w w w . L a w y e r S e r v i c e s . i n



RELIABLE POWER SYSTEMS PVT. LTD. VERSUS SECRETARY, TELECOMMUNICATIONS

    W.P. 23039 of 2000

    Decided On, 13 February 2002

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE V.V.S. RAO

    For the Appearing Parties: A.L.Raju, C.V.Ramulu, Advocates.



Judgment Text

V.V.S. RAO, J.


( 1 ) THE 2nd respondent, namely the Chief General Manager, Telecom Stores, Kolkata, State of West Bengal, issued Notice Inviting Tenders (NIT) dated 19-5-1997, for and on behalf of the President of India, inviting sealed tenders for supply of stores namely SCR THYRISTOR CONTROLLED POWER PLANT TYPE I (A): 3000 NOS. 50v/25a (SINGLE PHASE AC INPUT) (WITH SPARES).


( 2 ) THE petitioner was the successful bidder. Accordingly, the Chief General Manager, Kolkata, placed purchased order No. P-031/3883/8, dated 2-1-1998 on the petitioner for supply of 400 Nos. of SCR THYRISTOR CONTROLLED POWER PLANT TYPE I (A) 50v/25a (SINGLE PHASE AC INPUT) (WITH SPARES) at a basic rate of Rs. 50,460. 00 per unit. The petitioner accepted the purchase order and supplied the stores, and by the time, 200 out of 400 Nos. of units were supplied, according to the petitioner, the 2nd respondent, who initially fixed the basic rate of Rs. 50,860. 00 per unit unilaterally reduced the basic rate to Rs. 50,460. 00 per unit. After supply of the entire requirement, according to the petitioner, tests were successfully completed. Alleging that the respondents withheld the amounts due to the petitioner for the stores supplied by him, the present writ petition is filed seeking to declare the action of the respondents in withholding such amounts as arbitrary and illegal.


( 3 ) BY a lengthy affidavit, filed in support of the writ petition, the petitioner attempts to make out a case that the 2nd respondent has unilaterally reduced the basic rate of each unit, and that he is not at fault, and as such, a writ of mandamus be issued declaring the action of the respondents in withholding the amounts due to the petitioner as illegal, arbitrary and unconstitutional.


( 4 ) THE matter is listed before me for admission. The learned counsel for the petitioner placed before me a judgment dated 19-8-1999, passed by a learned single Judge of this Court in W. P. No. 7037 of 1998 and batch, which was affirmed by a Division Bench of this Court in W. A. No. 1860 of 1999 and batch. The learned single Judge, in the above-mentioned writ petition and batch gave directions to the respondents therein to make a reference of all the claims/disputes to be resolved through the mechanism of sole arbitration by a learned and noble Judge of this Court. The learned counsel for the petitioner would contend that the petitioner is similarly situated, and therefore, this Court may direct the respondents to make a reference of the dispute involved in this writ petition to an Arbitrator.


( 5 ) IN my considered opinion, this Court having regard to Clauses (1) and (2) of Article 226 of the Constitution of India, lacks territorial jurisdiction to entertain this writ petition. Clauses (1) and (2) of Article 226 of the Constitution of India read: 226. Power of High Courts to issue certain writs - (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of the, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.


( 6 ) IT is not denied that NIT dated, 19-5-1997, emanated from the Office of the 2nd respondent-Chief General Manager, Telecom Stores, Kolkatta. It is also not denied that the Purchase Order dated 2-1-1998, was placed on the petitioner from the Office of the 2nd respondent at Kolkatta. It is also not denied that the petitioner supplied 400 Nos. of SCR THYRISTOR CONTROLLED POWER PLANT TYPE I (A) 50v/25a (SINGLE PHASE AC INPUT) (WITH SPARES) to the 2nd and 3rd respondents.


( 7 ) THE above facts, ex-facie, show that this Court has no territorial jurisdiction to entertain the writ petition. The learned counsel for the petitioner, Sr. A. L. Raju, however, placing reliance on the words "territories within which the cause of action, wholly or in part, arises for the exercise of such power" appearing in Clause (2) of Article 226 of the Constitution, submits that the petitioner responded to NIT from Hyderabad, manufactured the equipment at Hyderabad, dispatched the stores from Hyderabad, and therefore, part of cause of action arose within the territorial limits of the High Court of Judicature, Andhra Pradesh, Hyderabad, and hence, this Court has jurisdiction to entertain the writ petition. I am afraid, I cannot agree with the submission of the learned counsel for the petitioner.


( 8 ) IN Oil and Natural Gas Commission v. Utpal Kumar Basu1, the facts were identical to the facts in this case. Engineer India Limited (EIL), who were the Consultants of ONGC issued Notice Inviting Tenders for setting up of a Kerosene Recovery Processing Unit at Hazira Complex of ONGC in Gujarat. 'Bid offers' were to be sent to EIL at New Delhi. M/s. NICCO, having its registered Office at Calcutta, became aware of the NIT published in Times of India, circulated within the jurisdiction of Calcutta High Court, and submitted a tender to EIL at New Delhi, where all the tenders were scrutinized. NICCO's tender was rejected, and the Steering Committee decided to award the contract to M/s. CIMMCO Ltd. Aggrieved by this, NICCO filed writ petition in Calcutta High Court seeking to restrain ONGC from awarding the contract. It was submitted that as NICCO came to know about the tender from the Time of India, Calcutta, submitted its tender from Calcutta and had correspondence with EIL from Calcutta, and therefore, Calcutta High Court would have territorial jurisdiction. Accepting the said submissions, the Calcutta High Court allowed the writ petition filed by NICCO. On appeal from ONGC, a three-Judge Bench of the apex Court while interpreting Clause (2) of Article 226 of the Constitution of India held that in determining the objections of lack of territorial jurisdiction, the Court must take all the pleas pleading in support of the cause of action, into consideration, without embarking upon the correctness or otherwise of the facts. It further held that merely because NICCO saw NIT at Calcutta and submitted their tender from Calcutta, it cannot be said that cause of action arose partly within the territorial jurisdiction of Calcutta High Court. The following observations from the judgment, which are apt, demand excerption:. . . WHEN it learnt that it was considered ineligible it sent representations, including fax messages, to EIL, ONGC, etc., at New Delhi, demanding justice. As stated earlier, the Steering Committee finally rejected the offer of NICCO and awarded the contract to CIMMCO at New Delhi on 27-1-1993. Therefore, broadly speaking, NICCO claims that a part of the cause of action arose within the jurisdiction of the Calcutta High Court because it became aware of the advertisement in Calcutta, it submitted its bid or tender from Calcutta and made representations demanding justice from Calcutta on learning about the rejection of its offer. The advertisement itself mentioned that the tenders should be submitted to EIL at New Delhi; that those would be scrutinized at New Delhi and that a final decision whether or not to award the contract to the tenderer would be taken at New Delhi. Of course, the execution of the contract work was to be carried out at Hazira in Gujarat. Therefore, merely because it read the advertisement at Calcutta and submitted the offer from Calcutta and made representations from Calcutta would not, in our opinion, constitute facts forming an integral part of the cause of action. So also the mere fact that it sent fax messages from Calcutta and received a reply thereto at Calcutta would not constitute an integral part of the cause of action. Besides the fax message of 15-1-1993, cannot be construed as conveying rejection of the offer as that fact occurred on 27-1-1993. We are, therefore, of the opinion that even if the averments in the writ petition are taken as true, it cannot be said that a part of the cause of action arose within the jurisdiction of the Calcutta High Court.


( 9 ) FURTHER more, para 22 of Section VI of the General Conditions of Contract, given in the Instructions to Bidders, which forms part of the Tender Schedule, is to the following effect: legal JURISDICTION: It is also a condition of this contract that the Court which has territorial jurisdiction upon the place from which the acceptance of tender is issued shall have absolute jurisdiction for adjudicating any difference or disputes arising out of this contract.


( 10 ) THE plain meaning of the above 'legal jurisdiction clause' is not disputed. The judgment of a learned single Judge of this Court in W. P. No. 7037 of 1998 and batch, dated 19-8-1999, in my considered opinion, cannot be treated to be one based on similar facts and circumstances. Firstly, it relates to supply of 2/15, Shared Radio Systems and 4/36 Multi Access Radio Relay Systems, for which the Department of Telecommunications floated tender

Please Login To View The Full Judgment!

s, and secondly, the tenders were opened on 22-6-1995. A reading of the judgment of the learned single Judge discloses that the Radio Systems were intended not for a particular place, but were intended for the entire Department, to be supplied all over India. In any view of the matter, the question of jurisdiction was not raised in the said writ petition. It is well settled that a slight variation in the facts would make a precedent inapplicable so as to follow in a subsequent case. ( 11 ) I have perused the NIT, dated 19-5-1997 as well as the Purchase Order, dated 2-1-1998, and there is no doubt that the judgment of the apex Court in Oil and Natural Gas Commission, applies in all its force to the facts of the present case, and it must be held that this Court lacks territorial jurisdiction to entertain the writ petition. ( 12 ) FOR the reasons, aforementioned, the writ petition cannot be entertained, and it is accordingly dismissed, leaving it open to the petitioner to seek appropriate remedies before appropriate forums. No costs.
O R