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Judgment
R.K. Patra, J.—All the aforesaid cases being analogous were heard together and are disposed of by this common judgment.
O. J. C. No. 706 of 2001 and O. J. C. No. 784 of 2001 are two writ petitions which have been filed by way of public interest litigations, The petitioner-Simachal Padhy is a practising lawyer at Bhawanipatna. His grievance in both the wiit petitions is that the Civil Judge, Senior Division, Bhawanipatna without keeping the public interest in view illegally granted injunction against the State of Orissa and its officials restraining them from proceeding with the construction work of earth dams. He has accordingly prayed for quashing of the said order with a further direction that the construction work should be allowed to proceed forthwith.
Civil Revision No. 447 of 2000 filed at the instance of the State of Orissa and its officials is directed against the order of the learned District Judge, Kalahandi dated 30-9-20UO passed in M. J. A. No. 11 of 2000 confirming the order dated 12 5-2000 of the learned Civil Judge. Senior Division, Bhawanipatna in M.J.C. No. 16 of 2000 arising out of Title Suit No. 19 of 2000.
Civil Revision No. 496 of 2000 filed on behalf of the State of Orissa and its officials is directed against the order dated 13-11-2000 of the District Judge, Kalahandi in M.J.A. No. 13 of 2000 confirming the order dated 25-8-2000 of the Civil Judge, Senior Division. Bhawanipatna in M.J.C. No. 35 of 2000 arising out of Title Suit No. 46 of 2000.
Since the impugned orders have been challenged by the State of Orissa and its officials who are the defendants in the connected civil suits, we need not examine the maintainability or otherwise of the writ petitions filed by way of public interest litigations.
Let us now therefore proceed to consider the validity of the orders impugned in both the civil revisions ;
Civil Revision No. 447 of 2000
The opposite party-Subash Chandra Panda filed Title Suit No. 19 of 2000 in the court of the Civil Judge, Senior Division, Bhawanipatna for perpetual injunction against the petitioners (State of Orissa and its officials) restraining them from executing any work in respect of tender call notice No. 1/1999-2000 and from making any payment in respect of the said work. His further prayer in the suit was that the petitioners should evaluate all the bids afresh submitted by him and others. Along with the plaint, he filed a petition u/s 80(2), C. P. C. for exemption of notice required u/s 80(1), C. P. C He also filed M. J. C. No. 14 of 2000 under Order 39, Rule 1. C. P. C. to restrain the petitioners from executing work undertaken pursuant to the aforesaid tender notice. The Civil Judge by order dated 4-4-2000 allowed the opposite party''s petition u/s 80(2), C. P. C. and admitted the suit. On 5-4-2000 he passed an ad interim injunction order in MJ.C, No. 14 of 2000 directing to maintain status quo in respect of construction work. After receipt of notice, the petitioners appeared on 11-5-2000 and filed written statement and counters to the petition u/s 80(3). C.P.C. and to the petition under Order 32, Rule 1, C.P.C., The Civil Judge allowed the MJ.C. No. 14 of 2000 by making the ad interim order absolute and directed the petitioners not to take any action or proceed relating to the construction work in respect of the concerned tender call notice. Being aggrieved by the said order, the petitioners filed appeal (MJ.A. No. 11/2000) before the District Judge, Kalahandi who by order dated 30-9-2000 dismissed the appeal. Hence the civil revision.
The dispute in the suit relates to short tender call notice No. 1/1999-2000 issued by the Executive Engineer, Kaiahandi Irrigation Division, Bhawanipatna for the following work :
SI. No. Name of the work Estimated cost (Rs. in lakhs)
1.
Construction of Zerth Dam of lower Indra Irrigation Project from RD 420m to 1260m.
1458
2.
Construction of Earth Dam of Lower Indra Irrigation Project from RD 1260m to 3780m
1658
3.
Construction of Dyke No. III of Lower Indra Irrigation Project.
429
The allegation of the opposite party in the suit was that he is a super class contractor. Pursuant to the notice of the Executive Engineer, he purchased the tender papers and submitted the same. The bids offered by him were competitive i. e. 8 per cent and 10,25 per cent below the schedule rate of the three items of work and as such he had a fair chance of getting the work allotted in his favour. On 16-2-2000 while going to Dharmagarh on the way he noticed sign of mobilisation of workers to commence the construction work. On enquiry from the Executive Engineer he could know that the work had already been allotted to some others. According to the opposite party, the work was arbitrarily allotted to other contractors as a result of collusion and conspiracy hatched between them and the departmental officials,
The petitioners in their objections pleaded that the opposite party did not submit tender in respect of item No. 1 of the tender call notice. He submitted tender in respect of item Nos. 2 and 3 only which were not the lowest. The tender committee after due scrutiny found that the bids offered by him were not workable and he was not fit to execute . the work as he was a super class contractor only, for the last five years. The tender committee accordingly selected M/s. D. D. Builders and M/s. Durga Construction and one Rajeswar Thakur and agreements were duly executed by them. The allegations of collusion etc. were denied in their objection.
Civil Revision No. 496 of 2000 :--The opposite party- Subash Chandra Panda filed Title Suit No 46 of 2000 in the Court of the Civil Judge. Senior Division, Bhawanipatna for perpetual injunction against the petitioners (State of Orissa and its officials) restraining them from executing any work in respect of tender call notice No. 2/1999-2000 and from making any payment in respect of the said work. His further prayer in the suit was that the petitioners should evalute all the bids afresh submitted by him and others. Along with the plaint, he (opposite party) fited a petition u/s 80(2), C. P. C. for exemption of notice required u/s 80(1), C. P. C. and a petition under Order 30. Rule 1, C. P. C. (which was registered as M.J.C. No. 35 of 2000) to restrain the petitioners from executing the work undertaken pursuant to the aforesaid tender notice. The Civil Judge by order dated 4-7-2000 allowed the opposite party''s petition u/s 80(2), C. P. C. and admitted the suit. On 10-7-2000 he passed an ad interim injunction order in M. J. C. No. 35 of 2000 restraining the petitioners from executing the work under the relevant tender call notice. After receipt of notice, the petitioners appeared on 23-7-2000 and filed written statement and counters to the petition u/s 80(2), C.P.C, as well as to the petition under Order 30, Rule 1, C- P. C.. The Civil Judge allowed the M. J. C. No. 35 of 2000 by order dated 25-8-2000 and made the ad interim order absolute and directed the petitioners not to take any action or proceed relating to the construction works. Being aggrieved by the said order, the petitioners filed appeal (M. J. A. No. 13 of 2000) before the District Judge, Kalahandi who by older dated 13-11-2000 dismissed the appeal. Hence this revision.
The dispute in the suit relates to tender call notice No. 2/1999-2000 issued by the Executive Engineer, M. I. Division, Khariar for the following work :
Sl. No. Name of the work Estimated cost (Rs. in lakhs)
1.
Construction of Bartensil M. I. P. (D/W) in Boden Block of Nuapada District.
600-00
2.
Construction of Bodea Nalla M.I.P. (D/W) in Boden Block of Nuapada District.
300-00
The allegation of the opposite party in the suit was that he came across with a news item on 24-6-1999 in respect of the work and the dates of sale of tender papers were fixed to 24-8-1999 to 26-8-1999. Later a corrigendum was issued extending the date of sale of tender paper upto 28-8-1999. He sent his representative to the office of the Superintending Engineer to purchase tender paper which was refused to him on the plea that the date of sale of tender paper had been postponed which would be notified later. Later on enquiry from the Superintending Engineer he could know that the work had already been settled with two persons. According to him, the officials clandestinely settled the work with others depriving him from participating in the bid.
The petitioners in their objection stated that tendet call notice was published in the Oriya daily newspaper "Sambad" on 19-7-2000 and English daily "New Indian Express" on 20-7-1999. The dates of sale of tender papers were from 2-8-1999 to 4-8-1999, As none purchased tender papers within the period prescribed, a corrigendum was published in the newspaper extending the sale of tender papers upto 6-9-1999. Some contractors purchased the tender papers and submitted the same which were opened on 10-9-1999. On the same day, they were sent to the tender committee. On 19-9-1999 the tender papers were scrutinised which were approved by the State Government in the Water Resources Department and the works were allotted to M/s. D. D, Builders in respect of Battansil M. I. P. work and to Rajeswar Thakur in respect of Borden Nalla M. I. P. work in due time and by 28-3-2000 they had made substantial progress in their respective work. Because of non-availability of sanction, M/s. D. D, Builders was passed Rs. 70, 50, 192/- although he had executed work upto Rs. 95.50.192/-. Similarly, Rajeswar Thakur was paid only Rs. 47,67,607/- although he had executed work of more than Rs. 1,00,00,000/-. The allegations of clandestine dealing and depriving the opposite party from participating in the bid were denied.
We have heard Shri Routray, learned Additional Government Advocate for the petitioners and Shri R.K. Mohapatra, learned Senior Counsel for the opposite party.
From both the tender call notices, it would appear that estimated cost of the works in question was about Rs. 4.439/-lakhs. In view of the fact that huge amount is involved, the Civil Judge and the District Judge ought to have seen whether gtant of injunction which has .resulted in stoppage of execution of the work was in public interest. It has been held by the Supreme Court in Raunaq International Limited Vs. I.V.R. Construction Ltd. and Others, that when award of contract by the State is challenged, the Court must be satisfied that there is some clement of public interest involved in entertaining a litigation. Although it was a case arising out of a writ petition, the observations made by their Lordships are equally applicable in respect of civil suits. It has been held therein, if the dispute is purely between two tenderers, the Court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by tenderers may or may not be decisive in holding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by Court''s intervention, the proposed project may be considerably delayed leading to escalating the cost.
A bare perusal of the impugned orders would show that the Civil Judge acted illegally in exercise of his jurisdiction in granting injunction, The District Judge has also failed to appreciate the gravity and consequences in affirming the injunction order granted by the Civil Judge.
In order to obtain an interlocutory injunction it is not enough for the plaintiff to show that he has a prima-facie case. He must further show that :
(1) In the event of withholding the relief of temporary injunction he would suffer an irreparable injury ;
(2) In the event of his success in the suit, he will not have the proper remedy in being awarded adequate damages ;
(3) In taking into consideration the comparative mischief or inconveniences to the parties, the balance of convenience is in his favour or in other words that his inconvenience in the event of withholding the relief of temporary injunction will in all events exceed that of the defendant in case he is restrained.
(4) Plaintiff must show a clear necessity for affording immediate protection to his alleged right ot interest which would otherwise be seriously injured ot impaired.
(See Brajendra Nath Ghosh and Others Vs. Sm. Kashi Bai and Others, .
In tender call notice No. 1/1999-2000 the opposite party had submitted tender in respect of only two items. Those bids were not lowest as claimed by him. He had not submitted tender in respect of item No, 1 at all. In respect of tender call notice No. 2/1999-2000, he bad not even purchased the tender papers. The tender papers submitted by the contractors were scrutinised by the tender committee and after obtaining orders from the State Government, the works were allotted to the contractors. Therefore, the allegation made by him that the officials colluded with the contractors and clandestinely awarded rhe contracts has no basis at all.
The Civil Judge and the District Judge failed to see that the balance of convenience has to be viewed from both the angles. They seemed to be more concerned with the opposite party''s interest than that of the State, They have failed to gauge the consequences of the injunction order. In respect of tender call notice No. 2/1999-2000 both the contractors had gone ahead and executed substantial quantity of work. They were paid huge amount as part payment The obvious consequence of injunction is delayed execution of woik which is not in public interest. The cost of the works would as a necessary corollary go up. The public would have to bear the ultimate financial burden. ''Besides delaying the project, the financial arrangement made by the Government would be jettisoned. The grant of injunction in the circumstances is against public interest. It may be noted that the opposite party had not impleaded the contractors in whose favour the works were allotted. The suits as filed, also bad on account of non-joinder of necessary party.
The Civil Judge acted in excess of his jurisdiction in exempting the opposite party from serving notice u/s 80(1), C. P. C.. Sub-section (1) introduced by Amendment Act, 1976 is an exception to sub-section (1) of section 80, C.P.C.. The power to grant leave to institute suit without notice u/s 80(1), C, P. C. or before the expiry period of notice when urgent relief is prayed and no irreparable loss can be caused to the defendant being discretionary one, has to be judicially exercised. The opposite party had not made out a case to bring his case under sub-section (2) of section 80, C. P. C.. The Civil Judge therefore clearly erred in law in dispensing with service of notice u/s 80(1), C. P. C.
For all the aforesaid reasons, the impugned orders passed by the Civil Judge, Senior Division, and the District Judge are vulnerable which are hereby set aside.
The language of section 80 is express explicit and mandatory and admits of no implication or exception. A suit not complying with its provision is not entertainable by any Court. Therefore, the suits filed by the opposite party deserve dismissal being incompetent for want of notice u/s 80, C. P. C. Both the suits are accordingly dismissed.
In the result, the revisions are allowed. Consolidated cost assessed at Rs. 10,000/- (ten thousand). In view of what has been stated above, no further order is necessary to be passed in the writ petitions which are accordingly disposed of.
Ch. P.K. Misra. J.
I agree.
Writ petitions disposed of.