IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. LPA No. 203 of 2010. Decided on: 14.7.2011. __________________________________________________________ M/s H.M. Steels Limited … Appellant. Versus State of H.P. & others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Kurian Joseph, Chief Justice. Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. J.S. Bhogal, Sr. Advocate with Mr. Suneet Goel and Mr. Tarunjit Singh Bhogal, Advocates. For the respondents : Mr. R.K. Bawa, A.G. with Mr. Ankush Dass Sood, Addl. A.G. for respondents No. 1 & 2. None for respondents No. 3 to 8. ___________________________________________________________ Justice Kurian Joseph, C.J. (Oral). The appellant is the petitioner. He has approached this Court with the following prayers:- (a). That the recommendation made in Annexure P-7 may kindly be quashed as being illegal and arbitrary. (b). That the respondents may be directed by way of a writ of mandamus to comply and adhere to the procedure and rules for the purchase of stores by all Departments and offices of the Government of Himachal Pradesh as laid down in rule 15.2 of Chapter XV of the Himachal Pradesh Financial Rules, 1971 (Annexure P- 10) while placing supply orders with the petitioner. 2. As far as prayer (i) is concerned it is fairly submitted that the same is not pressed since pursuant to the tenders already invited the contracts have been finalized. Therefore, what survives is only the 2nd prayer. The learned Single Judge has taken the view that by coming into force of the H.P. Financial Rules, 2009, the Appendix 10 in the old Rules stood repealed, in view of Rule 194 1 Whether reporters of the local papers may be allowed to see the judgment? 2 (2) of the new Rules. Rule 194 (2), which came into effect on 30.8.2009 reads as follows:- “194. Repeal & Savings.- (1)….. (2) Notwithstanding such repeal, any form(s), instruction(s), notification(s), office order(s), circular(s), letter(s), office memoranda, delegation(s), clarification(s), codes(s), manual(s) or any other correspondence of any type issued or made under the rules so repealed, so far as they are not inconsistent with these rules, shall remain in force until superseded under these rules: Provided that anything done or action taken under the provisions of rules so repealed, shall be deemed to have been validly done, taken under the corresponding provisions of these rules.” 3. According to the learned Single Judge, what is saved by sub rule (2) of Rule 194, as extracted above, are the form(s), instruction(s), notification(s), office order(s), circular(s), letter(s), office memoranda, delegation(s), clarification(s), manual(s) or any other correspondence of any type which are issued under the old rules to the extent they are not inconsistent with the new rules. 4. The learned Single Judge has also taken the view that Appendix 10, being part of the main body of the Rules of 1971 cannot be said to have been saved by sub rule (2) of 1994 Rules. 5. We find it difficult to agree with the view taken by the learned Single Judge. A clause beginning with the expression ‘notwithstanding’ is provided with a view to give an enactment part of the provision in case of conflict, an overriding effect over the provision mentioned in the non obstante clause. It is equivalent to saying that inspite of the provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non obstante clause will not be an impediment for the operation of the enactment. (See the judgments of Supreme Court in South India 3 Corporation (P) Ltd. v. Secy., Board of Revenue, Trivandrum, AIR 1964 SC 207 and Union of India v. G.M. Kokil, AIR (1984) SC 1022). In other words non obstante clause is provided to give an overriding effect to the provision referred to under the clause. Appendix 10 in the old Rules is referable to Rule 15 (2) of the old Rules. Rule 15 (2) of the old Rules deals with the purchase and acquisition of the stores. To the extent relevant Rule 15 (2) (a) reads as follows:- “15 (2) (a). Save as provided below, all the purchases of stores for use in the public service, whether of indigenous origin or otherwise, should be regulated in strict conformity with the Stores Rules given in Appendix 10. Subject to the provisions of those rule and other special rules in regard to particular classes of articles mentioned in notes 3 and 4 below rule 8.3 a competent authority may sanction purchase of stores and other materials required for public service. Purchase orders should not be split up so as to avoid the necessity for obtaining the sanction of higher authority required with reference to the total amount of orders.” 6. A bare reading of Rule 15 (2) would show that the whole purpose of Appendix 10 is to regulate the purchase of stores for use in public service. Such regulations are intended to be framed by Appendix 10 only. True it is loosely worded as Stores Rules. That can only be by way of an indication on the purpose of the regulation. It is also significant in this context that the learned Single Judge has also omitted to take note of the saving of ‘codes’ under Rule 194 (2), while holding that Appendix 10 is not saved. There cannot be any manner of dispute that Appendix 10 is a code in itself for regulating the purchase of stores. 7. We do not find any rule or code or procedure or instruction under the new Rules regulating the purchase of stores 4 as is given in detail in Appendix 10. It may not also be out of context that the State itself has understood it that way as can be seen from Annexure PA-2, letter dated 28.4.2011 from the Directorate of Industries, produced along with the supplementary affidavit filed in the LPA, wherein it is clearly stated that “framing of new Store Purchase Rules under Rule 192 of the Himachal Pradesh Financial Rules, 2009 is under process”. Rule 192, provides for power of industries department to issue detailed instructions and guidelines for procurement of goods and services and proper Inventory Management. The rule reads as follows:- “192. Power of Industry Department to issue detailed instructions and guidelines for procurement of goods and services and proper Inventory Management.- The Controller of Stores in the Industry Department in consultation with the Government may issue detailed instructions and guidelines for procurement of goods and services and proper Inventory Management from time to time for implementation by different Departments of the State.” 8. Thus, as of now, there are no such instructions/guidelines as to how to regulate purchase of Stores. What is available is only that code-Appendix 10, which was intended to regulate the purchase of stores. Therefore, so long as there are no instructions issued as in Appendix 10 in exercise of power under Rule 192 of the new Rules, to that extent the instructions already issued under Appendix 10 should prevail until they are otherwise superseded by new rules or instructions. 9. In the above circumstances, the appeal is partly allowed as above. No costs. (Justice Kurian Joseph) Chief Justice. (Justice V.K. Sharma) July 14, 2011. Judge. (cr)