VAIBHAVI ENTERPRISEversusNOBEL CERA COAT & ORS.

                        [2021] 8 S.C.R. 765                             765


                    VAIBHAVI ENTERPRISE                                 A
                                 v.
                  NOBEL CERA COAT & ORS.
                  (Civil Appeal No. 6289 of 2021)
                        OCTOBER 21, 2021                                B
            [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
                                                                        C
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         D
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
                                                                        E
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      F
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
                                                                        G
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         H
                                765
766            SUPREME COURT REPORTS                       [2021] 8 S.C.R.


A     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
B
      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,
C     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
D     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
E     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
F     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
G     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
H
       VAIBHAVI ENTERPRISE v. NOBEL CERA COAT & ORS.                       767


petition, the High Court ought to have allowed the writ petition.          A
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
                                                                           B
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              C
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          D
of the present order. Either of the parties to place the present
order before the High Court forthwith. [Para 6.0][771-D-F]
       CIVIL APPELLATE JURISDICTION: Civil Appeal No.6289 of
2021
      From the Judgment and Order dated 20.09.2021 of the High Court       E
of Gujarat at Ahmedabad in SCA No. 5815 of 2021.
       With
       C.A. No. 6290 of 2021
       Devan Parikh, Sr. Adv., Santosh Krishnan, E.C. Agrawala, Advs.      F
for the appellant.
       Vikramjit Banerjee, ASG, Som Raj Choudhury, Saransh Kumar,
Shrutee Aradhana, Saurav Agrawal, Trinath Tadakamalla, Ishaan Chhaya,
Sahil Tagotra, Advs. for the respondents.
       The Judgment of the Court was delivered by                          G

       M. R. SHAH, J.
      1.0. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Gujarat passed in Special Civil
                                                                           H
768             SUPREME COURT REPORTS                             [2021] 8 S.C.R.


A     Application No.5815 of 2021 preferred by the respondent no.1 herein-
      original writ petitioner (hereinafter referred to as the “original writ
      applicant”), by which, the High Court has disposed of the said writ petition
      by directing the respondent no.2- ONGC to finalize the contract with the
      original writ applicant on the condition that the writ applicant shall lift the
      gas within 65 days from the date of allotment instead of 75 days as
B
      offered by it earlier.
            2.0. That the respondent ONGC invited “Expressions of Interest”
      (EOI) on 22.07.2020 for demand assessment for natural gas produced
      from the two fields. As per the EOI, the demand assessment for the
      natural gas in the area was to be undertaken by ONGC and the ultimate
C     approval for allocation was to come from Ministry of Petroleum and
      Natural Gas, Government of India. If allotted, the gas supply would
      operate for a period of five years from the date of award.
              It appears from the pleadings that only three applicants were
      interested in sourcing the natural gas from two fields advertised by ONGC
D     viz. (1) original writ applicant – Nobel Cera Coat, (2) Vaibhavi Enterprise-
      appellant in Civil Appeal No. 6289 of 2021 and (3) Tanish Cerachem
      Private Limited – appellant in Civil Appeal No. 6290 of 2021. Nobel
      Cera Coat submitted their interest in sourcing natural gas from both
      VAD#3 and VAD#5. Vaibhavi Enterprise submitted their interest for
E     VAD#3 and Tanish Cerachem Private Limited submitted their interest
      for sourcing gas for VAD#5. That thereafter, ONGC sought approval of
      Ministry for gas allocation. When the matter was pending consideration
      before the Union Government, in December 2020, one of the applicant-
      Tanish Cerachem Private Limited revised its response and offered to
      commence offtake of gas within 65 days of allotment. At this stage, it is
F     required to be noted that the writ applicant offered to lift gas from the
      field / block situated at a place called Vadtal, District Bhavnagar within
      a period of 75 days. As per the case of the appellant having regard to the
      revised offer from Tanish Cerachem Private Limited, the ONGC thought
      it fit to re-invite the bids from all the three shortlisted applicants and
G     accordingly on 08.03.2021, ONGC invited all the three applicants to place
      fresh bids. As per the case of the appellant, Vaibhavi Enterprise submitted
      to the fresh tendering process and submitted its bid. However, the writ
      applicant did not submit any fresh bid. The writ applicant filed a writ
      petition before the High Court challenging the ONGC letter dated
      08.03.2021 so far as it calls for “expected period of readiness to offtake
H
       VAIBHAVI ENTERPRISE v. NOBEL CERA COAT & ORS.                             769
                      [M. R. SHAH, J.]

gas from ONGC’s offer letter”. The writ applicant also prayed for                A
issuance of writ of mandamus directing the ONGC to proceed with the
award of gas allocation on the basis of offer received in response to the
ONGC/EOI/Vadtal GAS/2020 dated 22.07.2020. At this stage, it is
required to be noted that though the Union of India was the ultimate
authority to approve the bid / allocation of gas, in the writ petition neither
                                                                                 B
the Ministry nor other applicants viz. Vaibhavi Enterprise and Tanish
Cerachem Private Limited were impleaded as party respondents. From
the impugned order passed by the High Court, it appears that the matter
came up before the Division Bench on 19.08.2021 and Union of India
was ordered to be arrayed as respondent no.3 and notice was made
returnable on 26.08.2021. Thereafter, matter was heard by the Division           C
Bench on 16.09.2021. Before the High Court, learned ASG appearing
on behalf of the Union of India placed on record the communication
dated 08.03.2021, which was directed to be taken on record. Thereafter,
the matter was kept for further hearing on the very next date i.e.
20.09.2021. At the time of hearing of the writ petition, the writ applicant
                                                                                 D
reduced days for lifting gas from 75 days to 65 days. Having noted the
submissions on behalf of the ONGC that the writ applicant has agreed
to lift the gas within 75 days, however, in view of the fact that one of the
applicant was ready and willing to lift the gas within 65 days and therefore,
the offer in favour of the writ applicant was not finalized and therefore,
the ONGC was in dilemma. That thereafter by permitting the writ applicant        E
to reduce the days for lifting gas from 75 days to 65 days, thereafter, the
High Court by the impugned judgment and order has disposed of the
said writ petition by directing the Corporation to finalize the contract
with the writ applicant on the condition that the writ applicant shall lift
the gas within 65 days from the date of allotment.
                                                                                 F
       Feeling aggrieved and dissatisfied with the impugned order passed
by the High Court, the other to applicants viz. Tanish Cerachem Private
Limited and Vaibhavi Enterprise have preferred present appeals.
      3.0. We have heard Shri Santosh Krishnan, learned counsel
appearing for the appellant and Shri Saurav Agrawal, learned counsel             G
appearing for the original writ applicant who is on caveat and Shri
Vikramjit Banerjee, learned ASG appearing on behalf of the ONGC.
       4.0. Having heard the learned counsel for the respective parties
and considering the impugned order passed by the High Court, we are
of the opinion that the procedure which has been adopted by the High             H
770             SUPREME COURT REPORTS                             [2021] 8 S.C.R.


A     Court while disposing of the writ petition in favour of the writ applicant
      is unsustainable. The High Court has passed the impugned order ex-
      parte and without giving any opportunity of being heard to the other
      applicants – appellants herein. It is required to be noted that before the
      High Court it was brought on record that there are two other applicants
      who submitted their EOI and even one of the applicants was ready and
B
      willing to lift the gas within 65 days. At this stage, it is required to be
      noted that it appears that till writ petition was filed and the matter was
      heard by the Division Bench 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 and / or during the pendency of the petition, the
C     original writ applicant revised its offer and unfortunately High Court
      allowed / permitted the original writ applicant to revise its offer to lift the
      gas from 75 days to 65 days and that too in exercise of powers under
      Article 226 of the Constitution of India. 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
D
      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
E     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
F
      that too in exercise of powers under Article 226 of the Constitution of
      India, as observed herein above, is unsustainable and unknown to law.
      We have our own doubt whether in exercise of powers under Article
      226 of the Constitution of India, the High Court could have permitted
      one of the bidder to revise / modify its offer. Even in the facts and
G     circumstances of the case, the High Court felt that instead of inviting
      fresh bids, the same could be allowed, in that case also, similar opportunity
      ought to have been given to the other applicants also.
             It is also required to be noted that though the High Court has, as
      such, directed and issued the writ of mandamus directing ONGC to
H     finalize the contract with the writ applicant on the condition that the writ
        VAIBHAVI ENTERPRISE v. NOBEL CERA COAT & ORS.                           771
                       [M. R. SHAH, J.]

applicant shall lift gas within 65 days from the date of allotment, instead     A
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.
      5.0. Even otherwise also, the impugned order passed by the High           B
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.
        6.0. In view of the above and for the reasons stated above,             C
impugned order passed by the High Court dated 20.09.2021 in Special
Civil Application No.5815 of 2021 is hereby quashed and set aside. The
matter is remitted back to the High Court for its fresh decision. Special
Civil Application No.5815 of 2021 is ordered to be restored to the file of
High Court. The appellants herein to submit appropriate application for
impleading them as party respondent nos. 4 and 5 and same to be allowed         D
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         E
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. It is made clear that this Court has not expressed
anything on merits and the impugned order of the High Court has been
set aside for the reasons stated above. Both these appeals succeed and          F
accordingly allowed. However, there shall be no order as to costs.

Devika Gujral                                                Appeals allowed.


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