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Gauhati High Court · body

2000 DIGILAW 69 (GAU)

R. N. Ghosh v. State of Tripura and others

2000-02-21

H.K.K.SINGH

body2000
Judgement In this application under Article 226 of the Constitution a very short but interesting point has come up for decision by this Court. In this regard I have heard Mr. S. M. Chakraborty, the learned counsel for the petitioner as well as Mr. U. B. Saha, the learned senior Govt. Advocate assisted by Mr. D. C. Nath, Advocate for the State-Respondents. 2. The petitioner is a Class II enlisted contractor under the Tripura State Public Works Department and he has been executing several contract works under the respondent-Government. In response to Notice Inviting Tender (NIT) dated 14-9-1999 (Annexure-3) and dated 1-10-1999 (Annexure-4) for certain works shown in the N.I.T. the petitioner submitted his tenders in respect of category No. 3 of NIT dated 14-9-1999 and category No. 1 of NIT dated 1-10-1999. The tenders were submitted in the printed forms which were obtained from the office. The concerned works for which the petitioner has applied for are indicated as below :- In respect of : "PRESS TENDER NOTICE NO.31/EE/TIM/99-2000, Dtd. 14-9-99 S.No. Name of work. Estt. Cost. E.Money Time 1. * * * * * * * * 2. * * * * * * * * 3. Replacement of S.P.T. bridge over Dhalaicherra on T.K. Road by providing R.C.C. Box Cell Bridge right crossing without footpath (span 3 x 8.00 M) = 24.00 Mtr. TP/COM/ 150/99-2000 D.N.I.T. No.30/SE-II/99-2000. Rs. 28,68,445/- Rs. 50,000/- 6 (six months) In respect of : "PRESS TENDER NOTICE NO.32/EE/TIM/99-2000, Dtd. 1-10-99 S.No. Name of work. Estt. Cost E.Money Time 1. Replacement of existing S.P.T. bridge over Ranicherra on T.K. Road by providing R.C.C. bridge (span 2 x 8.00 Mtr.) = 16.00 Mtr. Job No.TP/COM/ 143/99-2000 Rs. 19,840,60/- Rs. 49,600/- 6 (six months) 2. * * * * * * * 3. * * * * * * * 4. * * * * * * * 3. Other contractors also submitted their respective tenders. It is the case of the petitioner that on opening of the tenders, the rates quoted by the petitioner was found to be lowest in respect of both the works. * * * * * * * 4. * * * * * * * 3. Other contractors also submitted their respective tenders. It is the case of the petitioner that on opening of the tenders, the rates quoted by the petitioner was found to be lowest in respect of both the works. But no work order was issued to the petitioner as the authority concerned have not accepted the tenders submitted by the petitioner and according to the authority concerned both the tenders of the petitioner were found to be informal and the reason for the same being that the petitioner had not put his signature in full which is a requirement under the terms of the N.I.T. i.e. according to the authority concerned the petitioner was required to put his full signature on every page of the rate schedule. But the petitioner has given his signature as "R. N. Ghosh." 4. Mr. S. M. Chakraborty has submitted that the name of the petitioner was enlisted as "R. N. Gosh." A copy of the enlistment is found at Annexure-1 to this writ petition and the name of the petitioner is found at serial No. 105. For convenience the same is reproduced below :- "ENLISTMENT OF CONTRACTOR UNDER P.W.D. Sl.No. Name of contractor Fathers name Address As per existing list Class in which new enlisted Class Sl.No. 1 2 3 4 5 6 7 105 Shri R.N. Ghosh (Rayat Narayan Ghosh) Lt. Basanta Kr. Ghosh Vill Hairmara P.O. Arundhutinagar, Agt. Tripura (W). Sl.No.14 Class-III Class-II i.e. qualified to tender for Works costing upto Rs. 20,000/- (Rupees Twenty lakhs) only each.) 106. * * * * * * * 107. * * * * * * *" 5. The petitioner had been submitted tenders signing as "R. N. Ghosh" in the past occasion and his tenders were accepted and consequently many works orders were issued and the petitioner executed the same with full satisfaction of the authority concerned. According to the learned counsel, as per the Clause 21 of the N.I.T. the petitioner was required to put his signature in full and accordingly he put his signature as "R. N. Ghosh" on every page of the rate schedule and as such there was no infirmity in the tender documents submitted by the petitioner. Accordingly, non-acceptance of the tenders on the ground of infruction or non-compliance of Cl. Accordingly, non-acceptance of the tenders on the ground of infruction or non-compliance of Cl. 21 of the N.I.T. is impermissible. It is also submitted by the learned counsel that the identity of the petitioner so also the signature of the petitioner was not in controversy in the present case. As such, the learned counsel has submitted for giving a direction to the authority concerned for accepting his tender documents. 6. The Cl. 21 of the N.I.T. is extracted below :- "21. All correction of rates and items in the tender should be initialled by the contractor Every page of the rate schedule be signed by the contractor in full." 7. According to Mr. Saha, the requirement of NIT as found in Cl.21 quoted above was not complied with and at the time of opening of the tenders before the rival and contesting tenderers some of the tenderers raised objection on the ground that petitioner has not put his signature in full and as such the authority considered the matter and accordingly came to the axiomatic decision that the tenders of the petitioner was informal as the petitioner did not put his full signature on every page. 8. Mr. U. B. Saha, the learned senior Government Advocate submitted regarding the scope and ambit of the power of judicial review of the High Court in respect of the Government contract. The learned counsel also referred to several decisions of the Apex Court and also some of the decisions of the English Court which have been applied by the Apex Court. In this regard we need not go in detail regarding various decisions of the Supreme Court but it is accepted that principles of judicial review would apply to the exercise of contractual power by Government bodies in order to prevent arbitrariness or favouritism. Acceptance or refusal of tender has to be tested on the principle laid down under Art. 14 of the Constitution. In our present case the only question to be decided is whether the non-acceptance of the tender of the petitioner was irrational and this has to be decided under the well accepted norms of Wednesburys principles of reasonableness that no one informed in law should have come to the decision (See AIR 1966 SC 11; (sic) (1947) 2 All ER 680). 9. 9. As required by the Court, the learned Government Advocate has produced the concerned tender documents submitted by the parties and also the Register maintained by the authority concerned for tender opening Register. At pages 170 and 179 of the aforesaid Register it is found that one of the tenderers namely, Narayan Chandra Roy raised objection to the fact that the petitioner did not put his full signature on every page of the rate schedule. In the concerned tenders submitted by the petitioner which was examined by this Court it is found that the petitioner has not signed as "Rayat Narayan Ghosh." But below the signature which may be read as "R. N. Ghosh," a stamp impression also reading as "R. N. Ghosh, Contractor, P.O. Ambassa, Dhalai, Pin 799289" is found. 10. Mr. Chakraborty referring to the definition of the word "sign" as given in S. 3(56) of the General Clauses Act, 1897 submitted that the signature put by the petitioner in the tender will amount to compliance of Cl. 21 of the N.I.T. under law. 11. In this regard, it is admitted by the learned counsel of both sides that the General Clauses Act, 1897 is applicable in the State of Tripura even in respect of State Acts and Laws. In this regard it is to be noted that the present contract is not even a statutory contract and the same being one entered into in exercise of the power under Arts. 298 and 299 of the Constitution and as such the provisions of the General Clauses Act may not be attracted. Still we may look into the provisions of S. 3(56) of the General Clauses Act which is reproduced below :- "3. Definition.- In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context,- (1) to (3) * * * * * * * * * * * * * * * * * * * * * (56) Sign, with its grammatical variations and cognate expressions shall, with reference to a person who is unable to write his name, include mark with its grammatical variations and cognate expressions;" (underline-mine) 12. In this regard, it is clear from the definition as given in the General Clauses Act that the General Clauses Act is subject to anything repugnant in the subject or context. In this regard, it is clear from the definition as given in the General Clauses Act that the General Clauses Act is subject to anything repugnant in the subject or context. Again, the definition given in General Clauses Act is not exhaustive as the term used in the definition is "include" nor "mean." 13. The terms and conditions as recorded in the tender document are to be complied with. When Cl. 21 of the N.I.T. as quoted above, clearly indicates and required that the tenderer should sign in full in every page of the rate schedule it only means that the petitioner has to sign giving his full signature as "Rayat Narayan Ghosh" and not "R. N. Ghosh." 14. The terms and conditions as found in the tender, even before formal contract is executed under Art. 299 of the Constitution should not be re-written by this Court. Such terms and conditions has got to be complied with and enforced. Accordingly, I find no merit in this writ petition which is accordingly dismissed. 15. Further, the submission of Mr. Chakraborty that on earlier occasions the petitioner submitted his tenders putting his signature as "R. N. Ghosh" and the same has been accepted by the authority concerned, will not be of any help as the terms and conditions require that the petitioner should give his full signature. So, even if the tender submitted by the petitioner which is not proper as per the Cl. 21 of the N.I.T. was accepted on earlier occasions will not be a ground for allowing the petitioner to submit the tender even violating the aforesaid clause. 16. The petition stands dismissed. The stay order passed, if any, stands vacated. Petition dismissed.