Dismissed

Baba Chemicals through Its Prop Amir Khan Batla v. State of J and K and Ors. (Industries and Commerce Department)

J&K HC15 Sept 2021LPAOW/124/2018

Case brief

AI extract

What is this about?

The Letters Patent Appeal was dismissed. The High Court held that the appellant lacked locus standi to file the writ petition in his personal capacity for personal interest, as he failed to meet the eligibility criteria of the Notice Inviting Tender. The Court found the Writ Court correctly applied settled law regarding tendering eligibility.

What the court decided

AI extract

Baba Chemicals through Its Prop Amir Khan Batla… — Public Procurement and Tenders | J&K HC (2021)

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Sr. No. 39 Regular Cause List

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR

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CJ Court

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LPAOW no. 124/2018

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Baba Chemicals through its Prop. Amir Khan Batla

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…..Petitioner(s)/Appellant(s)

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Through: Mr. Ateeb Kanth, Advocate

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V/s

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State of J&K and Ors.

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….. Respondent(s)

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Through: Mr. Altaf Naik, Sr. Advocate with Mr. Shabir Ahmad Najar, Advocate Mr. U. K Jalali, Sr. Advocate with

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Ms. Shivani Jalali, Advocate (Through video conference)

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CORAM:

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HON’BLE THE CHIEF JUSTICE. HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

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O R D E R

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15.09.2021

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Judgement dated 14.12.2018, passed by the learned Writ Court, dismissing the writ petition, OWP no. 1878/2018 titled M/s Baba Chemical vs. State of J&K and others, filed by the appellant/petitioner is challenged in this Letters Patent Appeal (LPA) and its setting-aside is sought for precisely on the ground that the learned Writ court has not taken into account the grounds taken by the appellant/petitioner in his writ petition and law governing the subject. The appellant further pleads that the learned Writ Court has not taken into consideration the law governing the field and has drawn erroneous conclusions and judgement is against the mandate of law.

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Heard learned counsel for the parties and perused the record.

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LPAOW no. 124/2018

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The appellant, as claimed by it, is sole proprietor of micro, small and medium enterprise (MSME), which is registered under Registration No.07/02/ 02364 / PMT/MSME dated 27.09.2013 and is located at Salamabad Dachna Boniyar and said unit has been registered with Directorate of Industries and Commerce, District Industries Centre, Baramulla. The unit has been registered for extraction of minerals viz mining of Gypsum.

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Respondent – Managing Director, J&K Minerals Ltd. Kashmir, Srinagar, was vide Government Order No. III-IND of 2016 dated 20.05.2016, accorded sanction for renewal of mining lease for Gypsum occurring over the area of 246 hectares at village Sumerbogh, Hodog, Parlanka, District Ramban falling under different Khasra numbers for a period of ten years w.e.f. 09.02.2010. The lease was granted with certain conditions. After the renewal of the mining lease for Gypsum in favour of respondent no.2 by respondent no.1, the respondent no.2 invited tenders vide its NIT No. BC:27(3)/18-101-10 dated 03.07.2018 for extraction/exploration of Gypsum in Sub Block (B) & (C) at Parlanka Sector Ramban with targeted production/sale of 1.0 million tonnes per annum. The appellant, being not qualified as per the terms and conditions of the NIT, could not participate in bidding process.

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The tender of respondent no.3 was accepted and work was allotted to him. The appellant approached respondents 1&2 with a representation for redressal of his grievance. Getting no relief from the official respondents, he approached the learned Writ Court with a writ petition, challenging both tender document and Government order, whereby lease was granted by respondent no.1 in favour of the respondent no.2 and also sought a direction to grant mining lease in his favour by complying with the provisions of Mines and Minerals (Development and Regulation) Act, 1957, and Rules made thereunder and also sought issuance of fresh NIT so he could participate therein. His grievance was that provisions of the Act of 1957 and Rules made thereunder have not been strictly complied with. The petition was contested by the respondents and respondents questioned locus of the petitioner to file

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LPAOW no. 124/2018

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the writ petition and also insisted that terms and conditions of the NIT could not be assailed. The relief which was claimed by the petitioner in the writ petition is as under:

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“a) A writ of quashing the Government Order No. III-IND of 2016 dated 20.05.2016 (Annexure-B) passed by Secretary to Government Industries and Commerce Department and Quashing NIT No. BC;27(3)/18-101-10 dated 03.07.2018 issued by Managing Director J&K Minerals Limited (Annexure-C). b) A Writ of Mandamus further be directed to be passed commanding state of Jammu and Kashmir to take all necessary steps to grant fresh mining lease in accordance with the provisions of the mines and minerals (Development and Regulation), Act, 1957 and in consonance with minor Mineral’s concession, storage, transportation of minerals and prevention of illegal mining rules, 2016 SRO 105 of 2016 dated 31.03.2016. So that fresh notice inviting tender for extraction/purchase of Gypsum at Parlanka Ramban is issued so that petitioner can also participate in the same”.

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Admittedly, the appellant was not fulfilling the conditions of NIT so that he could participate in the tendering process. The grounds taken by the appellant challenging NIT, acceptance of tender and subsequently allotment of lease in favour of other respondents relate to an issue of public importance. The writ petition has been filed by the petitioner in his personal capacity for his personal interest and, therefore, the learned Writ Court has rightly opined that petitioner has no locus to file the writ petition. Under the guise of writ petition, the appellant was seeking relief in his favour that too when he was not competent to participate as he was not fulfilling the conditions of the NIT.

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Learned Writ Court has dealt with all the issues raised by appellant and taken note of the judgements in Air India Limited v. Cochin International Limited (2000) 2 SCC 617 and Monarch Infrastructure Pvt Ltd. v. Commissioner, Uthasnagar Municipal Corporation and ors, AIR 2000 SC 2272 and also Directorate of Education and others v. Educomp Datamatics Ltd (2004) 4 SCC 19, wherein it has been held that the eligibility prescribed in the NIT with respect to financial capacity of bidder is neither arbitrary nor discriminatory or actuated by malice. The position is well settled in view of the judgements referred to above. The issues, which have been raised, may be issue of public

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LPAOW no. 124/2018

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importance, but the petition filed by the appellant was moved by him in his personal capacity for his personal interest and not for Public Interest. Therefore, it has rightly been held by the learned Writ Court that appellant has no locus to file the same. The learned Writ Court, having taken into consideration all the issues, decided the same on the basis of settled position of law. There is no illegality in impugned judgment warranting us to interfere.

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