Roop Singh Kathayat vs State Of Uttarakhand & Others

Ramesh Ranganathan, CJ

Heard Mr. Shobhit Saharia, learned counsel for the appellant, Mr. S.S. Chaudhary, learned Brief Holder appearing for the State, Mr. S.S. Chauhan, learned counsel for respondent nos.2 to 4 and Mr. P.C. Petshali, learned counsel holding brief of Mr. Lalit Sharma, learned counsel for respondent no.5.

The appellant herein filed Writ Petition (M/S) No.3861 of 2018 questioning the order passed by the fourth respondent dated 06.10.2018 declaring the bid of the fifth respondent as responsive. While Writ Petition (M/S) No.3861 of 2018 was filed on 19.12.2018, an interim order was passed on 20.12.2018. The learned Single Judge, while directing notice to the fifth respondent, fixed the next date of hearing as 08.03.2019, and directed that steps be taken within a week. When the matter was listed on 08.03.2019, the learned Single Judge, after recording that the petitioner had not taken steps, granted Mr. Shobhit Saharia, learned counsel for the appellant-writ petitioner, one week's time to effect service of notice on the fifth respondent.

When the matter was listed, thereafter, on 02.08.2019, a short counter-affidavit, filed on behalf of the fourth respondent, was taken on record; and three weeks' time was given to the petitioner to file his rejoinder affidavit. On 29.08.2019, an urgency application was filed by the fourth respondent, which was allowed and the matter was directed to be listed on 04.09.2019 in the daily list. When the matter was listed on 04.09.2019, the learned Single Judge noted that the fifth respondent had not filed his counter-affidavit. While granting the fifth respondent one week's time to file a counter-affidavit, and making it clear that no further time would be given to him to file the counter-affidavit, the matter was directed to be listed on 12.09.2019, and the interim order granted earlier was extended till then.

On 12.09.2019, the learned Single Judge recorded the presence of Mr. R.P. Singh, Advocate holding brief of Mr. Shobhit Saharia, learned counsel for the appellant-writ petitioner and all the other counsel appearing for the respondents and, thereafter, passed an order on merits dismissing the Writ Petition and vacating the earlier interim order dated 20.12.2018. A review application was filed by the appellant-writ petitioner in MCC No.931 of 2019, furnishing details as to why his counsel did not appear in Court on that day ie 12.09.2019. The Review Application was also dismissed on the ground that the scope of interference was very limited. Aggrieved both by the original order, and the order under review, this intra-court appeal is filed.

Mr. Shobhit Saharia, learned counsel for the appellant-writ petitioner, would draw our attention to the affidavit filed by the appellant, in the Review Application, wherein it is stated that, on 12.09.2019, the counsel for the appellant-writ petitioner was on his legs before the Division Bench in the first Court where his matter was listed at Item Nos.3 and 5 in the daily list i.e. Writ Petition (PIL) Nos.76 of 2019 and 144 of 2019; the counsel had requested his associate counsel Mr. R.P. Singh to request the Court to revise the said Writ Petition as the counter-affidavit of the private respondent was yet to be filed, and in reply thereto time for rejoinder affidavit was also to be prayed for. However, the learned Single Judge had dismissed the Writ Petition on merits.

Mr. Shobhit Saharia, learned counsel for the appellant-writ petitioner, would submit that he was arguing a matter before a Division Bench of this Court on the day on which the matter was listed before the learned Single Judge; and he had not sought adjournment in the matter, but had only sought that the case be heard in the afternoon session on the very same day.

When we asked Mr. S.S. Chauhan, learned counsel for respondent nos.2 to 4, whether the fifth respondent had commenced execution of the work pursuant to the order under appeal dated 12.09.2019, learned counsel, on instructions, states that a bond is yet to be furnished by the fifth respondent; it is only, thereafter, that a work order would be issued; and the execution of work would only commence thereafter.

The appellant-writ petitioner was not heard on merits on account of his counsel's absence on the date of listing of the case ie 12.09.2019, as he was arguing the matter before a Division Bench at that time. Since the counsel did not even seek adjournment, but had only sought that the matter be taken up in the afternoon session of the same day, we are of the view that he could have been extended such an accommodation. The order under appeal is set-aside and the Writ Petition is restored to file, recording the undertaking of Mr. Shobhit Saharia, learned counsel for the appellant, that he would argue the matter whenever the case is listed before the learned Single Judge without seeking any adjournment. Learned counsel would only request that he be granted time till 21.10.2019 to file a rejoinder-affidavit to the counter-affidavits filed both by respondent nos.4 and 5. Time, as sought for, is granted till 21.10.2019. Needless to state that, consequent upon revival of the Writ Petition, the interim order passed by the learned Single Judge earlier shall also revive.

Mr. S.S. Chauhan, learned counsel for respondent nos.2 to 4, would request us to fix a time-frame for the Writ Petition to be heard and decided. While we may not be justified in deciding the board of the learned Single Judge, we are in agreement that tender disputes, and those relating to award of work, are required to be heard early. If a request is made for an early hearing of the Writ Petition, we have no reason to doubt that the learned Single Judge would give such a request its due consideration.

Without expressing any opinion on the merits of the case, the Special Appeal is disposed of. No costs.

Let a certified copy of this order be furnished to the learned counsel for the parties, by 18.10.2019, on payment of the prescribed charges.