IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8424 of 2009 RAMSARUP INDUSTRIAL CORPORATION(UNIT OF RAMSARUP INDUSTRIES LIMITED), HAVING ITS REGISTERED OFFICE AT 7/C, KIRAN SHANKAR ROY ROAD, HASTINGS CHAMBERS, FIRST FLOOR, KOLKATA-700001 THROUGH PARTHA MUKHERJEE, THE SENIOR MARKETING MANAGER. …… PETITIONER Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE ENGINEER-IN-CHIEF, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. THE DIRECTOR, PURCHASE, STATE AND MATERIAL MANAGEMENT, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA 5. THE DEPUTY DIRECTOR, PURCHASE, STATE AND MATERIAL MANAGEMENT, WATER RESOURCES DEPARTMENT, GOVT. OF BIHAR, PATNA 6. UIC UDYOG LIMITED, HAVING ITS OFFICE AT SWAIKA CENTRE, ROOM NO.406, 4A POLLOK STREET, KOLKATA-700001. …… RESPONDENTS ________ For the Petitioner : Mr. Abhay Kumar Singh, Sr. Advocate M/s Sudhir Singh, Nishant Prakash For Respondents 1 to 5: Mr.Ashok Kumar Dubey, AC to A.A.G. 9 For Respondent No.6 : Mr. Tara Kant Jha, Sr. Advocate Mr. Amish Kumar, Advocate ________ O r d e r 5 15.9.2009 In the instant writ petition the petitioner prays for a direction to the respondent 1st to cancel the purchase order no.90 dated 17.6.2009 issued in favour of respondent no.6, and for further direction to the respondents for issuing purchase order for supply of remaining quantity of G.I. wire, arising out of tender no. NIT No.3/2009-10 dated 1.5.2009, as the petitioner was the next successful bidder. The fact of the case lies in a narrow compass. The Water Resources Department, Government of Bihar, floated 2 emergency tender being No.3/2009-10 dated 1.5.2009 for supply of four items including 2703 MT of G.I. wire of size 8 SWG. The petitioner and respondent no.6 qualified in the technical bid held on 16.5.2009. The price bid was opened on 2.6.2009. Respondent no.6 stood L1 having quoted Rs.50,100 per MT, whereas the petitioner company stood L2 having quoted Rs.50,500 per MT. The supply was to be completed within a period of four weeks, as the materials were required for flood fighting and anti erosion activity. The petitioner immediately represented before the respondent 1st and offered price of Rs.48,100 per MT, a discount of Rs.2,000 per MT to the price quoted by respondent no.6. The petitioner by his representation dated 7.6.2009, also requested the department to allow him to participate in the negotiation. He also referred to Clause 21 of the bid documents which reads as follows: “21. The evaluation of the bid will be made on the basis of manufacturing capacity, earlier performance, physical stock, capability of supply in time and the past performance of the manufacturing company”. Despite representation dated 7.6.2009, and earlier representations dated 2.6.2009 and 5.6.2009, the respondent 1st overlooking clause 21 of the bid documents, allotted the tender in favour of respondent no.6. The petitioner submits that in the past also he has been wrongly excluded from consideration and deprived of his right to compete in other tenders. In this respect he refers to order of this court passed on 18.3.2009 in 3 C.W.J.C.No.2028 of 2009 analogous with C.W.J.C.No.2033 of 2009 contained in Annexure-4. In one of the cases namely C.W.J.C.No.2574 of 2009 a bench of this court had directed State Cabinet Vigilance to take up the investigation into the affairs leading to consideration of tender in that case. Coming back to the instant case, the petitioner submits that the action of the respondents in allotting tender to respondent no.6 overlooking clause 21 of the bid documents was a malafide action. The petitioner as such moved this court vide C.W.J.C.No.7043 of 2009. The petitioner has stated in paragraph 25 of the instant writ petition, that in C.W.J.C.No.2043 of 2009, referred above, he too had prayed for quashing of the purchase order no.90 dated 17.6.2009 issued in favour of respondent no.6. This court by order dated 9.7.2009 passed in the aforesaid C.W.J.C.No.7043 of 2009 declined to quash the purchase order issued in favour of respondent no.6 and observed in paragraphs 12 and 13 as follows: “12. As the respondents have already made part supply and they have filed affidavit before this Court that they would supply the full quantity within time schedule, this court would not like to interfere at this stage, and as such, this writ petition is dismissed. 13. In case respondents 2nd set (respondent no.6) fails to supply or makes delay in supply of materials given in the time schedule, it would be open to the department to take recourse to the penalty clause as delay in prompt performance of such work of 4 immense importance may defeat the very purpose of flood fighting and anti erosion activities”. The petitioner has filed the instant writ petition praying therein to cancel the purchase order dated 17.6.2009 for supply of remaining materials in favour of the petitioner. The petitioner also filed a supplementary affidavit on 21.7.2009, seeking amendment in the prayer portion to the effect, that during the pendency of this writ petition, the purchase order be stayed and respondent no.6 be restrained from making further supply. The petitioner has based his prayer on the premises that respondent no.6 failed to honour its commitment to supply the balance of the materials by 16.7.2009. The petitioner submits that respondent no.6 has given incorrect assurance before this court to frustrate the petitioner to receive order for supplying the balance of the remaining materials. The petitioner states that as it was second lowest tenderer, it ought to have been granted supply order on failure of respondent to supply the same in time. Clause 22 of the bid documents states that normally no extension of schedule delivery or completion dates will be considered, except where events constituting force majeure as provided in the contract have occurred. In view of the observation of this court, contained in Annexure-7, the petitioner submitted representation before respondent no.2 on 17.7.2009 seeking supply of remaining quantity of G.I. wire, being the next successful bidder. However, the respondent 1st did not accede to the same. 5 A counter affidavit has been filed on behalf of the State respondent 1st on 25.7.2009, wherein, in paragraph 10 it was stated that there was some delay on the part of respondent no.6 in conforming to the time schedule indicated in previous tender bearing no.2 of 2008-09. The respondents have deducted some amount from the bills of respondent no.6 against which the latter has filed an application for condonation of the same on various grounds. The respondent 1st set further stated that respondent no.6 has filed an application on 15.7.2009 for extension of time for completion of supply of G.I. wire by 30.7.2009. The representation of respondent no.6 was recommended by local authorities and forwarded to respondent no.1 vide memo no.1595 dated 20.7.2009 and as such the answering respondent rejected the application filed by the petitioner on 20.7.2009 and had communicated the same to him vide memo no.475 dated 23.7.2009, contained in Annexure-B. The respondent 1st set further stated that up to 23.7.2009, the respondent no.6 has already made total supply of 2000 MT out of 2703 MT. A counter affidavit has also been filed on behalf of respondent no.6 on 27.7.2009. It stated in paragraph 11 that in past its performance has been appreciated by the department and in respect to this aspect reference has been made to letter dated 19.6.2009, 21.6.2009 and 27.6.2009, contained in Annexure-D series. In paragraph 14, the respondent no.6 stated that he 6 reasonably believed that it would supply the entire 2703 MT of G.I. wire within the stipulated time. However, due to intervening circumstances, one of its supply units closed down effecting over all supply. In paragraph 15, it has stated of having already made supply of 2624 MT of G.I. wire and remaining 79 MT of G.I. wire has reached the destination point and is in the process of being unloaded on that day itself. He states that the petitioner had preferred L.P.A. against order dated 9.7.2009 passed by this court in C.W.J.C.No.7043 of 2009. However, the petitioner submits that the same has been withdrawn. The issues which arises for consideration of this court is as follows : i) Once the entire 97% (2624 MT out of 2703 MT of G.I. wire) of the supply has been made and the balance 79 MT of G.I. wire is on the verge of being unloaded at the site on the day itself, whether any effective order could be passed by this court in this case; ii) Whether status quo ante as existing on 17.7.2009 could be ordered, as the respondent no.6 according to the petitioner has tried to over-reach the order of this court? The petitioner has claimed that in view of the order dated 9.7.2009 passed in C.W.J.C.No.7043 of 2009, a vested right accrued in him for issuance of fresh purchase order for supplying the rest of the materials. He submits that even if entire supply has been made by respondent no.6, no relief could be 7 granted to the petitioner on the ground of fate accompli is misconceived. It is true that respondent no.6 had filed an affidavit before this court stating therein that it will supply the full quantity of G.I. wire within time schedule. Primarily, in view of the aforesaid averment, this court did not interfere in the matter and the writ application filed by the petitioner was dismissed. The respondent no.6 ought to have supplied the material by 16.7.2009 as assured before this court. The petitioner filed a representation on 17.7.2009, seeking therein, an order for supply of remaining G.I. wire at the barrage site, being the second successful bidder. However, the respondent no.2 did not allow the representation and rejected the same. During the course of hearing, respondent no.6 filed an affidavit on 29.7.2009 stating therein that it had already supplied 2624 MT of G.I. wire and the balance 79 MT of G.I. wire would be unloaded on that date itself. According to the petitioner, the supply made by respondent no.6, ought to have been rejected by the authorities in absence of specific order of the State Government or this court extending the time for supply. The petitioner builds his argument on premises that a court exists for rendering justice, to undo a wrong done or prevent a wrong from being done. If this is not accepted then the right to access to justice would be rendered meaningless and ineffective. He submits that the High Court is a court of record and the powers are plenary.Lord Denning said, when he 8 invented the Maverara injunction, that for new situation new tools and remedies have to be invented by the court whether it pre exists or not. A suitor cannot be left remedy less by the court. The plea of fate accompli is meaningless in such circumstances. By relying upon a decision in the case of Dorab Cawasji Warden Vs Coomi Sorab Warden & Ors, reported in (1990) 2 SCC 117 at Para 12, he submits that a mandatory injunction can be granted on an interlocutory application where defendant hurries on the work so that by the time he receives notice of an interim injunction, the same would stand completed. Learned counsel also placed reliance on a decision in the case of Reliance Petrochemicals Ltd Vs Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. & ors, reported in (1988) 4 SCC 592 at Para 43 at page 617. He submits that the court cannot allow a party to circumvent or overreach its order on the basis of a fate accompli. He contends that where a court finds that the action being undertaken have the effect of circumventing the order of this court, injunction has been granted. In support of his submission, learned counsel relied upon a judgment rendered in the case of Narayan Sahu & Ors Vs Sri Thakurji Ramji & Ors, reported in A.I.R. 1928 Patna page 49. Further more, the Full Bench of Lahore High Court in the case of Syed Roshan Ali Vs Rehmat Bibi, reported in 1943 Lahore Page 41 held that the courts’ jurisdiction cannot be overreached and mandatory injunction must issue to restore the 9 status quo ante as on the date of the suit, in appropriate cases. He further submits that Kerr on injunction at page 44 foot note no. M and N (in the second paragraph) states as follows: “Thus where a defendant on being served with notice of motion for an injunction hurried on his building a mandatory injunction was granted on an interlocutory application. So also, where a defendant, knowing a writ for injunction had been issued against him evaded service and continued the work, a mandatory injunction was granted on interlocutory application in respect of so much of the building as had been erected between the issued and service of the writ”. Leaned counsel also puts reliance on a decision in the case of Convenor, MBBS/BDS Section Board and Ors Vs Chandan Mishra and others, reported 1995(3)(Supp.) SCC 77 at paras 11 to 13 wherein the Apex Court in paragraphs 12 and 13 has held as follows: “12. So far as the admissions already made are concerned, it is clear they were made in the teeth of the judgment of the High Court. They are wholly illegal. The candidates who are the beneficiaries of the admissions cannot claim to be heard as any interest they may have or claim is acquired after the filing of the writ petitions and after the very basis of list of their claims are based as declared illegal. If the admissions continue even for a day public confidence would be shaken. “13. We, therefore, set aside the admissions of all the 290 candidates made to the courses. These students shall immediately be kept out of the course. The 10 State shall ensure that no classes shall continue with these students as that would amount to placing a premium on illegality and high-handedness”. He further contends that even if case has not been filed in the court, but proceedings are eminent and the defendant try to overreach the order of the court or try to steal a march over the plaintiffs and preempt the court from giving the effective relief then it amounts to contempt. In the instant case after passing the order dated 9.7.2009 passed in C.W.J.C.No.7043 of 2009, the respondent authorities had become functions officio as the entire records would be deemed to be before this court. The respondent no.6 was bound by its judicious pleading before this court and thus has waived his further right to continue supply after 16.7.2009. The respondent no.6 had assured this court that it would make fully supply within one month. The court cannot close its eyes to the mischief of respondent no.6 and as such necessary enquiry could be ordered. In support of his contention, learned counsel relied upon decisions in the case of Siemens Ltd Vs State of Maharashtra & Ors, reported in (2006) 12 SCC 233 at para 33; Indian Bank Vs Official Liquidator, Chemmeens Exports (P) Ltd. & Ors, reported in (1998) 5 SCC 401; Chaitanya Kumar Vs State of Karnataka & Ors, reported in (1986) 2 SCC 594 and Ashok Lanka & anr Vs Rishi Dixit & Ors, reported in (2005) 5 SCC 598. There could be no dispute to the propositions laid down 11 by learned courts in aforesaid cases. The respondent no.6 ought to have supplied the entire materials within time as per its affidavit before this court. The respondent no.6 has given some explanation for not being able to supply the materials in time and sought extension before the authorities concerned. One may at times have genuine grounds for not being able to fulfill its obligation made before courts. Nevertheless he ought not to sit tight over the matter. He must express its deference to the court by filing an appropriate application seeking extension. Then it is for the court to grant or not to grant extension depending upon the facts of the case. To this extent, Respondent no.6 as such has not lived by any good example, by not filing an appropriate affidavit before this court seeking extension and at least expressing regret for not keeping its words. So far as relief of grant of status quo ante is concerned, the same cannot be granted in the facts of the case. The G.I. wires were supplied for fighting flood and protecting any further erosion of soil. Thus, withdrawal of the wires would defeat the avowed object of the government to fight flood in public interest as lives and properties of thousands of innocent people would be at stake. Public interest of such immense importance and magnitude would override private interest and as such no mandatory injunction could be granted in the facts of this case. In backdrop of the aforesaid facts, no positive relief, as prayed for by the petitioner, could be granted. So far as delay in 12 KHAN supply of materials and imposition of penalty is concerned, this court has already dealt this aspect in paragraph 13 of order dated 9.7.2009 in C.W.J.C.No.7043 of 2009. For the reasons stated above, this writ petition stands dismissed. (Samarendra Pratap Singh,J)