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2009 DIGILAW 832 (JHR)

Balajee Electro steels Ltd v. Bokaro Steel Plant

2009-05-25

D.G.R.PATNAIK

body2009
Order I.A. No. 1418 of 2009: Referring to the judgment delivered by this Court on 28.4.2009 in WP(C) No. 422 of 2009, I.A. No. 1418 of 2009 has been filed by the petitioner praying for issuance of a direction to the respondents to allow the petitioner to participate in the notice inviting tender irrespective of clause 1.3.2.(i) of the notice inviting tender in relation to the eligibility criteria for participation. 2. Mr. Mittal, learned counsel for the petitioner submits that the petitioner had challenged the eligibility criteria as laid down in the tender notice dated 16.1.2009 issued by the respondents as being unconstitutional, arbitrary and discriminatory. While considering the impugned eligibility criteria, this Court had observed that the same had failed to satisfy the test of reasonableness since insertion of the impugned restrictive clause deprives the petitioner of his legitimate opportunity to participate in the tender bid. Learned counsel adds that though the above observation was recorded but no specific direction was issued to the respondents considering the assurance given by the respondents that the petitioner would be given due opportunity to participate in the tender bid in future in respect of his products. 3. It is submitted that subsequent to the earlier tender notice dated 16.1.2009, the respondents have floated another tender dated 6.4.2009 containing the same restrictive clause in the eligibility criteria. The petitioner submitted his letter of protest explaining that such restrictive clause in the eligibility criteria has been held by this Court in its judgment passed in the writ petition, as being illegal and arbitrary on the ground that it tends to deprive the petitioner and other similarly situated manufacturers like him from participating in the tender bid. 4. It is further submitted that the respondents have refused to acknowledge the protest of the petitioner stating that they had never given any instruction to their Advocate/counsel to state before the Court that the petitioner would be given opportunity to participate in the future bid in respect of their products and that recording qf such concession by the Advocate is not binding upon it. 5. On the basis of the above fact, prayer in the IA has been made to issue a specific direction to the respondents to allow the petitioner to participate in the notice inviting tender irrespective of Clause 1.3.2 (i) in the notice inviting tender in relation to the eligibility criteria for participation. 6. 5. On the basis of the above fact, prayer in the IA has been made to issue a specific direction to the respondents to allow the petitioner to participate in the notice inviting tender irrespective of Clause 1.3.2 (i) in the notice inviting tender in relation to the eligibility criteria for participation. 6. A rejoinder on behalf of the respondents has been filed taking a preliminary objection to the maintainability of the IA petition on that ground that since the judgment has already been delivered in the writ petition on 28.4.2009, the I.A. petition and the relief claimed is not maintainable. The respondents have informed that a letters patent appeal has been preferred by the respondents before a Division Bench of this Court challenging the judgment passed by this Court in the writ petition. It is explained that though an assurance was given by the respondents as recorded in the third last line of paragraph 30 of the judgment dated 28.4.2009 that the respondents shall give the petitioner due opportunity to participate in the tender notice but no assurance was given that the petitioner would be awarded any job. It is clarified by the respondents that the petitioner has not been stopped from participating in the tendering process and he has to qualify the eligibility criteria laid down in the tender. 7 In the writ petition, challenge as was made by the petitioner was to the restrictive clause in the eligibility criteria laid down in tender notice dated 16.1 .2009 issued by the respondents. The issues raised on the basis of the rival pleadings of the parties were considered, discussed and findings recorded accordingly, by the judgment of this Court in the writ petition. The grievance of the petitioner as appears from the LA., is in respect of an entirely different tender notice floated by the respondents. Such grievance cannot possibly be considered by this Court in the writ petition which has already been disposed of by its judgment delivered on 28.4.2009. The present grievance of the petitioner constitutes a totally different cause of action which cannot be possibly entertained in the writ petition which has already been disposed of. In view of the above discussion, the LA. petition is dismissed.