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CASE NO.: Appeal (civil)  2402 of 2006

PETITIONER: Bishnu Prasad Dash

RESPONDENT: Raj Kumar Agarwal & Ors.

DATE OF JUDGMENT: 01/05/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No.5959 of 2005

ARIJIT PASAYAT, J.

Leave granted.

Appellant calls in question legality of the judgment  rendered by a Division Bench of the Orissa High Court  directing that the offer of Orissa Small Industries Corporation  Ltd. (in short the ’OSICL’) represented by its agent  (Respondent no.1) at Rs.85/- per kg. will be considered by the  Government at the highest level, namely the Chief Minister of  Orissa. It was further observed that it will be open for the  Government to pass such orders as it deems fit in the larger  public interest; keeping in view all aspects of the matter. It  would also be open for the Government to call for revised  offers from the Industrial Development Corporation of Orissa  Ltd. (in short the ’IDCOL’), OSICL or from any other party.   Appellant represents IDCOL as its agent.

 Background facts in a nutshell are as follows:

Respondent no.1 has been lifting copper cables scrap  from the OSICL since 2002.  For disposal of 16,625.09 kg. of  copper cables pertaining to Main Dam Division, Burla,  proposal for tender was submitted by the Chief Engineer,  Mechanical and off set price was fixed at Rs.160/- per kg.  The  IDCOL did not respond to the said tender.  The OSICL offered  a price of Rs.80/- per kg.  But no other party responded to the  tender invited by the Executive Engineer. Thereafter, the  IDCOL made an offer of Rs.84/- per kg. of copper cable  excluding all taxes and duties.  The matter was processed and  finally orders were passed by the Government at the level of  Chief Minister of Orissa for disposal of the copper cable at the  rate of Rs.84/- per kg. to the IDCOL.  After the aforesaid order  was passed by the Chief Minister of Orissa on 16.12.2004, the  OSICL submitted a fresh offer dated 20.12.2004 at Rs.85/- per  kg. but the said offer of the OSICL was not considered  pursuant to the notes given in the Department that the offer  was made belatedly after order was passed by the Government  and if the said order is entertained, it will affect the sanctity of  the Government order.  Respondent no.1 filed a writ petition  challenging the Government order.

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The High Court was of the view that the offer of IDCOL  was Rs.84/- per kg. where the offer of OSICL, though belated,  was Rs.85/- per kg.  It was felt that the offer of OSICL should  have been considered at the rate of Rs.85/- per kg. by the  highest level of the Government, namely the Chief Minister.   Accordingly the Government order was set aside and  directions as noted supra were given.    

Learned counsel for the appellant submitted that without  impleading the IDCOL as a party, the writ petition should not  have been disposed of. Respondent no.1 claimed to be an  agent of OSICL. Appellant was the agent of IDCOL. Since  IDCOL was not a party and the writ application was disposed  of in a great haste, even without issuing notice relevant facts  could not be placed on record.  In fact, the State Government  in its counter, filed before this Court, has clearly indicated  that by the time the respondent no.1 made the offer, i.e. 20  days after the acceptance of offer by IDCOL acting through its  agent i.e. appellant, a slightly higher amount was offered.  No  explanation was given by the respondent no.1 as to why the  higher offer was being made after necessary decisions have  been taken by the State Government.  The letters from OSICL  was received on 20.12.2004, whereas about a week before  that, decision had been taken and orders were issued by  Water Resources Department to IDCOL conveying the approval  of the Government accepting its offer at Rs.84/- per kg.

In response, learned counsel for respondent no.1  submitted that in greater public interest, the High Court has  passed the order and this Court should not interfere.

The order of the High Court is indefensible on more than  one counts. Firstly, IDCOL was not a party in the writ petition.   Similar was the position vis-‘-vis the appellant who  undisputedly is the agent of IDCOL.  So far as the question of  disposal in haste is concerned, it is not disputed that the writ  petition was filed on 18.1.2005 and merely two days thereafter  the matter was finally disposed of even without issuing notice  to the parties.  High Court has interfered in a contractual  matter without hearing the party whose offer had been  accepted.  High Court should not entertain the writ petition  because the successful bidder had not been impleaded. It  baffles us that that this fundamental aspect was not kept in  view by the High Court. Such a course is clearly  impermissible.  Since the High Court did not have the material  facts before it, it did not notice that the offer made by IDCOL  through its agent had been finalized and final order had been  passed.  It is true that in greater public interest the courts can  ask parties to offer higher amounts.  But that can necessarily  be done after hearing the parties concerned.  Since that has  not been done in the present case, the High Court’s order  cannot be maintained and is accordingly set aside and the  matter remitted to the High Court for fresh disposal.  The writ  petitioner shall implead IDCOL and the present appellant as  parties within a period of three weeks. If it is not done, the writ  petition will be dismissed.  The High Court is requested to  dispose of the matter within a period of four months from the  receipt of order, only if necessary parties as indicated above  are impleaded. We make it clear that we have not expressed  any opinion on the merits of the case.

Appeal is disposed of accordingly.  No costs.