MUNICIPAL COUNCIL, KHAPA, THR CHIEF OFFICER, SAVNER v. OMPRAKASH S/O NAVAL KISHORE GUPTA AND ANR.

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subjected to challenge in this petition at the instance of the petitioner/original defendant No.1.

3. Respondent No.1/original plaintiff instituted a suit, wherein the petitioner-Municipal Council is impleaded as party-defendant. The plaintiff challenges the validity of the tender process initiated by the petitioner/original defendant in respect of collection of road tax. The prayers set out in the plaint are as below :

"(i) Grant decree declaring that the entire course of action adopted by the defendants in pursuance of notice dated 06.03.2010 and the process of tender is illegal,

(ii) grant permanent injunction by passing a decree restraining the defendants from appointing agent for recovery of Road Tax, in pursuance of notice dated 06.03.2010;

(iii) saddle the cost of the present suit upon the Defendants;

AND

(iv) grant any other relief this Hon'ble Court deems fit and proper in the facts and circumstances of the case in the interest of justice."

4. It is contended by the plaintiff that the tender for allotment of

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the contract in respect of collection of road tax was floated by the Municipal Council on 5-3-2010. As per the terms and conditions mentioned in the advertisement, the tender was required to be accepted till 16-3-2010. Respondent No.1/original plaintiff was one of the bidders, who has submitted his tender and offered to pay an amount of Rs.34,00,666/-. It is his contention that the date of acceptance of the tender was extended by a day, on which day one Shri Yogesh Gokhe submitted his tender and offered a bid of Rs.42,00,000/-. It is also contended that the Municipal Council has not observed transparency in the process of acceptance of tender. There was no intimation given to the bidders in respect of opening of the tenders. Thus the plaintiff approached the Trial Court requesting to grant a decree declaring that the entire course of action adopted by the defendants in pursuance of notice dated 6-3-2009 and the process of acceptance of tender is illegal. The plaintiff has also prayed for grant of permanent injunction restraining the defendants from appointing agent for recovery of road tax in pursuance of the said notice. The suit was tendered by the plaintiff in the Court on 29-3-2010. An application was also tendered requesting the Court to grant interim injunction thereby restraining the defendants from appointing agent for recovery of road tax in pursuance of the notice dated 6-3-2010.

5. It appears that the application Exhibit 5 was not pressed for the reason that in the meantime the defendants proceeded to accept the tender of one Shri Yogesh Gokhe, who has offered to pay Rs.42,00,000/-. In these premises, respondent No.1/original plaintiff tendered an application on 3-4-2010 requesting the Court to direct the defendants to

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restore status quo ante as on the date of filing of the application. The application was opposed by the defendants contending that the tender of one Shri Yogesh Gokhe has been accepted and the work order has also been issued on 30-3-2010. It is contended that the remedy seeking direction for observance of status quo ante is not available to the plaintiff and such a direction cannot be issued in the facts and circumstances of the case.

6. The Trial Court, after hearing the parties, proceeded to reject the application by order dated 9-4-02010. The unsuccessful plaintiff approached the Appellate Court by preferring Misc. Civil Appeal No.107 of 2010, which was presented on 27-4-2010. The Appellate Court, while dealing with the said Misc. Civil Appeal, was pleased to allow the same and issued directions to the defendants to restore status quo in respect of the tender work anterior to the date of the presentation of the suit till the decision of the application Exhibit 5. Surprisingly, the Misc. Civil Appeal is kept pending by the Appellate Court and the order in the nature of final order has been passed. This Court, while entertaining the petition, has stayed the order passed by the Appellate Court.

7. I have heard the arguments advanced by the respective counsel. So far as the prayers made by the plaintiff in the suit are concerned, the plaintiff has sought a declaration to the effect that the process of acceptance of tender undertaken by the defendants in pursuance of the notice dated 6-3-2010 is illegal. It is evident that during the continuance of the proceedings, the tender submitted by one Shri Yogesh Gokhe has been accepted and the work order also came to

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be issued in his favour by the defendants. Presumably because of this reason, the application at Exhibit 5 submitted by the plaintiff came to be rejected. The Trial Court has rightly observed in its judgment that the prayers made by the plaintiff in the application are beyond the scope of the reliefs sought in the suit. It is also to be taken note of the fact that the injury or damage caused can be compensated in terms of money, in such circumstances, the Court ought to have observed restraint in issuing the order of injunction or issuing any other direction to the parties requiring them to observe status quo anterior to the date of presentation of the suit. The Trial Court was justified in adopting a view that the relief can be secured by requesting the Court to award damages. In a case of breach of the terms of the tender or non-observance of the conditions of the tender, the Court should refrain from passing interlocutory order, when relief can be claimed in terms of payment of compensation for damage caused by wrongful action. Apart from this aspect, the reliefs prayed for by the plaintiff are in excess of the prayers made in the suit. The Appellate Court, however, while causing interference in the matter, after a lapse of period of about one-and-half months, has directed the defendants to observe status quo anterior to the date of presentation of the suit. The nature of tender work floated by the defendants is in respect of collection of road tax. Considering the nature of the tender work floated, the Appellate Court ought to have observed restrain in issuing interim directions. As stated earlier, the Appellate Court has issued the directions in the nature of final relief claimed in the application tendered by the plaintiff at an interlocutory stage by keeping the Misc. Civil Appeal pending and this is one of the reasons requiring quashment of order passed by the Appellate Court.

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8. In these circumstances, I am of the view that the Appellate Court has committed an error in passing interim order and, therefore, the same is liable to be quashed and set aside.

9. The petition is, therefore, allowed. The order passed by the learned Ad hoc District Judge-2 Nagpur, on 7-5-2010, in Misc. Civil Appeal No.107 of 2010, is quashed and set aside.

10. In view of the disposal of the petition, the application for the intervention need not be considered and as such the same stands disposed of.

11. Rule is made absolute accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs. Judge.

Pdl.