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Madhya Pradesh High Court · body

2000 DIGILAW 1308 (MP)

SATISH TIWARI v. STATE OF M. P.

2000-12-06

DIPAK MISRA

body2000
ORDER DIPAK MISRA, J. - Invoking the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issue of writ in the nature of mandamus commanding the respondents to allot the cleaning work relating to the concerned ward for a period of one year and further to issue a writ in the nature of certiorari for quashment of order dated 24.4.1999 and Annexure P-7 by which the earnest money of the petitioner has been forfeited and for grant of consequential benefits. The facts as have been unfurled are that the Municipal Corporation, Jabalpur published a notice inviting tender (in short NIT) in the local news-paper on 12.3.1999 with regard to cleaning arrangement at Jakir Hussain, Wart Zone No. 7. As per the NIT the earnest money of Rs. 50,000 was to be deposited. The petitioner deposited the earnest money and participated in the tender. As per the tender condition No. 14 the work order is to be given for a period of one year. On 26.3.1999 the result of tender declared. One Manish Sharma was the lowest bidder but as he did not accept the work him earnest money was forfeited by the respondents. The petitioner being the second lowest tenderer was called by the respondent. At this juncture a meeting of the Mayor-in-Council was held and a decision was taken to give the work to the petitioner for one month on trial basis and if he was found suitable to continue with him for one year. A copy of the proceeding of the meeting has been brought on record. Coming to know about this the petitioner submitted a representation to the Municipal Corporation and sought clarification. The representation submitted by the petitioner was not paid heed to and he was asked to deposit 10% of the amount towards security. The said letter was communicated to the petitioner on 9.4.1999. The petitioner thereafter contacted the respondent No. 2 and sought clarification in regard to the period of work but unfortunately no clarification was given and vide order dated 24.4.1999 the earnest money was forfeited. A return has been filed by the respondents contending, inter alia, that as the petitioner was the second lowest bidder, a proposal was submitted to the Mayor-in-Council of grant of the said work to him. A return has been filed by the respondents contending, inter alia, that as the petitioner was the second lowest bidder, a proposal was submitted to the Mayor-in-Council of grant of the said work to him. In the said meeting it was decided to grant him the contract for a period of one month on trial basis. It has also been mentioned that on 9.4.1999 a letter was issued to the petitioner to deposit 10% of the total bid amount so that further action for grant of contract could be taken. It has also been stated that at the time of issuance of the letter the decision taken by the Mayor-in-Council was not in the knowledge of the petitioner. It has been pleaded that instead of depositing the said amount, the petitioner submitted a letter on 11.4.1999 whereby he sought certain instructions. Thereafter the Commission on 15.4.1999 passed an order and directed that if the petitioner failed to deposit 10% of the amount within 2 days his earnest money would be forfeited. The letter dated 9.4.1999 has been brought on record as Annexure R-1. The petitioner has filed a rejoinder wherein it has been mentioned that the decision taken by the Mayor-in-Council was circulated and it was published in local newspaper on 10.4.1999. A copy of the newspaper has been brought on record as Annexure P-8. I have heard Mr. Vipin Yadav, learned counsel for the petitioner and Mr. S. K. Agarwal, learned counsel for respondent No. 2. It is submitted by Mr. Vipin Yadav that as per the condition of the tender the contract was to be given for a period of one year and, therefore, the Municipal Council could not have curtailed the period by calling a meeting in the Mayor-in-Council as that clearly contravenes the terms and conditions of the notice inviting tender. The learned counsel has further submitted that the decision taken in the meeting was published in the newspaper and the petitioner was aware of the same and hence, when he was asked to deposit 10% of the security amount as contained in Annexure R-1 he did not do so and sought clarification and his action being bona fide the decision taken to forfeit the earnest money is vulnerable. Resisting the aforesaid submission it is contended by Mr. Resisting the aforesaid submission it is contended by Mr. Agarwal that vide Annexure R-1 the petitioner was asked to deposit 10% towards the security amount so that further steps could be taken on the contract. The learned counsel has drawn the attention of this Court to Annexure R-1. To buttress his contention it is put forth by him that it was not stipulated therein that the contract would be given for a month. It is also proposed by him that the petitioner could not have been aware of the decision taken in the Mayor-in-Council and hence, he cannot be allowed to place reliance on the same. To appreciate the rival submissions raised at the Bar it is appropriate to refer to Clause 14 of the condition of tender. It reads as under : Matter in Hindi On a plain reading of the aforesaid clause it becomes crystal clear that the contract was to be given for on year. The decision taken by the Mayor-in-Council stipulates in paragraph 4 that the second tenderer Satish Tiwari shall be awarded the contract on trial basis for one month and thereafter grant of contract for the rest of the period shall be considered. On a perusal of the newspaper contained in Annexure P-8 it is apparent that the decision had been taken to place the work order for a month. That apart it is apposite to quote paragraph 10 of the counter-affidavit. It reads thus : "As the petitioner was the second lowest bidder a proposal was submitted to the Mayor-in-Council for grant of said work to the petitioner. The Mayor-in-Council in its meeting held on 9.4.1999 decided to grant the said contract to the petitioner for a period of one month on trial basis." Submission of Mr. S. K. Agarwal is that the decision taken by the Mayor-in-Council was a decision relating to the realm of indoor management and hence, it cannot be relied upon by the petitioner. Though the submission of Mr. Agarwal on a first flush looks quite attractive but on a proper scrutiny, I am not persuaded to accept to the same. S. K. Agarwal is that the decision taken by the Mayor-in-Council was a decision relating to the realm of indoor management and hence, it cannot be relied upon by the petitioner. Though the submission of Mr. Agarwal on a first flush looks quite attractive but on a proper scrutiny, I am not persuaded to accept to the same. A citizen has a right of information and once he had come to know from the newspaper that the Mayor-in-Council has taken a decision to reduce the period of contract to give it to the second lowest bidder for a month on a trial basis he has justifiable reason to ask for clarification. The Municipal Corporation cannot change the terms and conditions published in the notice inviting tender. That apart as admitted in paragraph 12 the petitioner submitted a letter on 11.4.1999 to Commissioner whereby the Commissioner had directed that the petitioner to deposit 10% of the amount within two days failing which his earnest money would be forfeited. The aforesaid act of the Commissioner could have been appreciated if a decision would have been taken to give the contract for one year. In that event the petitioner could not have been entitled to issue a complaint and there would have been justification for forfeiture of the earnest money deposit. From the scrutiny of the factual matrix it is perceptible that there has been attempts to violate the conditions of the notice inviting tender and decision was taken in Mayor-in-Council, speaks eloquently in this regard. Under these circumstances, I am of the considered opinion that the Municipal Corporation cannot take shelter under the concept of indoor management and forfeit the earnest money deposited by the petitioner. In view of the aforesaid premises, the order passed vide Annexure P-7 is quashed and it is commanded that the Corporation shall refund the earnest money deposit to the petitioner within a period of six weeks from the date of presentation of this order. However, in the peculiar facts and circumstances of the case, the petitioner shall not be entitled to any interest. The writ petition is accordingly allowed without any order as to costs. Petition allowed.