AI Structured Summary
Not yet generated for this judgment
Judgment
A.K. Yog, J.—The petitioner approached this Court under Article 226 of the Constitution of India, being allegedly aggrieved by the action of the respondents in floating tenders of supply to the Ordinance Equipment Factory, Kalpi Road, Kanpur. On 17th May, 2000 Division Bench, of this Court passed following order:
�Admit.
The respondents are at liberty to open the tender documents received but will not finalize the same until further orders of this Court.
The matter shall be listed on 2352000 for orders, showing the name of Sri Subodh Kumar as learned counsel for the respondents.
Dated 1752000
Hon''ble S.K. Sen, A, C.J.
Hon''ble Paloke Basu, J.�
Pursuant to the aforesaid order, counteraffidavit along with present stay vacation application No. 46745 of 2000 has been filed. Rejoinder affidavit has also been filed after serving the copy on Sri Subodh Kumar learned counsel representing respondents No. 1 to 4 on 662000.
Sri. P.S. Baghel, learned counsel for the petitioners for purposes of deciding the interim stay matter argued as follows:
(1) The ground mentioned in the order dated 1352000 (Annexure3 to the counter affidavit) disclosed to the petitioner with respect to the petitioner''s disqualification under Section 4D of O.F.C. on ground that the petitioner had failed to secure a single contract after registration of his firm for more than 3 years.
In this context, it will be suffice to mention that the petitioner was required vide said letter dated 1352000 to inform the concerned authority along with the copy of the contract within the requisite three years period. There is no averment in the amendment application and its supporting affidavit that the petitioner did reply to the said letter to satisfy the authority that the ground mentioned for disqualifying him from participating in the tender process in question was incorrect.
The petitioner, then referred to the latter dated 10111999 (Annexure R.A.4) and endeavored to demonstrate that the petitioner was given tender beyond three years period to be counted w.e.f. date of registration i.e. after 281999.
At the moment we are concerned with the interim application onprima facie basis without affecting the rights of the parties to be adjudicated finally at the time of final hearing. The leaned counsel for the contesting respondents pointed out that the alleged tender form (AnnexureR.A1) does not relate to the respondents'' unit.
(1) Firstly, in order to plead estoppel or waiver it has to be specifically pleaded that the party, against whom the waiver is pleaded must have waived his right knowingly conscientiously. There is no foundation for such a plea. Documents annexed with the rejoinder affidavit (particularly Annexure No. 1 and Annexure No. 4 to the writ petition) do not relate to the Ordinance Factory, Kalpi Road, Kanpur but to another unit which is an independent/sister concern unit. And, hence documents relating to unit other than the respondents unit therefore, these documents of other unit have no relevance to decide the issue of waiver in the present case.
(2) During course of argument, it was mentioned on behalf of the petitioner that he is ready to take contract on 25 per cent less rates as compared to the lowest bid to be accepted by the respondents. According to the petitioner (who was present in the Court), it will make a difference of about Rs. 40 lacs.
It is not at all relevant for deciding the issues at present. The offer made in the Court during course of argument may be for various reasons. Such an offer may be actually to frustrate the tender and have sadistic pleasure to defeat the defence. Offer may not be viable for more than one reason including to let down his adversary.
In the matter of supply particularly to the Defence Department, it is the concerned authorities who are the best Judge to appreciate as to whether the particular tenderer will be able to maintain constant supply as per their terms and conditions. Mere fact that one has offered lowest rate, cannot be a less criterion for accepting the tender. Parties'' antecedents soundness, expertise, good etc. are relevant considerations. In this context, on behalf of the respondents, it was submitted that the fact that the petitioner failed to secure even a single contract for the last three years is a strong circumstance to show that he was not competitively sound to make a competitive offer earlier and, therefore, a good ground for not awarding contract to him particularly when there is urgency as stated in para 6 of the counteraffidavit. Supply to Defence or its Ordinance Factories is a sensitive matter. There can be several considerationsincluding that it cannot take risk of supply being stopped in midway. There is no prima facie case, as on date, in favour of the petitioner:
(2) Learned counsel for the petitioner has placed reliance on the decision reported in 1996 (4) SCC 627, paras 17,19 and 21 in support of his submission that if an action or order is passed in the teeth of Court''s interim order, it will be a nullity. Petitioner has placed reliance on a decision reported in A.I.R. 1990 SC1031 (para 12 and 13) wherein the Apex Court held that in the matter of the tender and contracts where the contracting party is the State or its instrumentality, it cannot be permitted to act arbitrarily. It is suggested that order dated 1752000 is nullity.
Ratio descendi laid down by the Hon''ble apex Court in aforesaid case is neither attracted nor questioned.
Perusal of the interim order dated 1752000 passed by this Court shows that the respondents were permitted to open the tender but not to finalize the same. In para 3g of the counteraffidavit, it is stated that the tenders were opened on 16th May, 2000 due to delicate situation and urgency. Only one tender was finalised on 19th May, 2000. No other tender has been issued and it was postponed. Respondents deniedafter its officers checked original record in Court, to have received any information of interim order prior to 2052000.
The petitioner, however, on the basis of the letter dated 18th May, 2000 (Annexure R.A.9) sent by fax attempted to show that information regarding interim order dated 1752000 was sent on 1852000 which was received on the same day. Copy of this letter is annexed along with rejoinder affidavit for which the respondents have no opportunity to meet. It is not addressed to any of the respondents in this petition. Learned counsel for the respondents, after consulting his client (who is present in, the Court during the course of argument) stated that this fax copy was neither available in their record nor it was brought to their knowledge till 1952000.
This question may be considered at the time of final hearing of the petition, be that as it may be. This Court can not record finding in this respect at this stage.
One thing may be noticed that the fax latter incorrectly mentioned due to ignorance or anxiety that permanent stay order was granted which was not vacated. It did seek to convey in correct information. In view of the decision JT 1997(1) SC 309, AIR 1981 SC 162 (P. 10 and 11), AIR 1982 All 460and AIR 1975 Orissa 20 (FB), a lowest bidder does not have in defeasable or an enforceable right.
Considering the averments made in the counteraffidavit particularly that the supply is to be made for defence purpose, coupled with the circumstance that the learned counsel for the petitioner has stated that the maximum profit, in the contingency of the tender being given to him, he would have at best made a Gross profit of Rs. 10,00,000/ only. It may be pointed out that neither in the counteraffidavit nor in the rejoinderaffidavit, there is any whisper about the quantum of loss. In case the Court refuse to pass interim order there is no danger of their being not traced. The respondents are the Union of India (Ordinance Factory of Ministry of Defence) and the unit belongs to the Government of India. Respondents cannot suggest that they as may not be able to make good a loss of a few lacs. The petitioner can adequately be compensated in case writ petition is finally allowed. On the other hand, if injunction order is not vacated, the respondents shall suffer irreparably. There is no irreparable injury to the petitioner. Moreover by not allowing finalisation of tenders in question under interim order, petitioner does not get the contract by itself. The respondents who are to work for nation''s defence, will be put to irreparable injury by the delay and loss may beeven in terms''of the sovereignty of the country. Court cannot shut its eyes to the practical aspect of the matter. Petitioner can seek adequate damages compensation, when according to his own stand,it is nothing but loss in terms of ''money'' only. Neither the balance of convenience is in favour of the petitioner.
In view of the above. I find no good ground for granting adinterim injunction order in the facts and circumstances of the present case.
The interim order dated 1752000 passed earlier by this Court is hereby discharged. Stay vacate application No. 46745 of 2000 is allowed.
Stay application filed by the petitioner is rejected. Application rejected.