Delhi High Court
Delkon Textiles Pvt. Ltd. vs R.C. Jat & Anr. on 11 September, 2012
Author: Rajiv Sahai Endlaw
* 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
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
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
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,
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.
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
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‟
