CMP No. 383/2010 1. The applicant, after his offer was found highest, has been allotted shop No. 62 -- Bhaint Shop at Katra, on license basis, by the respondents. The Tender Notice, inviting offers for the shop, was issued and allotment made after the temporary injunction application filed by the appellants before the Trial court did not meet success. The applicant has been allotted the aforesaid shop in consideration of Rs. 4.81 crore as license fee for two years as per the terms and conditions laid down in the Tender Notice. The applicant on the strength of the averments made in the CMP and documents appended thereto seeks his impleadment as party respondent to the CIMA 245/2010. The ground taken is that the applicant is a proper and necessary party to the appeal. The application does not find any opposition from either the appellants or the respondents. 2. For the reasons detailed in the application together with the stand taken by the parties to the appeal the application is allowed and the applicant arrayed as respondent no. 3. CMP is disposed of. CIMA 245/2010 3. Shri Mata Vaishno Devi Shrine Act (herein after referred to as "Act") was enacted in the year 1988 to provide for the better management, administration, and governance of Shri Mata Vaishno Devi Shrine and its endowments including lands, buildings attached and appurtenant to the Shrine from Katra up to Holy Cave and the adjoining hillocks under the management of Dharmarth Trust at the time the Act came into force. Section 3(b) defines "Endowment" as all property, movable or/and immovable, belonging to, or given or endowed for the maintenance, improvement, additions to, or worship in the Shrine or for the performance of any service or charity connected therewith. Section 3(c) defines "Shrine Fund" as the "Endowment" including all sums received by or on behalf of, or for the time being held for the benefit of the Shrine and also all the endowments which have been or may hereafter be made for the benefit of the Shrine or any other deity thereof in the name of any person, or for the convenience, comfort or benefit of the pilgrims. Under Section 4 of the Act ownership of the Shrine Fund, from the commencement of the Act is to vest in Shri Mata Vaishno Devi Shrine Board (herein referred to as "The Board") constituted under the Act. Under Section 4 of the Act ownership of the Shrine Fund, from the commencement of the Act is to vest in Shri Mata Vaishno Devi Shrine Board (herein referred to as "The Board") constituted under the Act. The administration, management and governance of Shrine and Shrine Fund is in terms of Section 5 is to vest in The Board. Section 18 of the Act delineates duties of the Board. The duties include a duty to provide facilities for the proper performance of worship by the pilgrims and amongst other facilitates to construct for the benefit of worshippers and pilgrims/devotees, buildings for accommodation, buildings relating to sanitary work and also buildings to improve means of communication. The Board is required to undertake the developmental activities concerning the area of the Shrine and its surroundings. 4. The "Endowments" of the Shrine include shops and such others premises used for commercial purposes. The Board being vested with administration, management and governance of the endowments as also Shrine Fund, is required to allot shops at Katra and other places belonging to the Shrine on lease/license basis. 5. The number of pilgrims/devotees, who visit the Shrine to pay their obeisance and worship at the holy cave every year, runs into millions. The ever increasing number of pilgrims has resulted in increase in responsibilities of the Board to make arrangement for proper and hassle free performance of worship at the Shrine as also to make necessary facilities available to the pilgrims/devotees at Base Camp and en route to the Shrine. Upswing in the number of pilgrims/devotees that visit the Shrine every day has resulted in a positive spillover for the business activities at Katra and en route to the Shrine and manifold increase in the profits earned by the traders having business establishments at said places. Brisk business has sent the rent and fee for shops and business premises sky-rocketing. All these factors have generated neck to neck competition between the businessmen vying for allotment of space owned by the Shrine, capable of being put to commercial use. While keen competition has resulted in hike in the premium/rent/fee offers made by competitors, to the advantage of Endowments and Shrine Fund, it has also shown its negative side. All these factors have generated neck to neck competition between the businessmen vying for allotment of space owned by the Shrine, capable of being put to commercial use. While keen competition has resulted in hike in the premium/rent/fee offers made by competitors, to the advantage of Endowments and Shrine Fund, it has also shown its negative side. The allotment of shops etc on lease/license by The Board has resulted in multifarious litigation between the competitors and the Board as also third parties, who have nothing to do with such transactions but complain of mismanagement of The Board property and as worshipers/devotes claim to be stakeholders in the affairs of The Board. In such litigation, all grounds like favoritism, absence of transparent policy or departure from policy in place etc. are taken as grounds to seek judicial intervention. The precious funds that otherwise can be used for improving facilities for the pilgrims/ devotees and for other welfare ventures are claimed by the litigation costs, borne by the Board to defend such actions. 6. It appears that the Board prior to 2007 followed a Policy to let out/give on license shops etc. of the Shrine by throwing such transactions open to general public and inviting offers from all interested parties. The highest bidder would bag the lease/license on payment of premium/ rent/ fee. The Board in its 41st meeting held on 23rd March 2007, made a departure from the said Policy and decided to allot 30% shops to the locals in an open competition and remaining 70% of the shops etc in clusters to the Enterprises, having a chain of stores/restaurants/eating places throughout the country. The departure was made as The Board felt that the highest bidders in the open auction after paying high premium/rent/fee fleece the pilgrims/devotees and also avoid to maintain quality of the food and like items and provide deficient services. The earlier practice was also found to make a room for proxy bidding, pooling and cartel formation, defeating the very purpose of open tendering. It was felt that the business enterprises of repute having chain of stores, may not give a goodbye to the quality and adequate services as that would affect their reputation/ standing in the business arena at the national level. It was felt that the business enterprises of repute having chain of stores, may not give a goodbye to the quality and adequate services as that would affect their reputation/ standing in the business arena at the national level. It is pertinent to point out that The Board made a shift in the Policy, only after civil suits were filed to assail the Policy of open tendering formulated and acted upon by The Board. The Policy of allotment of 30% shops etc to the locals and 70% to the reputed business enterprises, having chain of stores/restaurants, etc. in the country was also assailed before the court at Katra. The objection taken was that the allotment of shops was restricted to a few persons and no opportunity was given to others to compete for allotment of shops. The Board having regard to its experience with the allotment of shops to reputed business enterprises, having chain of stores/restaurants and the eyebrow raised against the Policy of selective allotment decided to shift back to the earlier practice of open tendering. 7. The Board on 31st of July 2009 and 1st of August 2009 issued two tender notices, inviting offers for shops mentioned in the tender notices, intended to be granted to the highest bidders on license basis for a period of two years. The Tender Notices prescribed pre-tender qualifications like annual turnover for last few years, income tax details etc. The tendering process was yet to be taken to its logical end that the appellants herein filed a Civil Suit in representative capacity against the respondents and prayed for grant of declaratory decree, declaring the Tender Notices dated 31.7.2009 and 1.8.2009, contrary to the Policy framed in 41st Board meeting dated 23rd of March 2007 and thus null and void. The appellants also sought a permanent injunction/decree restraining the respondents from allotting or handing over the possession of any shop under its management pursuant to the Tender Notices impugned in the suit. The Trial court vide order dated 27th of August 2009 permitted the appellants to sue in a representative capacity and directed issue of publication, inviting the "interested persons to participate". 8. The Trial court vide order dated 27th of August 2009 permitted the appellants to sue in a representative capacity and directed issue of publication, inviting the "interested persons to participate". 8. The sheet anchor of the appellants’ case set up before the Trial Court was that the respondents/ Board had while issuing tender notices in question made a departure from and bidden goodbye to the policy formulated by The Board in its 41st meeting held on 23rd of March 2007. The appellants claiming to be devotees of Shri Mata Vaishno Devi Shrine and thus interested in proper management of the Shrine property and Shrine funds insisted that the policy formulated on 41st Board Meeting dated 23rd of March 2007 was well reasoned and necessitated by interest of the pilgrims/devotees as also of Shrine Fund. The appellant No.1 claimed not to have any shop at Katra but insisted that the appellants 2 & 3 had applied for allotment of shop No.29 at Lamkeri under the Policy of 2007. The other grievance of the appellants voiced in the plaint was that pre-tender qualification prescribed for open bidding in tender notices dated 31.7.2009 and 1.8.2009, was intended to keep the "interested persons from other towns" away from allotment process and allot the shops to the tradesman from Katra. 9. The respondents took the stand that the shift in the Policy was made and tendering process on case to case basis, decided to be followed after carefully working out relevant parameters. It was pleaded that the Board having regard to its experience, from following the earlier Policy, decided to have the bids on technical basis i.e. nature and quality of items and capacity and capability of the bidder. It was insisted that it was for the Board to devise the Policy and fix the parameters for safeguarding the interests of The Board as also the pilgrims/ devotees to the Shrine. The respondents insisted that the appellants had no right to call in question the Policy formulated by the Board. The respondents also complained that the civil suits resulted in immense loss to The Board and at times filing of a civil suit resulted in blocking transactions. It was pointed out that in some cases, civil suit, after remaining pending for a long time, was very conveniently withdrawn, leaving The Board uncompensated for the loss it suffered due to pendency of the suit. It was pointed out that in some cases, civil suit, after remaining pending for a long time, was very conveniently withdrawn, leaving The Board uncompensated for the loss it suffered due to pendency of the suit. The respondents in this regard referred to an earlier civil suit titled Joginder Singh v. Shri Mata Vaishno Devi Shrine Board Katra (Civil Suit No.32) instituted in the Court of Sub Judge Katra, filed in representative capacity and later dismissed as not pressed. The respondents also pleaded that the present appellant even prior to the civil suit in question instituted a civil suit in the Court of Sub Judge Katra titled Sunil Sharma v. Mata Vaishno Devi Shrine Board and others, questioning policy of 2007 that was now being eulogized and projected as a well reasoned policy. 10. Alongside suit, the appellants filed a temporary injunction application, praying therein that the respondents be restrained from allotting any shop owned by the Shrine on the basis of Tender Notices dated 31.7.2009 and 1.8.2009, impugned in the suit. The Trial Court on 27th of August 2009 granted an ad-interim injunction in favour of the appellant, restraining the respondents from making allotment of shops till the temporary injunction application was disposed of. The application came to be disposed of vide order dated 9.3.2010, impugned in the present appeal. Learned Trial Judge in a detailed order spread over 21 pages, rejected the temporary injunction application subject to the "undertaking to be furnished by defendants (respondents) to re-tender the shops and further to incorporate necessary safeguards for protecting the interests of the "localities" or the representative suitors, so that they may not be deprived of the opportunities of development in open competition of harsh conditions as apprehended by them, likely to be complied with by a section of biggest chains only." 11. It appears that the respondents, after the temporary injunction application was dismissed and decks cleared for re-tendering of the shops, issued fresh Tender Notice No. CO/Adm/629/3221 dated 10-03-2010 inviting offers for shop nos. 56, 58, 62-Bhaint shops for a period of two years. The aspirants for the allotment of the aforesaid shops were under the terms and conditions appended to the Tender Notice required to submit their offers in two parts viz. Pre-qualification Bid in schedule-A, and Financial Bid in schedule-B. The eligibility conditions laid down for making an offer included minimum annual turnover of Rs. The aspirants for the allotment of the aforesaid shops were under the terms and conditions appended to the Tender Notice required to submit their offers in two parts viz. Pre-qualification Bid in schedule-A, and Financial Bid in schedule-B. The eligibility conditions laid down for making an offer included minimum annual turnover of Rs. 50 lakhs during any two years in last five years. The tenderer was also required to submit bank statement, income tax returns with balance sheet and profit and loss account for last three years, the PAN and TIN numbers as also the latest income tax assessment orders and service tax registration numbers. M/s Magotra Supermarket Private Limited, Katra, impleaded as respondent no. 3 to the present appeal, submitted his offer for shop no. 62-Bhaint shop and succeeded in getting the shop allotted in his favour on payment of license fee of Rs. 4.81 crore. The business concern has deposited an amount of Rs. 2,40,50,000 vide cheque no. 547321 000051000 with the respondents 1 and 2 as required under terms and conditions of the Tender Notice. 12. The order of the learned District Judge, Reasi dated 9th March, 2010, dismissing the temporary injunction application subject to the conditions laid down in the order, is assailed on the grounds that the impugned order is not based on correct appreciation of facts and law; that the trial court ought to have restrained the respondents from allotting the shops as the trail court was convinced that the policy of tendering was not in the interest of the public, shrine or pilgrims and was fraught with danger of promoting "pooling and cartel formation." It is insisted that the trial court while deciding the application for temporary injunction in effect rendered the suit infructuous. The application filed by the appellants for permission to file replica is said to have been left undecided and the trial court instead rushed to decide the temporary injunction application. The appellants have detailed the omissions and commissions committed by the respondents while allotting shops during last few years. It is reiterated that "open bidding" decided to be followed by the respondents is bound to promote proxy bidding, pooling and cartel formation. The appellants have detailed the omissions and commissions committed by the respondents while allotting shops during last few years. It is reiterated that "open bidding" decided to be followed by the respondents is bound to promote proxy bidding, pooling and cartel formation. The respondents are said to have switched over once again to the open tender method for allotment of shops and made a departure from the policy devised in the 41st meeting of the Board held on 23 March 2007 without any cogent and convincing reasons. The re-tender of the shops vide Tender Notices dated 10-03-2010 is said to have kept at bay most of the aspirants included one ready to offer Rs. 6.50 crore for shop no. 62-Bhaint shop. 13. Heard and considered. 14. It needs to be pointed out at the outset that the suit filed by the appellants is awaiting disposal before the trial court and so is the case set up by the appellants. The suit is to be tried and the parties given adequate opportunity to substantiate their respective stands. Emphasis on this aspect of the case is rendered necessary because of the content of the memorandum of appeal. The appellants instead of confining the appeal to the fall out of the impugned order whereby the trial court has devised an arrangement pending adjudication of the main suit, has tried to use the Civil First Misc. Appeal as the suit itself was dismissed, to reagitate the grievances set out in the suit on the assumption that the case projected by the appellants before the trial court was that allotment of shops was being undertaken by the respondents in violation/disregard to the policy devised in the year 2007 and that no reasons were given to make a departure from the earlier policy. The appellants are of the opinion that the earlier policy, was to their understanding well-reasoned, as having been formulated with an object in sight, whereas the new policy sought to be followed was detrimental to the interests of one and all -- shrine, pilgrims and all those interested in efficient administration and management of the shrine endowments and shrine fund. The appellants wanted the trial court to restrain the respondents from acting upon the new policy and desist from making any allotment pursuant to Tender Notices impugned in the suit. The appellants wanted the trial court to restrain the respondents from acting upon the new policy and desist from making any allotment pursuant to Tender Notices impugned in the suit. The appellants as an interim measure asked the trail court to restrain the respondents from making any allotment till the final disposal of the suit. Learned trial judge on taking an overview of the case set up by the appellants in light of the objections filed by the respondents as also the material available on the file found the appellants to have failed to make out a prima facie case. The trial court was of the opinion that the balance of convenience tilted in favour of the respondents and that forestalling allotment of shops was likely to expose the respondents and the Shrine to the irreparable loss. Though the trial court did not say in so many words that all the three fundamental requirements necessary for exercise of discretion under Order 39 CPC did not exist in favour of the appellants yet a closer look at the impugned order makes it clear that the trial court embarked on an exercise to find out whether the said prerequisites were made by the appellants and on finding that the appellants had failed to make out a case on the touchstone of the said cardinal principles proceeded to reject the prayer for grant of temporary injunction and dismissed the temporary injunction application. The ground urged in the appeal that the impugned order is not based on correct appreciation of fact and law does not find support from the record and similarly the plea that the Trial court after opining that open tender policy "was not in the interest of public, shrine or pilgrims" ought to have accepted the temporary injunction application, are made oblivious to the fact that Trial court giving its impressions about the new policy, held in unequivocal terms that formulating a policy prima facie fell in the exclusive domain of the respondents. The grievance that the Trial court before disposing of temporary injunction application ought to have decided the application for permission to file replica and only thereafter decided the temporary injunction application is mis-placed and does not in any manner help the case set up in the appeal. The grievance that the Trial court before disposing of temporary injunction application ought to have decided the application for permission to file replica and only thereafter decided the temporary injunction application is mis-placed and does not in any manner help the case set up in the appeal. Once the trial court had before it the pleadings of the parties that with sufficient clarity reflected their stand and enabled the Trial Court to evaluate apparent strength of the case set up before it, the trial court was within its power to decide the temporary injunction application without waiting for any replica/rejoinder. The learned trial judge has made an objective appraisal of the pleadings and other material available to it and passed an order that was warranted in the facts and circumstances of the case. 15. Viewed thus, the appeal is bereft of any merit and is dismissed, accordingly. However, this does not clinch the matter. 16. Having regard to the fact that the matter involved in the appeal is of public importance and touches power and authority of a statutory body to take policy decisions and any unwarranted interference with the affairs of The Board is fraught with danger to cause immense loss to the public at large, it is necessary to subject the controversy to a closer scrutiny. 17. In Dhampur Sugar (Kashipur) Limited v. State of Uttaranchal & Others (2007), the case set up before the Supreme Court was that the change in licensing policy effected by the authority was arbitrary, unreasonable and contrary to the law. The Supreme Court while dismissing the appeal observed: "It is well settled that public authorities must have liberty and freedom in framing policies. Although the discretion is not absolute, unqualified, unfettered or uncanalised and judiciary has control over all executive actions, it is also well established that courts are ill-equipped to deal with these matters. In complex social, economic and commercial matters, decisions have to be taken by governmental authorities keeping in view several factors, and it is not possible for courts to consider competing claims and conflicting interests and to conclude which way the balance tilted. There are no objective, justiciable or manageable standards to judge the issues nor can such questions be decided on prior considerations." 18. The principle laid down has found expression in subsequent judicial pronouncements. There are no objective, justiciable or manageable standards to judge the issues nor can such questions be decided on prior considerations." 18. The principle laid down has found expression in subsequent judicial pronouncements. It follows that a public authority has necessary inputs and expertise to formulate a policy that is to govern its affairs and ought to be given full freedom to formulate its policies, learn from experiments and make a shift in its policies. The scope of judicial review in such matters is restricted to mala fides, arbitrariness, favoritism, procedural impropriety or colourable exercise of power. In the present case the Board was well within its power to formulate a policy to govern allotment of shops. If the Board having regard to its experience and feedback found it necessary to replace the existing policy by a new one, to learn from the failures and make new experiments, the Board was competent enough to take lesson from lapses and instead of continuing with a policy with flaws, to strive for a flawless mechanism for allotment/lease/license of its property. 19. Learned Trial Judge while opining that it is the prerogative of the Board (respondents) to prescribe procedure of tendering and devise policy for allotment of shops has rushed to scrutinize the policy formulated by the respondents and label it as one likely to eliminate and exclude locals and state subjects from the competition. 19. Learned Trial Judge while opining that it is the prerogative of the Board (respondents) to prescribe procedure of tendering and devise policy for allotment of shops has rushed to scrutinize the policy formulated by the respondents and label it as one likely to eliminate and exclude locals and state subjects from the competition. Learned Trial Judge has proceeded to hold, the pre-tender qualifications prescribed by the respondents as "fantastically impossible for the locals to perform." The trial court after making such observation has rushed to contradict itself by observing that the local businessmen may be "short of expertise and skill as compared to the food chains, may not have the capacity to fulfill the requirements for all the pilgrims who visit the shrine." The trial court has, thereafter, taken upon itself proceeded to advise the appellants that "the plaintiffs and like minded businessmen need to realise and recognise this stark reality and accordingly bent their attitude towards the Board." The trial court after making a detailed survey of the facts and giving vent to its ideas regarding an ideal policy for allotment of shops to be followed by the Board, shifting stands and making contradictory observations has proceeded to virtually force the Board to tailor a fresh tender notice in the name of "protecting interests of locals or the representatives suitors, so that they may not be deprived of the opportunities of development in open competition of harsh conditions as apprehended by them, likely to be complied with by a section of biggest chains only." The effort made by the trial court to step into the shoes of Board and rewrite the policy decision of the Board is unwarranted and not permissible under law. Learned trial judge may have his own ideas about the policy that ought to be followed and such ideas may sound wonderful, yet the trial court cannot assume role of pubic authority or a statutory body and make an effort to do what is the exclusive domain of the public authority. If the respondents intend to make allotment by open bid to a person who can be relied upon as the best and dependable business partner, the respondents cannot be found fault with and asked to follow a policy which is not authored by them. If the respondents intend to make allotment by open bid to a person who can be relied upon as the best and dependable business partner, the respondents cannot be found fault with and asked to follow a policy which is not authored by them. The court is not expected to assume the role of a policymaker and has to restrict its powers to reviewing the executive action at the anvil of settled legal principles. 20. One more aspect of the matter that deserves to be looked into relates to the competence of a person to institute a suit in representative capacity. Order 1 Rule 8 provides that a person may sue or defended on behalf of all, having same interest. It reads as "one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested." 21. It is thus clear from the language of the Order 1 Rule 8 CPC that a persons cannot as a matter of course file a suit of representative character. To press into service Order 1 Rule 8 CPC the persons intending to file such a suit has/have to seek and obtain permission from the court. The aforesaid provision thus in effect makes room for public interest litigation and it is the duty of court that is approached for grant of permission under Order 1 Rule 8 to file a suit in representative character, to ensure that private interest is not camouflaged as public interest. It is well settled law that grant of permission under Order 1 Rule 8 is not to be taken lightly and as granted a matter of course and that the court while deciding to grant permission may not necessarily restrict itself to the allegations in the plaint but may very well go to all the relevant facts to find out whether the person intending to file the suit in the representative character has a genuine interest in the matter as is being projected. The court may even issue notice of the institution of the suit so that before prior permission is granted, any person can come forward and dispute the representative character of the persons approaching the court. The court may even issue notice of the institution of the suit so that before prior permission is granted, any person can come forward and dispute the representative character of the persons approaching the court. There is every danger that a private interest may be projected as a public interest and a public authority restrained from discharging its duties and exercising its powers in the name of the so-called public interest, with impunity and without the plaintiff exposed to any risk of being visited with any adverse consequences. In the present suit the trial court appears to have conveniently lost sight of the admission made by the appellants in the body of the plaint that the appellants 2 and 3 had as a matter of fact applied for allotment of shop under the policy and were aggrieved that they were not able to get the shops allotted in their favour. Such a statement ought to have put the trial court on caution and persuaded it to give a hard look to the prayer for grant of permission to file the suit in the representative character. The trial courts are not to exercise powers like one under Order 1 Rule 8 on mere asking without applying judicial mind to the facts set up in support of the prayer. 22. The trial court should be slow in granting exparte ad interim injunction against the government and public authorities at the threshold in the matters involving commercial transactions and pass such orders only when withholding of ad interim order is likely to visit the petitioner with immense hardship. It is to be realised that if commercial transactions are postponed the opposite party may be visited with huge monetary loss without any corresponding risk for the plaintiff. To illustrate, if the opposite party in a suit has an offer of a few crores of rupees for the premises that it intends to let out and the court grants an injunction at the instance of a person questioning the merit or the advisability of the policy governing the allotment of the premises, the offerer may lose interest and by the time the court finds the temporary injunction application merit-less, the opposite party may no more have the offer available and lose the amount that it otherwise would receive from the offerer. The plaintiff in such case does not suffer any loss at all and may very well even go unrepentant. Even where the court finds it necessary to interfere in a commercial transaction by granting exparte ad interim injunction, the trial court would be well advised to be alive to the mandate of Order 39 Rule 3-A CPC which requires the temporary injunction application be disposed of within thirty days. The case in hand presents such a situation. In the present case the tender notices were issued on 30th July 2009 and 1st. October, 2009. The trial court granted an ad interim injunction on 27-08-2009 and failed to dispose of the application within thirty days. It took trial court seven long months to arrive at the conclusion that the temporary injunction application did not deserve any indulgence and proceeded to dismiss the application. The trial court is expected to realize that the respondents saddled with the responsibility to make arrangements for millions of pilgrims visiting the second most important shrine in the country and provide adequate facility for them and also taking welfare measures for the people of surrounding areas Has been exposed to a loss of few millions of rupees only because the trial court in the first instance passed an exparte ad interim injunction on the ground that the respondents lacked authority to re-evaluate their policy and thereafter conveniently forgot to fulfill the mandate of Order 39 Rule 3-A that provided for disposing of the application within thirty days, who will compensate The Board for the loss suffered, due to long and inordinate delay in disposal of the mater, is a question that must stare at the Trial Court. 23. The practice of permitting personal interest to be camouflaged as public interest, interfering with the policies formulated by public authority/statutory bodies except in accordance with the law and avoid disposing of the temporary injunction application with due dispatch, to say the least, needs to be avoided. Dismissed.