SUPREME COURT OF INDIA
Bishnu Prasad Dash
Vs
Raj Kumar Agarwal and Others
Appeal (Civil) 2402 of 2006 (Arising Out of S.L.P. (C) No.5959 of 2005)
(Arijit Pasayat and S. H. Kapadia, JJ)
01.05.2006
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.
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.