ORISSA HIGH COURT: CUTTACK F.A.O. No.489 of 2007 From the order dated 10.12.2007 passed by Sri B.K. Mohanty, Civil Judge (Senior Division), Bhubaneswar in I.A. No.513 of 2007 arising out of C.S. No.658 of 2007. -------------------- Airport Taxi Drivers Union, …… Appellant Biju Patnaik Airport, Bhubaneswar -versus- Airport Authority of India & others …… Respondents For Appellant : M/s. B. Baug, S. Rath & P.C.P. Das For Respondents : M/s. R.C. Praharaj & S.C. Mishra (for Respondent Nos.1 to 3) : M/s. B. Routray, D.K. Mohapatra, B.N. Satapathy, D. Routray, D. Mohapatra, P.K. Sahoo, S. Das, R.P. Dalai, K. Mohanty & S. Jena (for Respondent No.4) -------------------- DATE OF JUDGMENT: 22.08.2008 -------------------- P R E S E N T: THE HONOURABLE KUMARI JUSTICE SANJU PANDA ---------------------------------------------------------------------------------------------------- S. Panda, J. In this appeal the appellant has challenged the order dated 10.12.2007 passed by the learned Civil Judge (Senior Division), Bhubaneswar in I. A. No.513 of 2007 arising out of C.S. No.658 of 2007 whereby the court below has rejected the application for temporary injunction under Order 39, Rules 1 & 2 of the Civil Procedure Code of the appellant. 2. The brief facts of the case are as follows: The appellant as plaintiff filed the suit for declaration that defendant no.4, M/s Swift Travellers, Bapuji Nagar, Bhubaneswar was not technically qualified to be awarded with the tender for running the pre-paid taxi counter at Biju Pattnaik Airport, Bhubaneswar and the tender awarded in favour of defendant no.4 may be void. In the suit, a further declaration was prayed for that the plaintiff-Union and its members cannot be evicted by defendant nos.1 and 3 from the taxi stand and pre- paid taxi counter forcibly and/or or without due process of law. The plaintiff asserted that defendant nos.1 to 3 invited a tender notice along with general information and guidelines thereof for grant of licence for the pre-paid taxi counter. In the tender notice, they specifically stated that the period of licence was three years and they fixed certain criteria for eligibility to apply. The first criterion was that parties/individuals fulfilling the following criteria are eligible to purchase the tender documents/participate in the tender; “The registered/recognized Taxi Union, the Registered Tour & Travel Agents approved by Ministry of Tourism of State or Central Government and having minimum two years experience in running similar kind of business or pre-paid taxi counter in Railway Station/Bus Stands/Airports etc. Note: experience stands; For experience in the last 10 (ten) years from the date of publication.” 3. In Para-4 of the general information and guidelines it was specifically stated that: “4. Envelope “A” which shall be opened first, shall contain the basis Documents specified as under: i) Details of experience in the trade for which tenderer(s) intend to participate along with supported authenticated documents credential certificate issued by the authorities at the place of contracts or clients or bankers in favour of tenderer(s). (ii) Earnest Money Deposit of Rs.5,000/- in the form of Bank Demand-draft/Pay-Order in favour of “Airports Authority of India, Biju Patnaik Airport, Payable at Bhubaneswar”. (iii) Affidavit declaring asset details and liabilities details. (iv) Attested copies of Memorandum and Articles of Association in case of registered Companies. (v) Partnership deed in case of Partnership Firm. 2 (vi) No dues certificate. (vii) Any other relevant information/document which tenderer(s) may consider appropriate including their expertise and experience in the areas other than for which tenders invited by AAI.” 4. In Para-5 thereof it was also specifically stated that it may be clearly noted that in case tender(s) submitted by tenderer(s) is not accompanied by any or all of the documents stated at (i) to (vi) of Para-4, such tender(s) will be rejected by the Authority out rightly. As per the cause-title, the plaintiff is the Airport Taxi Drivers Union, Biju Patnaik Airport, Bhubaneswar represented though it’s Secretary. They have stated that initially the plaintiff’s union was not registered, but it was functioning as Taxi Association Airport, Bhubaneswar since 1992. Thereafter the said Union was registered under the Indian Trade Union Act, 1926 since 12.7.1995 and the association was plying taxies through its members and the Airport Authority permitted the association to run the taxi by its members in the Airport at Bhubaneswar and also allotted a space for the taxi stand within the campus of the Biju Patnaik Airport, Bhubaneswar. In pursuance of a decision taken by the Government of Orissa, Tourist Department for introducing a pre-paid taxi system at Bhubaneswar Airport taxi stand, the Union was called for to attend the meeting on 27.03.1997 under the chairmanship of the Additional Chief Secretary to Government of Orissa and in the said meeting, it was unanimously decided to introduce and run the pre-paid taxi stand system at the Airport taxi stand, Bhubaneswar and the plaintiff’s Union was allowed to operate the said pre-paid taxi stand in Biju Patnaik Airport, Bhubaneswar. In December, 2006 the authority also allotted a specific area measuring 1.5 squaremetre approximately for use of pre-paid taxi counter for a period of six months w.e.f. 1.9.2006 for a licence fee of Rs.3,000/- per month along with other terms and conditions. While the matter stood thus, defendant no.1 decided to call for a tender for giving a licence for the pre-paid taxi counter at Biju Patnaik Airport, Bhubaneswar for a period of three years. The notice inviting tender 3 was issued wherein earnest money deposit was fixed at Rs.5,000/- and minimum licence fee was fixed at Rs.3,000/-. 5. Accordingly, the appellant-Union applied for the tender. The fact remains that the appellant-Union had no registered tour and travel certificate duly approved by the Ministry of Tourism of State or Central Government. Their grievance is that in pursuance of the notice inviting tender, the plaintiff and defendant no.4 purchased the tender paper and submitted the same as stated above. But as per the tender condition, the envelop containing the technical bid which was to be opened on 20.6.2007 were not opened and only by letter dated 29.8.2007, it was intimated to the Secretary of the Plaintiff’s Union that they were not technically qualified and accordingly, their E.M.D. of Rs.5,000/- was returned to them which was deposited with defendant no.1 on 19.6.2007. The authority accepted the tender of defendant no.4. Therefore, the plaintiff, though it was eligible, was not allotted with the tender whereas defendant no.4 having no required qualification or eligibility criteria, as the tender was finalized in its favour. Hence, the plaintiff filed the suit. In the suit they filed an Interim Application for temporary injunction alleging the illegality committed by the authority and prayed for restraining the authority from executing the agreement granting licence to defendant no.4 and forcibly evicting the petitioner from the pre-paid taxi counter. 6. Defendant nos.1 to 3 filed their objection so also defendant no.4 to the application under Order 39, Rules 1 & 2 of the Civil Procedure Code. The learned Civil Judge (Senior Division) after hearing the parties and on perusal of the documents and evidence adduced by the parties came to the following finding that the plaintiff’s Union was registered under the Indian Trade Union Act, 1926, they did not possess the tour and travel certificate from the Ministry of Tourism either from the State or Central Government. The plaintiff admitted that defendant no.4 acquired a registered certificate of tour and travel agents granted by the Ministry of Tourism of 4 the State. Thus the plaintiff is lacked behind one criterion, i.e., approval of such recognition by the Ministry of Tourism. In the meantime, tender paper of defendant no.4 had been accepted and he was granted licence to operate pre-paid taxi stand for a period of three years. The plaintiff’s Union also accepted the earnest money deposited by them from the authority. There was no mala fide on the part of the authority in accepting the tender of defendant no.4, since opposite party no.4 fulfilled the criteria as stipulated in the tender notice, he has a prima facie case. The defendants would suffer irreparable loss if they would be restrained temporarily from operating the pre-paid taxi counter and the defendants would also face inconvenience, if they would be restrained by ad interim injunction from giving effect to the decision taken by the Airport Authority. On such findings, the court below rejected the interim application and directed the plaintiff-petitioner who was in occupation of the space meant for the pre-paid taxi counter to vacate the same within a period of 15 days from the date of the said order failing which opposite party nos.1 to 3 were at liberty to evict them in due process of law. The appellant has challenged the said order in this appeal. 7. Learned counsel for the appellant submitted that the appellant-Union has been working in the Airport since 1992 and the Ministry of Tourism of State has not issued any certificate to any Taxi Union. Therefore, the eligibility criteria fixed by the authority was not legal and tenable and the trial court did not take into consideration all the facts while rejecting their application. Therefore, interference of this Court is necessary. 8. Learned counsel for the respondent nos.1 to 3 submitted that as the appellant-Union did not furnish the affidavit stating there asset details and liabilities details, their tender application was rejected. 9. Learned counsel for respondent no.4 submitted that the appellant- Union is a Taxi Driver Union and not a Taxi Union and as such, they did not fulfill 5 the criteria as per the tender notice. The court below rightly rejected their interim application and the order was passed in accordance with law and interference in the impugned order is not warranted. 10. After hearing the parties and going through the documents, it appears that the grievance of the appellant is that they are continuing in the pre-paid taxi stand at Biju Patnaik Airport, Bhubaneswar since 1992. Though they were at par with defendant no.4, their application was not considered by the court below after scrutinizing the records filed by the parties. The documents filed by the plaintiff were not taken into consideration. The pleadings of the parties and the materials available on record reveal that the plaintiff-union did not fulfill certain criteria or they did not prove their prima facie case and also the court below considered the balance of convenience in favour of defendant nos.1 and 2 and took into consideration the irreparable loss that would be sustained by defendant no.4. However, as the trial court did not consider the documents filed by the appellant-plaintiff from its proper perspective, the impugned order was perverse. Therefore, this Court sets aside the impugned order and remands the matter to the trial court for fresh hearing with a direction to consider all the documents filed by the appellant in accordance with law without being influenced by any observation made in this appeal. 11. With the above direction, the appeal is disposed of. No costs. 12. All the interim orders passed by this Court shall stand vacated. ………………… S. PANDA, J. High Court of Orissa, Cuttack 6 Dated /amit 7