Research › Search › Judgment

Himachal Pradesh High Court · body

2000 DIGILAW 98 (HP)

RAKESH KUMAR v. STATE OF H. P.

2000-05-08

C.K.THAKKER, KAMLESH SHARMA

body2000
JUDGMENT C.K. Thakker, C.J. (Oral)- Learned Advocate General appears and waives service on behalf of respondents 1 to 3 and Mr. Vinod Kumar, learned counsel appears vice Mr. N.K. Gupta, on behalf of respondent No.4 and waives service of notice. 2. We have heard Mr. G.D. Verma, learned Senior Counsel for the petitioners, Mr. Sanjay Karol, learned Advocate General, for respondents 1 to 3 and Mr. Vinod Kumar, learned counsel for respondent No.4 3. This petition is filed by the petitioners for quashing and setting aside , the action taken by the respondent-authorities of awarding the contract of supply of dietary articles to respondent No.4 as illegal, ultra vires, unreasonable and unfair. 4. The case of the petitioners was that they were working as retail merchants and were supplying food articles, like wheat, rice, pulses, edible oils, species, etc. to various Government Departments on the basis of the tenders being invited by the Government Department since last about two decades. It was also their case that even to Indira Gandhi Medical College and Hospital, respondent No.2 herein, a contract was entered into between the petitioners on the one hand and the authorities on the other, and in accordance with the terms and conditions of the said-contract, food articles were supplied to respondent No. 2 for the last two years. 5. According to the petitioners, a letter dated March 30, 1999 was written by respondent No.3 for awarding the contract for supply of dietary articles to indoor patients of Ndira Gandhi Hospital, Shimla from February 1, 1999 to March 31, 2000 and tenders were invited. It was the case of the petitioners that in all three tenderers submitted their bids and the petitioners were the lowest among them. According to the petitioners, in these circumstances, it was incumbent on the part of the respondent-authorities to award contract to the petitioners, which was not done. The allegation of the petitioners further was that respondent No.4, who had not submitted the tender and had also not participated in the said process, had been given contract. The action was thus arbitrary, unfair, unreasonable and violative of Article 14 of the Constitution. We have heard the learned counsel for the parties. 6. The allegation of the petitioners further was that respondent No.4, who had not submitted the tender and had also not participated in the said process, had been given contract. The action was thus arbitrary, unfair, unreasonable and violative of Article 14 of the Constitution. We have heard the learned counsel for the parties. 6. Learned counsel for the petitioners strenuously contended that when respondent No.4 had not participated in the process and no tender was submitted by him, no decision could have been taken by the authorities awarding contract to him. He further submitted that as per settled legal position, tenders should be invited by the State or an instrumentality of the State and by negotiations or on the basis of the lowest rates, contract should be awarded to the lowest bidder. There may be special or exceptional circumstances for not awarding contract to a lowest bidder but then, those circumstances must be reflected either in the order or in the affidavit in reply. According to the learned counsel, in the instant case, nothing has been pointed out by the authorities except an assertion that the rates quoted by respondent No.4 in respect of some other Institution, were lower. He, therefore, submitted that the action deserves to be quashed and set aside. 7. In this connection, reliance was placed on the following decisions of the Honble Supreme Court: 1. Sterling Computers Limited vs. M/s.M & N Publications Limited and others, (1993) 1 SCC445. 2. Tata Cellular vs. Union of India, (1994) 6 SCC 651. 8. The learned counsel also submitted that had proper procedure been followed, the petitioners would have participated in the process and in all probabilities they would have made their stand clear. Since it was not done, the power of judicial review deserves to be exercised under Article 226 of the Constitution by setting aside the action. 9. The respondents, on the other hand, supported the action taken by the authorities. It was contended on behalf of the authorities that a decision was taken not to award the contract to any of the bidders. 9. The respondents, on the other hand, supported the action taken by the authorities. It was contended on behalf of the authorities that a decision was taken not to award the contract to any of the bidders. It was stated in the affidavit in reply filed on behalf of respondents No.1 to 3 that in respect of other medical college, namely, Kamla Nehru Hospital, a subsisting contract; was there between the authorities and respondent No.4 and the rates quoted for dietary articles were lower than the rates quoted by the petitioners. In the circumstances, a decision was taken to give the contract in question to respondent No.4. It was submitted that such an action cannot be said to be arbitrary or otherwise unreasonable. Respondent No.4 supported the stand taken by the authorities. 10. The respondents also, over and above the abovesaid two decisions, . relied upon the decisions of Honble Supreme Court in Raunaq International Limited vs. I.V.R. Construction Ltd., (1999) 1 SCC492, and Air India Limited vs. Cochin International Airport Limited and others, (2000) 2 SCC 617. They submitted that the action in question cannot be termed as unfair, arbitrary or unreasonable. 11. Our attention in this connection was also invited by the learned Advocate General to Annexure P-7, letter dated March 31, 2000, wherein it was stated that the tender of the petitioners was rejected. Looking to the communication, however, it appears that similar letters were also issued to the remaining two tenderers. 12. In any case, in our opinion, when the contract was given to respondent No.4 in the peculiar circumstances of the case, it is not appropriate to interfere with the same at this stage. At the same time, however, we are of the opinion that when tenders were already invited and the petitioners were bidders alongwith other persons and respondent No.4 was not one of the bidders, it is directed that the respondent-authorities will invite fresh tenders and award contract in accordance with law. Such exercise will be undertaken by the authorities within a period of one month. Till then, respondent No.4 will continue to supply the dietary articles as per contract entered with the respondent-authorities. The writ petition is allowed in part to the above extent. No costs.