Jharkhand High Court
Sociedade De Fomento Industrial Pvt. ... vs State Of Jharkhand And Others ... ... ... ... on 22 November, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cont. Case (Civil) No. 562 of 2022
Sociedade De Fomento Industrial Pvt. Ltd. and anr... Petitioners
Versus
State of Jharkhand and others ... ... ... ... Opposite Parties
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners: Mr. M.S. Mittal, Sr. Advocate
Mr. Salona Mittal, Advocate
For the Opp. Parties: Mr. P.A.S. Pati, G.A.-II
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Oral Order 07/Dated: 22.11.2022 This case has got a chequered history.
It appears from the records that L.P.A. No. 165 of 2022 filed on behalf of the writ petitioner was allowed on 24.08.2022 holding that conducting of third attempt of auction was bad in law. However, when no order was passed for proceeding as per the law decided by this Court, this Contempt Case was filed on 08.09.2022. It also appears from the records that in the meantime an order was passed for conducting third attempt of auction. However, on 12.09.2022 Mr. Vijay Kumar Ojha, Director, Geology appeared before this Court and submitted that Annexure 3, i.e., the aforesaid decision, has already been recalled by the State authorities so far as Lodhapat Bauxite Block is concerned. However, when this matter was again taken up on 19.09.2022, it appears from the record that Annexure 3 was not actually recalled but only proceeding was postponed. The stand of the State authorities was that they were considering for filing S.L.P. before the Hon'ble Supreme Court. However, Mr. P.A.S. Pati, learned G.A.-II, who had appeared on that day, had stated that the order of recall, subject to result of the S.L.P. if filed, would be passed immediately. Further affidavits were filed and when the matter was taken on 21.09.2022 again, then it was recorded that the word 2. "postponed" has been replaced by word "recalled". However, the petitioner's stand was that the order is not being complied.
We make it clear that everything was happening in the matter when the Contempt Case was taken up for hearing by this Court and in place of complying the same, such proceedings were drawn by the State authorities. In the order dated 21.09.2022, we recorded the excerpts from the order passed in the L.P.A. allowing the writ petition especially the paragraphs nos.17, 18 and 21, for disobedience of which the present Contempt Case has been filed. We are again reiterating the aforesaid paragraphs: -
"17. In view of the discussions made hereinabove, we are of the view that the judgment rendered by Hon‟ble Apex Court propounding therein the ratio to invoke the power of judicial review, in the given facts of this case, is well applicable since the decision for not proceeding on the basis of second attempt of auction process even though the same is provided under the statutory provision, basis upon which the second attempt of auction process is initiated but the authorities by not proceeding in pursuance to the said decision dated 11.06.2020 of the Tender Evaluation Committee, is contrary to the statutory provision and as such the such action will well be considered to be unreasonable and arbitrary.
Considering the statutory provision the Tender Evaluation Committee has already taken decision for second attempt of auction process.
18. This Court, after having discussed the fact in entirety as also the legal position, gone through the order passed by learned Single Judge and has found therefrom that the learned Single Judge has failed to appreciate the decision of the Tender Evaluation Committee which was taken on 11.06.2020, which is in accordance with the provision as contained under proviso to Rule 9(12) of the Rules but the learned Single Judge has gone into general principle that the power is with the 3. Government to cancel the tender and issue fresh one. But such principle is to be tested on the basis of applicable rule.
Herein, the specific rule is either to go for de novo tender or to go for the second attempt of auction process. The duly constituted Tender Evaluation Committee since has taken decision to go for the second attempt of auction process, therefore, it is not available for the Department to take another decision that too by the Director of the Department prevailing upon the decision taken by the Tender Evaluation Committee, considering the fact of statutory provision that the Tender Evaluation Committee has already taken decision for second attempt of auction process.
Further, the reason upon which the writ petition has been dismissed is based upon the consideration of the fact by the learned Single Judge that in case if one bidder will be allowed in the auction process the same will be contrary to the public policy but while giving such finding the learned Single Judge has not appreciated that when the statutory provision is there for proceeding with the tender process even if in case of single bidder, as would appear from provision contained in the rule, it cannot be said that if the tender process would be allowed to proceed in a case of single bidder, it will be contrary to the public policy rather action is required to be taken by the Tender committee if not taken as per the statutory provision then only it can be said to contrary to the policy decision, but, herein, since the decision for second attempt in the auction process has been decided to be resorted to, as would appear from the decision of the Tender Evaluation Committee dated 11.06.2020, it cannot be said to be contrary to the public policy.
21. In consequence thereof, the instant intra-court appeal stands allowed as also the writ petition stands allowed."
In view of the aforesaid directions, the State was to proceed in accordance with that but when the same was not being done, we granted two weeks' time after Durga Puja holidays for compliance of 4. the order, which was around to total 40 days, for bringing any stay order from the Hon'ble Supreme Court as it was contended that the State authorities were intending to file S.L.P. against the order passed by this Court.
The matter was again taken up on 01.11.2022. It appears from the order dated 01.11.2022 that neither S.L.P. was filed nor was the order complied. However, in view of the prayer made by the learned counsel for the State, the case was directed to be put up on the next date i.e. 02.11.2022.
On 02.11.2022 we again passed the order recording that neither S.L.P. is being filed and stay order being brought after filing of S.L.P. before the Hon'ble Supreme Court nor was the order concerned being complied. We had recorded that the conduct of the authority was not upto the mark which would be apparent from the previous orders. However, since the order of third attempt for auction was already recalled and it was being urged on behalf of the State that S.L.P. would be filed, we directed them to file detailed affidavit regarding their conduct. The matter was lastly taken upon on 03.11.2022. The Secretary, Department of Mines & Geology appeared before us and filed affidavit. In paragraph 13 of the affidavit filed by the Secretary of the Department, it appears that everything was ready for filing of S.L.P. which was to be filed within a week. We recorded everything and adjourned the matter to be taken up on 21.11.2022 so that S.L.P. could be filed and stay order could be brought.
However, when the matter is taken up today it appears that only two days' back, S.L.P. has been filed as stated by learned counsel for the petitioner which is not being confronted by the learned counsel 5. appearing for the State. Learned counsel for the petitioner has submitted that purposely this delay is being caused to frustrate this Contempt proceeding. It is contended that when everything was ready and S.L.P. was to be filed within one week as stated in paragraph 13 of the affidavit of the Secretary of the Department, why they waited for the last two days for filing S.L.P.? This clearly shows that their motive is something else. They only want to delay the process. However, since one Interlocutory Application has been filed stating that S.L.P. has already been filed, it would be proper for us to wait for some more time.
Put up this matter on 29.11.2022 by way of last indulgence so that stay order could be brought or the concerned order be complied by the State authorities.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Manoj/VK