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1997 DIGILAW 192 (CAL)

Mostafa Khan v. State of West Bengal

1997-04-28

SATYABRATA SINHA

body1997
JUDGMENT The judgment of the Court was as follows : The petitioner in this application has, inter alia, prayed for the following reliefs :- "b) A writ of and/or in the nature of Mandamus do issue restraining the respondents and/or their servants, agents or assigns from taking any steps or further steps and/or acting or further acting and/or proceeding or further proceeding in the matter of finalisation of the tender job arising out of the tender notice dated 5th February, 1997 as amended on 24th February 1997 being Annexure 'A' and Annexure 'B' hereto in any manner whatsoever. c) A writ of and/or in the nature of Mandamus do issue restraining the respondents and / or their servants, agents or assigns from allotting any work in favour of the respondent No.8 arising out of tender notice dated 5th February, 1997 as amended on 24th February, 1997. d) A writ of and/or in the nature of Mandamus do issue directing and/or commanding the respondents to forthwith allot the entire job mentioned in the tender notice dated 5th February, 1997 in favour of the petitioner being a qualified candidate in the scrutiny. e) A writ of and/or in the nature of Mandamus do issue directing and/or commanding the respondents to forthwith cancel withdraw and/or rescind the entire tender process for the purpose of accepting supply of materials to be issued in construction work as mentioned In the tender notice dated 5th February, 1997 and to take all further steps de novo in the matter of Issuance of tender for the aforesaid job. f) A writ of and/or in the nature of Mandamus do issue directing the respondents to forthwith cancel the entire process initiated pursuant to the tender notice dated 5th February, 1997 by the respondent No.2 herein for illegally and wrongfully accommodating the disqualified persons including the respondent No.8 herein in the tender process. g) A writ of and/or in the nature of Mandamus do .issue directing the respondents particularly the respondent Nos. 2 and 3 herein to issue tender papers from the petitioner and the proforma respondent Nos. 9 and 10 herein being the eligible tenderers found qualified in the scrutiny and to allot the tendered job only to the successful tenderers amongst the petitioner and the proforma respondents herein" 2. The fact of the matter is not in dispute. 2 and 3 herein to issue tender papers from the petitioner and the proforma respondent Nos. 9 and 10 herein being the eligible tenderers found qualified in the scrutiny and to allot the tendered job only to the successful tenderers amongst the petitioner and the proforma respondents herein" 2. The fact of the matter is not in dispute. A notice Inviting tender was issued on 52.97 for supplying materials to be used in construction work for the works mentioned therein. The date of scrutiny was 20th February, 1997 and the date of issue of tender was on 24.2.97 upto 4-00 p. m. For the purpose of enabling the person to successfully execute the work, a credential having successfully executed at least one similar Contract of a value of not less than Rs. 11 lacs only during any of the last three years was necessary. The said condition was a condition precedent for being eligible to be a successful tenderor. It appear from the said notice Inviting tender that by a copy thereof being Memo No. 16(21)/MRR-II dated 5.2.97 was Issued to the District Engineer and Assistant Engineer, Rampurbal Sub-Division with a request to them to be kindly present on the said date for scrutinising the credentials and also the accepting tender papers. The specific case of the petitioner is that the respondent No.8 In whose favour the work order has been issued was not eligible therefor and did not fulfil the aforementioned criteria. The respondent No.6 has filed an affidavit, who is a Government Officer and who pursuant to the aforementioned request was present on the date of opening of the tender. He found the respondent No.8 to be ineligible. It is, therefore, evident that the allegations made by the petitioner appear to be correct. No affidavit in-opposition has been filed by the respondent. Panchayat Samiti. 3. Dr. Pal, learned senior Counsel appearing on behalf of the respondent No. 8, however. submits that the aforementioned District Engineer and the Assistant Engineer were not the members of the tender committee and the Sabbapatl, Sahakarl Sabhapati, Karmadhaksha, Karja Nirbahi Adhikarik were the members thereof In terms of the resolution adopted on 3.2.97. It has further been submitted that the respondent No.8 along with other persons filed their applications on 20tb February 1997. submits that the aforementioned District Engineer and the Assistant Engineer were not the members of the tender committee and the Sabbapatl, Sahakarl Sabhapati, Karmadhaksha, Karja Nirbahi Adhikarik were the members thereof In terms of the resolution adopted on 3.2.97. It has further been submitted that the respondent No.8 along with other persons filed their applications on 20tb February 1997. However, both the Sahakari Sabbapati and the Sabbapati by reason of their letters dated 23.2.97 and 20.2 97 requested the Executive Officer to change the date for dropping and opening of the tender notice as allegedly they would be unable to attend office on 24th to 26th February, 1997 and pursuant thereto the date of issue of tender notice was fixed on 27th February, 1997 at 4 p.m and the date of receipt of the tender papers was fixed on 28th February. 1997 upto 2 p.m on 2ht February, 1997 allegedly 'Scrutiny Committee selected the names of applicants wherein the respondent No.8 figured in the list, whereafter on 6.3 97 the work order was issued. This writ application was filed on 4.3.97 and was moved on 6 3.97 on which date an interim order has been passed. 4. Ms. Dutta, learned Counsel appearing on behalf of the respondent No.2, has placed before this Court the entire records, from a perusal whereof it does not appear that the credential of the respondent No.8 purported to be by way of certificate from the Executive Officer, Murarai-II Panchayat Samiti, Paikar, Birbhum dated 4.2.97. xerox copy whereof has been handed over to this Court by Dr. Pal, is in the record. When the said matter was pointed out after sometime the said document had been produced separately by Ms. Dulta. There cannot be any doubt that bad the said document been filed by the respondent No.8 along with his tender the same would have been in the original file and would not have been kept separately. This clearly goes to show that the concerned respondents of the Panchayat Samiti In order to favour the respondent No.8. Dulta. There cannot be any doubt that bad the said document been filed by the respondent No.8 along with his tender the same would have been in the original file and would not have been kept separately. This clearly goes to show that the concerned respondents of the Panchayat Samiti In order to favour the respondent No.8. had sought to take the aforementioned document into consideration although the same was not on record on the date on which the tender was opened There is absolutely no reason to disbelieve the affidavit of the respondent No 6, who according to Ms Datta stay with the Assistant Engineer was invited to be present on the date of opening of the tender as they were technical expert. 5. In view of the findings aforementioned, this Court cannot but deprecate the conduct of the respondent No.2. This case shows how certain authorities which although autonomous and State wit bin the meaning of Article 12 of the Constitution of India, seeks to distribute a government contract to a favoured few. 6. In this view of the matter, I am of the opinion that the action on the part of the concerned respondent is absolutely mala fide both in fact as well as in law and particularly. In view of the fact that the said respondents have sought to put on records a document which was not there before i.e. at the time when the tenders were opened. 7. For the reasons aforementioned, the work order issued in favour of the respondent No.8 must be directed to be cancelled. 8. This application is, therefore, allowed with the aforementioned direction. The respondent No.2 shall pay and bear the costs of this application. 9. It will, however, be open to the said respondents to Issue a fresh tender in accordance with law and in order to maintain transparency, at the time of opening of the said tender, the respondent No.6 shall remain present. The prayer for stay of operation of the order is considered and rejected.