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Madhya Pradesh High Court · body

2001 DIGILAW 705 (MP)

Ramlal Tripathi v. State of M. P.

2001-09-27

DIPAK MISRA

body2001
Judgment ( 1. ) INVOKING the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for to call for the entire records and upon perusal of the same to quash the order dated 12-1-2001 contained in Annexure P-1 by which the tender submitted by the respondent No. 4 was accepted and further to issue a writ of mandamus commanding the respondent Nos. 1 to 3 to allot the same in favour of the petitioner. ( 2. ) THE facts as have been undraped in the writ petition are that the Executive Engineer, Water Resources Department (Land Acquisition and Re-habilitation Department), the respondent No. 3 herein, invited tender for the purpose of lying down the water supply in Modal Town near Mirgouti Satna. The date of closing of the tender was 9-11-2000 and the opening date was 16-11-2000. On the dale fixed, the tenders were opened and it was found that the tender of the petitioner was the second lowest and that of the respondent No. 4 was at the third. The tender of one Dharmendra Tiwari was found to be the lowest. Later on Dharmendra Tiwari moved an application for withdrawal of his name and accordingly his earnest money was forfeited. As a consequence of this the petitioner became the lowest tenderer. The amount quoted by the petitioner was Rs. 29,84,914. 00 whereas the amount quoted by the respondent No. 4 was Rs, 29,84,760. 00. It is averred that though the petitioner was the lowest tenderer, his tender was not accepted but the tender of the respondent No. 4 was considered and accepted. It has been pleaded that the earnest money of the petitioner has been forfeited without giving any opportunity of hearing. It has been stated that though there was recommen-dation from higher authority for acceptance of the tender submitted by the petitioner but same was not done by the respondent No. 3. It is further putforth by the petitioner had never submitted any letter withdrawing his tender before any authority but on the other hand was willing to execute the agreement. According to the writ petitioner ignoring entire factual matrix the respondent No. 2, the Commissioner (Water Resources Department) accepted the tender of the respondent No. 4. It is further putforth by the petitioner had never submitted any letter withdrawing his tender before any authority but on the other hand was willing to execute the agreement. According to the writ petitioner ignoring entire factual matrix the respondent No. 2, the Commissioner (Water Resources Department) accepted the tender of the respondent No. 4. It is urged that as per the provisions of PWD manual and M. P. Book of Financial Power the lowest tender has to be accepted. But the same has been rejected by the authority concerned in gross violation of law. ( 3. ) A return has been filed by the respondent Nos. 1 to 3 contending, inter alia, that the notice inviting tender was issued on 12-10-2000 as per Annexure R-1 and later on the same was amended on 23-10-2000 and on 3-11-2000. The tenders wereopened on 16-11-2000. It is not disputed that the petitioners tender was the second lowest and that of the respondent No. 4 was the third lowest. It has been pleaded that the offer of the petitioner has not been accepted as he is categorised in the registration certificate submitted by him as a contractor who is competent to execute the contract upto Rs. 25 lacs. It has been submitted that the offer made by him was more than 25 lacs. The registration certificate of the petitioner has been brought on record as Annexure R-3. In the Clause 2. 1 of the tender document it has been specifically provided that the contractor registered in the concerned office of the Water Resources Department of the State Government who has successfully executed the similar works would be eligible to be assigned the contract. An opportunity was granted to the petitioner to get himself registered in the appropriate class prior to the date of the agreement. The petitioner failed to get himself registered as a result of which the earnest money was forfeited. It has been putforth that as the petitioner did not avail the opportunity to get himself registered in the particular class the respondent had no option but to reject his offer. It has also been highlighted that the respondent No. 4 was agreed to execute the work at the same rate which had been quoted by the petitioner and, therefore, the contract was granted in his favour. It has also been highlighted that the respondent No. 4 was agreed to execute the work at the same rate which had been quoted by the petitioner and, therefore, the contract was granted in his favour. It has also been pleaded that in pursuance of the agreement the respondent No. 4 has already completed the work assigned to him and the same is perceptible from the completion certificate dated 20-3-2001 as per Annexure R-7. ( 4. ) I have heard Mr. D. C. Jain, learned counsel for the petitioner and Mr. P. D. Gupta, learned Deputy Advocate General for the respondent Nos. 1 to 3. ( 5. ) IT has been submitted by Mr. Jain, learned counsel for the petitioner that entire action of the respondent Nos. 1 to 3 is unsustainable and unjustified as there was no stipulation that the contractor should be registered in a particular category. It is further urged by him that award of the contract in favour of the respondent No. 4 shows the high handedness of respondent Nos. 1 to 3 and such an action deserves to be condemned. It is also argued by him if the respondent Nos. 1 to 3 did not find the petitioner suitable they should return the earnest money and in no circumstances should forfeit the same. ( 6. ) MR. P. O. Gupta, learned Deputy Advocate General on the contrary has submitted that the petitioner did not meet the requirements as per the notice inviting tender and the conditions provided therein and hence, his offer was not to be entertained. It is further submitted by him that the petitioner was given an opportunity to get requisite certificate but he did not pay any heed to the same and hence, the respondents had no option but to allot the work in favour of the respondent No. 4. It is further putforth by him that the petitioner did not get the requisite certificate his offer was cancelled and the earnest money was forfeited. Quite apart from the above it has been submitted by the learned counsel for the State that as the work has been completed the controversy has become academic and it should be dismissed being treated as infructuous. ( 7. ) TO appreciate the rival submissions raised at the Bar, it is apposite to refer to Annexure P-1 which is the notice inviting tender published on 12-10-2000. ( 7. ) TO appreciate the rival submissions raised at the Bar, it is apposite to refer to Annexure P-1 which is the notice inviting tender published on 12-10-2000. It lays down the probable amount of contract. The said amount is 16. 96 lacs. The categories of contractors have been mentioned to include A-II to A-IV classes. The period of completion of contract is nine months including rainy season. It is submitted by Mr. Jain, learned counsel for the petitioner that when probable amount was Rs, 16. 96 lacs there was no justification to insist for obtaining a registration certificate solely on the basis that his offer exceeded 25 lacs. Mr. Gupta has drawn my attention to the amended tender notice whereby the period of completion has been reduced to six months and amount was reduced to Rs. 16,24 lacs. On 3-11-2000 the period was further reduced to three months including rainy season. The learned counsel for the State has also drawn my attention to R-3a to show that as per Clause 2. 1 of the notice inviting tender, permissible class of the contractors registered in the office of Engineer-in-Chief/chief Engineer/superintending Engineer/executive Engineer, Water Resources Department of M. P. and firms of repute who have successfully executed similar works of equal magnitude, provided they get themselves registered in appropriate class prior to drawal of agreement and failure to do so would result in forfeiture of Earnest Money and cancellation of tender. The submission of the learned counsel for the State is that petitioner had given the offer of more than 24 lacs and had not got himself registered in the appropriate class. He has also taken me through Annexure R-4, the communication dated 5-12-2000 to the petitioner requiring him to produce the experience certificate. The learned counsel also referred to Annexure R-4/2 to show that the petitioner was intimated to get the certificate showing his capacity to execute the work of rupees of 50 lacs. In the said letter it was mentioned that if the petitioner would fail to get the requisite certificate and complied with other formalities his earnest money would be forfeited. ( 8. ) THE core questions that fall for consideration are whether the tender of the petitioner should have been rejected and whether the earnest money deposited by the petitioner should have been forfeited. ( 8. ) THE core questions that fall for consideration are whether the tender of the petitioner should have been rejected and whether the earnest money deposited by the petitioner should have been forfeited. As far as the first aspect is concerned that has become academic as the work in question has been completed. That apart, the petitioner can not claim for award of the work solely on the basis that he was the second lowest tenderer. It is vehemently urged by Mr. Jain, learned counsel for the petitioner that probable amount of contract is approximately less than Rs. 17 lacs and hence, there was no necessity for insisting for the certificate of more than that amount. On a perusal of the conditions, Annexure R-3a it transpires that probable amount to perform the work in question is Rs. 16. 24 lacs. The said notice also stipulates that the categories of contractors who can apply are to be between A-2 - A-5. On a scrutiny of Annexure R-3 it is quite vivid that the petitioner was registered in the A-2 category but the fact remains that when oneself gets registered in A-2 category one is entitled to submit the tender but if he has been selected the further registration in the appropriate class was necessary. It is submitted by Mr. Gupta that as per the Annexure R-4/2 directions were given to the petitioner to get himself registered indicating that he is entitled to do the work of Rs. 50 lacs but as he did not do so the earnest money was forfeited. As far as rejection of the petitioners tender is concerned the petitioner can not claim as a matter of right because it is the owner who has to see the suitability. The submission of Mr. Gupta is that the petitioner was asked to have the certificate in an appropriate class but as he failed to get the same the tender was denied to him. It is further putforth by Mr. Jain that when the amount of work was up to Rs. 16. 24 lacs, there was no necessity to get oneself registered for Rs. 50 lacs. On a first look the aforesaid submission appears to be quite attractive but it melts into insignificance on a deeper probe. It is further putforth by Mr. Jain that when the amount of work was up to Rs. 16. 24 lacs, there was no necessity to get oneself registered for Rs. 50 lacs. On a first look the aforesaid submission appears to be quite attractive but it melts into insignificance on a deeper probe. On a perusal of the documents brought on record it is apparent that the period for completion of work was initially nine months and thereafter it was reduced to six months and then to three months. It can not be lost sight of the fact if a work has to be completed within three months the financial capacity of contractor does play a vital role. That apart, the petitioner has himself given offer which was more than 25 lacs. Keeping the aforesaid quantum in view and the period in question, insistence on the part of the department requiring the petitioner to get himself registered in a higher class can not be said to be arbitrary, unjustified, irrational and without purpose. On the contrary the department in a prudent manner thought that completion of work requires better expertise and proper financial stability of the contractor and accordingly directed the petitioner to comply with that condition and when he failed to do so they refused to grant the contract to him. In this factual backdrop I do not perceive any irregulatory in the action of the respondent Nos. 1 to 3 in not entering into agreement with the petitioner. ( 9. ) THE next aspect relates to refund of the earnest money deposited. It is not disputed that the petitioner failed to comply with the requirement contained in the notice inviting tender and also did not do so after due intimation made vide Annexure R-4/2. As there is stipulation of forfeiture of earnest money in the notice inviting tender, the petitioner can not be allowed to say that he was not aware of this condition. The matter would have been different if such a condition would have been stipulated for the first time in Annexure R-4/2 but such a condition was quoted in the terms and conditions of notice inviting tender. As the petitioner failed to comply with the same I am of the considered view there is no illegality on the part of the respondents in forfeiting the earnest money deposited by the petitioner. ( 10. As the petitioner failed to comply with the same I am of the considered view there is no illegality on the part of the respondents in forfeiting the earnest money deposited by the petitioner. ( 10. ) IN view of my preceding analysis, I do not find any merit in the writ petition and the same is accordingly dismissed without any order as to costs.