Madras High Court
G. Gengavarajan vs D. Manivel And Anr. on 1 December, 2003
Equivalent citations: 2004(1)CTC766
ORDER K.P. Sivasubramaniam, J.
1. On 10.9.2002, the respondent/Chennai Metropolitan Development Authority, invited tender for collection of parking fee at Chennai Moffusil Bus Stand, Koyambedu, by advertisements in the Newspapers. The upset price was fixed at Rs. 25 lakhs. The petitioner participated in the tender by complying with all the preliminary requirements and submitted the tender quoting Rs. 32,05,000 and the petitioner claims that he was declared as successful bidder. As there was delay in issuing orders, he requested the Secretary of the respondent to allot the work to him at the earliest, by his letter dated 16.10.2002. But to his surprise he found that the tender was cancelled on 25.10.2002 without any reason. According to him, the cancellation of the tender was without complying with the provisions of the Tamil Nadu Transparency in Tenders Act, 1998. The respondents re-invited tender by an advertisement in "Dhina Bhoomi" on 26.10.2002 and the tender was opened on 13.11.2002 and the contract was awarded to the second respondent for Rs. 32,25,000 and according to the petitioner, the second respondent was the highest bidder in the tender which was opened on 27.9.2002. In W.P.No. 41404 of 2002 the petitioner has prayed for the issue of a writ of certiorarified mandamus to quash the tender notice dated 23.10.2002 and to allot the contract to the petitioner contending that the action of the respondent was highly arbitrary, unfair and irrational and in violation of the provisions of Act and Rules. The second advertisement relating to the second tender had been published in "Dhina Bhommi" which was neither a familiar Newspaper nor a Daily with good circulation. In W.P.M.P.No. 6127 of 2002, the petitioner had prayed for the grant of stay of all further proceedings pursuant to the tender notice dated 23.10.2002 relating to the re-invitation of the tenders.
2. The Writ Petition was moved for admission on 15.11.2002 and while admitting the writ petition, interim order was granted as follows:
"Confirmation of the contract pursuant to the impugned tender shall stand stayed until further orders. Notice."
3. The petitioner was permitted to communicate the order by wire at his cost and according to the petitioner the Registry of the High Court had communicated the order on the same day and that in addition, the counsel for the petitioner also served a letter communicating the factum of the grant of the interim order on 15.11.2002 itself and hence according to him the respondents are very well aware of the order on 15.11.2002 itself. However, in spite of the same the second respondent had been allowed to collect the parking fee from 18.11.2002 on which date, the Bus Terminal was inaugurated and it continued thereafter also even after the interim order had been served through the Court.
4. The petitioner had come forward with the above Contempt Petition, with the said allegations and contends that he had also caused a notice to be issued to the first respondent to refrain the second respondent from collecting the parking fees. But in spite of the same, both the respondents are continuing to violate the interim order. Nothing prevented the first respondent to make temporary arrangements without violating the Court order. Both the respondents were acting in collusion with utter and deliberate disregard of the order of the Court. Along with the Contempt Petition, the petitioner had also filed a Sub Application to direct the first respondent to permit the petitioner to carry out the work of collecting parking fee as a temporary arrangement pending disposal of the Contempt Petition. In the Contempt Petition notice was issued on 21.2.2003 as returnable by three weeks.
5. On 21.3.2003 respondents appeared in person. It was contended on behalf of the petitioner, that even as on the date, the second respondent was operating in spite of interim order of this Court and as such an order of interim stay was granted for a period of one week in the above Contempt Petition.
6. In the counter filed by the first respondent, it is stated that the Superintending Engineer was looking after ......as assigned with the powers to call for the tenders relating to the parking lot, etc. and to finalise the same on merits. Tenders were called for through "Indian Express", "Daily Thanthi", "Makkal Kural" and "Dhina Bhoomi" on 10.9.2002 fixing the upset price at Rs. 25,00,000. Three tenderers participated in the tender out of which the petitioner was one of them and he had offered Rs. 32,0.5,000. Though his offer was the highest, the authorities by their resolution dated 18.10.2002 resolved to call for retender as the offer of the petitioner did not satisfy the expectation of the revenue to be generated. Therefore, the petitioner's offer was rejected and he was informed by letter dated 25.10.2002. The retender notice was issued in "Makkal Kural" and "Dhina Bhoomi" dated 26.10.2002. The last date of receipt of tender was 13.11.2002. But the petitioner had not even produced the tender and had not shown any interest in participating in the tender. The tender was opened on 13.11.2002 and finalised on 14.11.2002. As the inaugural function of the bus terminal was fixed on 18.11.2002, the site was immediately handed over to the successful tenderer on 14.11.2002 to make it ready on 18.11.2002. The petitioner though he had sufficient time to reapply the tender and to participate in the tender, had not even obtained the tender schedule, but he has filed the Contempt Petition by suppressing of the said facts with ulterior motive. The telegram from the Assistant Registrar, High Court, was received at 20.25 hours on 15.11.2002 and the letter of the Advocate for the petitioner dated 15.11.2002 was received by the respondent on 14.11.2002. However, the affidavit and the writ petition was served through the Court only on 9.12.2002 and the respondents had taken steps to vacate the interim order through their counsel. It is further stated that when once tender is confirmed, the respondents have the right to relax the procedural aspects if a genuine request was made by the contractor. Finalisation of the tender shall be decided by the authorities and it was within the discretion of the authority to cancel the tender and to call for re-tender. The land which was handed over to the tenderer had to be made ready by them on or before 18.11.2002 and as a lot of work had to be done on the site, the site was handed over to the successful tenderer on 14.11.2002. The petitioner has no locus standi to question the finalisation of the tender.
7. An additional counter was filed by the first respondent on 28.3.2003 contending that when the Contempt Petition was listed for hearing on 21.3.2003, he was present before the Court and he was informed by his counsel that his appearance was dispensed with. Neither his counsel nor the petitioner's counsel had informed him about the interim stay granted by this Court on 21.1.2003 and only when the orders of the Court were served on him through his counsel, he came to know of the interim order. He immediately instructed the contractor to stop the collection of vehicle parking fee in obedience of the orders of this Court. There was no wilful or wanton disobedience of the order of this Court.
8. A separate counter has bean filed by the second respondent, The second respondent contends that with reference to the tender which was opened on 27.9.2002, the petitioner and one other person had presented the bids. However, it was cancelled by the authority as the amounts quoted by the bidders were low. Re-tender notification was issued and the date for opening the tender was fixed on 14.11.2002 and he had submitted the bid quoting Rs. 32,25,000. Apart from him there was only one other bidder and he (second respondent) was declared as the highest bidder. The work order was issued on 14.11.2002 in view of the inauguration of the bus terminal on 18.11.2002 with instructions to ear-mark the parking space and to regulate the mode of traffic. It is further contended that the claim of the petitioner that he was not allowed to get the award of contract, was incorrect. The order in W.P.M.P. 6127 of 2002 was served on him only on 19.11.2002. As the contract was confirmed in his favour on 14.11.2002, he started collection of parking fee from 13.11.2002. He has been served with a copy of the petition to vacate the order of stay through his counsel on 21.3.2003. There was no collusion between himself and the first respondent. He has paid huge amount and the delay of everyday was causing loss to him. Therefore, it was incorrect to state that he was not prejudiced in any manner. He was an eligible contractor with sufficient experience. Hence, there are no merits in the Contempt Petition.
9. Learned counsel for the petitioner contends that apart from the fact that the cancellation of the first tender and the floating of the second tender was absolutely motivated, collusive and contrary to the provisions of the Tamil Nadu Transparency in Tenders Act, 1998 (hereinafter called "the Act", the subsequent action of the respondent in having allowed the second respondent continuing the collection work even after the interim order were in blatant violation of the interim order of the Court. No immediate steps have been taken to have the interim order vacated in spite of the objections from the petitioner which exhibits utter disregard to the order of the Court. Even after notice in the Contempt Petition had been served on the respondent and subsequently also when the respondents had appeared before the Court in person and this Court had specifically granted interim orders on that date in their presence, the respondents had the temerity to continue to operate. The reason given for handing over the site for inaugural function of the bus terminus cannot be an excuse for violating the Court order. The very award of contract in favour of the second respondent is clearly established to be a motivated action on the part of the respondents which have been done only to unduly favour the second respondent. Therefore, the conduct of the respondents to perpetuate their illegal action even by violating the orders of the Court, is a very bad example of contempt of Court. Hence, the respondents deserve to be punished severely. Learned counsel also very elaborately contended with reference to the facts and the provisions of the Act and contended that the circumstances under which the second tender was flouted were mala fide and ultra vires the Act.
10. Learned counsel for the first; respondent/Superintending Engineer of C.M.D.A., apart from stating the facts as explained in the counter, contended that though the telegraphic order had been served on the night of 15th itself, the award of contract had been finalised and the site had been handed over to the second respondent on the 14th itself. As the interim order related only to confirmation of the contract, in view of the fact that the acceptance of the tender had already been issued on 14th itself, the respondent had bona fide thought that there was no bar for continuance of the work awarded in favour of the second respondent. More over, the Chief Minister was scheduled to inaugurate the bus terminus and hence the site had to be handed over sufficiently early in order to make proper arrangements for parking facilities. Learned counsel further contended that there was no basis for the various contentions raised by the petitioner as regards the validity of the grant of tender in favour of the second respondent. It was within the powers of the respondents to call for a fresh tender if the respondents were not satisfied with the amount fetched in the auction. Such a power was always inherent and no bad motives can be attributed to the re-tender which was issued for the purpose of getting increased revenue. There was no violation of any of the provisions of the Act. The petitioner not having taken part in the second auction, had no locus standi to question the same. It is further contended that the respondents had also taken steps by instructing their counsel to file a petition to vacate the interim order of stay and hence there is no intentional or wanton disobedience of the interim orders.
11. Learned counsel for the second respondent apart from reiterating the stand taken by the first respondent, further contended that the interim orders were served on the second respondent only on 19.11 2002 by which time he had been declared as the highest bidder and the site had also been handed over to him on 14.11.2002 in view of the inauguration of the bus terminal on 18.11.2002 and as the parking place had to be earmarked before 18.11.2002. There is also no illegality in the grant of tender in his favour. Learned counsel also dealt with the facts relating to the re-tender and contended that there was no violation of any of the provisions of the Act.
12. Though the hearing was completed and the orders were reserved in the month of March, 2003 itself, in spite of directions by the Court, files were not produced before the Court and therefore, the Contempt Petition was again listed on 16.7.2003 for the production of files. After undertaking to produce the files, learned counsel for the first respondent also requested to pass orders in the writ petition itself as the points arising for consideration in the writ petition had already been argued and that the first respondent was prepared to abide by the orders and to conduct a re-auction if so directed. Counsel for the second respondent also stated that he had no further arguments. The files were also handed over to the Court on 21.7.2003.
13. I have heard both sides and also perused the files and the facts relating to the re-tender and approval of the second respondent's offer. It is not in dispute that in the first tender auction which was held on 27.9.2002, the petitioner was the highest bidder having bid at Rs. 32,05,000. The second respondent was also a bidder, and next only to the petitioner. He appears to have made a request to the first respondent offering the very same amount as the highest bidder vide Note file in SEII/CW/DB/F1917/2002, Page No. 5, dated 16.10.2002. In fact in the same note, an adverse remark is made to the effect that the second respondent had experience only in a hotel and that the business concern, had commenced the business only by an agreement dated 18.9.2002 with a Malaysian firm. It was therefore implied in the said note that the second respondent did not have adequate experience. But without any reason or justification for ignoring the said objection, in the next Note dated 22.10.2002, it is stated as follows:
"The authority decided to re-tender the parking fee in order to get more money. Please issue tender notice."
14. It is true that the second respondent had bid only one rupee less than that of the petitioner namely, Rs. 32,04,999 in the first auction which was held on 27.9.2002. Nothing prevented the respondents to have directed both of them to match against each other and highest offer could have been accepted. But no such steps are taken either for evaluation or for negotiation with L1 and L2 bidders. Apparently with a motive to favour the second respondent, a decision is taken to issue re-tender on 23.10.2002. It is only subsequently an order of rejection of the first tender was issued on 25.10.2002 with copies to both petitioner and the second respondent and without assigning any reason for cancellation of the tender and also without mentioning about the decision to re-tender. Though the said communication is dated 25.10.2002 it is despatched only on 29.10.2002. Though the advertisement for the first tender was issued in one English daily and three Tamil dailies viz., Indian Express, Daily Thanthi, Makkal Rural and Dhina Bhoorni, for obvious reasons the advertisement for second tender is issued only in two Tamil dailies viz., Makkal Kural and "Dhina Bhoomi" which do not have a larger circulation like "Daily Thanthi" and "Indian Express". Pursuant to the second advertisement, tenders are received, namely, from the second respondent for Rs. 32,25,000 and from one Rajaram for Rs. 32,00,000. The tenders are opened on 13.11.2002 and on 14.11.2002 itself a communication is sent to the second respondent accepting their tender subject to several conditions which are as follows:
(a) The entire amount of Rs. 32,25,000 should be remitted in one lump sum by means of a Crossed Demand Draft within seven working days from 14.11.2002.
(b) The second respondent should furnish photographs, native and residence certificate from the Tahsildar, Identity card, etc. for signing the agreement.
(c) Certificates from Income-tax and Commercial Tax departments to be furnished.
(d) The second respondent should attend the office with all the said particulars within seven days and with non-judicial stamp paper for executing the agreement.
It is further stated that in the event of non-compliance of the said requirements, the E.M.D. will be forfeited.
15. But strangely even without the second respondent fulfilling any of the conditions as mentioned above, entries are made in the file as though a direction was issued on the same day (14.11.2002) to hand over the site to the second respondent immediately. In terms of the above directions, the second respondent should have deposited Rs. 32,25,000 within a period of seven working days and after fulfilling all the other conditions, he has to execute the agreement. All the said requirements as above, should have been complied within a period of seven working days. In fact, the work order itself does not mention about the handing over of the site at any time prior to the completion of the said requirements. Therefore, any valid confirmation order could have been issued only after fulfilling all the obligations and after the second respondent having executed an agreement. It would be totally against the Rules and Regulations and would be highly irregular to issue any order of confirmation before the completion of the said mandatory requirements without which it will not be possible for the C.M.D.A. to legally enforce any of the terms of the contract against the second respondent in the event of breach of any of the conditions. The authorities are fully aware of this position and in fact no confirmation order was issued any time prior to the issue of interim order by this Court. The work order was issued on 14th subject to several conditions which were admittedly not fulfilled within the stipulated period of seven days. It is also seen from the Note file (Page Nos. 12 and 13) that instead of depositing the full amount as required, the second respondent had remitted only Rs. 10,000, 000 by cheque dated 14.11.2002, another cheque dated 5.12.2002 for Rs. 10,00,000 and another cheque dated 11.12.2002 for a sum of Rs. 12,25,000. A perusal of the Note dated 5.12.2002 shows that both the last cheques had been handed over on that date and therefore, the last cheque dated 11.12.2002 should have been a post-dated cheque. As stated earlier, the deposit of the entire amount should have been made within seven days from 14.11.2002 and that too by Demand Draft and not by cheque. The draft agreement was also forwarded only on 16.12.2002.
16. The above facts disclose a glaring and high-handed favouritism in favour of the second respondent. The first auction in which the petitioner was the highest bidder at Rs. 32,05,000 is cancelled on the ground that the said amount is lesser than the expected amount, even though the minimum lease amount was fixed at Rs. 25,00,000. Note file clearly discloses that the re-auction is ordered only at the instance of and in order to favour the second respondent and re-auction advertisement is given only in two Tamil dailies without adequate circulation. The bid of the second respondent at Rs. 32,25,000 is only Rs. 20,000 more than the first auction, which is accepted and a letter of acceptance is hastily issued on 14.11.2002 giving a week's time to the second respondent to fulfil all the conditions. Neither the conditions are fulfilled nor specific order is issued relaxing the conditions. The second respondent at his will and pleasure instead of making the full payment by Demand Draft, deposits the amount by three cheques and the last one being post-dated cheque of 11.12.2002. Thereafter, the agreement is executed only on 16.12.2002. The favours thus shown to the second respondent is based on the excuse that more amount is required. However, the rate at which the offer of the second respondent was confirmed was only Rs. 20,000 more than the petitioner's offer out of which substantial amount would have been spent by the respondent for cancelling the first tender and, for process of the second tender, cost of advertisements etc. All the conditions are violated and the second respondent is shown undue favours in the grant of the tender in his favour.
17. When the writ petition was moved for admission on finding that the second advertisement had not been given wide publication as before and that the differential amount was only Rs. 20,000 which could have been secured by negotiating with the tenderers and probably direct negotiation in the presence of both the competitive bidders would have fetched even a higher amount than Rs. 32,25,000 and a prima facie case of favouritism in favour of the second respondent having been made out, I had granted interim stay of the confirmation of the tender.
18. So much for the favouritism which has been shown in the grant of work order in favour of the second respondent. Now coming to the facts relating to the alleged contempt of Court, in the face of the admitted position that the interim order of the Court telegraphed through the registry of the High Court had been received by the first respondent on 15th itself at 20.25 hours, we have to consider whether subsequent conduct of the respondents have any justification.
19. Two reasons are given for not stopping collection work by the second respondent on receipt of the interim order. The first reason is that the venue was to be inaugurated by the Hon'ble the Chief Minister on 18th and therefore, the parking place had to be made ready. The second reason is that the interim order pertains only to the confirmation of the contract and therefore, the contract having been awarded in favour of the second respondent, the interim order had become inoperative and infructuous.
20. The first reason is non-existent and reflects the attitude on the part of the some of the officers to unnecessarily misuse the names of V.I.Ps. as a shield for their illegal behaviour. They also fondly hope that the Courts will also ignore their illegal activities and the disobedience of the order of the Court if the names of V.I.Ps. are dragged in. This excuse is to be stated only to be rejected for the following reasons:
(i) The Chief Minister of this State is given high security cover and going by the rules, entire venue will be left only at the disposal, control and supervision of the security personnel. In view of the same, the very handing over of the parking area in favour of the second respondent would arise only after the inaugural ceremony is over namely after 18th. The control over the parking area on the inaugural day will be only at the hands of the police and the C.M.B.T. Authorities and not by a private contractor.
(ii) When once the order of the Court had been received it would not have required more than 10 workers of the C.M.D.A. or the Corporation or the Police to have managed the parking area on the day of inauguration. This is what should have been done if the second respondent had felt that obedience to the orders of the Court was more important than to oblige and to favour the second respondent.
(iii) The question of collection of rent also could arise only after the inauguration is over and hence there was neither any necessity nor any justification to hand over the site on 14th itself.
(iv) No report or receipt evidencing the handing over of the site to the second respondent on 14.11.2002 is made available to the Court.
(v) The work order which was issued on 14.11.2002 does not mention about the handing over of the site to the second respondent even assuming that the mere handing over of the site could render interim order infructuous.
(vi) Assuming that there was really a need to entrust the site for the purpose of the inaugural function, at least after 18th, the second respondent ought to have been stopped from the collection work and both the respondents should have approached the Court for further orders. There was no obligation on the first respondent to have allowed the second respondent to operate since even the basic conditions of the work order were admittedly not complied with.
21. Therefore, for all the aforesaid reasons, I am inclined to hold that the excuse that the site had to be handed over on 14th itself for the purpose of inaugural ceremony on 18th is without any basis and is not genuine and only intended to favour the second respondent and to circumvent the order of the Court.
22. The second reason is that the interim order contemplates stay of only confirmation of the contract pursuant to the impugned tender and in view of the fact that the work order had been issued on 14th itself, the interim order is infructuous. The said stand taken by the respondents is not only opposed to the actual facts, but is also high handed and exhibits a determination to disobey the order without even any steps being taken to have the interim order vacated. There is absolutely no bona fides in the said defence.
23. In the entire file, in SEII/CW/DB/F1917/2000 either in the Note file or current file, there is no reference to the issuance of any order of confirmation. The work order dated 14.11.2002 is only a conditional order of acceptance subject to the fulfilling all the various conditions already mentioned above and the firm execution of the agreement and is not an order of confirmation of the contract as contemplated under the interim order. The question of confirmation would arise only after all the conditions are complied with. The first respondent as an official knows and ought to know at least now, that there can be no confirmation of the contract in the circumstances of the various conditions not having been complied with by the second respondent and the agreement not having been executed. The second respondent had not complied with the basic conditions before 16.12.2002 on which date only the agreement was executed and at least not before 11.12.2002 on which date only the payment of the amounts as required to be paid by the second respondent became complete. Putting the second respondent in possession of the site without even his fulfilling his basic obligations would be against the interests of the respondent and that is the reason why rightly no confirmation order was issued at least as on 16.12.2002 as could be seen from the file. In fact as stated earlier, in the entire file (C.F. and N.F.), no such expression as "confirmation" is found. Strangely another file with the same number is brought into existence and it is not known as to why it is done in the same office, but that file has come into existence only after the interim order and service of interim order on the first respondent and probably maintained as a separate file for the Court proceedings. The very first note is dated 21.11.2002 dealing with the Court notice and the notice received from the counsel for the petitioner. Even the said note which runs to four pages (Page Nos. 1 to 4) does not mention or use the word "confirmation", and only says that the second respondent had been selected and work order issued on 14.11.2002. Then a reference is made to the order of the Court and the legal cell was requested to give advice for further action. Thereafter the following note is put up on 27.11.2002:
"Since the order of confirmation was sent on 14.11.2002 and after payment of the part of the amount the site was handed over before filing the writ petition, let us file, a counter-affidavit in Court."
Thereafter, the next note is only on 13.12.2002. Except for the above mentioned self serving note after being confronted with the interim order, there is no reference to any confirmation nor any order of confirmation issued in favour of the second respondent. The reason is very simple namely, there cannot be any confirmation without the fulfillment of even the basic conditions and that is why no confirmation order was issued. A deliberate illegal and improper statement is made as above by blindly incorporating the word "confirmation", as found in the interim order. The legal cell has to fall in line with the illegal motives of higher-ups.
24. The most crucial fact which totally demolishes the claim that the interim order had become infructuous is that the second tender was placed in the meeting of the Authority only on 9.1.2003. It cannot be disputed that the contract has to be finally approved in the meeting of the C.M.D.A. Neither the Superintending Engineer, nor the Member-Secretary in their individual capacity have the power either to accept or to reject the tender. This is clearly demonstrated by the fact that the first tender dated 27.9.2002 was placed for approval in the meeting on 18.10.2002 in A.R.No. 188 of 2002 and it is only in the said meeting the decision for re-tender had been taken to fetch more money (Page Nos.27 and 28 of C.F.). That being so, the second tender could not have been approved much less awarded or confirmed by the Superintending Engineer or the Member-Secretary in their individual capacity. Whether the amount fetched in the second auction was sufficient or not could be decided only by the Authority and not by the Superintending Engineer or the Member-Secretary. In this context, the petitioner in his affidavit had taken a specific ground to the effect that no meeting of the Authority was held between 13.11.2002 being the date of opening the re-tender and 18.11.3002 on which date the bus terminal was inaugurated. To this in the para-war remarks contained between Page Nos. 81 and 92 of the Current File of the second file, the following are the remarks while dealing with the said allegation:
"The re-tender call was finalized on 14.11.2002 and work order was also given to the successful tenderer M/s. Business Leader on 14.11.2002. Since, the project was proposed to be opened on 10.11.2002, the contractor took over the site on 14.11.2002 and started to make preliminary arrangements. The subsequent meeting of Authority was held on 9.1.2003, in which the details of follow up action taken regard, cancellation of first tender, calling of re-tender, on deciding successful tenderer in the re-tender issue of work order etc., were informed."
But surprisingly and for obvious reasons, in the fair counter filed in the Writ Petition on 27.3.2003, all the said details are suppressed and the entire averments in paragraph Nos. 6 to 10 are denied in a short paragraph by merely stating that the site was handed over to the tenderer on 14.11.2002 to be made ready on 18.11.2002. There is no denial of the allegation of the petitioner and there is a deliberate suppression of the truth that no meeting of the Authority was held between 13.11.2002 and 18.11.2002 and subsequently held only on 9.1.2003. The respondents have indulged in a total unethical conduct of "suppressio veri and suggestio falsi", and have put forward a deliberate false plea that the contract had been finalised in favour of the second respondent, only with the sole aim of circumventing and violating the orders of the Court, and to mislead this Court.
25. Therefore, to the knowledge of the respondents, their contention that the interim order had become inoperative or infructuous is neither factually nor legally correct.
27. The contumacious conduct of the first respondent does not stop there. On 21.3.2003, on being told that the respondents continued to violate the order, in the Contempt Petition itself interim order was granted on the same day in the presence of the first respondent who had appeared on that day in person. On 28.03.2003 when the application was listed, learned counsel for the petitioner stated that even as on that date, the order was being violated. Hence, petition was adjourned to 31.3.2003 again directing the respondents to appear in person on 31.3.2003 in view of the continued violation. I had also expressed my shock to the counsel for the first respondent about the conduct of the first respondent. An additional affidavit was filed on that date by the first respondent as has been sworn to by the first respondent on 28.3.2003 to the effect that on 21.3.2003 when he had appeared in person he was informed by his counsel only about dispensing with his future appearance and not about the interim order dated 21.3.2003 and that on coming to know of the stay order, he had directed the second respondent to discontinue the collection work. Apart from the fact that no supporting affidavit has been filed by the counsel, the said statement is nothing but a rank falsehood having regard to the fact that on 21.3.2003 in his presence serious allegations were made against him by the counsel for the petitioner and on hearing the same, the Court also granted interim order. It is adding insult to injury to state that he was not aware of the interim order. Such a stand will not be taken even by an illiterate litigant and certainly not expected of Class I officer.
28. I also find that the files are not maintained properly so as to place the facts correctly. Apart from the fact that the files were not handed over to the Court, and handed over after considerable delay after listing the case again, a perusal of the file shows that in the current file no proper running number is given for each sheet. The pages are marked only in pencil in a very light shade. There is no reason why there is no proper paging in ink. In the current file of SC-II/CW/DB/F1917/2000 apart from the pages being marked only in pencil, Page Nos. 23 and 24 and 33 and 34 are not available. At Page No. 25 is the communication dated 25.10.2002 intimating the cancellation of the first tender to the petitioner and the second respondent. At Page No. 35 is the communication dated 13.11.2002 from the office of the Superintending Engineer regarding the details of the bid at the second tender. It is not known as to what the missing pages relate to. Another factor is that on the sheet at Page No. 27 of the current file, there is yet another paging as 295 in ink. Similar dual paging is found at Page Nos. 31 (335), 45 (315) and 51 (337). They are apparently taken from some other file which has not seen the light of the day in spite of directions to produce all the files.
29. The above stated facts disclose a deliberate and persistent disregard of the interim order of the Court on false excuses and pleas which have no legal basis and total absence of anxiety even to file a petition to vacate the interim order or even petition for clarification in the event of genuine doubts. On many number of occasions this Court being confronted with cases where any doubt which may arise and if the respondents approach the Court promptly either for vacating the interim order or for clarification and bring to the notice of the Court, the correct facts and the actual status quo as on date, this Court shall ignore even if there is temporary non-compliance of the orders arising out of any genuine difficulties and bona fide reasons and would pass appropriate orders either by vacating the order or by issuing suitable directions. But in this case, there is wanton negligence in not having taken any such steps which only reveals a recent trend in the mind of some officials and litigants that they are above law and that they can afford to be very loyal to extraneous factors than to Rule of law. In democracy no one is superior or inferior. We are all governed by the Rule of law. Allowing disobedience of the order of the Court would be putting the last nail on the functioning of the judiciary. The judiciary is also probably partly to be blamed as Contempt Petitions are dealt with lightly. Noticing the recent trend of frequent violations of the orders of the Courts, the Supreme Court had recently been adopting a more strict and stringent approach, which I am inclined to feel is warranted in this case considering the repeated acts of disobedience by the respondents and a very arrogant attitude of not even approaching the Court in time for vacating the order or for clarification even after the episode was exposed widely in the press and a notice of warning of contempt being received by them. I am therefore, inclined to hold that the respondents herein are guilty of disobedience of the order of this Court dated 15.11.2002 in W.P.M.P. 6127 of 2002 in W.P.No. 41404 of 2002 and Contempt Petition No. 131 of 2003.
30. Coming to the punishment to be awarded, having regard to the facts, the formal and routine apologies which have been tendered by the respondents have to be ignored. Though both the counsel had taken the correct attitude of not trying to strongly defend the conduct of the respondents and the counsel for the first respondent had also stated that they would abide by the directions of the Court, the attitude of the respondent especially the first respondent who should have better regard to Rule of law, is very deplorable. As stated earlier being faced with such frequent violations, in recent times the Supreme Court had adopted strict views while dealing with such Contempt Petitions. In M.C. Mehta v. Union of India, , which is also a case of repeated disobedience and disregard to the orders of the Court, the Supreme Court awarded punishment of simple imprisonment by one week and costs of Rs. 1,00,000. In this case also, the first respondent had indulged in not only deliberate and persistent violation, but also continued the disobedience even after the second order dated 21.3.2003. He is also guilty of filing false affidavit to the effect that he was not aware of the said order even though the said order was passed in his presence. Even the counter filed in the main writ petition contains false particulars as already dealt with under paragraph No. 24, supra. In the same judgment cited above, the Supreme Court had referred to three earlier judgments and held that filing false affidavit amounted to gross criminal contempt.
31. Coming again to the quantum of punishment in Delhi Development Authority v. Skipper Construction, , the Supreme Court directed the respondents to undergo simple imprisonment for a period of six months and to pay fine of Rs. 50,000.
32. In Bank of India v. Vijay Transport, , the Supreme Court imposed two months simple imprisonment and a fine of Rs. 2,000 each.
33. Though in this case also imprisonment is most appropriate and warranted, I refrain from imposing imprisonment considering the future of the career of the first respondent. There is also some evidence to show that he appears to have been acting under pressure from some higher authorities though their identity is not made known. Though he is a party to the Note dated 16.10.2002 in which an adverse comment is made about the experience of the second respondent (Page 5 of the Note file), later it is stated that the authority had decided for re-tender. The decision for re-tender appears to have been taken by the Authority. Hence, I am inclined to relieve him of punishment of imprisonment. But that cannot absolve him of his subsequent conduct of deliberate and persistent acts of Contempt of Court. As such I am constrained to relieve the second respondent also of the punishment by imprisonment though he is the beneficiary of the entire illegal action of the first respondent both in the context of award of tender and the subsequent violation of the interim orders. In the said circumstance, I am inclined to pass the following order:
(i) Both the respondents are found guilty of Contempt of Court and directed to pay the fine of Rs. 2,000 each.
(ii) This petition is allowed with exemplary costs of Rs. 25,000 as against each of the respondents. The amount awarded against the first respondent shall be paid by him personally and not by the office of the C.M.D.A.
(iii) The costs and fine shall be deposited within a period of two weeks from today, failing which each of them shall undergo simple imprisonment for a period of two weeks.
(iv) Out of the amounts to be deposited towards costs, a sum of Rs. 10,000 shall be paid to the State Legal Services Authority, Rs. 10,000 to the Chief Justice Relief Fund, Madras High Court and Rs. 5, 000 to the petitioner, by each of the respondents.
34. The above order shall however, be suspended for a period of two weeks to enable the respondents to file an appeal if they choose to do so.
35. When the order was taken up for delivery in the above Contempt Petition, learned counsel for the respondents state that the writ petitioner has given a letter to them for withdrawal of the writ petition. No such letter is either presented before me by the petitioner's counsel or received through the Registry. Nor is there any request to withdraw the Contempt Petition.
36. Further, a proceeding under the Contempt of Courts Act, does not depend upon the action or inaction of the parties or settlement being arrived at between themselves. Therefore, the issue as to whether the petitioner seeks to withdraw the main writ petition or not is not relevant for the disposal of the Contempt petition.