PRABIR KUMAR NATH Vs. NABA KUMAR DAS

JUDGEMENT

(1.) This application under Art. 227 of the Constitution of India has been directed against the judgment and order dated 6.11.2000 passed by the Id. Civil Judge (Jr. Division), Haldia in T.S. No. 181 of 2000 whereby the petitioner has been restrained from executing a work order which was issued by the O.P. No. 3. The relevant facts leading to this application are in brief as follows. The petitioner carrying on business as a construction-firm, in response to a notice dated 19.8.2000 inviting tender issued by the Indian Oil Corporation Ltd., Haldia Refinery, submitted his offer after complying with the terms and conditions and requisite qualifications. The authority being satisfied with the particulars of the petitioner accepted his offer and issued workorder in his favour on 8.11.2000 giving therein all the terms which he was to observe specifying that the project was to be completed within 12 months from the date of the work-order. The petitioner then took all steps for starting the work and invested huge sum. But on 10.11.2000 suddenly he was served with a copy of the order of the Court of Civil Judge (Jr. Divn.) Haldia whereunder he was directed to refrain from executing that work-order until further orders. That order of the Court was passed ex parte. Being aggrieved by that order he preferred an appeal before the Court of Civil Judge (Sr. Divn.), Midnapur, but having not got a date for early hearing he did not take any further step in that appeal and in order to get a speedy remedy he has preferred this application under Art. 227 of the Constitution challenging the impugned order as jurisdiction ally erroneous, illegal, improper, unjustified and hence unsustainable.

(2.) It has been contended by Mr. Mitra, ld. Counsel, for the petitioner that the ld. Civil Judge has not complied with the requirement of Rule 3A of Order 39, C.P. Code and after granting ad interim injunction exparte did not consider it necessary to fix a date within 30 (thirty) days of that order to finally dispose of the application. The further contention of the petitioner is that the Court below failed to appreciate that in a public tender where welfare of the public is the primary consideration, no Court should interfere with its execution and that the Court below also failed to appreciate that in respect of a contract covered by tender, the plaintiff had no locus standi to file any suit to get any order restraining the person who is entrusted with the work order and that the authority inviting tender do reserve their rights to cancel any offer made by a contractor who is not eligible to participate. Mr. Mitra refers to the decision reported in AIR 1977 S.C. 1222, T.G. Telang & Anr. Vs. R.C.G. Bhide & Ors. wherein it has been held that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has crept in, or where the order passed results in manifest injustice that a Court can justifiably intervene under Art. 227 of the Constitution. According to Mr. Mitra, in the present case such a type of glaring and manifest error of law has been committed by the Court below so that it calls for an intervention of this Court through Art. 227. He also cites the decision in Tata Cellular Vs. Union of India, reported in (1994) 6 S.C.C. 651 , to advert to the legal position settled by their Lordships therein that a Court of law cannot interfere with the Govt.'s freedom of contract, invitation of tender and refusal of any tender which pertains to policy matter, but it will only sit to review such an administrative action when the decision of the authority is vitiated by arbitrariness, unfairness, illegality, irrationality, or "Wednesbury unreasonableness", i.e., when decision is such as no reasonable person on proper application of mind could take or there has been a procedural impropriety. It was held that the Court would set right the decision-making process, but it would not substitute its own opinion for that of the experts and review the merits of the decision itself. Mr. Mitra also relies upon the Apex Court judgment reported in AIR 1968 S.C.222 S.L. Gram Panchayat Vs. R.G. Gosavi & Anr. which enjoined that the power of High Court was limited to seeing that the Tribunal or, for that matter, any Court below was functioning within the limits of its authority and it might interfere if the discretion exercised by it was capricious or perverse or ultra wires and there was grave miscarriage of justice. According to Mr. Mitra in the instant case such a situation has been created by virtue of the passing of the impugned order under which the decision of the administrative authority of the Govt. in accepting the quotation which has been deemed best by it - a power which is within its exclusive jurisdiction as a guardian of finances - has been erroneously interfered with and as a result of such capricious exercise of discretion of the Court serious miscarriage of justice has been occasioned and this has necessitated this Court's intervention by way of exercising its power of general superintendence as envisaged under Art. 227 of the Constitution.

(3.) As against this, the contention of the O.P. has been that this application under Art. 227 is not legally maintainable at all, inasmuch as, the impugned order is an appealable one in view of the provisions of Order 43 Rule 1, sub-rule(r), of the Code of Civil Procedure and the provisions of Art. 227 cannot be attracted to such a case. According to the Id. Advocate for the O.P., the plea of the petitioner that he has filed this application since by preferring appeal against the impugned order he would not get any speedy or efficacious remedy is not tenable under the law. In support of his contention the ld. Counsel has referred to the decision of the Apex Court in A. Venkatasubbaya Naidu Vs. S. Chellappan, reported in AIR 2000 S.C. 3032 . It has been held there as follows :