Constitution of India: Art.226 – Tender – Bid – Respondent ONGC invited “Expression of Interest” (EOI) for demand assessment for natural gas produced from two fields – Three applicants – ONGC sought approval of Ministry in terms of EOI for gas allocation – When matter was pending consideration before the Union Government, one of the applicant revised its response, and offered to commence off take of gas within 65 days of allotment – ONGC by letter dated 08.03.2021 re-invited the bids from the three shortlisted applicants to place fresh bid – The other applicant submitted fresh bid – However, writ applicant did not submit any fresh bid and filed writ petition challenging letter dated 08.03.2021 so far it calls for “expected period of readiness to offtake gas” and also praying for issuance of writ of mandamus to ONGC to proceed with award of gas allocation on the basis of its offer – In the writ petition, neither the Ministry nor other applicants were impleaded as party respondents – Matter came up before High Court on 19.08.2021 and Union of India was ordered to be arrayed as respondent no.3 – At the time of hearing of writ petition, writ applicant reduced days for lifting gas from 75 days to 65 days – High Court disposed of writ petition by directing ONGC to finalize the contract with the applicant on condition that the writ applicant shall lift the gas within 65 days from the date of allotment – On appeal by other applicants, held: The procedure adopted by High Court while disposing of writ petition in favour of writ applicant was unsustainable – High Court passed impugned order ex-parte and without giving any opportunity of being heard to the other applicants – Before the High Court, it was brought on record that there were two other applicants who submitted their EOI and even one of the applicants was ready and willing to lift the gas within 65 days – Till writ petition was filed and matter was heard by High Court on 19.08.2021 and 16.09.2021, the original writ applicant offered to lift the gas within 75 days – Only at the time of hearing on 20.09.2021, writ applicant revised its offer and High Court allowed writ applicant to revise its offer and that too in exercise of powers under Art.226 – When High Court allowed the writ applicant to modify its offer, in that case, the opportunity ought to have been given to the other applicants – So the procedure adopted by High Court while disposing of writ petition by permitting the original writ applicant to modify its offer and that too in exercise of powers under Art.226 is unsustainable – Matter remitted to High Court for its fresh decision.
Allowing the appeals and remitting the matter to High Court, the Court
HELD: 1. When High Court permitted / allowed the writ applicant to modify its offer, in that case, the opportunity ought to have been given to the other applicants. Either they might have objected to permitting such modification of the offer in exercise of powers under Article 226 of the Constitution of India or they also could have modified their offer further and reduce number of days for lifting gas. It is not in dispute that neither of the appellants were impleaded as party to the writ petition. Not only that even initially Union of India was also not joined as a party and for the first time Union of India was directed to be impleaded as respondent no.3 pursuant to the order dated 19.08.2021 and that too not at the instance of the writ applicant but as the High Court felt that presence of the Union of India is required. So the procedure adopted by the High Court while disposing of the writ petition by permitting / allowing the original writ applicant to modify its offer and that too in exercise of powers under Article
226 of the Constitution of India, is unsustainable and unknown to law. [Para 4.0][770-D-F[
2. Though the High Court has, as such, directed and issued the writ of mandamus directing ONGC to finalize the contract with the writ applicant on the condition that the writ applicant shall lift gas within 65 days from the date of allotment, instead of allowing the writ petition and making the Rule absolute, High Court has used the word writ petition is disposed of. Once the writ of mandamus was issued, instead of disposing of the writ petition, the High Court ought to have allowed the writ petition. Even otherwise also, the impugned order passed by the High Court is unsustainable in as such no reasons whatsoever have been assigned by the High Court on merits. Except narrating the prayer clause and two earlier orders passed on 19.08.2021 and 16.09.2021 there is no further discussion by the High Court on merits of the matter. [Paras 4.0, 5.0][770-H; 771-A-C]
3. The appellants to submit appropriate application for impleading them as party respondent nos. 4 and 5 and same to be allowed by the High court and thereafter the High Court to pass a fresh order in accordance with law and on merits and after giving fullest opportunities to all the respondents including ONGC, Union of India and the appellants herein. In the facts and circumstances of the case and looking to the urgency, we request the High Court to finally decide and dispose of the writ petition in accordance with law and on its own merits at the earliest and preferably within a period of four weeks from the date of receipt of the present order. Either of the parties to place the present order before the High Court forthwith. [Para 6.0][771-D-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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