* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 11th September, 2012
+ LPA No.546/2012
% SECRETARY, MINISTRY OF RAILWAYS & ANR. ....Appellants
Through: Kumar Rajesh Singh, Adv.
Versus
DELKON TEXTILES PVT. LTD. & ANR. ..... Respondents
Through: Mr. K.S. Mahadevan, Adv.
AND
+ CONT. CAS(C) NO.127/2011
% DELKON TEXTILES PVT. LTD. ....Petitioner / Relator
Through: Mr. K.S. Mahadevan, Adv.
Versus
SURENDER SINGH ..... Respondent
Through: None.
AND
+ CONT. CAS(C) NO.198/2011
% DELKON TEXTILES PVT. LTD. ....Petitioner / Relator
Through: Mr. K.S. Mahadevan, Adv.
Versus
DAYAL ARYA, THR. MIN. OF RAILWAYS ..... Respondent
Through: Kumar Rajesh Singh, Adv.
LPA No.546/2012, Cont.Cas(C) Nos.127/2011,198/2011,548/2011 & 392/2012 Page 1 of 8
AND
+ CONT. CAS(C) NO.548/2011
% DELKON TEXTILES PVT. LTD. ....Petitioner / Relator
Through: Mr. K.S. Mahadevan, Adv.
Versus
HEERALAL CONTROLLER OF STORES & ORS...Respondents
Through: None.
AND
+ CONT. CAS(C) NO.392/2012
% DELKON TEXTILES PVT. LTD. ....Petitioner / Relator
Through: Mr. K.S. Mahadevan, Adv.
Versus
R.C. JAT & ANR. ..... Respondents
Through: None.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. The intra-court appeal was filed impugning the order dated 12.08.2010 of the learned Single Judge allowing W.P.(C) No.7704/2009 preferred by the respondent (in the appeal). The appellant Railways had earlier filed LPA No.912/2011 impugning the said order and in which appeal, the appellant Railways was found to be relying on important LPA No.546/2012, Cont.Cas(C) Nos.127/2011,198/2011,548/2011 & 392/2012 Page 2 of 8 documents not brought before the learned Single Judge. The said appeal was disposed of vide order dated 08.11.2011 directing the appellant to file a review petition before the learned Single Judge. The learned Single Judge however vide order dated 18.05.2012 dismissed the said review petition and which order is also now challenged in the appeal.
2. The writ petition aforesaid was filed by the respondent (in the appeal) pleading that it is a small scale industrial unit registered with the National Small Scale Industries Corporation Ltd.(NSSICL) which is a Government of India enterprise for participation in the Central Government Stores Purchase Programme as per the Single Point Registration Scheme (SPRS), wherein such units are considered to be at par with those registered directly with the Director General of Supply and Disposal (DGS&D). It was further the case of the respondent (in the appeal) that though the Ministry of Small Scale and Rural Industries had vide Circular dated 28.08.2000 instructed giving of certain benefits viz. of issue of tender set free of cost, exemption from payment of earnest money, waiver of security deposit and price preference upto 15% over the quotation of large scale units to such units, to help them in marketing their products but the appellant Railways was not abiding by the said Circular, and seeking a mandamus against the appellant Railways to LPA No.546/2012, Cont.Cas(C) Nos.127/2011,198/2011,548/2011 & 392/2012 Page 3 of 8 abide therewith. Though the appellant Railways contested the writ petition contending that it was not bound by the Circular dated 28.08.2000 and had its own Policy in this regard but the said defence did not find favour with the learned Single Judge who vide impugned order dated 12.08.2010 directed the appellant Railways to abide by the said Circular "unless there are good reasons for not extending to duly qualified SSU the benefit under the Circular dated 28.08.2000, which reasons must be recorded in writing".
3. The respondent (in the appeal) being on caveat appeared when the appeal came up for hearing. During the course of hearing on 17.08.2012, it transpired that the Government of India, Ministry of Railways has brought out a Public Procurement Policy dated 05.07.2012, for goods produced and services rendered by Micro and Small Enterprises, by Central Ministries / Departments / Public Sector Undertakings. Both counsels agreed that in view of the said Policy dated 05.07.2012, it was no longer necessary to decide the challenge to the order of the learned Single Judge inasmuch as the procurement after 05.07.2012 is to be governed by the Policy of the said date and not by the earlier Circular dated 25.08.2000. However, it was informed that the contempt cases aforesaid had been filed by the respondent (in the appeal) against the appellant Railways alleging non compliance of LPA No.546/2012, Cont.Cas(C) Nos.127/2011,198/2011,548/2011 & 392/2012 Page 4 of 8 the order dated 12.08.2010. Though the said contempt cases were pending before the learned Single Judge but with the consent of the counsels, the same were directed to be listed before us along with the appeal.
4. We have heard the counsels. As aforesaid, because of the subsequent development i.e. the Policy before 05.07.2012, there is no need to adjudicate the challenge in the appeal to the judgment of the learned Single Judge and the appeal is disposed of with the said observation.
5. As far as the contempt petitions are concerned, it is the contention of the counsel for the relator / petitioner (in the contempt petitions i.e. the respondent in the appeal) that the appellant Railways in the matter of tenders floated after the judgment of the learned Single Judge also did not abide by the Circular dated 28.08.2000 and is thus in contempt thereof. In view of the subsequent development aforesaid, we have at the outset enquired from the counsel for the relator / petitioner (in the contempt petitions) as to how, irrespective of the aspect of non compliance by the appellant Railways and its officers of the order dated 12.08.2010 of the learned Single Judge, the relator / petitioner would gain from the contempt petitions, inasmuch as the contracts, in pursuance to the tenders, must have been awarded. It was further put to the counsel for the petitioner / relator, LPA No.546/2012, Cont.Cas(C) Nos.127/2011,198/2011,548/2011 & 392/2012 Page 5 of 8 that the claim if any now can be of damages only and for which purpose, liberty can be granted. The counsel for the relator / petitioner (in the contempt petitions) however states that the appellant Railways has not awarded contracts of the entire quantities tendered and has withheld the award of contracts of certain quantities pending the adjudication in these proceedings. The counsel for the appellant Railways stated that he had no instructions in this regard.
6. We find the appellant Railways to have filed reply in Contempt Cas (C) No.548/2011 in which it is inter alia stated:
(i) that the direction in the order dated 12.08.2010 of the learned Single Judge to comply with the Circular dated 28.08.2000 was not absolute and permitted the appellant Railways for good reasons to be recorded in writing, not comply with the said Circular.
(ii) that the subject tender was for procurement from Research Designs and Standards Organization (RDSO) (a sister organization of appellant Railways) approved sources only and thus compliance with the Circular dated 28.08.2000 was not possible.LPA No.546/2012, Cont.Cas(C) Nos.127/2011,198/2011,548/2011 & 392/2012 Page 6 of 8
7. Similarly, in reply filed by the appellant Railways in Contempt Cas (C) No.198/2011, it is inter alia stated that the relator / petitioner (in the contempt petitions) was technically eligible for only part quantity order as per tender condition and the case was decided for balance quantity and clarification was sought reserving the order for the part quantity for which the petitioner / relator was eligible;
8. The appellant Railways in reply to Contempt Cas (C) No.127/2011 has inter alia stated that the offer of the petitioner / relator (in the contempt petition) was in variation of the tender conditions and the petitioner / relator had not even fulfilled the tender conditions. It is also pleaded that the subject items had to be necessarily purchased from the sources approved by the RDSO.
9. In the aforesaid state of pleadings and particularly when the Circular dated 28.08.2000 seeking compliance whereof the writ petition (of the order wherein contempt is alleged) were filed, is no longer in force and considering that the order of which contempt is averred, is not absolute, and yet further, considering the ongoing relationship between the parties, we do not find present to be a fit cases for invoking the contempt jurisdiction. As far as „quantities withheld‟, as aforesaid are concerned, the same shall be LPA No.546/2012, Cont.Cas(C) Nos.127/2011,198/2011,548/2011 & 392/2012 Page 7 of 8 governed by the clarification sought by the Railways. However, before parting, we may caution the appellant Railways and its officials of the need to comply with the orders and directions of the Court; merely because appeal thereagainst is preferred, is no reason for such non compliance unless stay has been obtained.
10. We accordingly dispose of the appeal as well as the contempt petitions.
No costs.
RAJIV SAHAI ENDLAW, J ACTING CHIEF JUSTICE SEPTEMBER 11, 2012 „gsr‟ LPA No.546/2012, Cont.Cas(C) Nos.127/2011,198/2011,548/2011 & 392/2012 Page 8 of 8