IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 156 of 2008. Judgment reserved on: 20.6.2008 Date of Decision: 25th June, 2008. ________________________________________________________________ The Kumarsain Tehsil Co-operative M&C Union … Petitioner Versus Sh.Parkash Chand and another … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes For the Petitioner (s) : Mr. H.K.S. Thakur, Advocate. For the Respondents : Mr. B.M. Chauhan, counsel for respondent No.1. Ms.Bhavana Dutta, counsel for respondent No.2. ________________________________________________________________ Deepak Gupta, J. This petition under Article 227 of the Constitution of India is directed against the order dated 26.5.2008 passed by the learned District Judge, Shimla whereby he has allowed the appeal filed by the respondent No.1 (hereinafter referred to as the plaintiff) and set-aside the order of the learned Civil Judge (Junior Division), Court No.4, Shimla and restrained the defendants from making any interference in the carriage and distribution of LPG Cylinder from LPG Gas Agency, Narkanda till the disposal of the main 2 suit or till the work is taken over by the plaintiff in accordance with the prescribed procedure by law. The facts necessary for decision of the present case are that the plaintiff filed a suit in which it was averred that the plaintiff has been carrying of the work of carriage and distribution of LPG cylinders of the Gas Agency maintained by the H.P. State Civil Supplies Corporation (hereinafter referred to as the defendant No.1) at Narkanda ever since he was allotted this work on 6.11.2000. The plaintiff avers that he has been performing the work of carrying and distribution of LPG gas cylinders to the satisfaction of all concerned till the filing of the suit. It is alleged that the rates for carriage of cylinders were revised by the District Magistrate, Shimla from time to time and last such notification was issued on 13.10.2006. The Kumarsain Tehsil Co-operative M&C Union, Narkanda (hereinafter referred to as the defendant No.2) made a representation to the defendant No.1 praying that the work of carriage and distribution of gas cylinders of its gas agency Narkanda be allotted to the defendant No.2. It offered to do this work at a rate 10% less than that being paid to the plaintiff. The defendant No.1 vide its letter dated 5.4.5.4.2008 decided to entrust this work to the defendant No.2. 3 On these allegations the suit was filed praying for grant of the following reliefs: “i)A decree for declaration be passed declaring the letter No.H.P.S.C.S.C Pro-37-69/2005-714-715 dated 4.4.2008 as written by General Manager (Administration) to Area Manager H.P.S.C.S.C Shimla as null and void and inoperative. ii)A decree for permanent prohibitory injunction against the defendant No.1 restraining the defendant No.1 from allotting the carriage and distribution work of LPG Cylinders to defendant No.2 from the LPG Gas agency Narkanda. iii)A decree for permanent prohibitory injunction against the defendant No.2 restraining the defendant No.2 from interfering with the carriage and distribution work of LPG Cylinders from the LPG Gas Agency Narkanda being performed by the plaintiff. The defendant No.2 be further restrained from taking over the work of carriage/distribution of work of LPG Gas Cylinders in pursuance to letter no.H.P.S.C.S.C Pro-37-69/2005-714-715 dated 4.4.2008 as written by the General Manager (Administration) to Area Manager H.P.S.C.S.C Shimla. iv)A decree for mandatory injunction directing the defendant no.1 to follow proper procedure in accordance with the law for allotting the work of carriage and distribution of LPG Gas Cylinder from LPG Agency Narkanda. v)Any other relief as deemed fit and proper under the facts and circumstances of the case be granted to the plaintiff and against the defendants.” Alongwith this suit an application for interim relief was also filed. The defendants contested the suit. The defendant No.2 took up a specific plea that there is no written contract entered into between the plaintiff and the defendant No.1. It was further pleaded that in fact defendant No.2 was initially given this work in the year 1992 4 and continued to handle this work till the year 2000 when the work was allotted to the plaintiff. According to the defendant No.2 the defendant No.1 has never followed any policy of inviting tenders and has been entrusting the work on the basis of a rate quoted by a party. It was further pointed out that w.e.f. 10.4.2008 the defendant had in fact started the work of carriage of LPG cylinders. The defendant No.1 in its written statement submitted that the allotment made in favour of the plaintiff in the year 2000 was not perpetual in nature and the same was a temporary arrangement without any written agreement. The learned trial Court, in the application for interim relief, came to the conclusion that the oral agreement without any written contract in favour of the plaintiff did not give him any right to object to the allotment of work to defendant No.2. He therefore came to the conclusion that no prima facie case was made out and that the plaintiff could be compensated with costs in case the suit was decreed and as such rejected the application. The plaintiff filed an appeal which has been allowed by the impugned order and the learned District Judge has granted the interim relief. The learned District Judge relying upon various judgments of the Apex Court has come to the 5 conclusion that public property cannot be distributed at the whims and fancy of the defendant No.1 and since there is no order terminating the agreement entered into between the plaintiff and defendant No.1 a prima facie case is made out in his favour and he is therefore entitled to the interim relief which has been granted. This order is under challenge before me. I have heard Sh.H.K.S. Thakur, learned counsel for the petitioner, Sh.B.M. Chauhan, learned counsel for respondent No.1 and Ms.Bhavana Dutta, learned counsel for respondent No.2. With due respect to the learned District Judge, I am unable to accept the reasoning given by him. He has approached the matter as if he was finally deciding the case and as if he was exercising writ jurisdiction under Article 226 of the Constitution of India. From the facts narrated hereinabove it is clear that there was no written agreement in favour of the plaintiff. A perusal of the documents i.e. letters dated 29.4.2000 and Annexure R-2/A, 22.2.2002 Annexure R-3 show that the work was being allotted to the plaintiff on year to year basis. There is nothing on record to show that there was an agreement in perpetuity entered into between the parties. In fact from 6 the perusal of the entire record it appears that there was never any written agreement but the work was allotted on year to year basis. The learned District Judge is absolutely right when he holds that the public property owned by the State or an instrumentality of the State should only be disposed of by a public auctions or by inviting tenders. The law in this behalf is clear that the contracts on behalf of the State or its instrumentalities should be through public auction/public tenders, but this principle does not apply to the defendant alone. From the pleadings of the parties it is clear that even when the plaintiff was awarded the work no public tenders were invited. The work was allotted to the plaintiff only on his application. Can a party who has obtained some work without any public notice being issued be allowed to make a complaint in this regard when some other party is given the said work without issuance of public notice? The obvious answer is in the negative. In the present case, the plaintiff is an individual whereas the defendant No.2 is a Union consisting of a number of members. The Union offered to carry the cylinders at a rate 10% less than that being charges by the plaintiff for more than 2 years. There is no contract entered into between the defendant No.1 and defendant No.2. The allotment of the 7 work at best was on year to year basis and came to an end on 31st March, 2008. The plaintiff has in fact failed to place on record any material to show that there was any letter of allotment upto 31.3.2007. Therefore, the plaintiff can have no grouse against the allotment of the work to the defendant No.2. I am of the considered opinion that the learned District Judge did not take into consideration the fact that by the time he decided the matter the work has already been done by the defendant No.2 and he could not have passed an order which essentially meant that he was restoring the status quo ante. Assuming that the plaintiff had been working to the satisfaction of the authorities, in a contractual matter it is for the contracting party to decide whether they want to continue working together or not. In case a party does not want to work with another party the Court by interim order cannot force it to do so. The learned District Judge has also held that there is no material placed on record to show whether codal formalities were fulfilled while approving the rates offered by defendant No.2. This observation, to say the least, is totally baseless. From the record it is apparent that the rate offered by defendant No.2 was 10% less than what was being paid by 8 the plaintiff. It is also not denied that the plaintiff’s rate had been approved. Therefore, there was no need to seek the approval of a lower rate. In my considered opinion the learned District Judge totally mis-applied the law and mis-construed the pleadings and the documents while granting the stay order. In the present case not only there was no prima facie case in favour of the plaintiff but the plaintiff could have been compensated by awarding damages in case he finally succeeded in the suit. However, no case was made out for grant of injunction which virtually amounting to mandatorily directing the defendant No.1 to continue getting the LPG cylinders transported/distributed through the defendant No.2. In view of the above discussion, I set-aside the order of the learned District Judge, uphold the order of the learned trial Court and dismiss the stay application filed by the plaintiff. Before parting with the case I must observe that the defendant No.1 would be well advised to ensure that in future it awards the work of carriage of LPG cylinders only on the basis of public advertisement and invitation of tenders from all concerned. The present practice can lead to 9 serious allegations of malafide and extraneous consideration being levelled against the Corporation. The petition is disposed of in the aforesaid terms. No order as to costs. June 25, 2008. ( Deepak Gupta ),J. PV