of the word "status quo". In "Bharat Coking Coal Ltd. Vs. State of Bihar", reported in AIR 1988 SC 127, the Hon'ble Supreme Court has observed that expression "status quo" is undoubtedly a term of ambiguity and at times gives rise to doubts and difficulty.
14. Now, when the actual effect of the impugned order 12 dated 05.03.2014 is examined in the context of the facts of the case, it is apparent that the interim order of "status quo" is in the nature of an order of interim stay granted against the appellant. Though, the impugned order dated 05.03.2014 which reads; "Till next listing, the status quo, as on today, shall be maintained and the matter may be finally heard by the regular Bench to whom the roster is allotted", would appear to be a regular order without intending to determine the rights of the parties, (the case was fixed for hearing on 12.03.2014) when looked in the context of the subsequent orders dated 12.03.2014, 09.04.2014 and 23.04.2014 whereby the order of "status quo" dated 05.03.2014 has been extended, it is found that it has seriously affected a valuable right of the appellant BCCL. There cannot be any manner of doubt that an order of interim stay with respect to a tender matter seriously affects a valuable right of the party inviting tender. Even though, technically the Interlocutory Application being I.A. No. 952 of 2014 has not been finally disposed of, the relief sought in I.A. No. 952 of 2014 has been granted by the Court to the writ petitioner and though, the impugned order dated 05.03.2014 granting status quo was for only a limited period, extension of the order of status quo on subsequent dates of hearing has effectively converted the impugned order dated 05.03.2014 into a final order granting interim stay.
15. Clause 10 of the Letters Patent of Patna High Court is 13 extracted below:
10. "Appeal to the High Court from Judges of the Court. And we do further ordain that an appeal shall lie to the said High Court of Judicature at Patna from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order) made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court of one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made on or after the first day of February, One thousand nine hundred and twenty nine, in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to Us, Our Heirs or Successors in Our or Their Privy Council, as hereinafter provided."
16. The true meaning of the word "judgment" used in relation to Letters Patent came for consideration before different High Courts and divergent views were expressed by the Courts. Interpreting the word "judgment" in the Letters Patent, a narrower view was taken on this point by Sir Couch, C.J., in "The Justices of the Peace for Calcutta Vs. Oriental Gas Co.", reported in VIII Beng LR 433. It was observed that "judgment" means a 14 decision which affects the merits of the question between the parties by determining some right or liability. The view taken in "The Justices of the Peace for Calcutta", (supra) was considered a narrower interpretation of the word "judgment" by the Hon'ble Supreme Court in "Shah Babulal Khimji Vs. Jayaben D. Kania & Anr.", reported in (1981) 4 SCC 8.
17. In "Shah Babulal Khimji" (supra), the Court has observed that, the intention of the givers of the Letters Patent was that, the word "judgment" should receive a much wider and more liberal interpretation than the word "judgment" in the Code of Civil Procedure. In "Chandi Charan Saha Vs. Jnanendra Nath Bhattacharjee", reported in 29 Cal LJ 225, it has been held that "test is, not what the forum of adjudication is, but what is its effect in the suit or proceeding in which it is made".
18. One of the tests which is applied by the Courts is the effect of the order in the suit or the proceeding in which the order impugned is made and not the form of the adjudication. In "Shanti Kumar R. Canji Vs. Home Insurance Co. of New York" reported in (1974) 2 SCC 387, the Hon'ble Supreme Court has held as under,
19. "In finding out whether the order is a judgment within the meaning of Clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability".
15
19. As noticed hereinabove, the impugned order dated 05.03.2014 seriously affects the rights of appellant BCCL inasmuch as, the appellant BCCL is deprived of its right to finalise the tender and it has the trappings of finality, we are of the opinion that the impugned order dated 05.03.2014 is a judgment within the meaning of the Letters Patent of Patna High Court (as adopted by the High Court of Jharkhand).
20. The learned counsel appearing for the respondent Joint Venture has submitted that in "Midnapore Peoples' Coop. Bank Ltd. & Ors. Vs. Chunilal Nanda & Ors." (supra), the Hon'ble Supreme Court has categorised species of interim orders which would not fall under the category of "judgment" so as to attract Clause 10 of the Letters Patent and the Hon'ble Supreme Court has categorically held that against the following two categories of the interim orders, the Letters Patent would not lie; (i) routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment, and (ii) orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties. The contention of the respondent is that the interim order dated 05.03.2014 is a routine order and it may cause some inconvenience to the appellant but it is not a judgment and thus, the Letters Patent Appeals are not maintainable.
21. In "Central Mine Planning and Design Institute Ltd. Vs. 16 Union of India & Anr." reported in (2001) 2 SCC 588, the Hon'ble Supreme Court has noticed the observation of the Court in "Shah Babulal Khimji", that the word "judgment" should receive much wider and more liberal interpretation than the word "judgment" used in the Code of Civil Procedure and whether the order impugned is a final determination affecting vital and valuable rights and obligations of the parties concerned or not, this has to be ascertained on the facts of each case.
22. In "Shah Babulal Khimji", in his concurring judgment, His Lordship Justice A.N. Sen has held that; what kind of an order will constitute a judgment within the meaning of Clause 15 of the Letters Patent and will become appellable as such must necessarily depend on the facts and circumstances of each case and on the nature and character of the order passed.
23. In "Shanti Kumar R. Canji" (supra), the Hon'ble Supreme Court has observed that the orders of a routine nature, purely interlocutory, cannot constitute judgment and it has been indicated that an order refusing an adjournment or an order refusing to summon an additional witness or document or an order refusing to condone the delay in filing documents etc. are the orders falling under the category of interlocutory order which would not constitute judgment within the meaning of Clause 15 of the Letters Patent of Bombay High Court. The order impugned in the present proceeding is definitely not like the one indicated 17 above. It has further been observed by the Hon'ble Supreme Court although, the order purely discretionary and interlocutory if causes gross injustice to a party who is deprived of a valuable right, would contain the attributes and characteristics of finality and should be treated as judgment within the meaning of Letters Patent.
24. As noticed above, since the impugned order dated 05.03.2014 seriously curtails a valuable right of the appellant BCCL, we find that it has the trappings of finality and the Letters Patent Appeal against impugned order dated 05.03.2014 is maintainable.
25. Referring to orders passed by this Court in L.P.A. No. 202 of 2010 and L.P.A. No. 195 of 2011, Mr. Ajit Kumar Sinha, the learned Senior Counsel appearing for the respondent Joint Venture submitted that, since the judgment pronounced by this Court on 03.04.2014 in L.P.A. No. 119 of 2014 with L.P.A. No. 122 of 2014 has been delivered without considering the aforesaid orders, order dated 03.04.2014 does not lay down the correct law and is not binding on the respondent Joint Venture in the present proceeding.
26. This contention of the respondent merits no acceptance. It is well settled that a decision is only an authority to what it actually decides. In this context, it is useful to reproduce what Earl of Halsbury, L.C. Observed in "Quinn Vs. Leathem", reported in 1901 AC 495:
"....Now, before discussing Allen v. Flood and what was decided therein, there are two 18 observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."
27. In "Ambica Quarry Works Vs. State of Gujarat", reported in (1987) 1 SCC 213, it has been held that a decision must be understood in the background of the facts of that case. The Hon'ble Supreme Court has observed thus,
18. "............. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it ................."
28. In "Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd.", reported in (2003) 2 SCC 111, the Hon'ble Supreme Court has observed thus, "It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."
29. Order dated 01.07.2010 in L.P.A. No. 202 of 2010 indicates that the writ petitioner in the said case was directed to 19 deposit certain amount without prejudice to its rights, in two equal installments within a period of four weeks and on payment of the first installment, electric connection at the premises of the writ petitioner was ordered to be restored immediately. It is thus seen that the order passed in the writ proceeding directing the writ petitioner to deposit certain amount was purely interlocutory in nature and the effect of noncompliance of the interim order passed by the Writ Court would have been that the electric connection at the premises of the writ petitioner could not have been restored. In view of the law laid down in "Shah Babulal Khimji" (supra), a Division Bench of this Court held that the Letters Patent Appeal was not maintainable and accordingly, it was dismissed. And, L.P.A. No. 195 of 2011 was dismissed by a Division of this Court, in view of the order passed in L.P.A. No. 202 of 2010. The aforesaid orders by the Division Bench of this Court in L.P.A. No. 202 of 2010 and L.P.A. No. 195 of 2011 were passed in the facts of the case.
30. In L.P.A. No. 119 of 2014, this Court has observed as under:
7. "Whether a judgment or an order is "final" or not has to be seen in the context of the subjectmatter.
Sometimes an order exfacie interlocutory in character, can be said to be final even if the main controversy between the parties remains undisposed of and thus, such order would fall within the ambit of Clause 10 of the Letters Patent of the Patna High Court. In "State of Orissa Vs. Madan Gopal Rungta" reported in AIR 1952 SC 12, though the High Court did not decide the dispute, it granted mandamus restraining the Government from taking action until the proposed suits were filed. Rejecting the contention that the order was not final as 20 it was for an interim relief and the dispute between the parties remained to be determined in the proposed suits to be filed, the Hon'ble Supreme Court held that the said order was final and appeal filed against the said order was maintainable.
8. In so far as the argument advanced on the maintainability of LPA is concerned, in "Shah Babulal Khimji" (supra), the Hon'ble Supreme Court held that LPA is maintainable only against an order which possesses the characteristics and trappings of finality and in para 120, Hon'ble Supreme Court enumerated the illustrations of interlocutory orders, which can be treated as "judgment". In para 123, the Hon'ble Supreme Court held as under:
123. "In the instant case, as the order of the trial Judge was one refusing appointment of a receiver and grant of an ad interim injunction, it is undoubtedly a judgment within the meaning of the Letters Patent both because in view of our judgment, O. 43 R. 1 applies to internal appeals in the High Court and apart from it such an order even on merits contains the quality of finality and would therefore be a judgment within the meaning of clause 15 of the Letters Patent. The consistent view taken by the Bombay High Court in the various cases noted above or other cases which may not have been noticed by us regarding the strict interpretation of clause 15 of the Letters Patent are hereby overruled and the Bombay High Court is directed to decide the question in future in the light of our decision."
9. It is now well settled that the definition of "judgment" in Section 2(9) of the Codee of Civil Procedure has no application to Letters Patent. In "Shah Babulal Khimji Vs. Jayaben D. Kania & Anr." (supra) also, the Hon'ble Supreme court has held that the concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by subsection (2) of Section 2 cannot be physically imported into the definition of the word "judgment" as used in Clause 15 of the Letters Patent (which is pari materia to Clause 10 of the Letters Patent of Patna High Court).
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10. Having regard to the nature of the transaction, we are of the view that the interim order passed by the writ court contains the quality of finality and would, therefore, be a "judgment" within the meaning of Clause 10 of the Letters Patent constituting the High court of Judicature at Patna and the appeal before the Division Bench is maintainable."
31. It is thus apparent that, in order dated 03.04.2014 in L.P.A. No. 119 of 2014 with L.P.A. No. 122 of 2014, this Court referred to and relied on various paragraphs in "Shah Babulal Khimji" at more than one place and therefore, it was unnecessary to deal in detail the facts in L.P.A. No. 202 of 2010 and L.P.A. No. 195 of 2011, which were also decided in view of the law laid down in "Shah Babulal Khimji".
32. Mr. Anil Kumar Sinha, the learned Senior Counsel appearing for the respondent Joint Venture in L.P.A. No. 159 of 2014 has submitted that the interim order passed by the Writ Court is in exercise of the power under Article 226 of the Constitution of India, against which only a Special Leave Petition under Article 136 of the Constitution of India can be filed before the Hon'ble Supreme Court. Relying on paragraph nos. 68 to 81 in "P.S. Sathapan Vs. Andhra Bank Ltd.", reported in (2004) 11 SCC 672, it is submitted that the power under Article 226 of the Constitution of India is a superior power compared to the power conferred under Clause 10 of the Letters Patent, which is a subordinate legislation and while so, the order passed by the Writ Court cannot be challenged in a Letters Patent Appeal and the Court exercising powers under 22 Letters Patent cannot interfere with the order passed in exercise of a constitutional power of the Writ Court. The learned Senior Counsel has submitted that no appeal would lie from an order passed by a learned Single Judge of the High Court and the present Letters Patent Appeals are not maintainable.
33. The history of the Chartered High Courts discloses that under the Indian High Courts Act of 1861, these Courts were established as superior Courts in British India. For the Judicature for Bengal, Madras, Bombay, NorthWest Province (Allahabad), Patna, Lahore and Rangoon, the Sovereign in British India granted Letters Patent to the Chartered High Courts which laid down the powers and jurisdiction of Courts including Judges of these Courts.
34. In "P.S. Sathapan Vs. Andhra Bank Ltd." (supra), the majority view of the Court is authored by Hon'ble Justice S.N. Variava which runs from paragraph nos. 1 to 35 of the report and the minority view is expressed through Hon'ble Justice S.B. Sinha running from paragraph nos. 37 to 147. In paragraph nos. 32, the Hon'ble Supreme Court has held that, "to submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent". A Letters Patent, as held in "Vinita M. Khandkar Vs. Pragna M. Pai", (1998) 1 SCC 500, is the Charter of the High Court and is the specific law under which a High Court derives its power and it is not a subordinate piece of legislation.
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35. Under Article 141 of the Constitution of India, the law declared by the Hon'ble Supreme Court is binding on all Courts. In P.S Sathapan's case, the law declared by the Hon'ble Supreme Court is the majority view of the Court. The contention that the Letters Patent is a subordinate legislation and no Letters Patent would lie against an order passed by a Single Judge of the High Court, is misplaced.
36. Mr. Indrajit Sinha, appearing for the appellant referred to "Jharkhand High Court Case Flow Management in the High Court Rules, 2006" and submitted that the 2006 Rules provides an appeal to a Division Bench from judgment of a Single Judge which may include appeals from interlocutory orders of the Single Judge in original jurisdiction matters including writs. The 2006 Rules have been framed in exercise of power conferred by Article 225 of the Constitution of India and Section 10 of the Code of Civil Procedure, 1908 and also Rule 15 of the Jharkhand High Court Rules, 2001. Paragraph no. V of the "Jharkhand High Court Case Flow Management in the High Court Rules, 2006" deals with "Appeals to the Division Bench from Judgment of the Single Judge of the High Court [Letters Patent Appeals (LPA) or similar appeals under the High Courts Acts]." The relevant part of paragraph V reads as under:
"An appeal to a Division Bench from judgment of a Single Judge may lie in the following cases :
(1) Appeals from interlocutory orders of the Single Judge in original jurisdiction 24 matters including writs;
(2) appeals from final judgments of a Single Judge in original jurisdiction; (3) other appeals permitted by any law to a Division Bench.
Appeals against interlocutory orders falling under category (1) above should be invariably filed after advance notice to the opposite counsel (who has appeared before the Single Judge) so that both the sides will be represented at the very first hearing of the appeals. If both parties appear at the first hearing, there is no need to serve the opposite side by normal process and at least in some cases, the appeals against interlocutory orders can be disposed of even at the first hearing. If, for any reason, this is not practicable, such appeals against interim orders should be disposed of within a period of a month.
In cases referred to above, necessary documents should be kept ready by the counsel to enable the Court to dispose of the appeal against interlocutory matter at the first hearing itself........"
37. From the aforesaid, it is apparent that there is a specific provision in the 2006 Rules which permits appeals from interlocutory orders of the Single Judge in original jurisdiction matters including writs. Since we have held that the interim order dated 05.03.2014 granting status quo is judgment under Clause 10 of the Letters Patent of Patna High Court, the submission of the learned Senior Counsel for the respondent that the Letters Patent Appeals are not maintainable, cannot be accepted. Re: Suppression of Material Facts
38. The contention of the appellant BCCL is that the impugned order dated 05.03.2014 has been obtained by the respondent Joint Venture by suppressing a material fact from the Court. It is submitted that though by order dated 27.01.2014 in L.P.A. No. 18 of 2014, the Division Bench refused to interfere with 25 order dated 20.12.2013 in W.P.(C) No. 7455 of 2013, the said fact was not disclosed in the Writ Petition and thus, it amounts to suppression of a material fact disentitling the writ petitioner any discretionary remedy from the Court.
39. It is true that a person invoking the discretionary jurisdiction of the Court must approach the Court with clean hands. However, it is also true that the alleged suppression which would disentitle a party to obtain a discretionary relief must be of a material fact. In "Arunima Baruah Vs. Union of India & Ors.", reported in (2007) 6 SCC 120, the Hon'ble Supreme Court has held that suppression must be of 'material' fact. The Hon'ble Supreme Court has held thus,
12. "It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction....................".
40. A perusal of order dated 05.03.2014 would indicate that the order granting status quo was passed by the learned Single Judge in the presence of the learned counsel for the appellant BCCL. In the Writ Petitions being W.P.(C) No. 526 of 26 2014 and W.P.(C) No. 533 of 2014, the writ petitioner has disclosed that M/s Dev Multicom Pvt. Ltd. preferred Writ Petition bearing W.P.(C) No. 7455 of 2013. It is submitted on behalf of the respondent Joint Venture that the order in L.P.A. No. 18 of 2014 was passed on 27.01.2014 and the W.P.(C) No. 526 of 2014 and W.P.(C) No. 533 of 2014 were filed on 29.01.2014 and therefore, a copy of order dated 27.01.2014 in L.P.A. No. 18 of 2014 could not be filed in the Writ Petitions.
41. In I. A. No. 9034 of 2013 in W.P.(C) No. 7455 of 2013, the prayer for grant of an interim order was rejected by the learned Single Judge on the ground that it would amount to granting final relief to the writ petitioner. The said order was challenged in L.P.A. No. 18 of 2014 and by order dated 27.01.2014, this Court declined to interfere with order dated 20.12.2013 in I. A. No. 9034 of 2013 in W.P.(C) No. 7455 of 2013. In the order dated 27.01.2014, this Court refrained from expressing any opinion on the merits of the case, though submission of the learned Senior Counsel and the facts of the case were noticed in detail. Since order dated 05.03.2014 has been passed in presence of the counsel appearing for the appellant BCCL, nondisclosure of order dated 27.01.2014 does not amount to material suppression. We are of the opinion that the contention of the learned Senior Counsel for the appellant that nondisclosure of order dated 27.01.2014 by the respondent in W.P.(C) Nos. 533 of 2014 and W.P.(C) 526 of 2014 would amount to 27 suppression of a material fact, is not tenable and on this ground alone, the impugned order dated 05.03.2014 is not liable to be interfered with.
Re: Duality of Proceedings
42. Seriously challenging the maintainability of the Letters Patent Appeals preferred by the appellant BCCL, Mr. Ajit Kumar Sinha, the learned Senior Counsel appearing for the respondent Joint Venture has submitted that since the appellant BCCL has already filed I.A. No. 1814 of 2014 and I.A. No. 1816 of 2014 seeking recall of order dated 12.03.2014, the present Letters Patent Appeals are liable to be dismissed on the ground of duality of proceedings. It is submitted that the appellant BCCL cannot be permitted to continue with two parallel proceedings for the same and similar relief.
43. Mr. Anil Kumar Sinha, the learned Counsel appearing for the Respondent Joint Venture in L.P.A. No. 159 of 2014 has also challenged the initiation of parallel proceedings by the appellant BCCL by filing the present Letters Patent Appeals. He has relied on decisions of the Hon'ble Supreme Court reported in (1985) 1 SCC 427 and (1998) 5 SCC 74.
44. Pet contra, Mr. M.L. Verma, the learned Senior Counsel appearing for the appellant BCCL has submitted that the relief sought for by the appellant in I.A. No. 1814 of 2014 and I.A. No. 1816 of 2014 and in the present proceeding are entirely different 28 and the appellant BCCL is entitled in law to institute both the proceedings. It is submitted that I.A. No. 1814 of 2014 and I.A. No. 1816 of 2014 have been filed seeking recall of order dated 12.03.2014 on the ground that a similar relief was declined by the learned Single Judge by order dated 20.12.2013 in W.P.(C) No. 7455 of 2013 and the Division Bench of this Court refused to interfere with the said order and therefore, the impugned order dated 05.03.2014 is liable to be recalled whereas, the present Letters Patent Appeal has been preferred by the appellant BCCL challenging the order of status quo on merits.
45. In reply, the learned Senior Counsel appearing for the respondent Joint Venture has submitted that though the initial order of status quo dated 05.03.2014 has been challenged by the appellant BCCL in the present proceeding, the subsequent orders dated 12.03.2014, 09.04.2014 and 23.04.2014 have not been challenged by the appellant BCCL and thus, the present Letters Patent Appeals have become infructuous and they are liable to be dismissed.
46. The contention of the respondent that since subsequent orders dated 12.03.2014, 09.04.2014 and 23.04.2014 have not been impugned by the appellant, the present Letters Patent Appeals have become infructuous, cannot be accepted. It is settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings fall through. The legal 29 maxim "sublato fundamento cadit opus" means foundation being removed, structure falls. The principle of consequential order is applicable to judicial, quasijudicial and administrative orders. ["ChairmancumManaging Director, Coal India Ltd. & Ors. Vs. Ananta Saha & Ors." (2011) 5 SCC 142]. The judgments relied on by the respondents for contending that the present Letters Patent Appeals cannot be entertained in view of the pendency of I.A. No. 1814 of 2014 and I.A. No. 1816 of 2014, are distinguishable on facts. In those cases two separate but distinct proceedings was initiated and those proceedings did not arise from the same suit/writ and therefore, the Court held that initiation of two parallel proceedings were not desirable. Moreover, it has not been held as a proposition of law that in no circumstance two separate or parallel proceedings can be instituted. There may be a situation in which two separate proceedings, one civil in nature and the other criminal or quasicriminal in nature can be initiated simultaneously. On same and similar set of facts, a criminal case as well as a case under a special law such as Customs Act, can also be instituted. In the case in hand the application for recall and the Letters Patent Appeals both have arisen out of the Writ Petitions and both have been filed raising different grounds. Thus, both the proceedings are maintainable independently. Conclusion :
47. Pleading urgency in the matter, the learned Senior 30 Counsel appearing for the appellant submitted that the proposed construction of the housing colonies for rehabilitation of the displaced persons of the city of Jharia is for the greater benefit of the general public and it is in the public interest that the tender is finalised at the earliest. The learned Senior Counsel appearing for the respondent Joint Venture has also submitted that the issue before the Writ Court is of greater public importance because, contrary to the guidelines of the Central Vigilance Commission, if inspite of not being the lowest tenderer, M/s KCPLUnity JV is awarded the tender, it would cause loss of several crores to the appellantBCCL. Relying on decision in "Raunaq International Ltd. Vs. I.V.R. Construction Ltd. & Ors.", reported in (1999) 1 SCC 492 etc. etc., the learned Senior Counsel for the appellant argued the scope of judicial review and desirability of not granting interim order in tender matters.
48. Since serious contentious issues have been raised in the Writ Petitions, any decision by this Court touching the merits of the matter would seriously prejudice the case of the parties before the Writ Court. Both the parties have raised a plea that the issue before the Writ Court involves public interest. The writ petitioner has alleged lack of "fairness in action" on the part of the appellant BCCL whereas, the learned Senior Counsel appearing for the appellant BCCL has submitted, on instruction, that if it is found that Unity Infra Projects Ltd., a lead partner in KCPL Unity 31 (JV) is a blacklisted company and the order of blacklisting is still subsisting, the said company would be dealt with in the same manner as the writ petitioner has been dealt with by the appellant BCCL. The writ petitioner has raised a plea of noncompliance of rules of natural justice whereas, BCCL has taken recourse to the order dated 27.11.2013 blacklisting M/s Gopalka Dev Multicom Pvt. Ltd. It is also observed that, though the impugned order was passed on 05.03.2014, the present Letters Patent Appeals were filed on 11.04.2014. The matter was mentioned on 16.04.2014 and accordingly, the Letters Patent Appeals were listed on 21.04.2014 under the heading "Admission". In the pending Writ Petitions, I.A. No. 1814 of 2014 and I.A. No. 1816 of 2014 seeking recall of order dated 12.03.2014 was filed on 22.03.2014 however, it was pressed only on 23.04.2014. The plea of urgency taken by the appellant is not borne out from the proceeding before the Court.
49. Considering the totality of the circumstances and contentious issues raised by the parties alleging loss of crores of public money, violation of the guidelines framed by Central Vigilance Commission, lack of 'fairness in action' and allegation of malafide on the part of the appellant, we are of the opinion that since adjudication in the Present Letters Patent Appeals would not be possible without touching the issues involved in the Writ Petitions, it would serve the ends of justice if the main Writ Petitions are finally heard and decided by the Writ Court. 32
50. In the result, the present Letters Patent Appeals are dismissed and the learned Single Judge is requested to take up the Writ Petition at an early date. The parties are directed to cooperate for early hearing of the Writ Petition.
(R. Banumathi, C.J.) (Shree Chandrashekhar, J.) Jharkhand High Court, Ranchi Dated: 9th May, 2014 Manish/A.F.R.