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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, A.C. RAO, JJ.
Aakash Exploration Services Limited Through Director Heman Navinbhai Haria – Petitioner
Versus
Oil and Natural Gas Corporation Limited - Respondent
R/Special Civil Application No. 7814 of 2019
Decided On : 21-06-2019
Constitution of India,1950 - Articles 226, 299 , 32 , 12 , 298, 14, 16 and 19(1)(g) - Specific Relief Act, 1963 – Section 14 - Contract Act - Section 5 - Electricity Supply Act - Sections 43, 43A(1) and 43A - Specific Relief Act, 1963 - Section 14 - Terminating the contract - Service of notice - Show cause notice - Respondent ONGC came out with two different open tenders for Charter Hiring of work over Rigs for its various assets - That one tender was floated by respondent another such tender for hiring of rigs has been floated by the respondent through its office said tender tender which was floated by Office was for period of one year whereas, tender floated by respondent through its office at New Delhi was for & period of three years - Petitioner herein had applied for both the tenders - Petitioner states that the petitioner was found to have qualified in the technical bids in both the tenders - Price Bids of both the tenders were opened on two different dates. The price bid of tender was opened the price bid of New Delhi tender was opened - Petitioner states petitioner wrote & letter to respondent stating that one will attend Price bid on behalf of the petitioner company - Petitioner company once again wrote & letter to respondent stating that authorized by the company to represent petitioner company for negotiating the price tender - Petitioner states and submits that even the respondent was well aware of the fact that the petitioner had quoted two different prices for same work, for two tenders floated by Office and New Delhi Office of the respondent in as much as tender floated by office was for & period of one year only whereas tender floated by New Delhi office was for & period of three years - Petitioner received an email from respondent asking for justification With regard to difference in price quoted by petitioner tender as well as the new Delhi tender. Petitioner in reply to the said email had several talks With the officers of respondent corporation and lastly had & personal meeting With the officer of respondent – Held, Social structure of a society is always strong with sound economy fairness in every conduct, behaviour, motive of action is inherent in every citizen and the State - It is this lack of fairness in citizen brings forth police power of State to enforce law through obligations of the State to restrict such individuals from bringing disarray to the social order - Laws are laid down to keep check on such violations. In the modern time what was unthinkable in the ancient time that a king or Ruler would do any wrong to its subjects, State its substitute cannot be equated on the same pedestal - It is when State not acting fairly, transgressing its power and obligations affecting citizens right they are controlled by courts through the constitutional provisions for checking unfairness, unreasonableness of the State - State even performing contractual obligations under terms of contract, without obliterating it even while literally following terms of contract cannot be expected to act unfairly or unreasonably - Terms of the contract is for an object to be achieved and if in performing contract State acts unfairly, unreasonably, though it enforces the contract in literal words, then the Court can always examine each act of State Government to test whether it is exercising that power for enforcement of that contract or for some ulterior purpose or unfairly against public policy unreasonably - Writ application allowed
JUDGMENT :
(J.B. PARDIWALA, J.)
1. Leave to amend the cause title is granted. The same shall be carried out forthwith.
2. Rule returnable forthwith. Mr. Ajay Mehta, the learned counsel waives service of notice of rule for and on behalf of the respondent – Corporation.
3. By this writ application under Article 226 of the Constitution of India, the writ applicant, a public limited company incorporated under the provisions of the Companies Act, 1956, through one of its Directors, has prayed for the following reliefs:
(b) This Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus holding and declaring that the action of the respondent of terminating the contract of the petitioner vide termination notice dated 01.04.2019 without issuance of any show cause notice or without giving any opportunity of hearing to the petitioner is in violation of Articles 14, 16 and 19(1)(g) of the Constitution of India and be pleased to quash and set-aside the same.
(c) This Hon'ble Court may be pleased to issue a writ of prohibition in favour of the petitioner, prohibiting the respondent company from taking any coercive action against the petitioner company without following the due process of law and without adhering to the principles of natural justice.
(d) Pending admission, hearing and/or final disposal of this petition, this Hon'ble Court be pleased to stay the execution, operation and implementation of the termination notice dated 01.04.2019 (Annexure-A) issued by the respondent.
(e) Pending admission, hearing and/or final disposal of this petition, this Hon'ble Court may be pleased to direct the respondent from taking any coercive action against the petitioner from terminating the contract of the petitioner without following the due process of law or without following the principles of natural justice.
(f) Such other and further relief as this Hon'ble Court may deem just, fit and expedient be granted in favour of the petitioner.”
4. The case of the writ applicant, in its own words, as pleaded in the writ application, is as under:
4.2) Petitioner states that the petitioner herein had f(mom 4.3) applied for both the tenders. Petitioner states that the petitioner was found to have qualified in the technical bids in both the tenders. Thereafter, the Price Bids of both the tenders were opened on two different dates. The price bid of Ahmedabad tender was opened on 24.08.2018 whereas the price bid of the New Delhi tender was opened on 06.11.2018.
4.3) Petitioner states that on 24.09.2018 petitioner wrote & letter to respondent herein stating that one Mr. Ramji Desai will attend Price bid on behalf of the petitioner company. That on 02.10.2018 petitioner company once again wrote & letter to the respondent stating that Mr. Vipul Haria and Mr. Hemang Haria is authorized by the company to represent petitioner company for negotiating the price for Ahmedabad tender.
4.4) Petitioner states that the petitioner herein had quoted the price of Rs.1,17,600.06 pd. For the tender floated by Ahmedabad office, whereas i the price quoted by the petitioner floated by the New Delhi office of the respondent was Rs.95,652.28 pd.
4.5) Petitioner states and submits that even the respondent was well aware of the fact that the
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