IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM THURSDAY, THE 15TH DAY OF DECEMBER 2011/ 24TH AGRAHAYANA 1933 WP(C).No. 11151 of 2011 (T) --------------------------- PETITIONER(S): ------------- JOSE JOSEPH VAKAYIL, S/O.JOSEPH, VAKAYIL HOUSE, ST.GEORGE VAKAYIL ROAD MARADU.P.O., THRIPUNITHURA, ERNAKULAM DISTRICT. BY ADVS.SRI.SUNIL V.MOHAMMED SRI.L.RAJESH NARAYAN RESPONDENT(S): -------------- 1. THE UNION OF INDIA, REP.BY THE SECRETARY TO THE DEPARTMENT OF CHEMICALS AND FERTILISERS SHASTHRI BHAVAN, NEW DELHI-1. 2. THE FERTILISERS AND CHEMICALS TRAVANCORE LTD. (FACT), COCHIN DIVISION, AMBALAMEDU KOCHI-682303, REP.BY ITS CHAIRMAN AND MANAGING DIRECTOR. 3. M/S.METAL SCRAP TRADING CORPORATION LTD. (MSTCL), NO.19/5 & 19/6, 3RD FLOOR KAREEM TOWERS, CUNNINGHAM ROAD, BANGALORE-560052. 4. ANNAM STEELS (PVT.)LTD., NO.3/3-2ND LANE, TH ROAD, WASHERMENPET CHENNAI-600 021, REP.BY ITS MANAGING DIRECTOR SRI.VIJAYAKUMAR. R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R2 BY ADV. SRI.E.K.NANDAKUMAR BY ADV. SRI.A.K.JAYASANKAR NAMBIAR BY ADV. SRI.K.JOHN MATHAI BY ADV. SRI.P.BENNY THOMAS BY ADV. SRI.P.GOPINATH R3 BY ADV. SRI.E.K.NANDAKUMAR R4 BY ADV. SRI.TITUS MANI BY ADV. SRI.VINO JOSE BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA BY ADV. SRI.P.K.SURESH KUMAR (SR.) BY ADV. SMT.M.R.SREELATHA BY ADV. SRI.K.P.SUDHEER BY ADV. SRI.V.J.MATHEW (SR.) BY ADV. SRI.VIPIN P.VARGHESE BY ADV. SMT.GISS ANTONY BY ADV. SRI.CEJO J.THYCHERY BY ADV. SRI.BIJISH B.TOM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-12- 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 11151 of 2011 (T) APPENDIX PETITIONERS EXHIBITS P1 COPY OF THE NOTICE OF AUCTION NO.MSTC/BLR/THE FERTILISERS AND CHEMICALS TRAVANCORE LTD, COCHIN DIVISION/7/KOCHI/ 10-11/3021 (29850) P2 COPY OF THE CONDITIONS OF AUCTION OBTAINED FROM THE WEBSITE OF THE 3RD RESPONDENT P3 COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT, 2005, ALONG WITH THE POSTAL RECEIPT DATED 14-3-2011 P4 COPY OF THE REPLY DATED 30-03-2011 ALONG WITH DOCUMENTS, RECEIVED UNDER THE RIGHT TO INFORMATION ACT, 2005 RESPONDENTS EXHIBITS NIL TRUE COPY P.A. TO JUDGE C.K.ABDUL REHIM, J. --------------------------------- W.P.(C) No. 11151 OF 2011 --------------------------------- Dated this the 15th day of December , 2011 J U D G M E N T The petitioner is challenging Ext.P2 notification and consequent steps initiated by the 3rd respondent through which an e-auction for disposal of Ammonia and Urea plants of the 2nd respondent was conducted. Inter alia he is seeking directions to 1st , 2nd and 3rd respondent for issuance of fresh and proper tender notification after due public notice, so as to fetch best competitive and to avoid loss of public money. 2. It is evident that the 3rd respondent had published an auction notice inviting tenders for disposal of the complaints of the second respondent and an e-auction was conducted on 22-9-2010, and the 4th respondent here in was the highest bidder. From Ext.R4(a ) and R4(b) documents produced along with the counter affidavit it is evident that the bid was conformed in favour of the 4th respondent and that the 4th respondent was required to fresh bank guarantee as required under the terms and conditions of the sale. It is also evident that the 4th respondent had filed another writ petition before this W.P.(C) No. 11151 OF 2011 2 court as W.P.(C) NO. 5541/11 challenging stay order issued by the 2nd respondent through which the subsequent proceedings of the auction sale was put under hold. It is also noticed that the petitioner herein had filed the impleading in the said writ petition. 3. One of the main contentions raised is that the 4th respondent herein is a genuine buyer and that he has taken steps for the resale of the materials in violation of the terms and conditions of the tender proceedings. It was also alleged that there is malafides on the part of the 2nd respondent in confirming bid in favour of the 4th respondent. Inter alia, the petitioner contented that the price at which the bid was confirmed in favour of the 4th respondent is too low and that if re-auction is conducted the plant in question will fetch much higher amount than what was offered by the 4th respondent. Hence the petitioner is seeking directions to conduct the re-auction of the plant in question. 4. When this writ petition came up for consideration along with W.P.C No.11151/2011 on 29-8-2011 it was submitted on behalf of the 2nd respondent that the Board of Directors will take a final decision in the matter in a meeting scheduled on W.P.(C) No. 11151 OF 2011 3 12-9-2011. Accordingly, a direction was issued to the 2nd respondent to take a final decision regarding the sale of the plants pursuant to the auction already conducted by the 3rd respondent on 22-9-2010. On 26-9-2011 when the matter was again taken up for consideration this court noticed an affidavit filed by the petitioner herein dated 26-8-2011, wherein he has stated that he is ready and willing to deposit a sum of Rs.45 crores within 60 days from 26-8-2011, in order to prove his bonafides and that he is willing to pay interest at the rate of 1% per annum on the said amount deposited from 26-8-2011 onwards. It was submitted on behalf of the 2nd respondent that the Board of Directors, considering the above aspects, had decided to move this court for an order directing the petitioner to deposit Rs.45 crores along with the interest as stated in the affidavit and on such deposit to permit the petitioner to inspect the plants and further to seek concurrence of this court for retaining sch amount of deposits till disposal of the plant by floating a fresh tender. When the writ petitions were considered on the basis of the above submissions, learned Senior Counsel appearing on behalf of the petitioner had pointed out that as per the tender condition, only 10% of bid amount had to be W.P.(C) No. 11151 OF 2011 4 deposited within 7 days of the auction. The 4th respondent submitted that such deposit has already been made by them and since the petitioner herein had offered deposit of Rs. 45 crores within 60 days, he should be directed to deposit at least 10% of that amount within 10 days, in order to prove his bonafides. On the basis of such contentions raised, learned counsel appearing for the petitioner had offered to deposit of 10% of Rs.45 crores on or before 25/10/2011. Accordingly, an order was issued on 26/9/2011, directing the petitioner to deposit with the second respondent a sum of Rs.4.5 crores by way of demand draft/banker's cheque/pay order within 10 days thereof. The second respondent company was directed to keep such deposit if made in fixed deposit in any nationalised bank for a period of 30 days. 5. It is noticed that the petitioner had failed to make deposit of the amount as directed through order dated 26/9/2011, in spite of several postings of the case thereafter. 6. It is noticed that the petitioner had filed IA No.16058/2011 seeking clarification of the interim order, as to whether the petitioner will be awarded a contract on remitting the amount of Rs.45 crores or as to whether the remittance of W.P.(C) No. 11151 OF 2011 5 Rs.4.5 crores is a precondition for re-auction, on treating the said amount as a security offered by the petitioner. It is evidently clear that the order made for deposit of Rs.4.5 crores was with a view to prove bonafides of the petitioner in challenging the bid confirmed in favour of the 4th respondent. It is only on the basis of such an offer made by the petitioner and on the basis of the requests made on behalf of the 2nd respondent that this court issued a direction for such deposit. Having been failed in complying with such directions the petitioner cannot be permitted to seek any clarification as mentioned above. It is further noticed that the petitioner had filed another application as I.A No.17926 of 2011 seeking to grant 3 more weeks for production of demand draft for Rs.4.5 crores. The said application was filed as early as on 09/11/2011. In spite of lapse of the time sought for, the petitioner has not made any deposit. 7. From the facts and circumstances as narrated above, I do not find that there is any bonafides on the part of the petitioner in challenging the sale conducted. Further the petitioner being a person who is interested in the purchase of the plants in question cannot be considered as a person approaching this court as a public interest litigant in order to W.P.(C) No. 11151 OF 2011 6 protect the interest of the public at large. Therefore, he has no locus standi to challenge the proceedings for sale alleging any loss to public exchequer. 8. Confronted with the above situation, learned counsel for the petitioner made an appeal before this court, that in case the sale confirmed in favour of the 4th respondent is set aside, he should be afforded with an opportunity to participate in the auction. Since the matter with respect to further proceedings pursuant to the sale is pending adjudication in WP(C) No.5541 of 2011 and since the petitioner had already filed an application for impleading in that writ petition, the said issue does not arise for consideration in this writ petition. For the reasons stated above I am of the view that this writ petition deserved no further consideration. Accordingly, the writ petition fails and the same is hereby dismissed. C.K. ABDUL REHIM smm JUDGE W.P.(C) No. 11151 OF 2011 7 W.P.(C) No. 11151 OF 2011 8