Balaji Enterprises, A Partnership Firm, Lucknow, Uttar Pradesh, Through Its Authorized Signatory, Ved Prakash Pandey vs State Of Jharkhand, Through Secretary, Road Construction Department

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(Jhk) 1845

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Sujit Narayan Prasad, J.
Balaji Enterprises, A Partnership Firm, Lucknow, Uttar Pradesh, Through Its Authorized Signatory, Ved Prakash Pandey - Appellant
Versus
State Of Jharkhand, Through Secretary, Road Construction Department - Respondent
Letters Patent Appeal No. 730 of 2018, 734 of 2018
Decided On : 06-12-2019

Advocates Appeared:
Sumeet Gadodia, Advocate, Indrajit Sinha, Advocate, Ajit Kumar, Advocate, Aparajita Bhardwaj, Advocate, Anil Kumar Sinha, Advocate, Sweety Topno, Advocate

Headnote:
Jharkhand Rules, 2001 - Rule 41 - Tender Notice - Tender Committee - Capacity of a bidder - When in an appeal in any civil matter heard by a Bench of two Judges a difference of opinion arises between them on a point of law if either of Judges desire that appeal be referred it shall be referred to and heard and determined by such Judge or Judges as Chief Justice may appoint - Appeal shall be re-argued before Judge or Judges to whom it is so referred either sitting apart from or with the referring Bench as the Chief Justice directs - Held, This Court is further of view that if view of Honble Justice would be accepted it would amount to relaxing terms and conditions as stipulated under the Standard Bid Document since as has been held by Honble Apex Court in case of State of Orissa and Another in the absence of an enabling provision of grant of relaxation no relaxation can be made - Even if such a power is provided under statute it cannot be exercised arbitrarily - Such a power cannot be exercised treating it to be an implied incidental or necessary power for execution of the statutory provisions - Even an implied power is to be exercised with care and caution with reasonable means to remove obstructions or overcome resistance in enforcing statutory provision or executing its command – Order Accordingly

JUDGMENT

Sujit Narayan Prasad, J. - The present Letters Patent Appeals have been referred before this Court in the capacity of third Judge by the administrative decision of Hon''ble the Acting Chief Justice dated 03.09.2019 reason being that the appeals (both) have been allowed by a concurring judgment but both the Hon''ble Judges have differed with each other on one issue which has necessitated these appeals to be listed before a third Judge and in pursuance thereto, the matter has been placed before the Hon''ble the Chief Justice in the Administrative Side, for assigning the matter to a third Hon''ble Judge, for ready reference, the aforesaid administrative order is reproduced below :-

Hon'ble The Acting Chief Justice

My Lord,

PUC may kindly be perused.

PUC is an order dt.30.04.2019 passed by Hon'ble Division Bench comprising Hon'ble Mr. Justice H.C. Mishra and Hon'ble Mr. Justice S.K. Dwivedi in L.P.A. No. 730 of 2018 with L.P.A. No. 734 of 2018 in the aforesaid order, Their Lordships have been pleased to observe as under:-

"Judgment has been delivered in open Court today, according to which, both these appeals are allowed by us, by a concurring Judgment. We have, however, preferred to differ with each other on one issue, which has necessitated these appeals to be listed before a third Judge.

Let these matters be placed before the Hon'ble the Chief Justice in the administrative side, for assigning the matter to a third Hon'ble Judge."

L.P.A. No. 730 of 2018 with L.P.A. No. 734 of 2018 has been preferred against the order dated 02.08 2018 passed in WP (C) No.986 of 2018 with W.P. (C) No.888 of 2018 passed by Hon'ble Mr.Justice Rajesh Shankar.

Under the aforesaid facts and circumstances, perhaps Your Lordship may feel inclined to assign in L.P.A. No. 730 of 2018 with L.PA. No. 734 of 2018 to be listed before a third Hon'ble Judge of this Court.

Submitted before Your Lordship for kind perusal and necessary orders/directions.

	Sd/- 3.9.19
	(Sanjeev Kumar Das)
	Joint Registrar (List &Computer)

Assigned to Mr. Justice Sujit Nr. Pd.
Sd/- 3.9.19
Hon'ble The Acting Chief Justice

2. Hon''Ble the Acting Chief Justice has taken such decision in pursuance to the power conferred under Rule 41 of High Court of Jharkhand Rules, 2001 which reads hereunder as :-

"41. When in an appeal in any civil matter heard by a Bench of two Judges, a difference of opinion arises between them on a point of law, if either of the Judges desire that the appeal be referred, it shall be referred to and heard and determined by such Judge or Judges as the Chief Justice may appoint. The appeal shall be re-argued before the Judge or Judges to whom it is so referred either sitting apart from or with the referring Bench as the Chief Justice directs."

3. This Court, before expressing its opinion about the views of the Hon''ble Judges, deems it fit and proper to refer some factual aspect.

The factual aspect giving rise to prefer appeal is that writ petitions have been filed by one Mandeepa Enterprises, Respondent No.5 to the appeal, hereinafter referred as the writ petitioner/Respondent No.5, for seeking a writ in the nature of mandamus for quashing the tender notice dated 12.02.2018 being Tender Reference No. RCD/Seraikela/188 issued by the Executive Engineer, Road Construction Department, Road Division, Seraikella-Kharsawan and further direction upon the respondents to issue the Letter of Award (LOA) in favour of the petitioner as found suitable twice by the Tender Committee as also for restraining the respondents to proceed further in pursuance to the Tender Notice dated 12.02.2018 (Annexure-8 to the writ petition), in relation

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2019 Supreme(Jhk) 1845

Cases Referred (12)