Calcutta High Court
Phulchand Viswakarma vs Union Of India (Uoi) And Ors. on 12 April, 1996
Equivalent citations: (1997)1CALLT57(HC)
JUDGMENT Samaresh Banerjea, J.
1. The petitioner who claims himself to be a manufacture and seller of accessories of pneumatic tools has challenged in the instant writ petition the alleged illegal and arbitrary action of the respondent in entering in to rate contract for accessories of pneumatic tools pursuant to the impugned tender notice inviting tender for rate contract in respect of pneumatic tools.
2. The tender notice being No. WMT-6/RC-3845/PH. TOOLS/95-96/ 16 dated 19th April 1994 was issued by the Directorate General of Supplies and Disposal and was published in vol. 352 No. 7 of the Indian Trade Journal (annexure A to the writ petition). Admittedly such tender was invited, as it will appear from the tender notice itself in respect of various pneumatic tools specified in the tender notice for the rate contract period from 1st of September 1995 to 31st October 1996. It is the contention of the petitioner since admittedly such tender notice was issued only for supply of pneumatic tools and not accessories of pneumatic tools, the petitioner did not participate in the tender. But on 2nd week of August 1995 the petitioner received an information that the respondent would make bulk purchase of accessories of pneumatic tools from those tenderers who submitted their quotation pursuant to the aforesaid tender notice. It is the contention of the petitioner the aforesaid action of respondent in awarding contract for bulk supply of accessories of pneumatic tools to the tenderers who submitted their tender pursuant to the tender notice although in the said notice there was no indication that the same was also for accessories, was wholly arbitrary and by such action of the respondent, the petitioner who is manufacturer and supplier of accessories as also similarly circumstanced manufacturer of accessories have been wrongfully excluded from participating in such tender. It is alleged that such action was resorted to by the respondent wilfully to eliminate fair competition by precluding the petitioner and other manufacturers of accessories of pneumatic tools from participating in the tender. After coming to know about such fact the petitioner made a representation to the Directorate General of Supplies and Disposal, New Delhi, on 14th August 1995 contending, inter alia, that because of such action of the respondents the petitioner's firm which is a small scale industry is being prevented from participating in the tender as it was not mentioned in the tender notice that the same was also for accessories. It was prayed in the said representation that a fresh tender may be published with naming accessories therein to enable the petitioner also to participate in the tender. Similar representations were also made by Kothari Rubber Products on 18th August, 1995, Ganesh Engineering Co. on 19th August 1995, but the same have been no avail. Sri Moreswar Savey a member of Lok Sabha, also wrote to the Secretary, Ministry of Supplies, Government of India complaining about gross irregularities in such tender because of which more than 2 dozen manufacturers scattered in the different parts of the country and specially the small scale industrial units suffered seriously because of their inability in participating in such tender. It is the further case of the petitioner that the respondents are treating accessories of pneumatic tools as a separate items of bulk purchase and accessories to pneumatic tools are going to constitute over 80% of the total tender value and on or before 4th September 1995 the petitioner came to know that the tender pursuant to such notice was finalised and advance intimation have been given to the tenderers. It is also alleged by the writ petitioner that the respondents are wilfully proceeding in such matter to exclude fair competition and to choose their favoured manufacturers. The petitioner has prayed for issue of a writ in the nature of Mandamus commanding the respondents to desist from making purchase of accessories of pneumatic tools pursuant to the aforesaid tender or alternatively to withdraw such tender notice and to float fresh tender for supply of accessories of pneumatic tools upon proper advertisement.
3. The writ petition which was affirmed on 11th September, 1995 was taken up for consideration for admission by this Court first time on 20th September 1995 when prayer for adjournment was made on behalf of the respondents on the ground of difficulty of their learned Advocate and the matter was accordingly adjourned till 25th September 1995, but at the same time on consideration of the prayer of the learned Advocate appearing for the petitioner that there is a reasonable apprehension that final steps for issuing the work order will be issued by the respondents in the mean time, an interim order was granted on 20th September 1995 to the effect that the respondents till 26th September 1995 shall not take any final decision if the matter of issuing work order only relating to accessories of pneumatic tools. On 26th September 1995 after hearing the learned Advocates of both the parties direction for affidavits was given and the interim order which was granted on 20th September 1995 was extended until further orders with liberty to the respondents to apply for vacation or variation of interim order upon notice to the petitioner.
4. On 6th November 1995 the petitioner filed an application for contempt complaining of wilful and deliberate violation of the order passed on 20th September 1995 and 26th September 1995 by the respondents and copy of the same was served upon the learned Advocate of the respondent On 15th November 1995 the learned Advocate appearing for the alleged contemnors submitted that his clients have not violated the Court's order passed on 26th September, 1995 wilfully or deliberately and the work order in question was issued by the respondents from Delhi knowledge of the order of the court. The application for contempt thereafter was adjourned till 22nd September 1995 and the respondents were directed to produce all the relevant records for the purpose of substantiating such statement that the work order was issued without the knowledge of the court's order. To prevent further breach of the aforesaid order of the court it was further directed that no further steps shall be taken pursuant to the work order in question. On 22nd November 1995 Mr. Dhandhania appearing for the contemnors prayed for an opportunity to file affidavit-in-opposition whereupon such opportunity was granted to such alleged contemnors and it was further directed that the application for contempt along with the main writ application be added in the hearing list on 12th December 1995 and interim order which was granted on 15th November 1995 stand extended until further order of the court.
5. But ultimately the matters could not be heard either on 12th December 1995 or immediately thereafter as the determination of this Court changed in the meantime.
6. The hearing of the application for contempt was taken up again on 9th February, 1996 and in said application for contempt M/s. Vishal Engineering Works who was one of the tenderer and was issued with the work order applied for vacating interim order which was passed in the said contempt application on 15th November, 1995 and was extended subsequently. Ultimately the writ application was also assigned by the Hon'ble Chief Justice to this Court and both the contempt applications as also the main writ application have been heard on several days where aforesaid M/s. Vishal Engineering Works was also allowed to submit in the writ proceedings after adding the same as a respondent in the Writ petition on its application.
7. Since the application for contempt has been heard first, I propose to deal with the same first.
8. In the application for contempt it has been alleged that the alleged contemnors wilfully and deliberately have violated the order dated 20th and 26th September, 1995 passed by this Court in the writ proceeding with full knowledge of the same by issuing the Work order dated 22nd November, 1995 to M/s. Vishal Engineering works after accepting its tender and also by issuing work order dated 22nd September. 1995 to M/s. ISDEC India Pvt. Ltd. and by issuing another work order dated 26th September, 1995 to M/s. Atlas Copco India Ltd.
9. The contemnors have not denied that such work orders were issued subsequent to the passing of the interim order; but it is their specific defence that such work orders have been issued without knowledge of the order of the Court.
10. The alleged contemnor No. 1 Sri K.V. Subhramaniam, the Director General of Supplies and Disposals, Government of India, New Delhi, in his affidavit has specifically pleaded in paragraph 4 of the said affidavit that personally he had no knowledge about filing of the writ petition in connection with the said tender notice before this court and he had also no knowledge about passing of any interim order by this Court. He has further specifically pleaded in paragraph 4 that he was not a party to any decision taken by the tender purchase committee and he personally did not issue any rate contract to any party in connection to the said tender and he did not personally approve the issue of any such rate contract.
11. It will thus appear from the said affidavit of the said alleged contemnor No. 1 that not only he is denying knowledge of the interim order granted by this Court and even about the existence of the writ proceeding, he also is totally denying any involvement either in the matter of taking decision for issuing of such work order or approval of the rate contract.
12. The alleged contemnor No. 2 Sri Nirmalendu Haider Director of Supplies and Disposals in the Director of Supplies and Disposals, Government of India, Calcutta, like contemnor No. 1. in paragraph 4 of his affidavit has denied any connection in the matter of issue of such work order or in the decision making process of the said tender. It is specifically pleaded that he personally did not issue any rate contract to any party in connection with the said tender nor did he personally approve issuance of any such rate contract and he had no connection with the decision making process of such tender.
13. It has been further stated in paragraph 4 of the said affidavit by alleged contemnor No. 2 that he received the copy of the writ petition of 15th September, 1995 and forwarded the same to Delhi on 28th September, 1995.
14. Sri S.R. Pershad, the alleged contemnor No. 3 who is the Assistant Director of Supplies (WMT-6) in the office the Directorate General of Supplies and Disposals and under those signature the work orders were issued in his affidavit has contended, inter alia, that he has not violated the order of this Court knowingly or intentionally. It has been pleaded In the affidavit that on 30th August, 1995 the tender purchase committee after detailed deliberation took the decision to conclude the rate contract at the quoted prices with M/s. ISDEC for LPP models and further decided that in respect of LPP Models of M/s. Atlas Copco ADS(WMT-6) would prepare a detail statement bringing out comparison of list prices, per centage increases in the list prices, discount offered by the Firm. As the proposed rate contract was for the period commencing from 1st September, 1995 the authorities issued an advance rale contract on 31st August, 1995 in favour of M/s. ISDEC Pvt. Ltd. for pneumatic rock Drill, and the telegraphic advance acceptance was followed by formal rate contract with M/s. ISDEC Pvt. Ltd. by communication dated 12.9.95. The tender purchase committee again held its meeting on 19.9.95 and took further decision as indicated in paragraph 5(4) of the affidavit-in-opposition. It is further contended that the telegraphic advance acceptance intimating conclusion of rate contract with M/s. Vishal Engineering Works was issued on 21st September, 1995 as per the decision taken on 19th September, 1995 after approval of the minutes of the meeting.
15. It is further contended that on 23rd September, 1995 a letter dated 21.9.95, sent by the writ petitioner was received by the watchman on 23rd September, 1995, but as the same was a Saturday the office remained closed on the said date. It is further specifically pleaded that before receipt of the aforesaid letter no communication whatsoever was sent by anybody to the Director General of Supplies & Disposals, of either regarding filing of the writ petition or about passing of any interim order by this Hon'ble Court and the work orders were issued without any knowledge either of the filing of the writ petition or of passing of any order by this court. It is further pleaded that on 26th September 1995 rate contract was placed in favour of M/s. Atlas Copco India Ltd. by a communication dated 26th September 1995. It is further pleaded that although the letter dated 21st September 1995 of the writ petitioner annexed to the contempt petition was received on 23rd September 1995 by the Watchman in the office of the alleged contemnor No. 1 and on 25th September 1995 in the dak section of the said office, the alleged contemnor No. 3 personally was not aware about receipt of the said letter at the time of issuing on the rate contract on 26th September 1995. It is further contended that after receipt of the letter dated 21st September 1995 from the petitioner on 23rd September 1995, the only action which was taken by the alleged contemnor No. 3 to issue rate contract to M/s. Atlas Copco India Pvt. Ltd. on 26th September 1995. It has further been pleaded by the contemnor No. 3 in para 17 of the affidavit that communication dated 27th September 1995 as to the extention of interim order passed on 26th September 1995 was received by the dak section of the office of the contemnor No. 1 on 4th October 1995.
16. It will thus appear from the affidavits of all the 3 alleged contemnors that the fact that the work order has been issued in violation of the interim order passed by this court is not denied, but it is the case of the alleged contemnors that the same do not amount to contempt of court as such order was issued without the knowledge of the interim order passed and therefore there has been no violation of interim order wilfully or deliberately.
17. It is however pertinent to note that each of the contemnors although has alleged that he had no knowledge of the interim order passed by this court, no specific case has been made out by any of the contemnors that he had no information even from any source of such interim order. Admittedly the interim order which was passed by this court is prohibitory in nature and it is well settled that in the case of a prohibitory order even knowledge "alliunde" is sufficient for compliance of such orders. The interim order which was first passed by this court on 20th September 1995, as pointed out hereinbefore was passed after adjourning the matter till 25th September 1995 on the ground of difficulty of the learned Advocate appearing for the respondents. It may be recorded that on the said date submission was made by another learned Advocate on behalf of the respondent on the ground of difficulty of the learned Advocate for the respondents. Therefore even if the order dated 20th September 1995, was passed when the learned Advocate appearing for the respondent himself was not present, it is obvious he came to know of such order subsequently. The order dated 26th September 1995 extending the interim order was passed in the presence of learned Advocate appearing for the respondents. It is therefore, obvious that the learned Advocate for the respondents was fully aware of the said interim order and the same was communicated to the contemnors. None of the contemnors however has stated in their affidavits that no information was received by either of them about such interim order from their learned Advocate. It is also not disclosed when they received information of such interim order from their learned Advocate. The case made out by alleged contemnor No. 2 in his affidavit that he received the Writ petition on 15th September 1995 and forwarded the same to Delhi Office on 28th September 1995 is indeed astounding. No explanation has been given as to why the said alleged contemnor No. 1 had to wait for about 13 days for forwarding the said writ petitioner to Delhi Office. The date of alleged forwarding the writ application namely, 28th September 1995 is indeed significant and cannot be overlooked. Admittedly by 26th September 1995 all steps for issuing of work orders were completed. The contemnor No. 2 has also not denied the specific averments made in paragraph 21 of the contempt application that the interim order was communicated to the respondent No. 1 through contemnor No. 2. The annexure to the contempt application indicate that the office of the contemnor No. 2 received the letter dated 21.9.95 communicating the interim order. But no explanation has been given why after receipt of such communication he did not communicate the same to the Delhi Office. Equally strange is the stand of the alleged contemnor No. 1 who appears to have denied any connection in the matter of decision in the tender committee or in approval thereof. His statement in the affidavit that he was not a party to any decision taken by the purchase committee and he did not personally approve the issue of such rate contract, if accepted, would only mean that the decision to issue tender has been taken without approval of the alleged contemnor No. 1 by the alleged contemnor No. 3 although it is well known that in the matter of contract the tender committee is merely the recommending authority and not the authority to take the final decision. The significance of the statement made by the alleged contemnor No. 1 that he did not personally issue any rate contract and he did not personally approve the issue of such rate contract is also not to be overlooked as such statement obviously mean that he was not unaware about issue of such rate contract and the issue of the work order although he did not personally do the same or approve the same.
18. It may be noted such statement of contemnor No. 1 coupled with the statement of the contemnor No. 3 himself in his affidavit clearly indicate that it is the contemnor No. 3 who has taken the decision to issue the rate contract and such fact also appears from the document produced by the contemnors themselves which appears to be the communication issuing the rate contract made to Vishal Engineering Works which was signed by alleged contemnor No. 3.
19. The stand of the contemnor No. 3 however that the work order was issued by him without his knowledge of the court order and therefore there was no wilful violation of the court's order cannot be accepted.
20. As pointed out herein before that no case has been made out by the contemnor No. 3 that he had no information about such interim order from the learned Advocate appearing for the respondents before this court and under such circumstances the presumption will be that the knowledge of the learned Advocate appearing for the respondents was the knowledge of the alleged contemnors, which has not been refutted.
21. That apart the stand taken by the contemnor No. 3 communication of the interim order was received on 23rd September 1995 by the watchman in the office of Director General of Supplies and Disposals, New Delhi and on 25th September 1995 by the dak section of the said office and the contemnor No. 3 was not personally aware about the same is wholly untenable and unbelievable. If the letter was received on 25th September 1995 admittedly by the dak Section of the office of the contemnor No. 1 there cannot be any reason whatsoever as to how the contemnor No. 3 or the contemnor No. 1 could not be aware of such order. in the usual course of business after receipt of a letter by the office of the concerned department, the letter will be placed before the addressee and it does not stand to reason why after receipt of the letter dated 21st September 1995 by the office of the contemnor No. 1, either he or contemnor No. 3 was not aware of the letter. It is not even the case of the contemnor No. 3 that the said letter was not placed before the contemnor No. 1 or before the contemnor No. 3 after receipt of the same by the office. Such a stand taken by the contemnor No. 3 is preposterous and cannot be believed. From the aforesaid stand taken by the contemnor No. 3 it is absolutely clear the said contemnor had full knowledge or information of the aforesaid interim orders at least from the aforesaid letter dated 21st September, 1993, which was received by said office on 23rd September 1995 and only to avoid contempt of court such a story has been made out by the alleged contemnor No. 3 of not being aware of such order even after admitted receipt of such letter by the dak Section on 25th September 1995, by way of after thought.
22. If such a stand taken by the said contemnor is to be accepted, the same will only permit every contemnor to avoid the consequence of commission of contempt by taking such a stand that although his office might have received the letter he is not aware of the contents of the letter.
23. I also disbelieve the stand taken by the contemnor No. 1 that he was not aware of the order. Since admittedly his office received the said letter communicating the interim order on 23rd September, 1995, as admitted by the contemnor No. 1, there cannot be any reason why he was not aware of the interim order. Similarly I also disbelieve the stand of the contemnor No. 2 that he was not aware of the interim order. It is obvious that he was aware of the interim order through the letter dated 21st September 1995, the receipt of which he has not denied and he made out a story of sending the petition to Delhi subsequent to issue of tender as an after thought.
24. It may be also noted in this connection that no attempt has been made by the contemnors to produce the relevant records before this court for the purpose of substantiating their stand although they were directed to do so by the order dated 15th November, 1995. Since however neither the contemnor No. 1 nor the contemnor No. 2, but contemnor No. 3 issued the work order, after careful consideration of all aspects of the matter. I have no hesitation to hold that the alleged contemnor No. 3 has committed contempt of this court by wilfully and deliberately violating the interim order issuing the rate contract at best in favour of M/s. Atlas Copco Pvt. Ltd. amended rate contract in favour of M/s. 1SDEC on 26th September, 1995 inspite of being aware of the interim order in question.
25. The only question which now remains as to the proceeding for contempt is what should be the punishment to be imposed upon the contemnor No. 3 for wilful and deliberate violation of the aforesaid order dated 20th September 1995. In a proceeding for contempt the court punishes a contemnor not for the purpose taking vengeance or to uphold the dignity of a judge, but for upholding the majesty and dignity of Rule of Law and of the Judiciary itself. Under such circumstances a contemnor should not be allowed to have the impression that he can violate the order of the court with impunity and can escape the consequences by offering any explanation whatsoever. The court in its discretion can certainly however accept the apology of a contemnor even if he has violated the order of the court, if the court finds that the contemnor is really apologetic and sorry for his action and has realised his mistake. In the instant case there is nothing in the affidavit of the contemnor No. 3 to indicate that he is really apologetic or sorry for his act; on the contrary there is clear attempt to suppress the truth by alleging that the work order was issued without being unaware of the interim order. His apology offered in the affidavit appears to be not bona fide at all and appears to have been offered mechanically to evade the consequence of contempt. As it has been held by the supreme Court in the case of M.B. Sanghi v. High Court of Punjab and Haryana that "apology is not a weapon of defence to purge the guilty of their offence, nor is intended to operate as universal panacea, but is intended to be evidence of real contriteness".
26. After considering all aspects of the matter I sentence the contemnor No. 3 to pay a fine of Rs. 1000/- (Rupees One Thousand Only). Such fine shall be paid by the contemnor No. 3 within 2 weeks from date to the Registrar, Appellate Side, of this High Court. In default he shall undergo simple imprisonment for 2 weeks.
27. Before parting with the contempt application it is however necessary to deal with an application made by M/s. Vishal Engineering Works for vacating the interim order which passed in the contempt proceeding.
28. It was been submitted by Mr. Aninda Kr. Mitra, learned counsel appearing on behalf of Vishal Engineering Workshop in support of the said application, inter alia, that since his client has been issued with the work order, the interim order granted by this court on 15th November, 1995 on the application for contempt to the effect that no further steps shall be taken by the respondent pursuant to the work order in question is causing serious prejudice to his client and such an interim order should be vacated. The main contention in support of such application for vacating interim order of Mr. Mitra that the court has no power in a proceeding for contempt to pass any order other than the order of punishment and in any event in such a proceeding the court cannot pass an order enlarging the scope of the writ petition. In this connection reliance has been placed by Mr. Mitra in the Division Bench Judgment of this court presided over by Monoj Kr. Mukherjee, J. in the case of Ranju Gopal Mukherjee v. Ramapada Halder reported in 1991(1) CHN page 174.
29. It has been further contended by Mr. Mitra that the principles of law that order passed in violation of an order of court is a nullity and therefore no person can take advantage of such an order, cannot stand in the way of the applicant to apply for vacating the imterim order in the contempt proceedings itself as the court dealing with the contempt application is not the appropriate forum to go into the question whether such order is nullity or not.
30. Mr. Pal the learned Counsel appearing on behalf of the writ petitioner on the other hand has contended, inter alia, relying on a large number of decisions of Supreme Court as also different High Court that in a proceeding for contempt it is well settled that the power of the High Court and Supreme Court is not limited only to passing of the order of punishment but such a court can pass appropriate orders at the conclusion of the proceeding for contempt or during pendency thereof for the purpose of closing the breach of the order or continuation of such breach or to enforce compliance of the order. It has been further contended by Mr. Pal that the Supreme Court and High Court being a court of record the power of such courts to punish the person who commits contempt of such court is derived under Article 215 of the Constitution and such power is not circumscribed by the Contempts of Courts Act 1971 and the provisions made in Section 12 and the provision for punishment made in the said Act are not exhaustive.
31. The fact that the Supreme Court and High Court in dealing with the application for contempt not only has the power to impose an appropriate punishment upon the contemnor for wilful or deliberate violation of its order or violation undertaking, but also has the power to pass appropriate order for closing the breach of such order or to enforce compliance of the order is now well settled. But since inspite of such settled position of law the aforesaid power of the court has been doubted by the learned Counsel of said M/s. Vishal Engineering Works, it has become necessary to reiterate such position of law. In Halsbury's Laws of England (4th Edition paragraph 100) it has been stated "as a further alternative to ordering commital, the court may, in its discretion, adopt the more lenient course of granting an injunction to restrain repetition of the act of contempt. The court may also penalise a party in contempt by ordering him to pay the costs of the application. In Noorali Babulals's case , the Supreme Court after holding the contemnor to be guilty of contempt of Court for breach of an undertaking given to a court, was of the view that under the facts of the particular case mere imprisonment or fine will not meet the Justice and there will have to be an order directing the first contemnor to deliver vacant possession immediately and by issuing a further and consequential directions for enforcing the same.
32. In the case of Md. Idrish and Anr. v. Rustam Jahangir Babuji and Ors. reported in 1984(4) SCC 216, it was held by the Supreme Court that the trial court was quite right in giving appropriate directions in addition to punishing for contempt of court to close the breach. In the case of Mr. Dulichand and Ors. v. Union of India and Ors. , the Supreme Court instead of punishing for commission of contempt directed that the order of the court dated July 16, 1990 be complied with. In the case of S. Sathyapriya v. State of Andhra Pradesh 1994(5) SLR page 195 as admission of students belonging to the reserve categories was in excess of quota provided for them thereby depriving the students on the merit list a chance of admission, in a proceeding for contempt the Supreme Court directed creation of extra seat for students of consolidated merit list so that they could be admitted. In the case of Firm Ganapethram Raj Kumar v. Kaluram , the Supreme Court after finding that there was no breach of undertaking, as no such undertaking was there, was of the view no court should allow any party to mislead the court and thereby to frustrate the order and directed that under the facts of that particular case the court should ensure compliance with its order dated 24th August 1987 and see that the vacant a peaceful possession is given to the applicant in the interest of justice. The aforesaid decision was followed by the Supreme Court in the case of Smt. Rampiari v. Jagdishlal reported in 1992 Cr.L.J. page 2315 where similar directions was passed in a proceeding for contempt in the case of A.N. Srigal and Ors. reported in 1995(2) SLR page 431 the Supreme Court in an application for contempt for the purpose of enforcement of the order originally passed issued directions to rectify the illegalities pointed out and to fix the seniority in accordance with interpretation of rules made by the Supreme Court in the original case. In the case of Hindustan Lever Sramik Karmachart Congress v. Asish Chakraborty and Ors. reported in 1991(2) Calcutta Law Times 143 K.M. Yusuf, J. as His Lordship then was after relying upon different Supreme Court Judgments as also the Division Bench Judgment of our High Court held that the power of courts is not restricted in a proceeding for contempt only to punish the contemnors, but the court is competent to pass consequential order to enforce its order. In the case of Sunil Kr. Ghosh v. State of West Bengal reported in 1995 Cr LJ page 2179 a Division Bench of this court following the decision of the Supreme Court in the aforesaid case of Noorali Badulal v. K.M.M. Sethy (supra) as also the Division Bench judgment of our High Court held that in a contempt application the court is competent to issue necessary further consequential direction for enforcing its order. In case of Husking Mills v. Hira Singh, reported in 1978 Calcutta High Court notes page 64 : 1977(2) CLJ page 391 after having held that filing of vexatious suit and proceeding amounted to criminal contempt granted an injunction restraining the contemnor from filing suit without the leave of the court to prevent repetation of such contumacious act.
33. It will thus appear from the above mentioned various decisions of the Supreme Court and our High Court that the power of the court is not only restricted to imposition of punishment upon a contemnor, the court can also pass appropriate order either for closing the breach of the order or for enforcement of the same.
34. In the instant case the order which was passed on 15th November, 1995 by this court was obviously for the purpose of closing the breach of the order which was originally passed on 20th September, 1995 and thereafter extended on 26th September, 1995. As pointed out hereinbefore on 26th September, 1995 this court passed an interim order to the effect that the respondents shall not take any final decision in the matter of issuing work order only relating to accessories of pneumatic tools. Such order was extended after hearing both the parties on 26th September, 1995 until further order of this court On 15th. November, 1995 on the application made by the writ petitioner for contempt it came to the notice of the court that inspite of such specific order passed by the court, the contemnors allegedly in violation of such order has issued work order and accordingly on the said date to close such breach or continuation of breach of such order an interim order was passed to the effect that no further steps shall be taken by the respondents pursuant to the work order in question.
35. The decision cited by Mr. Mitra in support of his contention of Division Bench of this court in the case of Ranjugopal Mukherjee v. Ramapada Haldar reported in 1991(2) CHN page 174 is clearly distinguishable and in applicable in the instant case. In the aforesaid decision Monoj Kumar Mukherjee, J. as his Lordship the then was speaking for the Division Bench after having held that in a proceeding for contempt the court can punish the offenders and can pass consequential orders for enforcement and execution of the order as the case may be further held while exercising such power it will not be open to the court to pass order which is materially add to or alter the order for alleged disobedience of which contempt jurisdiction was invoked. The said Division Bench therefore was also clearly of the view that in addition to power to punish for contempt court can pass order for enforcement and execution of the order, but such power cannot extend to passing of an order materially adding or altering the original order. The order in question with which their Lordship of the Division Bench were concerned in the aforesaid case was an order which materially altered and added to the original order. The order which has been passed in the instant case on 15th November 1995 was not at all an order which materially added to or altered the original order. The original order as pointedout hereinbefore was an order restraining the respondents for taking any final decision in the matter of issuing work order, but as in violation of such order the work order was issued, further order was passed on 15th November 1995 directing the respondents not to take further steps pursuant to work order in question. Such order therefore was passed not materially altering the original order but in aid of enforcing the original order and closing the breach of the said order.
36. The other submission of Mr. Mitra is also not tenable. If the court does have such power in addition to punish a contemnor for contempt for passing further consequential order for the purpose of closing such breach or enforcement of original order, if is inconceivable that some one who comes before such court claiming advantage of an order which has been passed in violation of the court's order and therefore cannot claim any right in respect thereof such an order being a nullity, the court dealing with matter of contempt will shut its eyes to such breach and permit the person who claim right or interest out of such breach to enjoy the profit of the same, and relegate the parties to a different courts to decide whether such a party can enjoy the right which has been accrued to him by a breach of the order of the court. Since the court has power to pass order in addition to punish for contempt for closing the breach of the order and to enforce compliance of the order, in exercise of such power It can also pass order preventing enjoyment of such right which has accrued to any person arising out of such breach, the same being a nullity. The application for vacating interim order made by the applicant therefore is rejected.
37. As to the main writ petition it has not been disputed by the respondent in their affidavit-in-opposition to the writ petition that the impugned notice inviting tender was not a tender for accessories also. It is however contended, inter alia, in the tender form itself the items which were mentioned therein there was not a single item independent of accessories and all the items were four complete equipments and the tenders were. inter alia, required to give details of standard accessories without extra costs and additional accessories at extra costs. It is the further case of the respondents that on 19th September, 1995 a meeting was held by the tender purchase committee to consider the various tenders and in the said meeting it was decided to award different rate contract to M/s. ISDEC India Pvt. Ltd., Jamshedpur, for some additional items and to M/s. Vishal Engineering Works, Bombay, and M/s. Atlas Copco India Ltd., Bombay; none of the successful tenderers was issued any rate contract for accessories only and all the rate contracts issued are for complete equipments and the tenderers are required to supply standard accessories without any extra cost and additional accessories at extra cost. It is further alleged that NSIC/DGS&D registration is an eligibility criteria as it will appear from page 7 of the schedule to invitation to tender and the petitioner not being so registered was not even eligible to submit tender. It is also denied in the affidavit-in-opposition that there has been any attempt on the part of the respondents to exclude participation by the petitioner and other similarly circumstanced manufacturers of accessories. It has been further stated in the affidavit that a reply was given to the letter of the aforesaid member of the Parliament by the Secretary Ministry of Supply stating, inter alia, that it was not desirable to scrap the tender and refloat the same and there was sufficient time for participating in the tender which was opened on 25th July 1995.
In the supplementary affidavit-in-opposition of the respondents it has further been stated, inter alia, that in the meeting of the tender committee which was held on 19th September 1995, the representation of the various manufacturers of accessories including the petitioner were considered and it was decided that they should be sent the proforma advising them to return the same after furnishing the necessary details asked for. In the said affidavit an extract of the said meeting has been quoted where from it appears that it was decided in the said meeting that accessories should always be an integral part of the rate contract so as to make the R/C useful to the 'DGOs' to enable them to utilise the equipments. It was further stated in the minutes of the said meeting that the accessories are desired items as the same make the main equipments suitable for end use of to DDOs depending upon their Job requirement and without these accessories the use of the main equipment may be delayed/their versatility reduced and in case the drawls of a particular accessories would be substantial case of bringing that accessories on rate contract like twist drills should be initiated separately.
From Annexure 'B' to the supplementary affidavit it appears that it was decided that there as a matter of policy, the Director General of Supplies and Disposals shall normally decide rate contract based on competitive tendering without resorting to negotiations and rate contracts are normally concluded, inter alia, for items the estimated annual drawls of which exceeds Rs. 25 lakh for Central rale contracts and Rs. 5 lakh for Regional rate contracts.
38. In the affidavit-in-reply the petitioners however has contended that most of the Government Authorities including purchaser under the Directorate General of Supplies and Disposals rate contracts treat accessories as items independent of the parent tools. In support of such allegation the list of unified vendor trade groups issued by the North East Frontier Railway where accessories are listed as separate trade has been annexed. It has been further stated in the said affidavit-in-reply that the drawals in case of accessories of pneumatic tools far exceeds Rs. 25 lakhs and in support of such allegation purchase order placed by two Government Enterprises namely Uranium Corporation of India Limited and Hindusthan Coper Limited both of whom are purchasers under the Directorate General of Supplies and Disposals rate contracts have been annexed.
39. Mr. S. Pal the learned Counsel appearing for the petitioner has submitted, inter alia, that the petitioner being a manufacturer of accessories has been denied a fair and equal opportunity of participating in procurement of accessories inasmuch as admittedly the notice Inviting tender was relating to rate contract for pneumatic tools and not for pneumatic tools as also accessories. As it was never mentioned in the notice of tender that such a tender was also for standard accessories and for additional accessories with extra cost which is now being claimed, there is no question for the petitioner to respond to such notice inviting tender and to participate in the same by purchasing the tender form. It has further been submitted that the tender notice is issued to enable all interested persons to have a fair and equal opportunity of participation in the tender and therefore the language used in the notice must be clear and cannot admit any equivocation so that no interested person is misled. It is further submitted that the attempts of the respondents to procure additional accessories in the manner as aforesaid clearly was in gross abuse of the power of the respondents and arbitrary and is really an attempt to purchase through back door such additional accessories. It has also been contended that details clause in the invitation in tender documents also do not imply that the tender is also for standard and additional accessories, as alleged by the respondents. It is submitted on the contrary it will appear from the tender form that the schedule itself distinguishes between what is to be supplied and what information is to be submitted and one of such information to be supplied was detail of additional accessories at extra cost
40. Mr. Dhandhania learned Counsel appearing for the respondent on the other hand has submitted, inter alia, that the writ petition is liable to be dismissed on the ground of delay alone inasmuch as it is the admitted case of the petitioner that in August, 1995, the manufacturers of accessories came to know that under the tender in question, Government would purchase accessories also and since it is also known to the petitioner that the rate contract in question was to be for the period commencing from 1st September 1995, in all fairness the petitioner should have moved the court promptly if he was really aggrieved by the action of the respondents before 1st September 1995, but not having done so the petitioner is not entitled to relief specially when the period of the rate contract was only for a period from 1st September 1995 to 31st August 1996 and almost half of the period has already expired. It is the further submission of Mr. Dhandhania neither there has been any arbitrary exclusion of any one in the matter of participation of such tender nor there has been any discrimination to the manufacturer of accessories and the Government is entitled to take a policy decision as to the purchase of accessorised from the manufacturer of mother equipments also and even if the Government purchase accessories from manufacturers of mother equipment, there is still competitive bidding amongst such manufacturers and in any event considering the representation made by the petitioner and other manufacturers of accessories Government invited them to furnish necessary details to enable the Government to take decision whether separate rate contract should be issued or not and the Government still is prepared to consider the matter, if necessary details are furnished by the petitioner and other manufacturer accessories for future contract.
41. Mr. Pradip Chatterjee, the learned counsel appearing for the Vishal Engineering Works, the added respondent, has also urged that the writ petition should be dismissed on the ground of delay alone for the same reason as it has been contended on behalf of the respondents Nos. 1, 2 and 3. It has been further submitted on behalf of such added respondents that the records will reveal that apart from the rate contract for supply of accessories, rate contract for pneumatic tools were awarded in the past also along with rate contract for pneumatic tools; that the tender documents specifically mentioned about the tender of accessories of pneumatic tools as well and therefore the question of arbitrary exclusion of the petitioner does not arise, and in any event there cannot be any interference as it is the policy decision of the concerned authorities to award rate contract for accessories to the suppliers of pneumatic tools.
42. It will thus appear from the respective submissions of the parties that the whole question which has come up for determination before this court as to whether because of the impugned action of the respondents the manufacturers of accessories including the petitioner have been prevented from participating in the tender in question or there has been any arbitrary exclusion of such manufacturers of accessories from participation in the tender.
43. It is now well settled that even in the matter of entering into a contract State and/or a public authority cannot arbitrarily pick and can choose in such matters and its action must be free from arbitrariness and must be for public interest. The government cannot act in a manner which would benefit a private party at the cost of the State. The whole purpose of inviting tender is for securing a material or getting a public work done at the best rate to subserve public interest and the same is only possible if the tender is issued in such a manner ensuring fair competition and participation of all eligible tenderers. Under such circumstances if in a given case it is found that the concerned authority acted in such a manner in inviting tender with resulted in arbitrary exclusion of the eligible tenderers from participating in the same, such action will certainly be arbitrary and in violation of Article 14 of the Constitution as the same will be against public interest. According to the respondents themselves rate contract is in the nature of standing offer from the supplier firms to supply the stores at specified prices during the period covered by the contract.
44. In the instant case the notice inviting tender which was published in the Trade Journal admittedly is for rate contract in respect of pneumatic tools and nowhere it mentioned that such tender was also for the purpose of supplying accessories nor was it mentioned therein that such tender was for rate contract in respect of pneumatic tools as also for standard accessories with usual rate and for additional accessories at extra cost. The fact that the tenderer in question was not for accessories is also not disputed by the respondent in their affidavits.
45. It is however submitted by Mr. Dhandhania appearing on behalf of the respondents Nos. 1 and 2 that the respondents are not bound to float a separate tender for accessories and they can certainly enter into contract with the tenders of pneumatic tools in respect of accessories, if the same is found by the respondents to be convenient and in the best interest of the State.
46. Whether in the past also rate contract has been entered into with the tenderer in respect of pneumatic tools as alleged by the added respondents or whether in some cases separate tenders was invited for rate contract in respect of accessories contended by the petitioner by referring to certain records in the affidavit-in-reply, in my view, is not really material for the determination of the question which has arisen in the present case. It is true as submitted by Mr. Dhandhania that in a given case certainly the Government can decide to enter into rate contract in the matter of accessories with the tenderers of pneumatic equipment itself if it is found to be suitable for the Government and serves the public interest best and in fact learned Counsel appearing for the petitioner also has not disputed such proposition. But the question is in the instant case whether such a decision being taken by the respondents pursuant to any Government policy as alleged and to subserve in public interest or for the purpose of excluding the manufacturers of accessories from participating in the tender to subserve private interest.
47. Not only the tender notice indicated that the tender was for pneumatic tools, even the tender form which were issued by the respondents do not indicate that there was any scope of entering into rate contract with the tenderers of pneumatic tools for standard accessories without extra cost and in case of additional accessories with extra cost. As pointed out herein before the respondents themselves in their affidavit-in-opposition have clearly admitted that such tender was not for accessories but for pneumatic tools, but it has been sought to be contended that it was open to the respondents to enter into rate contract in respect of accessories with the tenderers of pneumatic tools if the same is convenient for the respondents without calling for separate tender for rate contract in case of accessories. The tender form and the schedule thereto being Annexure 'B' to the writ petition clearly indicates the tender was invited for supply of stores detailed in the schedule and item No. 1 of such stores was pneumatic tools equipment for civil engineering usage. The various other items which were mentioned under the various clauses of Clause (1) are not the stores in respect of which such tender was invited, but in respect of the same the tenderer was asked to file details along with the tender of pneumatic tools as it will appear from the said schedule itself. One of such information of such details which the tenderer was supposed to submit related to standard accessories and additional accessories at extra cost. Similarly item No. 2 of such stores in respect of which tender is invited is the pneumatic pusher legs or rock drills and the various sub clause under such item No. 2 which includes standard accessories and additional accessories at extra costs are not the item of stores in respect of which the tender is invited but the tenderer of pneumatic pusher legs is required to furnish details in respect thereof. Similarly in respect of all other items of stores in respect of which such tenders were invited, the tenderer was asked to supply details in respect of various other matters related to such pneumatic tools including standard accessories and accessories of additional costs.
48. Although Mr. Dhandhania appearing for the respondents has tried to contend that those are also item of stores in respect of which such tender for rate contracts were invited, such tender form and the schedule thereto ex facie however do not substantiate such claim of Mr. Dhandhaniea. That apart the respondents have clearly admitted in their affidavit-in-opposition that such tender is not for accessories and therefore it is not understood how after admitting the same in the affidavit it can now be submitted at the bar tender was asked for also in respect of such matters for including accessories.
49. Because of the reason aforesaid there was no scope for the respondents under the said tender to issue rate contract to the tenderers of the main equipment. There is nothing in the record also to indicate that even in absence of such scope as aforesaid, rate contract was also issued in respect of accessories to the tenderers of main equipment not arbitrarily but for public interest.
50. In the supplementary affidavit the respondents have annexed a guideline in the matter of such rate contract formulated by the respondents themselves. It has been stated in the said guideline that as a matter of policy Directorate General of Supplies & Disposals normally decide rate contracts based on the competitive tendering without resorting to negotiations. It is further stated in the said guideline that no rate contract are concluded for items unless the estimated annual drawal of the same exceeds Rs. 20 lakh for Central rate contract and Rs. 5 lakh for Regional rate contract. If the aforesaid two clauses are read together it will clearly appear that rate contract is issued on the basis of competitive tender and not negotiation, although in respect of items estimated annual drawals of which does not exceeds Rs. 25 lakh no rate contract may be concluded.
51. The minutes of the meeting of the tender committee dated 19th September 1995 merely, inter alia , refers to such principles. But it has not been stated there at all that the annual drawal in respect of the standard accessories and specially the additional accessories mentioned in the tender document have been found not to exceed Rs. 25 lakh and therefore rate contract in respect thereof has been entered into with the tenderer of pneumatic tools instead of separate rate contract. In the supplementary affidavit-in-opposition although such a policy has not been pleaded it has not been stated by the respondents that average expected annual drawals in respect of such accessories were found not to exceed Rs. 25 lakh and therefore separate rate contract was not asked for in respect of such accessories. It may be noted in this connection that in paragraph 17 of the writ petition the petitioner specifically pleaded that the accessories in respect of which the respondents have been entering into the rate contract with the tenderers of rate contract in respect of pneumatic tools form 80% of the total value of the pneumatic tools. In the affidavit-in-opposition the respondents have merely denied the allegation made in such paragraph in a bold manner without giving any particulars thereof and in the eye of law therefore the same is not even denial of such statement. It is also pertinent to note that the added respondent has claimed the total value of the expected drawals under the rate contract is to the extent of 43.75 lakh. It will also appear from the documents annexed to the affidavit-in-reply that in certain Government undertakings the expected drawals in respect of such accessories exceeds Rs. 25 lakh.
52. It is not therefore understood if such is the policy of the respondents that unless the expected drawals of accessories exceeds Rs. 25 lakh no separate rate contract will be entered into and it is also the policy of the respondents that rate contracts have to be decided based on competitive tendering without resorting to negotiation, how the tender committee could decide to enter into rate contract also in respect of accessories in such a tender which admittedly was not a tender for accessories, without first ascertaining than the estimated annual drawals of such accessories do not exceed Rs. 25 lakh. In fact it will appear from the said minutes that such attempt was made by the tender committee by asking the petitioner and other manufacturers of accessories by sending the proformas to them and asking them to supply the requisite informations, although at a very belated stage probably after coming to know about the notice for filing the writ petition. It has been argued by the respondents that such action was taken by the tender committee for future course of action. Even assuming that to be so, the same does not improve the position as in that event the position will be the respondents were proceeding arbitrarily without ascertaining the same.
53. There does not appear to be therefore any Justification for the respondents to enter into rate contract in the matter of accessories with the tenderers of pneumatic tools.
54. That apart it also does not appear from the extract of the meeting of the said tender committee as quoted in the said supplementary affidavit-in-opposition that any decision was taken in such meeting that rate contracts for accessories will be entered into with the tenderers of pneumatic tools as indeed the tender committee cannot be a decision making authority but merely a recommending authority and the final decision in respect thereof is to be taken by the Director General himself who has issued the tender. Such extract of the meeting as quoted in the supplementary affidavit-in-opposition also does not indicate that a recommendation to that effect was made to the appropriate authority. As it will appear from the extract of the said meeting as quoted in the said supplementary affidavit that on construction of the representation of the petitioner and other manufacturers of accessories the said committee recorded its opinion, and the same does not indicate that such meeting was held for considering the various tenders and a decision was taken to award different rate contracts to M/s. ISDEC India (P) Ltd. for some additional items and to M/s. Vishal Engineering Works, Bombay, and M/s. Atlas Copco Ltd. as claimed in paragraph 5(g) of the affidavit-in-opposition of the respondents. The respondents have also not produced before the court the entire decision of such committee or of any other authority for the purpose of showing that a decision was taken or recommendation was made as aforesaid. But even assuming the extract of such meeting which has been quoted in the said supplementary affidavit-in-opposition can be treated as such a recommendation, it cannot be overlooked that the same was never approved by the Director General. No materials have been produced before the court to show that any decision was taken by the Director General to enter into rate contract relating to the accessories with the tenders of the pneumatic tools. On the contrary the Director General in his affidavit-in-opposition filed in the proceeding for contempt has specifically pleaded that neither he was a party to any decision taken by the tender purchase committee nor did he personally approve issuance of any such rate contract. The relevant portion of paragraph 4 of such affidavit affirmed by the Director General of Supplies and Disposals is quoted hereunder:
"I was not a party to any decision taken by the tender purchase committee. I personally did not issue any rate contract to any party in connection to the said tender nor did I personally approve issuance of any such rate contract".
55. It is not therefore understood as to how the Assistant Director General of Supplies and Disposals could issue the rate contract even in respect of additional accessories at extra cost to the tenders of pneumatic tools.
56. It is true that the public authorities in such contractual matters must be allowed some freedom in their discretion to enable them to secure the best deal for the State: but such discretion cannot be exercised arbitrarily allowing private interest to prevail upon public interest. The law in this regard has amply been laid down by the Supreme Court in the case of Starting Computers Ltd. v. M.N. Publications Ltd. as hereunder:--
"At times it is said that public authorities must have the same liberty as they have in framing the policies, even while entering into contracts because many contracts amount to implementation or projection of policies of the Government. But it cannot be overlooked that unlike policies, contracts are legally bindings commitments and they commit the authority and they commit the authority which may be held to be a State within the meaning of Article 12 of the Constitution in many cases for years. That is why the courts have impressed that even in contractual matters the public authority should not have unfettered discretion. In contracts having commercial elements, some more discretion has to be conceded to the authorities so that they may enter into contract with persons, keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognised by courts while dealing public property. It is not possible for courts to question and adjudicate every decision taken by an authority, because many of the government undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a pleas that it is not always possible to act like a quashi judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities to enter into contract giving them liberty to assess the overall situation for the purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bonafide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principle laid down by Justice Holmes, that Courts while judging the Constitutional validity of executive decisions must grant certain measure of freedom of "play in the joints" to the executive.
"The Government cannot act in a manner which would benefit the private party at the cost of the State. Such an action will be both unreasonable and contrary to public interest. There is nothing paradoxical in imposing legal limits on such authority by courts even in contractual matters because the whole conception of unfettered discretion is inappropriate to public authority who is expected to exercise such powers only for public good".
"If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract. But once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Article 14 of the Constitution, the Courts cannot ignore such action saying that the authorities concerned must have some latitute or liberty in contractual matters and any interference by Court amounts to encroachment on the exclusive right of the executive to take such decision."
57. It was held by the Supreme Court in the case of Sachidanand Panday v. State of West Bengal (supra) at paragraph 34, that State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive; certain precepts and principles have to be observed. Public interest is the paramount consideration and one of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the properly by public auction or by inviting tenders. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as Important as doing justice.
58. Applying the above mentioned principles although the action of the respondents in entering into rate contract in respect of standard accessorise with the tenderers of pneumatic tools may not be interfered with (although the same was also no doubt against the principles of entering into rate contract on the basis of competitive tenderer) on the principle that the discretion exercised by the respondents in such matter on the ground that the same would ensure effective use of the pneumatic tools will not affect public interest as such accessories would not have to be supplied without extra cost, the decision to enter into contract in respect of additional accessories at extra cost with the tenderers of pneumatic tools cannot be served as the same is wholly arbitrary and in violation Article 14 of the Constitution as the same cannot be said to be in public interest by any stretch of imagination. On the contrary such action of the respondents clearly prevented fair competition in such matter by excluding the manufacturer of accessories to participate in such tender and therefore/served only the private interest of the aforesaid tenders and not public interest Such action of the respondents therefore to enter into rate contract in respect of additional accessories with such tenderers are liable to be struck down.
59. Even if the minutes of the tender committee dated 19th September, 1995, as quoted in the supplementary affidavit can be treated as a decision to award rate contract in respect of accessaries also to the tenderers of main equipment, the same almost contains a justification in respect of standard accessories which may be treated as an integral part of the rate contract of the main equipment, but not in respect of additional accessories at extra cost. The very fact that the respondents treated them as additional accessories to be supplied at extra cost indicate that the same cannot form part of the rate contract of the main equipment.
60. The entire decision making process in respect of rate contract of additional accessories suffers from gross infirmities and arbitrariness which vitiated the entire decision making process.
61. Under such circumstances I am of the view that because of the aforesaid action of the respondents the petitioners and other manufacturers of accessories have certainly been unjustly and arbitrarily have been excluded and have been deprived of the opportunity of participating in the tender.
62. I am further of the view that since because of the aforesaid action of the respondents the manufacturers of accessories were excluded from participating in such tender, public interest has suffered serious prejudice because of lack of fair competition in the matter of such tender and specially in case of additional accessories which has helped private interest of the successful tenderers and not public interest. That apart the aforesaid action of the respondents to enter into rate contract in the matter of at least additional accessories in the manner aforesaid without taking appropriate steps for ensuring fair competition in the matter, the very policy framed by the respondents themselves in the matter of entering into rate contract on the basis of fair competition has violated and there does not appear to be any reasonable justification whatsoever for deviation from such policy of the respondents and such action of the respondents was not in bonqfide exercise of their discretion but in gross abuse thereof.
63. I am unable to accept the contention of the respondents that the writ application is liable to be dismissed on the ground of delay alone inasmuch although the petitioner admittedly was aware on 14th of August 1995 that rate contract is going to be concluded also in the matter of accessories, he immediately did not move this court.
64. The petitioner and other manufacturers of accessorels admittedly made representations to the respondents for ascertaining the correctness of the information which they received that rate contract was going to be concluded in the matter of accessories also and the respondents did not reply to such letters. Only after, in the first week of September 1995 the petitioner after having come to know definitely that such a decision has been taken the writ application was moved. Therefore, there is no delay in moving in the writ petition.
65. I am also unable to accept the contention of the respondents that the petitioner not having purchased a tender form and not having participated in the tender cannot make any grievance and in any event there cannot be any interference in the instant case as the writ petitioner was not even eligible to participate in the tender not being registered as Small Scale Industrial Unit.
66. Admittedly the notice inviting tender clearly indicated that the tender was for rate contract relating various types of pneumatic tools and in the fore corner of the notice there was no mention of accessories. Under such circumstances there was no question of the petitioner to purchase the tender form for participation in the tender as he was only interested in participating in tender for accessories being manufacturer thereof. That apart as pointed out hereinbefore even the tender form does not indicate that such tender was also for accessories although details relating to such accessories were asked for. Purchase of tender form by the petitioner therefore would not have changed the position as the petitioner was interested in participating in a tender only for accessories. The fact that the petitioner was not a registered Small Scale Industrial Unit will not disentitle him to move the present writ petitioner being aggrieved by such arbitrary exclusing from the opportunity to participate in tender for accessories. The eligibility clause does no indicate that a tenderer has to be such a registered unit before submitting a tender. The eligibility clause provides that such registration of a tenderer was necessary at the time of opening the tender, and therefore it was open to the petitioner to obtain such registration before opening of the tender.
67. Lastly the rate contract which have been issued by the respondents in respect of such accessories standard or additional cannot be sustained as the same were issued in violation of the interim order which was passed by this court as aforesaid and no right therefore can also accrue either to the added respondents or to the other tenderers in whose favour such rate contracts for accessories have been issued, the same being, nullity, being contrary to the interim order granted by this court.
68. It is now well settled that any action taken or any order passed in violation of order of court is a nullity. In this connecting the decision of Supreme Court , Judgment today 1994(1) Supreme Court page 325 and the decision reported in 1994 (5) Supreme Court page 180 may referred to.
69. In the result the writ application succeeds. The rate contract entered into by the respondents with the added respondents as also other tenderers pursuant to the tender No. WMT-6 (RC-3845/PH. TOOLS/ STOCKS/95-96/16) are set aside, only so far as the same relates to the rate contract of additional accessories. It is made clear that the rate contract entered into with such tenderers relating to different kinds of pneumatic tools along with standard accessories will remain unaffected.
The respondents are directed to call fresh tender for rate contract in respect of additional accessories of such different types of penumatic tools within 4 weeks from date in accordance with law.
There will be no order as to costs.
Certified xerox copy of this order, if applied for, shall be given to the parties as expedltiously as possible but not later than two weeks from the date of application.