Patna High Court - Orders
M/S Petroleum vs The State Of Bihar & Ors on 14 November, 2014
Author: Anjana Mishra
Bench: Anjana Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1337 of 2014
In
Civil Writ Jurisdiction Case No. 14318 of 2014
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M/S PETROLEUM, THROUGH ITS PROPRIETOR MD.
SIDDIQUE, SON OF MD. NIZAMUDDIN, RESIDENT OF
VILLAGE AND POST OFFICE KHIRIBANDH, POLICE STATION
JAGDISHPUR, DISTRICT BHAGALPUR
.... .... APPELLANT
VERSUS
1. THE STATE OF BIHAR, THOUGH PRINCIPAL SECRETARY -
CUM- COMMISSIONER, DEPARTMENT OF MINES AND
GEOLOGY, PATNA
2. THE DIVISIONAL COMMISSIONER, BHAGALPUR
3. THE DISTRICT MAGISTRATE -CUM- COLLECTOR, BANKA
4. THE MINING OFFICER, BANKA
.... .... RESPONDENTS
======================================================
Appearance :
For the Appellant :
Mr. Y. V. Giri, Senior Advocate
Mr. Ashish Giri, Advocate
For the Respondents : Mr. Devendra Kr Sinha, A.A.G. II
Mr. Rajendra Prasad, Spl. P.P., Mines
Mr. Bikesh Kr. Sinha, AC to AAG II
For the Intervenor : Mr. Gautam Kejriwal, Advocate
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
AND
HONOURABLE JUSTICE SMT. ANJANA MISHRA
CAV ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
7 14-11-2014For settlement of mining rights of sand from river beds, in the State of Bihar, for the period commencing from 01.01.2014 and ending on 31.12.2014, its Department of Mines and Geology, issued, on 05.12.2013, Notice Inviting Tender, which is hereinafter referred to as "NIT".
Patna High Court LPA No.1337 of 2014 (7) dt.14-11-20142/38
2. The tenders, so invited, were to be submitted in two parts. While Part-A consisted of technical bid, Part-B involved financial bid. While the papers/documents, which formed part of the technical bid, were required to be put inside an envelope to be marked „A', the papers/documents, which formed part of the financial bid, were required to be put inside an envelope to be marked „B'. Both these envelopes were required to be put inside a third envelope, which was to be marked „C'.
3. Thus, both the bids, namely, technical and financial, were required to be kept separately in two different envelopes marked A and B respectively and while envelope, marked A, was required to contain all the papers/documents relating to the technical bid, envelope, bearing the mark B, was to contain all the papers/documents relating to financial bid, and, then, both the envelopes, namely, A and B, were to be put in a third envelope to be marked „C'.
4. Pursuant to the NIT, dated 05.12.2013, the appellant herein, namely, M/s Petroleum, participated in the tender process. So did participate three others, the three other tenderers being (i) M/s Mahadeo Enclave Pvt. Ltd., (ii) M/s BBQ Construction and (iii) Dhrub Narayan Prasad. While the Tender Committee held the Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 3/38 appellant herein, namely, M/s Petroleum, and the said Dhrub Narayan Prasad qualified, the other two tenderers, namely, M/s BBQ Construction as well as M/s Mahadeo Enclave Pvt. Ltd., were held disqualified.
5. As M/s Mahadeo Enclave Pvt. Ltd. was held disqualified at the stage of technical bid, the Tender Committee decided not to open the financial bid of the tenderer concerned, namely, M/s Mahadeo Enclave Pvt. Ltd.
6. Aggrieved by the decision of the Tender Committee, M/s Mahadeo Enclave Pvt. Ltd. came to this Court with a writ petition, under Article 226 of the Constitution of India, seeking issuance of appropriate writ(s). The writ petition gave rise to CWJC No. 1273 of 2014. The writ petition was allowed by a learned single Judge of this Court, on 20.01.2014, directing the State respondents-authorities concerned to open the financial bid of the tenderer, namely, M/s Mahadeo Enclave Pvt. Ltd. and the financial bid of M/s Mahadeo Enclave Pvt. Ltd. was accordingly opened and was found to be the highest bidder.
7. However, the direction given, on 20.01.2014, in CWJC No. 1273 of 2014, to open the financial bid of M/s Mahadeo Enclave Pvt. Ltd., was put Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 4/38 to challenge by the present appellant, M/s Petroleum, in LPA No. 316 of 2014. The appeal was allowed by order, dated 06.03.2014, whereby the order passed by the learned single Judge, on 20.01.2014, directing, as indicated above, opening of the financial bid of M/s Mahadeo Enclave Pvt. Ltd., was set aside.
8. Being aggrieved by the order, which had been passed in LPA No. 316 of 2014, allowing the appeal, M/s Mahadeo Enclave Pvt. Ltd. challenged the said order by way of a Petition for Special Leave to Appeal (Civil) No. 7470 of 2014. By its order, dated 30.05.2014, the Supreme Court dismissed the Petition for Special leave to Appeal. The result, therefore, was that M/s Mahadeo Enclave Pvt. Ltd. was disqualified from participating in the tender process, which had been initiated by the NIT, dated 05.12.2013. Notwithstanding, therefore, the fact that M/S Mahadeo Enclave Pvt. Ltd. was the highest bidder, it ceased to be the highest bidder, when it was disqualified from participating in the tender process.
9. So far as M/s BBQ Construction, as a tenderer, was concerned, since it was also disqualified by the Tender Committee on the ground that the requisite bank draft had not been submitted along with the technical Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 5/38 bid, which was a mandatory condition, M/s BBQ Construction, too, challenged the decision of the Tender Committee by filing a writ petition, under Article 226 of the Constitution of India, which gave rise to CWJC No. 3208 of 2014, seeking issuance of appropriate writ(s).
10. By order, dated 21.02.2014, the writ petition, namely, CWJC No. 3208 of 2014, was dismissed. Thereafter, M/s BBQ Construction preferred an intra Court appeal against the order, dated 21.02.2014. The appeal came to be registered as LPA No. 558 of 2014. An interlocutory application, being I.A. No. 2775 of 2014, was also filed by M/s BBQ Construction along with the LPA No. 558 of 2014 praying, inter alia, impleadment of the appellant herein as the party respondent.
11. The Division Bench of this Court, on 16.05.2014, while admitting the appeal (i.e., LPA No. 558 of 2014) directed that subject to the outcome of the writ application and/or such further order or orders as may be passed in the appeal, the appellant therein, namely, M/s BBQ Construction, be allowed to participate in the tender process. Pursuant to the interim order, so made, M/s BBQ Construction participated in the auction held on 03.06.2014 along with the present appellant, M/s Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 6/38 Petroleum and the said Dhrub Narayan Prasad.
12. In the auction, so held, while the bid of M/s BBQ Construction was approximately Rs. 97,01,000/-, the bid amount of the present appellant was Rs. 96,90,000/- approximately. Though the present appellant‟s bid amount was lower than that of M/s BBQ Construction, the fact remains that the bid amount of the present appellant, M/s Petroleum, was, admittedly, higher than the bid amount of Dhrub Narayan Prasad.
13. No final order, with regard to the mining rights, was made by the State respondents-authorities concerned awarding the contract inasmuch as LPA No. 558 of 2014, which had been preferred by M/s BBQ Construction against the order of dismissal of its writ petition, was still pending.
14. The situation, however, changed, when, by its order, dated 11.07.2014, passed in LPA No. 558 of 2014, this Court dismissed the appeal and upheld the order of the learned single Judge, whereby the writ petition had been dismissed holding M/s BBQ Construction as disqualified.
15. Notwithstanding, therefore, the fact that M/s BBQ Construction was the highest bidder, it ceased to be the highest bidder, when it was disqualified from Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 7/38 participating in the tender process.
16. As a necessary corollary, with the dismissal of the appeal, i.e., L.P.A. No.558 of 2014, there remained apparently no legal impediment, on the part of the respondent authorities concerned, from proceeding further with the process of NIT, dated 05.12.2013, and choosing the tenderer, who was to be issued the settlement order of mining rights inasmuch as two tenderers, namely, M/s Petroleum, and Dhrub Narayan Prasad, remained, in the fray, as qualified tenderers.
17. In the backdrop of the facts, as stipulated above, the net result was that the present appellant, M/s Petroleum, and Dhrub Narayan Prasad were left as the qualified tenderers as per the NIT, dated 05.12.2013, the bid amount of the appellant, M/s Petroleum, being higher than that of the said Dhrub Narayan Prasad.
18. The appellant herein, thus, became, unless could be validly denied, highest bidder (i.e., the first bidder) and qualified to receive the settlement right of mining of sand, in the district of Banka, pursuant to the NIT, dated 05.12.2013. The appellant herein accordingly made representations to the authorities concerned seeking settlement of the mining rights in terms of the NIT, dated Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 8/38 05.12.2013, but the respondent- authorities concerned remained silent and did not act on the representations so made by the appellant.
19. What is also significant to note is that since M/s Mahadeo Enclave Pvt. Ltd. was an awardee of the settlement right of mining for the period from January, 2013, to December, 2013, its right to do mining was being renewed from time to time due to non-settlement of the right of mining, though the auction, pursuant to the NIT, dated 05.12.2013, had already taken place with the present appellant, M/s Petroleum, emerging as the highest qualified bidder followed by Dhrub Narayan Prasad. Indirectly thus, M/S Mahadeo Enclave Pvt. Ltd., as alleged by the present appellant, was being favoured by the respondent-authorities concerned and, thus, the delay, in issuing settlement order in favour of the appellant, M/s Petroleum, by the State respondent- authorities concerned, was, according to this appellant, not bona fide, but mala fide act.
20. It is in the above factual background that the present appellant filed a writ petition, under Article 226 of the Constitution of India, seeking the reliefs, which read as follows:
"(i) For issuance of a
writ/order/direction in the nature of
Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014
9/38
mandamus directing the respondent
authority for issuing license in favour of the petitioner for settlement of mining rights of sand from the river beds in the district of Banka, State of Bihar, in pursuant to NIT dated 05.12.2013.
(ii) For issuance of such other writ(s), order(s), direction(s) as your Lordships may deed fit and proper."
21. The writ petition came to be registered as CWJC No. 14318 of 2014. The questions, which arose in the writ petition, as rightly depicted at paragraph 2 in the writ petition, were, as follows:
"(i) Whether in terms of the order, dated 16.05.2014, read with order dated 11.07.2014, passed in LPA No. 558 of 2014, M/s BBQ Construction having been disqualified, the petitioner being the highest bidder in the tender ought to have been awarded the license?
(ii) Whether the action of the authorities in delaying of passing of order for issuing of license of mining right in the district of Banka pursuant to NIT, dated 05.12.2013, is wholly arbitrary, unreasonable and violative of Article 14 of the Constitution of India?
(iii) Whether the conduct of the authority shows that the authorities have mala fide intention and intend to favour a particular bidder by delaying the Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 10/38 issuance of license for mining rights?"
22. In the writ petition so filed by the present appellant, i.e., CWJC No.14318 of 2014, the present appellant, as writ petitioner, sought for, pending disposal of the writ application, direction to be issued to the State respondents-authorities concerned, preventing them from taking any adverse action, such as, cancellation of the tender and/or resort to re-tendering etc. No order, on the interim prayer so made in the writ petition, was, however, passed.
23. While the writ petition stood so poised, a decision was taken by the Department of Mining, Government of Bihar, to cancel the entire tender process, which had been put into motion by the NIT, dated 05.12.2013, and to invite afresh tenders for the remaining period of the year 2014. In terms of the decision so taken, Letter No. 3306, dated 01.09.2014, was issued by the Joint Secretary, Department of Mines and Geology, Government of Bihar, informing the Collector, Banka, of the Government‟s decision to re-tender the settlement of mining right of sand from the river bed, in the district of Banka, for the remaining period of the year 2014.
24. In terms of the decision so taken by the Government, an advertisement was published, on 13.09.2014, by the Collector, Banka, inviting tenders for Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 11/38 allotment of mining rights of sand from the river beds, in the district of Bank, the last date of submission of tender being 19.09.2014. The date of the opening of the technical bid was accordingly fixed on 24.09.2014; whereas the date of opening of the financial bid was 27.09.2014 at 12 O‟clock and the auction was also to take place on the same very date, i.e., 27.09.2014, at 3:00 PM.
25. Though the present appellant did not participate in the tender process, which was set into motion by the advertisement, dated 13.09.2014, M/s Mahadeo Enclave Pvt. Ltd. participated and became the highest bidder and, accordingly, a letter has been issued, on 27.09.2014, by the respondents-authorities concerned inviting M/s Mahadeo Enclave Pvt. Ltd. to deposit the requisite amount for the purpose of issuance of the work order/settlement order.
26. Aggrieved by the subsequent developments, which so took place, an interlocutory application was made in the writ petition, namely, CWJC No. 14318 of 2014, by the present appellant. This interlocutory application came to be registered as I.A. No. 8002 of 2014. Paragraph 2 of I.A. No. 8002 of 2014, being of great relevance, is reproduced hereinbelow:
"2. That the amendment sought through the present interlocutory Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 12/38 application is as follows:
(i) To issue an appropriate
writ/order/direction in the nature of
certiorari for quashing the notice inviting re-tender, dated 13.09.2014, issued by the order of the Collector, Banka, Department of Mines and Geology in relation to the award of settlement of sand mining right in the district of Banka.
(ii) to issue an appropriate writ/order/direction in the nature of certiorari for quashing the letter, dated
27.09.2014, issued by the Mining Inspector -cum- Appropriate Officer, District Mining Officer, Banka by which the tenderer, namely, M/s Mahadeo Enclave Pvt. Ltd. has been directed to deposit the amount pursuant to the higher offer made by it for settlement of sand mining right in the district of Banka so that work order can be issued in its favour.
(iii) To issue an appropriate writ/order/ direction for incorporating the pleadings and statements made in paragraph no. 3 to 20 of the present interlocutory application to be treated as part of the pleadings in the main writ application."
27. With the help of I.A. No. 8002 of 2014, the appellant herein prayed for as under:
"It is, therefore, prayed that your Lordships may graciously be pleased to allow Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 13/38 the interlocutory application and permit the amendment as prayed in paragraph 2 of this application to be incorporated in paragraph 1 and the prayer portion of the writ petition and the pleadings and statements made in paragraph no. 3 to 20 of the present interlocutory application be treated as part of the pleadings in the main writ application and/or may pass such other order or orders as your Lordships may deed fit and proper."
(Emphasis is added)
28. By order, dated 15.09.2014, while admitting the writ petition and directing that the same shall come up for hearing on 21st October, 2014, a learned single Judge of this Court has rejected the prayer for grant of interim relief.
29. Aggrieved by the order, dated 15.09.2014, refusing to grant interim relief, which the appellant had, as a writ petitioner, sought for in the writ petition, this intra Court appeal has been preferred by the writ petitioner, namely, M/s Petroleum.
30. While deciding to hear the appeal, this Court, in the interest of justice, directed, as an interim measure, on 26.09.2014, thus:
" .... .... ... though the
respondents may proceed with the
process of the impugned notice inviting Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 14/38 tender, dated 13.09.2014, they shall not, until returnable date, award the contract, which forms the subject matter of the impugned notice inviting tender, and this fact shall be made known to the tenderers, who may have participated in the tender process."
31. It is in the backdrop of the above facts and the circumstances surrounding the NIT, dated 05.12.2013, as well as the impugned advertisement, dated 13.09.2014, that the present appeal needs to be considered.
32. We have heard Mr. Y. V. Giri, learned Senior Counsel, for the appellant, and Mr. D. K. Singh, learned Additional Advocate General, appearing on behalf of the State respondents. We have also heard Mr. Rajendra Prasad, learned Special Public Prosecutor, appearing on behalf of the Mines Department, and Mr. Gautam Kejriwal, learned Counsel for M/s Mahadeo Enclave Pvt. Ltd..
33. Appearing on behalf of the appellant, Mr. Y. V. Giri, learned Senior Counsel, has submitted that the learned single Judge had passed the order, dated 15.09.2014, rejecting the interim prayer of the appellant without assigning any reason whatsoever. Making of the order, dated 15.09.2014, rejecting the appellant‟s prayer for interim relief without assigning any reason for such Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 15/38 rejection, according to Mr. Giri, learned Senior Counsel, amounts to virtually making the writ petition infructuous and a futile exercise, which, contends Mr. Giri, wholly against the established law, which warrants the Courts not to allow a party to writ proceeding from acting in a manner, which would destroy, alter or change the subject matter of the writ petition or make the writ petition infructuous or a futile exercise, until the time the Court decides the writ petition or the Court takes a final decision in the writ petition.
34. Elucidating his above submissions, Mr. Giri points out that the appellant seeks to assail the impugned order, rejecting the prayer for interim relief, on the ground that the learned single Judge has failed to assign any reason for rejecting the appellant‟s prayer for interim relief and has also completely failed to appreciate, according to Mr. Giri, that the writ petitioner-appellant had made out a prima facie case warranting exercise of extra-ordinary jurisdiction under Article 226 of the Constitution of India, the balance of convenience was also in favour of restraining the State respondent-authorities concerned from taking, arbitrarily and unreasonably, any action adverse to the interest of the writ petitioner-appellant and if the respondent-authorities concerned were allowed to Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 16/38 proceed in the manner as they have sought to do, it would result in irreparable loss to the appellant inasmuch as the tender process, initiated by virtue of NIT, dated 05.12.2013, would be illegally, arbitrarily and unreasonably rendered redundant leading to irreparable loss.
35. It is also the contention of the appellant, as pointed our by Mr. Giri, that the respondents-authorities concerned had not assigned any cogent reason for re- tendering, which is wholly illegal and completely unjustified, especially, when the writ petitioner-appellant, being the highest qualified bidder, was, and still remains, entitled to receive the order of settlement of mining in the present case.
36. It is reiterated, on behalf of the appellant, by Mr. Giri, that the learned single Judge ought to have appreciated that if the respondents-authorities concerned were not restrained from proceeding further, the process of selection, which had been set into motion by the NIT, dated 05.12.2013, would be arbitrarily set at naught making the writ petition infructuous, though the Court had already been moved and had come in seisin of the writ petition.
37. As already indicated above, this Court, Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 17/38 while deciding to hear the present appeal, directed, as an interim measure, on 26.9.2014, that though the State- respondents may proceed with the process of the impugned notice inviting tender, dated 13.9.2014, they shall not, until returnable date, award the contract, which forms the subject matter of the impugned notice without leave of this Court. This apart, this Court also made it clear that the State respondents-authorities concerned would apprise all the tenderers, who may have participated in the tender process, of the interim order so made in the appeal.
38. For the State respondents-authorities concerned, Mr. D. K. Sinha, learned Additional Advocate General, has submitted that the appeal be disposed of with a direction to the parties concerned to appear, in the writ petition, so that the writ petition could be heard and disposed of expeditiously setting at rest the litigations.
39. So far as the private respondent, namely, M/s Mahadeo Enclave Pvt. Ltd. is concerned, it is submitted, on behalf of this respondent, that the interim direction, passed in this appeal, be vacated, the State respondent-authorities concerned be allowed to proceed with the process of making of the order of settlement in favour of M/s Mahadeo Enclave Pvt. Ltd., when M/s Mahadeo Enclave Pvt. Ltd. has been found to be the Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 18/38 highest bidder pursuant to the impugned advertisement, dated 13.09.2014.
40. While considering the present appeal, what needs to be noted is that though in the writ petition, the present appellant, as writ petitioner, had specifically prayed for necessary order to be passed preventing the State respondent-authorities concerned from taking any adverse action, such as, cancellation of tender and/or resort to re-tendering the process of settlement, no interim order was passed and no reason was assigned therefor. Consequently, the Government came out with its decision to cancel the tender process, which had been set into motion by the NIT, dated 05.12.2013, and to take resort to a short tender process. In terms of the decision so taken, the impugned advertisement, dated 13.09.2014, was published.
41. In this appeal, while allowing the respondents to proceed further with the impugned advertisement, dated 13.09.2014, this Court restrained the respondent-authorities concerned from awarding the contract pursuant to the impugned advertisement, dated 13.09.2014.
42. In consequence of the interim orders, so passed, the respondent-authorities concerned have not Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 19/38 been able to settle the right of mining in favour of M/s Mahadeo Enclave Pvt. Ltd., who has turned out to be the highest bidder in the impugned process of selection set into motion by the subsequent advertisement, dated 13.09.2014, aforementioned.
43. Before proceeding further, it is of great significance to note that no cogent reason has been assigned by the Government, while resorting to re- tendering except that the decision is claimed to have been taken in the public interest. How the process of re- tendering was in public interest is not cogently explained by the respondents-authorities concerned in their counter affidavit, which they have filed in the writ petition, nor could it be explained in the present appeal.
44. To put it more explicitly, the State respondent-authorities concerned have not referred to any convincing reason for the purpose of sustaining the cancellation of the NIT, dated 05.12.2013. The fall-out, therefore, is that the action of resorting to the impugned short tender notice is prima facie arbitrary, more particularly, when the State respondent-authorities concerned, as we would should, have not convincingly referred to any specific provision, embodied in the NIT, dated 05.12.2013, which could have been resorted to by Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 20/38 the State respondent-authorities concerned for the purpose of cancelling the NIT, dated 05.12.2013.
45.The State/respondent-authorities concerned have, however, contended that Clause 9(iii) of the NIT, dated 05.12.2013, which the appellant relies upon to sustain its case, is not applicable to the facts of the case at hand and, therefore, the present appellant, M/S. Petroleum, could not have been granted the settlement and it is for this reason that the decision to resort to short tender notice has been taken.
46. Taking into account the fact that it is Clause 9(iii) of the NIT, dated 05.12.2013, which is being referred to by the parties concerned, let us consider Clause 9(iii), which, if translated into English, reads as under:
"9(iii). In case of inability expressed by the first bidder to make full payment, his earnest deposit and full amount will be forfeited and second bidder will be given the opportunity. If the second bidder also refuses to deposit the full amount, then, his earnest money and full deposit will be forfeited and fresh advertisement will be made."
47. A careful reading of what has been embodied in Clause 9(iii) of the NIT, dated 05.12.2013, clearly shows that if the first bidder expresses his inability to make full payment, the second bidder will be given the Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 21/38 opportunity and if the second bidder, too, refuses to deposit the full amount, fresh advertisement will be made.
48. It is the contention of the State respondent-authorities concerned that since M/s BBQ Construction, who was the highest/first bidder, stood disqualified, Clause 9(iii) of the NIT, dated 05.12.2013, was not applicable.
49. While considering the above contention, it needs to be carefully noted that when M/s BBQ Construction was held disqualified, M/s BBQ Construction stood removed from the scene and could not have, therefore, been treated, or ought not to be treated, as the highest or first bidder. The question, therefore, of treating or terming M/s BBQ Construction as the highest or the first bidder does not arise at all.
50. Consequently, it is the appellant herein, who is the qualified highest or first bidder and, in terms of Clause 9(iii) of the NIT, dated 05.12.2013, it was the first bidder, i.e., the appellant herein, who, ought to have been, unless justified otherwise, offered the order of settlement and it was only if the appellant had declined the offer that the second bidder, Dhrub Narayan Prasad, could have been invited to take the order of settlement and if the second bidder, too, had failed, then and then only fresh Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 22/38 advertisement could have been resorted to.
51. We, therefore, hold that the condition precedent for publication of fresh advertisement was prima facie not satisfied in the present case.
52. In other words, the condition, incorporated in Clause 9(iii) of the NIT, dated 05.12.2013, was prima facie applicable to the present case inasmuch as M/s BBQ Construction has been disqualified by the orders of the Court and since the State respondent-authorities concerned could not have granted settlement in favour of M/s BBQ Construction as per Clause 9 (iii) of the NIT, dated 05.12.2013, the State respondents/authorities concerned ought to have, unless can be shown otherwise, issued the settlement order in favour of the present appellant, though has not been done under the misconceived impression that M/s BBQ Construction was the first bidder, whereas M/s BBQ Construction, having already been disqualified, could not have been treated, and ought not to be treated, as the first qualified bidder. No wonder, therefore, that the Department of Mines and Geology, Government of Bihar, vide letter No. 3161, dated 19.08.2014, decided to return back to M/s BBQ Construction its deposited amount and, in fact, M/s BBQ Construction has already received all deposited Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 23/38 bank drafts on 29.08.2014.
53. What emerges from the above discussions is that pursuant to the NIT, dated 05.12.2013, there were altogether four tenderers, namely, (i) M/s Petroleum,
(ii) M/s Mahadeo Enclave Pvt. Ltd., (iii) M/s BBQ Construction and (iv) Dhrub Narayan Prasad. Out of these four tenderers, two of the tenderers, namely, (i) M/s Mahadeo Enclave Pvt. Ltd. and (ii) M/s BBQ Construction were found disqualified. The process of selection of the tenderers, pursuant of the NIT, dated 05.12.2013, left, in the fray, the present appellant, M/s Petroleum, and the said Dhrub Narayan Prasad as the only qualified tenderers, the appellant herein, M/s Petroleum, being the first bidder and the said Dhrub Narayan Prasad, being the second bidder.When the appellant, M/s Petroleum, was the highest or the first bidder, the appellant could not have been, unless convincingly shown otherwise, denied the right to receive the settlement.
54. Mr. D. K. Sinha, learned Additional Advocate General, submits that when the bid amount of M/s BBQ Construction was higher than that of the appellant and when, M/s BBQ Construction could not have been given the settlement, the question of giving the Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 24/38 settlement, in favour of the present appellant, did not arise at all.
55. The submission, so made on behalf of the State respondent-authorities concerned, indicate that the respondent-authorities concerned had considered M/s BBQ Construction as an eligible tenderer; whereas, we have already pointed out above that, M/s BBQ Construction, having been held disqualified, could not have been considered, and ought not to be considered or treated, as eligible first bidder. Consequently, only two tenderers, namely, M/s Petroleum and Dhrub Narayan Prasad, were qualified bidders and, out of them, the present appellant becomes, admittedly, the first bidder and the said Dhrub Narayan Prasad as the second bidder.
56. Obviously, therefore, the appellant herein becomes the first qualified bidder and, consequently, the work order/settlement order ought to have been given in favour of the present appellant and denial thereof cannot be sustained except on cogent, convincing and plausible grounds. Whether such a good ground existed for cancelling the NIT, dated 05.12.2013, is a question, which has not yet been decided in the writ petition and cannot, as a sequel thereto, be decided in this appeal. Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 25/38
57. The question, therefore, whether good ground exists or existed for cancelling the NIT, dated 05.12.2013, needs to be obviously decided in the writ petition and, that too, at the earliest so that the dispute, surrounding the entire selection process, can be brought to an end.
58. Coupled with the above, it is also of utmost importance to note that in terms of sub-clause (xi) of Clause 18 of the NIT, dated 05.12.2013, the Collector shall have the right to cancel the NIT and settlement, in the interest of the Government, by a reasoned order after hearing the parties concerned. Clause 18(xi) of the NIT, dated 05.12.2013, has, admittedly, not been resorted to by the State respondent-authorities concerned.
59. The contention of the State respondent- authorities concerned is that in terms of sub-Clause (v) of Clause 7 of the NIT, dated 05.12.2013, if only one tender is received, then, a short tender will be invited without opening the single tender so received. In the case at hand, sub-clause(v) of Clause 7 of the NIT, dated 05.12.2013, is not at all attracted inasmuch as the present one is not a case, where there is only one eligible bidder.
60. To a pointed query made by this Court, it could not be denied, on behalf of the State, that strictly Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 26/38 speaking, the provisions, embodied in Clause 7 (v) of the NIT, dated 05.12.2013, are not applicable to the facts of the present case inasmuch as Clause 7 (v) of the NIT, dated 05.12.2013, would apply, when there is only a single bidder; whereas, there are, in the case at hand, two qualified bidders and, therefore, the provisions, embodied in Clause 7(v) of the NIT, dated 05.12.2013, do not come, and could not have come, into play at all.
61. What is, however, of paramount importance to note, now, is that while the writ petition was still pending for disposal, a decision to resort to fresh tender process was taken by the Government and, in terms of the decision so taken, advertisement, dated 13.09.2014, was published inviting a short tender for the remaining period of settlement, wherein the appellant has not participated, though M/s Mahadeo Enclave Pvt. Ltd. had participated and has turned out to be the highest bidder. However, the settlement has not been granted in favour of M/s Mahadeo Enclave Pvt. Ltd., because of the interim order passed in this appeal.
62. What cannot be ignored, and must not be ignored, is that the Government‟s decision, as reflected by the letter No. 3306, dated 01.09.2014, issued by the Joint Secretary, Department of Mines and Geology, Government Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 27/38 of Bihar, to resort to short tender by cancelling the NIT, dated 05.12.2013, and the advertisement, dated 13.09.2014, published pursuant to the decision so taken by the Government are all facts subsequent to the institution of the writ proceedings by the present appellant. These subsequent developments gave rise to a fresh cause of action and, ordinarily, a fresh cause of action would give rise, if at all, to a new writ petition.
63. In view, however, of the fact that the developments, which have taken place subsequent to the institution of the writ proceedings, are inextricably linked with the writ petition, the appellant filed I. A. No. 8001 of 2014, wherein the prayer is:
"It is, therefore, prayed that your Lordships may graciously be pleased to allow the interlocutory application and permit the amendment as prayed in paragraph 2 of this application to be incorporated in paragraph 1 and the prayer portion of the writ petition and the pleadings and statements made in paragraph no. 3 to 20 of the present interlocutory application be treated as part of the pleadings in the main writ application and/or may pass such other order or orders as your Lordships may deed fit and proper."
64. The I.A. No.8002 of 2014 shows that though the appellant, M/s Petroleum, prayed for Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 28/38 amendment of the relief portion of the writ petition, the fact remains that the writ petitioner-appellant also prayed for reading into the writ petition the statements or averments made in paragraphs 3 to 20 of I. A. No. 8002 of 2014. This prayer, in substance, amounts to a prayer for adding or incorporating into the writ petition the statements/averments made in paragraphs 3 to 20 of I. A. No. 8002 of 2014 and, in consequence thereof, one has to read the statements/averments made in paragraph 3 to 20 of I. A. No. 8002 of 2014 as an integral and inseverable part of the writ petition.
65. In effect, therefore, what the appellant had prayed, as a writ petitioner, by way of I. A. No. 8002 of 2014, was amendment of the writ petition by incorporating into the writ petition not only the prayers, which had been mentioned in paragraph 1 of I.A. No. 8001 of 2014, but also incorporating into the writ petition the facts as narrated in paragraph 3 to 20 of I.A. No. 8002 of 2014. Whether the prayers, so made, shall or shall not be allowed is a question, which was required to be determined by the learned single Judge, because of the urgency of the matter inasmuch as the writ petition were to become infructuous if no action was taken in this regard. At the same time, however, as long as the Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 29/38 amendment of the writ petition, bringing on record subsequent developments, which have taken place, is not allowed, no final relief, on the subsequent developments, can be allowed and what cannot be, ultimately, allowed can also not be allowed as an interim relief.
66. Equally important is the fact that when a person, aggrieved by an action or inaction of the State Government, comes with a writ petition, it is the solemn duty of the Court to ensure that his writ petition does not become infructuous, because of omission to make appropriate necessary order, interim or otherwise, at the point of time, when the order is called for.
67. It needs to be pointed out that no interim order can be made restraining any person from acting pursuant to the subsequent development, which may have taken place, unless the subsequent development, which may have taken place, is brought on record by way of amendment of the pleadings. As an illustration, when a person‟s title to a land is disputed by another person, the person, whose title to the land is denied, may institute a suit for declaration of his title to the suit land or his right and interest thereon. During the pendency of such a suit, if the defendant makes an attempt to encroach upon the suit land or dispossess the plaintiff, the plaintiff cannot file an Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 30/38 application seeking an interim order of injunction restraining the defendant from entering into, or encroaching upon, the suit land until the time the plaint is amended and the attempt or attempts made by the defendant to dispossess the plaintiff from the suit land is/are brought on record by way of amendment of the pleadings and it is only after the subsequent development becomes a part of the pleadings and a prayer is made therein for a decree of permanent perpetual injunction restraining the defendant from disturbing the plaintiff‟s possession on the suit land that an application for interim injunction, restraining the defendant from dispossessing the plaintiff, can be made pending disposal of the suit.
68. While dealing with the above aspect of law, one may take note of the decision in Pasupuleti Venkateswarlu v. Motor & General Traders, reported in (1975) 1 SCC 770: AIR 1975 SC 1409, wherein the Supreme Court has held, in no uncertain words, that when a fact, arising after the lis has come to the notice of the court, has fundamental impact on the right to relief or the manner of moulding the relief and if such a fact is brought diligently to the notice of the Court, the Court cannot blink at or overlook such a subsequent development. The court may, in such cases, bend the rules of procedure if no Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 31/38 specific provision of law or rule of fair play is violated, for, it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Supreme Court, speaking through Krishna Iyer, J., affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice subject to four circumstances namely,
(i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautiously done, and (iv) the rules of fairness to both sides should be scrupulously followed.
69. Taking note of its decision in Pasupuleti Venkateswarlu (supra), the Supreme Court, in Om Prakash Gupta v. Ranbir B. Goyal, reported in (2002) 2 SCC 256, has laid down that ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree, in a suit, should accord with the rights of the parties as they stood on the commencement of the lis. However, the Court has the power to take note of subsequent events and Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 32/38 mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally, has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise.
70. Coupled with the above, it needs to be carefully noted that a subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and, before acting thereon, put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party, relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings. The Court may permit introduction of subsequent event into the pleadings by way of amendment as it would be necessary to do so for the Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 33/38 purpose of determining real questions in controversy between the parties.
71. In tune with what has been discussed above, the Supreme Court has held, in Trojan & Co. v. RM. N.N. Nagappa Chettiar (AIR 1953 Sc 235), that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found and without the amendment of the pleadings, the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao v. Sita Ram Kesho (1998) 25 IA 195 (PC), their Lordships observed that, as a rule, relief, not founded on the pleadings, should not be granted. One may, in this regard, refer to the decision in Om Prakash Gupta (supra), wherein the law has been succinctly laid down in the following words:
"11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 34/38 changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders (1975) 1 SCC 770: AIR 1975 SC 1409, this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed.Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 35/38
12. Such subsequent event may be one purely of law or founded on facts. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Trojan & Co. v. RM. N.N. Nagappa Chettiar (AIR 1953 SC
235), this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao v. Sita Ram Kesho (1998) 25 IA 195 (PC), their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted." (See Pasupuleti Venkateswarlu (supra) also).
72. In short, without substantial relief having Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 36/38 been sought for on the basis of the facts, which may be incorporated into the pleading, as regards subsequent development, there cannot be an interim order of restraint in respect of subsequent developments. This fundamental principle of law needs to be borne in mind in the context of a case of present nature.
73. At the same time, it is the duty of the Court to ensure that a substantive proceeding, such as, a writ proceeding, is not rendered infructuous, because of the Court‟s inadvertent inaction or omission and until the time the proceeding is decided, the subject matter of dispute is preserved so as to secure the ends of justice.
74. One cannot ignore, as has been noted in Gaya Prasad v. Pradeep Srivastava, reported in (2001) 2 SCC 604, that the judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval, many events are bound to take place, which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system, it shatters the confidence of the litigant despite the impairment already caused. Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 37/38
75. The relevant observations, appearing in Gaya Prasad (supra), read as under:
"15. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system it shatters the confidence of the litigant, despite the impairment already caused."
76. Since the appellant has done, in the present case, what was required to be done, the appellant cannot be made to suffer. It would, therefore, be appropriate and in the interest of justice if I. A. Nos. 8001 and 8002 of 2014 be heard along with the writ petition, as has been suggested by Mr. D. K. Sinha, learned Additional Advocate General, at the earliest, so that the matter could be fully and finally decided in accordance with law.
77. In the result and for the reasons discussed above, we hereby set aside the order, dated 15.09.2014, Patna High Court LPA No.1337 of 2014 (7) dt.14-11-2014 38/38 passed in C.W.J.C. No.14318 of 2004, to the extent that the same rejects the appellant‟s prayer for interim order and direct that until the time the writ petition is heard and disposed of, no award of contract shall take place, pursuant to the advertisement, dated 13.09.2014, without, obtaining leave of the Court in CWJC No. 14318 of 2014.
78. We, therefore, direct the parties to this appeal to appear, in the writ petition, namely, CWJC No. 14318 of 2014, on 18.11.2014.
79. Considering the urgency of the matter and to secure the ends of justice, we request the learned single Judge to take up the writ petition along with I.A. Nos. 8001 and 8002 of 2014 and dispose of the same at the earliest so that the writ petition does not become a futile exercise.
80. With the above observations and directions, this appeal stands disposed of.
81. No order as to costs.
(I. A. Ansari, J.)
Anjana Mishra, J. : I agree.
(Anjana Mishra, J.)
Prabhakar Anand/
NAFR
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