Laishram Ibocha Khuman and Others vs Tongkhohao Kipgen and Others

Kh. Nobin Singh, J.—Heard Shri A. Mohendro, learned counsel appearing for the petitioner; Shri N. Jotendro, learned counsel appearing for the applicant/respondent No. 4, Ms. Jennifer, learned counsel appearing for the respondent Nos. 2 and 3 and Shri K. Rabei, learned counsel appearing for the respondent No. 1.

The present application has been filed by the applicant/respondent No. 4 praying for vacating the interim order dated 15-04-2015 passed by this court in the above writ petition.

The subject matter in issue, involved in the instant writ petition, relates to the validity and correctness of the decision dated 19-03-2015 taken by the Tender Committee in respect of the Package No. MNO 6185, Package No. MNO 6253 and Package No. MNO 6267 of PMGSY Phase - X. On 10-04-2015, when the above writ petition was listed for motion, this court was pleased to issue notice and direct that the matter be listed on 13-04-2015 for consideration of the interim prayer. The matter was listed again on 13-04-2015 as directed but on the request made by the learned counsels appearing for the parties, the matter was adjourned to 15-04-2015 on which this court was pleased to pass an interim order directing that no letter of acceptance be issued in respect of the Package No. MNO 6185, Package No. MNO 6253 and Package No. MNO 6267.

Admittedly in the writ petition, the applicant was not arrayed as party respondent but an application being M.C.(W.P. C)) No. 203 of 2015 filed by the applicant, Shri Laishram Ibocha Khuman on 17-08-2015 for impleading himself as respondent No. 4 was allowed by this court vide order dated 04-09-2015 with the direction that the applicant be impleaded as respondent No. 4. After the applicant having been impleaded as respondent No. 4, he filed another application being M.C.(W.P.(C)) No. 241 of 2015 for vacating the interim order dated 15-04-2015 passed by this court and at the time of filing the said application, the applicant filed his affidavit-in-opposition also.

Shri N. Jotendro, learned counsel appearing for the applicant/respondent No. 4 submitted that in view of the provisions of Article 226(3) of the Constitution of India, the interim order dated 15-04-2015 stood vacated and in the alternative, he submitted that when the petitioner''s bid was rejected, he filed a complaint dated 23-03-2015 under section 2.ECI.22.6 of SBD/ITB for review of the decision taken by the Tender Committee. The petitioner''s complaint was rejected by the Tender Committee vide its letter dated 06-04-2015 and since he did not challenge it, the interim order ought to be vacated on the ground of misleading this court. To substantiate his contention, the learned counsel appearing for the applicant/respondent No. 4 has relied upon the order dated 07-03-2012 passed by the Hon''ble Gauhati High Court, Imphal Bench in W.A. No. 52 of 2010, Ms. Rajkumari Ritu Devi v. Th. Meghajit Meitei & ors. and order dated 11-12-2013 passed by this court in W.P. (C) No. 351 of 2013.

On the other hand, Shri A. Mohendro, learned counsel appearing for the petitioner submitted that the provisions of Article 226(3) of the Constitution of India are not applicable to the facts of the present case. His other submission is that the letter dated 06-04-2015 by which the petitioner''s complaint is alleged to have been rejected, was not received by the petitioner at all. The petitioner came to know about the said letter dated 06-04-2015 only when he received a copy of the affidavit-in-opposition filed by the respondent No. 4 and immediately after having come to know about it, the petitioner had moved an application praying for amendment of the writ petition. It is further submitted by him that in view of the aforesaid facts, the question of misleading this court did not arise. To substantiate his contention, he has relied upon the judgment dated 07-07-2003 passed by the Hon''ble High Court of Gujarat reported in (2004) 1 GLR 540 and the judgment dated 20-12-2012 passed by the High Court of Judicature for Rajasthan, Jaipur Bench in DB Civil Special Appeal (Writ) No. 1634 of 2012.

Since the issue as regards the applicability of the provisions of Article 226(3) of the Constitution of India to the facts of the present case has arisen, the same are reproduced herein below for ready reference:--

"[(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under Clause (1), without -

a) Furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

b) Giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.]"

The provisions of Article 226(3) which came to be substituted by way of amendment are plain, simple and unambiguous and in fact, this court is of the view that the same require no interpretation at all and to apply them, the following conditions are required to be fulfilled:--

"(a) An interim order shall be made in a proceeding relating to a petition under Clause (1) against any party;

(b) The interim order shall be made without furnishing a copy of the petition and documents in support thereof to such party;

(c) The interim order shall be made without giving such a party an opportunity of being heard;

(d) Such party against whom interim order is made, shall make an application for vacating such interim order with copy being furnished to the party in whose favour interim order has been passed;

(e) The High Court shall dispose of the application within two weeks from the date on which it is received or from the date on which copy of such application is furnished; and

(f) In the event of the said application being not disposed of by the High Court, on the expiry of the said period the interim order shall stand vacated."

The term "any party" used in Clause (3) is relevant as regards the issue involved herein and since it is not defined in the Constitution, it is to be understood with reference to the petition filed under Clause (1). In other words, ''any party'' would mean ''any party'' in the said petition against whom interim order has been made by the High Court. In the instant writ petition, only three parties have been arrayed as respondents and the applicant is not a party at all in it. At the time when the interim order dated 15-04-2015 was passed by this court, the applicant was neither a party nor was he in the picture at all. The applicant has been impleaded as respondent No. 4 only on 04-09-2015 when his application for impleading himself as party respondent was allowed by this court. The question that arises for consideration is as to whether the applicant would come within the meaning of the term ''any party''. The answer is ''no'' for the reason that the applicant was not a party in the instant writ petition till when the said interim order was passed by this court and since he was not a party, there was no occasion for the petitioner to furnish a copy of the petition to him and the question of giving the applicant an opportunity of being heard by the High Court, did not yet arise at all. Interim order has been passed against the said three original respondents who appear to have no grievance against it. The benefits of the provisions of Article 226(3) may not be available to the said three original respondents because no writ petition can normally be filed against them without advance copies being served upon the learned Government Advocates who would represent them in the High Court. It may probably be for this reason that none of them has filed any application under Article 226(3) of the Constitution of India.

The aforesaid orders passed by the Hon''ble Gauhati High Court, Imphal Bench as well as by this court and relied upon by the learned counsel appearing for the applicant/respondent No. 4, are not applicable to the facts of the present case. From the perusal of the said order dated 07-03-2012 passed in W.A. No. 52 of 2010, the appellant therein appears to have been made a party in the writ petition and therefore, when his application for vacating interim order was rejected by the learned Single Judge, the Division Bench of the High Court interfered and held that in view of the provisions of Article 226(3), the learned Single Judge ought to have vacated the interim order. Similar is the case with W.P. (C) No. 351 of 2013 in which the learned Single Judge vide its order dated 11-12-2013 allowed the application and directed that the interim order dated 17-05-2013 should be deemed to have been already vacated. But in the narration of facts in the said order dated 11-12-2013, there is no any whisper about the applicant therein being not a party in the petition and being impleaded as party respondent only after the interim order having been passed by the High Court. On the other hand, the facts of the said two cases namely Sunni Muslim Samaj v. Pandya Manishankar Dhanjibhai, reported in (2004) 1 GLR 540 and Sandeep Kumar Mathur v. State of Rajasthan & anr., whose decisions have been relied upon by the learned counsel for the petitioner, are identical to that of the present case. In the case of Sunni Muslim Samaj v. Pandya Manishankar Dhanjibhai, the Hon''ble High Court has held that what is necessary to be noted and which is peculiar to the facts of the said case is that when the aforesaid interim order came to be made, the applicant therein was not even a party in the main petition and hence, there is no question of an ex-parte interim order operating against the said applicant. In the other case namely Sandeep Kumar Mathur v. State of Rajasthan & anr. wherein the learned Single Judge allowed the application for vacating interim order under Article 226(3) vide order dated 07-12-2012, the Division Bench, while allowing the intra court appeal preferred against the said order dated 07-12-2012, held that it will be just and proper, in the interest of justice, to request the Single Judge to dispose of the writ petition itself finally and to continue stay order dated 09-09-2005 during the pendency of the writ petition. In fact, this court is not bound by the decisions rendered by other High Courts but since the other High Court have already rendered decisions as regards the similar facts, there is no wrong and harm in deciding the present application by this court in the light of them. Moreover, the learned counsels appearing for the parties are unable to bring to the notice of this court any decision rendered by the Hon''ble Supreme Court as regards the issue involved herein.

As regards the alternate submission of the learned counsel appearing for the applicant/respondent No. 4 that the interim order ought to be vacated for the reason that although the complaint filed by the petitioner having been rejected, he did not challenge it and this fact was suppressed from this court, Shri A. Mohendro, learned Advocate submitted that the petitioner was not aware of it and came to know about it only when a copy of the affidavit-in-opposition was received from the applicant. His submission has some substance for the reason that the writ petition was filed on the same day when the said letter dated 06-04-2015 was issued and his contention that the said letter was not served upon the petitioner, was not controverted by the learned Govt. Advocate appearing for the State respondents. Therefore, the question of misleading the court will not arise and moreover, according to the petitioner, he on coming to know about the said letter, has moved an application for necessary amendment of the writ petition. Considering the limited facts of the case and having heard the learned counsels appearing for the parties, this court is of the view that the application is devoid of any merit and is liable to be rejected.

In view of the aforesaid observations, the above application being M.C. [WP (C)] No. 241 of 2015 is rejected. However, it is open to the parties to move an application for vacating the interim order dated 15-04-2015 on other grounds.