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2002 DIGILAW 501 (JHR)

Dredge And Dive v. State Of Jharkhand

2002-04-18

TAPEN SEN

body2002
ORDER Tapan Sen, J. 1. The petitioner, M/s. Dredge & Dive, had moved this Court earlier vide WP (C) No. 1445/2002 with a grievance that although it had been found to be the lowest tenderer, alter negotiations, yet, all of a sudden due to change in the office of the respondent No. 3. it did not hear any further in relation to the matter pertaining to issuance of work order. On the contrary, it came to learned that the Superintending Engineer. Water Ways Circle. Ranchi, was negotiating with some other party. This Court was not inclined to interfere in that case but a statement was made to the effect that it was correct that some negotiations had been entered upon by the Superintending Engineer but such negotiation was totally illegal as he could not have negotiated beyond a sum of Rs. 20 lacs as per the PWD Code. Accordingly, by order dated 7.3.2002 this Court directed the respondents to re- tender the entire process and call for a fresh tender and the entire exercise was to be completed within a period of three weeks. 2. Now in this writ application the petitioner has made a further grievance that after the aforementioned order had been passed, the respondents issued afresh tender notice vide Annexure-6 by which four new conditions have been incorporated and these conditions are:-- 14. The tenderers/quotationers shall have to submit up-to-date income-tax clearance: 15. Subletting of work are strictly not allowed; 16. The tenderers/quotationers shall have to submit experience certificate concerning underwater work; 17. The tenderers/quotationers should have annual financial turn over not less than Rs. 2.00 crore (Two crore) during financial year 2001-2002 and solvency of not less than Rs. 1.00 crore (one crore) otherwise their tenders/quotations shall not be eligible for this tender/quotation. 3. Further grievance of the petitioner is that the fresh tender has also incorporated an arbitrary term of having to submit 2% earnest money on tender amount in the form of 8th issue National Saving Certificate/5 years Post Office Term Deposit duly pledged in favour of the Executive Engineer, waterways Division. Ranchi. According to the petitioner. the respondents have not given out the value of the work and, therefore, incorporating a term to the effect that the tenderer should have annual financial turn over of not less than Rs. 2 Crores during 2001-2002 and solvency not less than Rs. Ranchi. According to the petitioner. the respondents have not given out the value of the work and, therefore, incorporating a term to the effect that the tenderer should have annual financial turn over of not less than Rs. 2 Crores during 2001-2002 and solvency not less than Rs. 1.00 Crore is an arbitrary condition. 4. Learned Addl. Advocate General. while replying to the aforementioned submissions of the learned counsel tor the petitioner has stated that the second tender which is subject matter of Annexure-6. is under process of scrutiny and from a perusal of the tender submitted by the petitioner firm, it will be apparent that the petitioner has left out two important items of work and if these items are included its rates would be bigher than other tenderers. He has further stated that the chart referred to by the petitioner at para 3 (1) of their reply/rejoinder to the counter affidavit can not be considered unless it is finalised by the tender committee which includes the Secretary of the Department, Engineer-in-Chief, one Member nominated by the Finance Department. Chief Engineer (Monitoring) and Chief Engineer concerned. According to him now the Superintending Engineer has no role to play and it is the aforementioned High Power Tender Committee which will look into the matter. 5. Learned Addl. Advocate General has further referred to page 17 which is a letter of the petitioner dated 3.4.2002 (appended to the reply/rejoinder to the counter affidavit). According to him. the petitioner has himself stated that the work will be executed in collaboration with M/s. Hydro Engineering. According to him, there is no agreement nor any letter of M/s. Hydro Engineering saying that the work will be executed with their collaboration. Learned AAG has further stared that at page 18 of the aforementioned reply/rejoinder to the counter affidavit, the petitioner has stated that they would repair and replace the gate and supply steel plates etc. as per existing specifications and dimension. According to him, the tender relates to replacement/complete removal of 1.6 mm thick existing old damaged stainless steel side, bottom and top seal track, side guide rail pole with 6 mm thick side, bottom and top stainless steel plate, side guide rail pole etc. 6. According to the learned AAG, the offer of the petitioner, therefore, amounts to replacement/supplying of steel make guide plate etc. 6. According to the learned AAG, the offer of the petitioner, therefore, amounts to replacement/supplying of steel make guide plate etc. as per existing dimension and specification whereas as per tender, it is to be replaced by a 6 mm thick side, bottom and top stainless steel plate etc. In that view ot the matter, learned AAG states that the petitioner can not claim as a matter of right to upset such an important work. According to him, the work relates to repair/replacement of sluice/emergency/intake gate of Getalsud Dam which supplies potable drinking water to the city of Ranchi. According to him, the writ petitioner has delayed the processing of the work and unless it is completed before the onset, of monsoons, drinking water would become polluted and. therefore, in the interests of the public, this tender work should not be held up and that too by a tenderer whose earlier writ petition was not going to be interfered with. In was only on account of the statement that the Superintending Engineer was negotiating, that this Court directed the retendering of the entire process. According to him. now that apprehension is no longer there as a full fledged high power committee is looking into the matter. 7. In this case an Interlocutory application has also been filed by one M/s. Supreme Hydro Engineering (P) Ltd. wherein it has been stated that the writ application is not maintainable in view of the doubtful conduct of the petitioner and M/s. Dredge and Dive is neither a registered firm nor registered under the Companies Act, According to them, this Company is a proprietorship concern through its proprietor Surendra Singh. a power of attorney holder but the affidavit has been sworn by one Pradccp Dey describing himself as the manager of the petitioner- firm. According to him. Pradeep Dey has signed in the capacity of the manager of the firm and the proprietor of (he petitioner Surendra Singh has not sworn the affidavit and, therefore, the very existence of the petitioner-firm is doubtful. According to him. Pradeep Dey has signed in the capacity of the manager of the firm and the proprietor of (he petitioner Surendra Singh has not sworn the affidavit and, therefore, the very existence of the petitioner-firm is doubtful. The intervenor has further stated that the only game of the petitioner is to defeat and frustrate the work on purely flimsy and irrelevant grounds and that Pradeep Dey is also a signatory to Annexure-B appended to the counter affidavit of the respondents informing the Superintending Engineer that he was confirming the commitment of Hydro Engineering in relation to the work in question. According to the intervenor. Pradeep Dey has signed for Hydro Engineering whereas the writ petition has been tiled on behalf of M/s. Dredge and Dive through Surendra Singh claiming himself to be the proprietor of the said firm whereas in the affidavit portion. Pradeep Dey has described himself as the manager of M/s. Dredge and Dive. According to the intervenor. he has also filed the tender papers and. therefore, he is vitally interested in the subject matter of the instant writ application. 8. From the argument of the learned counsel for the petitioner, it is apparent that he is aggrieved by the incorporation of fresh terms and conditions. While exercising the power of judicial review in respect of contract, the Court is concerned primarily as to whether there has been any infirmity in the decision making process. By way of judicial review, the Court can not examine the details of the terms of contract which have been entered into by the public bodies or the State. The Courts have inherent limitations on the scope ot such enquiry but at the same time the Court can certainly examine whether the decision making process is reasonable, rational and not arbitrary or viotative of Article 14 of the Constitution of India. If a contract has been entered into without ignoring the procedure which can be said to be the basic in nature and taking into account interest of the State and of the public, then the Court cannot act as an appellate authority by substituting its opinion in respect of allegations made from entering into such contract. Reference in this context may be made to the case of Sterling Computers Ltd., reported in AIR 1996 SC 51 . 9. Reference in this context may be made to the case of Sterling Computers Ltd., reported in AIR 1996 SC 51 . 9. In the instant case, the petitioner seems aggrieved by insertion of Clauses 14. 15, 16 and 17 referred to above. The State must endavour to bring out the best and, therefore, if by inserting certain terms and conditions, it wants the best to come forward, such Incorporation can not be said to be illegal or arbitrary. 10. The argument of the learned AAG to the effect that the petitioner has offered to replace/repair the steel make guide plate etc. as per existing dimension and specification and not by 6 mm infrastructure is also a relevant argument made by him. A judicial relief at the instance of a party which does not fulfill the requisite criterion can not be granted by a writ Court. Moreover award of lender can not be upset at the instance of the party which does not fulfill the requisite criterion. Reference in this context may be made in the case of Raunaq International Ltd. v. I.V.R. Construction Ltd.. reported in AIR 1999 SC 393. In that view of the matter, this Court is not inclined to grant any relief to the petitioner. 11. The last argument of the writ petitioner is that the respondents should not have insisted on the deposit of National Saving Certificate. Learned counsel for the petitioner has relied upon a Division Bench judgment of this Court in the case of Bigla Kachhap v. State of Jharkhand, reported in 2002 (1) JCR 253 (Jhr) : 2002 (1) JLJR 386 where their Lordships have held that such insistence is irrational and the object of deposit of earnest money is to secure the interest of the government which can be duly secured through deposits made in cash or Bank guarantee or fixed deposit valid for the duration of the contract or its conclusion. Such course will also ensure that earnest money deposited is promptly refunded to unsuccessful tenderers without any harassment to them. 12. Learned AAG in reply to the aforementioned submission has submitted that the National Saving Certificates deposited shall be refunded to unsuccessful tenderer and that these would also be refunded/returned the moment the work is completed. In that view of the matter, while dismissing the writ petition, this Court directs the respondents to act. 12. Learned AAG in reply to the aforementioned submission has submitted that the National Saving Certificates deposited shall be refunded to unsuccessful tenderer and that these would also be refunded/returned the moment the work is completed. In that view of the matter, while dismissing the writ petition, this Court directs the respondents to act. according to the judgment of the Division Bench referred to above and not to insist on National Saving Certificates, as has been directed in the aforementioned judgment. 13. With the aforementioned observations/directions, this writ petition is dismissed.