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2003 DIGILAW 100 (ORI)

ORES INDIA PVT. LTD. v. STEEL AUTHORITY OF INDIA

2003-02-03

P.K.MOHANTY, R.K.PATRA

body2003
R. K. PATRA, J. ( 1 ) THIS review is directed against the judgment dated 30-5-2002 in O. J. C. No. 3508 of 2002 dismissing the petitioner's writ petition. ( 2 ) THE petitioner filed the above writ petition challenging the validity of the award of the work "tender for Raising, Transporting and Loading of iron ore lump and fines into Railway Wagon at Kalta Iron Mine" as per the 5th N. I. T. (notice inviting tender) in favour of opposite party No. 3 alleging faulty decision making process of the concerned authority (SAIL ). After hearing all the parties concerned, the writ petition was dismissed. The long and the short of the petitioner's case in the writ petition was that the SAIL authorities wanted to entrust the work to opposite party No. 3, but as he had no requisite experience of raising the required quantity of iron ore, the tenders were cancelled four times and only on the 5th occasion when the qualification of raising iron ore was substantively reduced from 8 lakhs M. T. to 2. 5 lakhs M. T. , which opposite party No. 3 could be able to qualify, the tender was opened and the work was entrusted to him. ( 3 ) SHRI I. Mohanty, learned counsel for the petitioner submitted that the impugned judgment suffers from error apparent on the face of the record inasmuch as it was based on a mistaken assumption of fact. His specific submission was that the S. A. I. L. authorities in their counter filed in the case suppressed material facts and did not come with clean hands and the petitioner could know of it only after pronouncement of the impugned judgment. Shri Mohanty clarified the position by stating that for the 4th tender the Techno-Commercial Evaluation Committee found three tenderers qualified, but this fact was not disclosed in the counter and on the contrary presented a picture as if none of the tenderers had been qualified. He accordingly suggested that the work entrusted to opposite party No. 3 should be cancelled and the authorities should be directed to reconsider the entire matter and if necessary the work should be settled by holding fresh negotiation. He accordingly suggested that the work entrusted to opposite party No. 3 should be cancelled and the authorities should be directed to reconsider the entire matter and if necessary the work should be settled by holding fresh negotiation. In the cause filed to the review the S. A. I. L. authorities have pleaded inter alia that since legality of the 4th tender was not an issue in the writ petition, there was no occasion for them to give the details of the circumstances leading to cancellation of the 4th tender. This is what they have stated in their cause :". . . . . . . . . . . It is, of course a fact that on a preliminary finding by a sub-committee on evaluation on the basis of techno-commercial parameter, three tenderers including the petitioner and opposite party No. 3 were prima facie in the reckoning in the techno-commercial bid, but the said tender had to be cancelled as it was felt that a reconsideration of the parameters was required at the highest level by a Committee of Directors to get a wider participation and the competent authority therefore had to cancel the tender. . . . . . . . . . . . "they have also pleaded that if the petitioner has any grievance based on alleged discovery of a fresh material, it should have tried his luck in an appropriate proceeding but not by filing the petition for review of the judgment. Counsel for the opposite party No. 3 while supporting the stand of the S. A. I. L. authorities further submitted that after dismissal of the writ petition, he (opposite party No. 3) has already started the work by investing money. He has constructed hutments and machineries have already been moved to the area for operation of the work and at this stage cancellation of the work and holding of fresh negotiation for re-settlement would highly prejudice him. ( 4 ) WE may note that since in the counter filed by the opp. parties 1, 2 and 4 in the writ petition the true picture was not given with regard to the 4th tender, we called upon the concerned officer who had affirmed the affidavit to show cause as to why appropriate action shall not be taken against him. Pursuant to the said notice, causes were filed. parties 1, 2 and 4 in the writ petition the true picture was not given with regard to the 4th tender, we called upon the concerned officer who had affirmed the affidavit to show cause as to why appropriate action shall not be taken against him. Pursuant to the said notice, causes were filed. We are, however, not inclined to take any action against him. But at the same time, we are constrained to remark that the SAIL is not a private individual. Its conduct in the court proceeding should be transparent and above board. It is, true that the propriety of cancellation of the 4th tender was not an issue in the writ petition but as the facts now come out that three tenderes including the petitioner and opposite party No. 3 were found to have qualified the Techno-Commercial Parameters in the 4th tender but without disclosing this fact, it was averred in the counter that "because of some problems, the said tender had to be cancelled". Had the actual position been revealed with regard to the 4th tender, we could have asked the S. A. I. L. authorities to open the tender and consider the same on merits. It is needless to state that while considering the lis between the parties, the Court would be within its jurisdiction to mould the relief in the interest of justice although no such specific relief was claimed. ( 5 ) DISCOVERY of important matter or evidence is a valid ground of review. The petitioner could discover after pronouncement of judgment that in the 4th tender, three tenderers qualified the Techno-Commercial Parameters and this fact was obviously could not be held to be within its knowledge. Therefore, it could not have been accused of withholding of this information at the time of hearing of the writ petition. As observed by the Supreme Court in S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, rectification of an order stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. . . . . . . . The court is not thus precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice. It is exercised to remove the error and not for disturbing finality. . . . . . . . The court is not thus precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice. ( 6 ) IN paragraph 16 of the cause filed to the review petition, opposite parties 1, 2 and 4 have stated that "the observation of the Hon'ble High Court that in the 4th tender the petitioner was the only tenderer who qualified may be an inadvertent mistake to which these opposite parties have no contribution". The above averment itself makes it a ground for review of the judgment because it is they (opposite parties 1, 2 and 4) who have misled this Court by suppressing the facts with regard to the 4th tender as well as the reasons for its cancellation. ( 7 ) FOR the reasons aforesaid, S. A. I. L. authorities and opposite party No. 3 cannot resist the prayer for review of the judgment on a technical ground that the propriety of cancellation of the 4th tender was not the subject-matter of challenge in the writ petition. ( 8 ) TO what relief the petitioner is entitled in this review? while considering this aspect, we cannot lose sight of the fact that opposite party No. 3 after the letter of intent was issued to him has mobilised his men and machineries and reconsideration of the bids at this stage may cause hardship and prejudice to him. In the circumstances, we call upon opposite parties 1, 2 and 4 to open the 4th tender and consider the case of the petitioner and opposite party No. 3 afresh according to law within one month of receipt of the writ. The present allotment of work in favour of opposite party No. 3 will abide by that decision. While deciding this matter, the nconvenience/disadvantage that would be caused to opposite party No. 3 may also be taken note of. ( 9 ) THE judgment dated 30-5-2002 dismissing the writ petition is modified to the above extent. ( 10 ) PRADIP MOHANTY, J. :- I agree. Order accordingly.