VAIBHAVI ENTERPRISE versus NOBEL CERA COAT & ORS.

Citation: [2021] 8 S.C.R. 765 · Decided: 21-10-2021 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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[2021] 8 S.C.R. 765
765
VAIBHAVI ENTERPRISE
v.
NOBEL CERA COAT & ORS.
(Civil Appeal No. 6289 of 2021)
OCTOBER 21, 2021
[M. R. SHAH AND A. S. BOPANNA JJ.]
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
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SUPREME COURT REPORTS
[2021] 8 S.C.R.
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
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