Case: Devi Marine Food Exports Limited, Madras Vs. Goa Meat Complex Limited, Panaji

D.G. KAMAT, J. ( 1 ) ALL these petitions are being disposed of by a common order being convenient to do so as they pertain to the same subject-matter viz. , abattoir. ( 2 ) RESPONDENT Goa Meat Complex Limited is a company whose shares are held by the State Government and Municipal Councils. It owned an abattoir at Usgao, Goa. This abattoir could not be worked to its full capacity with the result M/s. Aliana Cold Storage Ltd. , was invited for the use of its spare capacity. An agreement was drawn up in the year 1988 by Goa Meat Complex in favour of M/s. Aliana on certain terms and conditions for S years expiring on 8th April, 1993. With a view to let out the spare capacity of the abattoir for a period of 5 years when tenders were about to be floated by issue of notice to pre-empt such action of the meat Complex M/s. Aliana instituted Writ Petition No. 79 of 1993 in this court on the spacious ground that by virtue of Clause 17 the Meat Complex is bound to renew the contract for a further period of 5 years of 1993-98. An interim order was made by a Division Bench of this Court that the meat Complex to issue notice inviting tenders subject to the final decision in the petition A notice inviting tenders was published on 9th March, 1993. Eventually this Court dismissed the writ petition of Aliana on 2nd July, 1993 but, however, directed the Meat Complex not to open the tenders before the expiry of one month from the date of the order. ( 3 ) ALIANA preferred Special Leave Petition before the Supreme Court which came to be disposed of by an order, dated 6th August, 1993. The supreme Court directed the Meat Complex to permit M/s. Aliana to continue the use of spare capacity of the abattoir to work out its contract for a period of one year from 8th April, 1993 until 7th April, 1994. ( 4 ) SOME time after the order of the Supreme Court a question arose before the Meat Complex regarding the opening of the tenders already invited and at which 9 tenders had been submitted Upon a decision to open the tenders a notice was given to all the tenderess to remain present at 11 00 a. m. on 25th March, 1994.( 5 ) UPON this event M/s Devi Marine Food Exports Ltd instituted writ Petition No. 155 of 1994 as also Mr. Eshaque M. Latif being Writ petition No. 161 of 1994. The reliefs claimed in both the petitions were (i) to restrain Meat Complex from opening tenders and (2) for a direction to invite fresh tenders or in the alternative to allow the parties to increase the bids. Whereas M/s. Aliana sought intervention in Writ Petition No. 155 of 1994 M/s. Anjaneya Cold Storage Pvt. Ltd. , sought intervention in Writ petition No. 168 of 1994. The contention in these petitions was that in view of new economic policy on exports and global market the offers made by the tenders in march, 1993 could not have secured the best revenue ; that the tenders have become stale and the potential for rental is high, which is in the interest of Meat Complex. ( 6 ) WHEN these two petitions came up for hearing on 24th March, 1994 during the course of the hearing we found that the parties are offering a large amount of rent, anywhere between Rs. 1 crore to Rs. 1. 3 crores, as if there was a scramble for getting the abattoir on lease. Taking into consideration the spurt and one offer against the other bidding higher amount this Court passed the following order :"the petitioner in Writ Petition No. 161/1994 had been one of the tenderers in the matter of tenders invited for using the spare capacity of Goa Meat Complex Ltd. , pursuant to notice inviting tenders published on 9th March, 1993. Admittedly petitioners in Writ Petition No. 155/1994 were not tenderers at that tender. One M/s. Allana Cold Storage Ltd. , who had been operating the spare capacity of Goa Meat Complex Ltd , challenged the notice inviting tenders by instituting a writ petition bearing no. 79/1993. Consequent upon interim orders the tenders submitted by various parties could not be opened. M/s. Allana was not successful in the writ petition and when the matter was taken to the Supreme Court M/s. Allana Cold Storage Ltd. , was allowed to operate the spare capacity until 8th April, 1994. Tenderers were given notice by the respondent Meat Complex that the tenders invited pursuant to 9th March, 1993 are slated for opening at 11. 00 a. m. on 25th March, 1994. These two petitions challenge this action of the respondent on several grounds. The major thrust is that with the liberalization of trade and new economic policy in fitness of things, in public interest and also in the interest of the respondent fresh tenders, if invited, will generate large amount of revenue. In any case tenders invited in the year 1993 are stale and for that matter it is pointed out that even the E. M. D made by various parties had lost its validity by about September, 1993. During the course of the hearing it transpired that 3 different parties had made offers one for an annual rent of Rs. 1 crore (that is by the petitioner in Writ Petition No. 155/1994), in the amount of rs. 1 crore, 25 lakhs (that is by the petitioner in Writ Petition no. 161/1994) and Mr, A. N. S. Nadkarni on behalf of his client M/s. Anjaneya Cold Storage Ltd. , for an amount of more than Rs. 1 crore 25 lakhs. An offer has been made on behalf of the last party in a sum of Rs, 5 lakhs more than highest offer. Considering the background of the earlier tender floated whereby the minimum expectation of the respondent complex was rs 28,80,000. 00 undoubtedly the offers that are made in the open Court today are very substantially high. Having regard to these offers we are performed to make the following order : respondent to open the offers received pursuant to notice inviting tenders, dated 9th March, 1993 and prepare a chart according to the offers in the order of the highest bids. The respondent is further directed to then call upon the tenderers and petitioner in Writ Petition No. 155/1994 to give their revised enhanced bids, needless to say by giving reasonable opportunity to all and make the chart accordingly. The respondent to obtain signatures of all the tenderers on that chart The Board of the respondent to consider the bids pursuant to tenders and the enhanced bids and take decision in accordance with law and forward the same to this Court on or before the 4th April, 1994. Place the writ petitions for final orders on 7th April, 1994. "we may mention at this stage that M/s. Devi Marine had not been a tenderer when tenders were invited in March, 1993 but since they came in a petition before the opening of the tenders, we directed that M/s. Devi marine may also enhance its bid.( 7 ) MEAT Complex upon notice to the parties directed them to remain present personally or by their representative for opening the tenders on 5th April, 1994 and at the same time in compliance with the order of this court dated 24th March, 1994 called upon the tenderers to give enhanced single bid in sealed cover which the parties present did. The Meat Complex, however, did not take any decision as the Chief Minister, who is the chairman of the Complex, could not remain present as a result of some political developments in the State. The Meat Complex, therefore, sought time to take the decision in the matter. The minutes of the meeting of the board of Meat Complex, dated 5th April, 1994 makes all this clear. Meat Complex forwarded two charts viz. , (1) bids received pursuant to tenders invited by notice of 9th March, 1993 and (2) chart of enhanced bids of the parties which are as follows IIn the meantime, M/s. Ahmed and Co. instituted Writ Petition No. 168 of 1994 on 31st March, 1994, M/s. I. Ahmed and Co Writ Petition No. 169 of 1994 on 31st March, 1994 and another Writ Petition No. 173 of 1994 by m/s. Al Quresh Exports on 5th April, 1994. The common relief sought in all these three petitions was for a direction to Meat Complex not to consider bids received pursuant to notice dated 9th March, 1993 as also the enhanced offers and also to restrain Meat Complex from taking any further action, the second relief was to direct Meat Complex to invite fresh tenders. More or less the grounds in the earlier petitions that the tenders of March, 1993 have become, stale and offers were not real. However, in writ Petition No 168 of 1994 M/s. Ahmed and Company in their own perception sought a direction to the Meat Complex to accept their bid of Rs. 1. 81 crores on the ground that it was the highest. M/s. Anjaneya sought intervention in this petition. Indeed it must be mentioned that in Writ Petition No 169 of 1994 m/s. I Ahmed and Company has made an offer of Rs. 10 lakhs more than the highest offer received from M/s. Anjaneya. In Writ Petition No. 173 of 1994 the offer is Rs. 15 lakhs more than the highest offer of M/s. Anjaneya. ( 8 ) SHRI Zaiwalla, learned Counsel appearing for M/s. I. Ahmed, Shri dcosla, learned Counsel appearing for M/s A1-Quresh and Shri Rebello, learned Counsel appearing for M/s. Ahmed and Company have contended that the bids received pursuant to the tenders as also the enhanced offers pursuant to the order of this Court are not real and if fresh tenders are invited, which is in the interest of revenue of Meat Complex, being a State under Article 12 of the Constitution, is bound to secure much higher rent. In any case it is contended that inasmuch as M/s. Devi Marine, who had not been a tenderer earlier in March, 1993, was allowed to make its offer on 24th March, 1994, which opportunity cannot be denied to M/s. I Ahmed and M/s. Al-Quresh and in any case they are prepared to offer yet higher offers. Shri Zaiwalla offered more than Rs. 15 lakhs over the offer of m/s. Anjaneya during the course of the hearing and regard being had to these offers and for the reasons which prevailed with this Court to make the order of 24th March, 1994 it is urged that in the interest of all and specially Meat Complex that a fresh tender is justified Court was invited to authorities of the Supreme Court in Ram and Shyam Co, v. State of haryana, (1985) 3 SCC 267 ; Sterling Computers Limited v. M/s M. and N. Publications Limited and others, (1993) 1 SCC 445 and Food Corporation of india v. M/s. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71. Insofar as Writ Petition No 168 of 1994 is concerned Shri Rebello has further contended that the petitioner therein had made the highest offer in an amount of Rs. 1. 81 crores and, therefore, has a legitimate expectation but is now prejudiced because of the Courts order dated 24th March, 1994. An argument was also made that M/s. Anjaneya, who has offered highest enhanced bid cannot be permitted to intervene in the petition based on the decision of the Supreme Court in Ramesh Hiranand kundanmal v. The Municipal Corporation of Greater Bombay and others, JT 1992 (2) SC 116 . It was urged that what is involved is only a commercial interest and, therefore, intervention be not permitted.( 9 ) IT may be mentioned in the first instance that there are two orders in the field, the first one is dated 2nd July, 1993 by which Writ Petition no. 79/1993 of Allana was dismissed and Supreme Court upheld the decision except that M/s. Allana was permitted to work out the contract by an extention of one year going upto 8th April, 1994 The tenders could not be opened soon after the High Court order as a result of stay and thereafter as the matter was seisin by the Supreme Court. The second order is dated 24th March, 1994, which we have already extracted above. This order makes it amply clear as to what made this Court direct Meat Complex to record fresh enhanced offers and prepare separate chart of the same. This Court was proved right as finally it transpires that M/s. Anjaneya offered a sum as high as Rs. 3,09,42,000/- as against the highest tender bid of Rs. 1,81,00,000/ -. Viewed thus it is not possible to entertain how M/s. Ahmed and Company can now urge in Writ Petition No. 168 of 1994 that they had legitimate expectation because their bid was the highest in the tender. The second aspect is that M/s. Ahmed and Company did not even attend the opening of the tenders or to give fresh enhanced offers oa 25th March, 1994 despite notice to that effect. On the contrary they wrote to the Meat Complex by their letter of 24th March, 1994 representing that meat Complex can proceed in the matter in their absence There is not even a reference to this letter in the petition. ( 10 ) INSOFAR as M/s. 1. Ahmed and Co. and M/s. A1-Quresh are concerned it is common ground that they never bidded when the tenders were invited in March, 1993. Their grievance that M/s. Devi Marine, who had not been a tenderer earlier was allowed to offer enhanced offers on the ground of discrimination must fail for two reasons. The first being that m/s Devi Marine came in a petition before the opening of the tenders scheduled for 25th March, 1994 and that is how this Court felt that their bid should be recorded. In the second place from the chart already produced though Devi Marine made an offer, the same did not reach any where near the highest offer of M/s. Anjaneya with the result their participation was practically a non entity. In any case Counsel for the petitioners M/s. Devi Marine have no grievance to make any further. ( 11 ) A cudgel was taken that finally fresh bids were invited pursuant to this Courts order dated 24th March, 1994 and this being so, there is nothing wrong if the Court now directs a fresh auction for the same reason so that everybody can participate so as to secure large offers.( 12 ) WE are unable to agree with the submissions nor we are enamoured by the same. We will presently point out that by our order dated 24th March, 1994 we merely directed Meat Complex to record the bids pursuant to the tenders and also to take fresh enhanced offers and thereafter take the necessary decision in the matter according to law. The meat Complex by its decision at the Board meeting held on 18th April, 1994 resolved to accept the highest enhanced rental offer of Rs. 3,09,42,000 of M/s. Anjaneya. The decision to accept the highest offer is by the Meat complex itself. The proceedings of the meeting dated 18th April, 1994 suggest that the Meat Complex was aware that fresh Writ Petitions, namely, 169 of 1994 and 173 of 1994 have been filed and even highest offers than the one made by M/s. Anjaneya had been made. Despite knowing this when the Meat Complex has accepted the offer of M/s. Anjaneya from amongst the offers restricted to earlier tenderers, no doubt M/s. Devi marine was also given a chance, though without any effect, in our view nothing can be faulted with such decision. The Meat Complex did not decide to call for fresh tenders. It must be also borne in mind that the procedure adopted by the Meat Complex in inviting all old tenderers and allowing them to give sealed single enhanced offer was reasonable and fair to all. Merely because some parties today come with some higher offer is no ground to frustrate the decision of the Meat Complex and the orders of this Court more particularly when M/s. Allanas petition was disposed of. The enhanced offers were known to all on 25th March, 1994, The three petitions 168 of 1994, 169 of 1994 and 173 of 1994 were instituted after m/s. Anjaneyas highest offer of Rs. 3,09,42,000/- was made known. At any rate nothing can be faulted with the decision of the Meat Complex viz. , commercial transaction taken by the Board Members presided over by the chairman, who is no less than the Chief Minister himself. ( 13 ) SHRI Manohar, learned Counsel, who appeared for the parties, who sought intervention is right when he says that Courts cannot be made instruments at the hands of the litigants. He also rightly mentioned that no mala fides are imputed to Meal Complex. ( 14 ) PETITIONERS in new petitions indeed alleged that M/s. Devi Marine and M/s. Anjaneya are none other than M/s. Allana but then as against this it is alleged on the other side that the fresh petitioners are none other than M/s. Mac Donald. It is indeed true that Shri Zaiwalla did mention that M/s. I. Ahmed is not connected with either. ( 15 ) WE think a final curtain must be drawn on this abattoir at this stage. From 8th April, 1994 the Complex is losing nearly Rs. 1 lakh per day which must also halt as early as possible.

Decision:
0[ds]9 ) IT may be mentioned in the first instance that there are two orders in the field, the first one is dated 2nd July, 1993 by which Writ Petition no. 79/1993 of Allana was dismissed and Supreme Court upheld the decision except that M/s. Allana was permitted to work out the contract by an extention of one year going upto 8th April, 1994 The tenders could not be opened soon after the High Court order as a result of stay and thereafter as the matter was seisin by the Supreme Court. The second order is dated 24th March, 1994, which we have already extracted above. This order makes it amply clear as to what made this Court direct Meat Complex to record fresh enhanced offers and prepare separate chart of the same. This Court was proved right as finally it transpires that M/s. Anjaneya offered a sum as high as Rs. 3,09,42,000/as against the highest tender bid of Rs.. Viewed thus it is not possible to entertain how M/s. Ahmed and Company can now urge in Writ Petition No. 168 of 1994 that they had legitimate expectation because their bid was the highest in the tender. The second aspect is that M/s. Ahmed and Company did not even attend the opening of the tenders or to give fresh enhanced offers oa 25th March, 1994 despite notice to that effect. On the contrary they wrote to the Meat Complex by their letter of 24th March, 1994 representing that meat Complex can proceed in the matter in their absence There is not even a reference to this letter in the10 ) INSOFAR as M/s. 1. Ahmed and Co. and M/s.are concerned it is common ground that they never bidded when the tenders were invited in March, 1993. Their grievance that M/s. Devi Marine, who had not been a tenderer earlier was allowed to offer enhanced offers on the ground of discrimination must fail for two reasons. The first being that m/s Devi Marine came in a petition before the opening of the tenders scheduled for 25th March, 1994 and that is how this Court felt that their bid should be recorded. In the second place from the chart already produced though Devi Marine made an offer, the same did not reach any where near the highest offer of M/s. Anjaneya with the result their participation was practically a non entity. In any case Counsel for the petitioners M/s. Devi Marine have no grievance to make any11 ) A cudgel was taken that finally fresh bids were invited pursuant to this Courts order dated 24th March, 1994 and this being so, there is nothing wrong if the Court now directs a fresh auction for the same reason so that everybody can participate so as to secure large offers.( 12 ) WE are unable to agree with the submissions nor we are enamoured by the same. We will presently point out that by our order dated 24th March, 1994 we merely directed Meat Complex to record the bids pursuant to the tenders and also to take fresh enhanced offers and thereafter take the necessary decision in the matter according to law. The meat Complex by its decision at the Board meeting held on 18th April, 1994 resolved to accept the highest enhanced rental offer of Rs. 3,09,42,000 of M/s. Anjaneya. The decision to accept the highest offer is by the Meat complex itself. The proceedings of the meeting dated 18th April, 1994 suggest that the Meat Complex was aware that fresh Writ Petitions, namely, 169 of 1994 and 173 of 1994 have been filed and even highest offers than the one made by M/s. Anjaneya had been made. Despite knowing this when the Meat Complex has accepted the offer of M/s. Anjaneya from amongst the offers restricted to earlier tenderers, no doubt M/s. Devi marine was also given a chance, though without any effect, in our view nothing can be faulted with such decision. The Meat Complex did not decide to call for fresh tenders. It must be also borne in mind that the procedure adopted by the Meat Complex in inviting all old tenderers and allowing them to give sealed single enhanced offer was reasonable and fair to all. Merely because some parties today come with some higher offer is no ground to frustrate the decision of the Meat Complex and the orders of this Court more particularly when M/s. Allanas petition was disposed of. The enhanced offers were known to all on 25th March, 1994, The three petitions 168 of 1994, 169 of 1994 and 173 of 1994 were instituted after m/s. Anjaneyas highest offer of Rs. 3,09,42,000/was made known. At any rate nothing can be faulted with the decision of the Meat Complex viz. , commercial transaction taken by the Board Members presided over by the chairman, who is no less than the Chief Minister14 ) PETITIONERS in new petitions indeed alleged that M/s. Devi Marine and M/s. Anjaneya are none other than M/s. Allana but then as against this it is alleged on the other side that the fresh petitioners are none other than M/s. Mac Donald. It is indeed true that Shri Zaiwalla did mention that M/s. I. Ahmed is not connected with15 ) WE think a final curtain must be drawn on this abattoir at this stage. From 8th April, 1994 the Complex is losing nearly Rs. 1 lakh per day which must also halt as early as