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2003 DIGILAW 1523 (ALL)

SATENDRA KUMAR TRIPATHI v. STATE OF U P

2003-07-11

MARKANDEY KATJU, R.S.TRIPATHI

body2003
M. KATJU, J. By means of this writ petition the petitioner has prayed for a mandamus restraining the respondents 6 and 7 from working as transport contractor for the respondent department after 31-3-2003 and to appoint transport and handling contractor of Food and Civil Supply Department of districts, Sonbhadra, Sant Ravi Das Nagar, Mirzapur for the financial year 2003-04 in accordance with the G. O. dated 13-5- 2001 only after inviting tenders from the public at large and permitting all eligible persons. 2. In this case on 30-1-2003 this Court granted learned Standing Counsel three weeks time to file counter-affidavit and issued notices to respondents No. 6 and 7 returnable at an early date. The order sheet of 20-5-2003 shows that there is an office report that the notices were issued to the Respondent Nos. 6 and 7 vide Registered A. D. past but neither the acknowledgment nor undelivered cover has been received back after service and no counter-affidavit has been filed. 3. On 7-7-2003 when this case was listed before us none appeared for the respondents 6 and 7 and no counter-affidavit has been filed by the learned Standing Counsel. Since notice had been issued to the respondents 6 and 7 as is evident from the office report dated 20-5-2003 we treat the notices to have been served on respondents 6 and 7 in view of Explanation II Chapter 8 Rule 12 of the Allahabad High Court Rules. 4. The petitioner claims to be a contractor of the Food and Civil Supply Department of districts, Mirzapur, Sant Ravi Das Nagar and Sonbhadra. He takes contract of handing and transporting grains and other food articles from the department. The State Government issued a G. O. dated 13-5-2001 for appointing transport contractors. True copy of the GO dated 13-5-2001 is Annexure 1 to the writ petition. Clause 4 of the said GO provides that the appointment of the transport contractor may be made by inviting tenders. 5. It is alleged in paragraphs 9 to 12 of the writ petition that the respondents 6 and 7 Mahendra Kumar Gupta and Jag Narain Singh as well as the Senior Marketing Inspector, Sonbhadra are in collusion and have caused number of irregularities and embezzled huge amounts. 5. It is alleged in paragraphs 9 to 12 of the writ petition that the respondents 6 and 7 Mahendra Kumar Gupta and Jag Narain Singh as well as the Senior Marketing Inspector, Sonbhadra are in collusion and have caused number of irregularities and embezzled huge amounts. An FIR was lodged and the District Magistrate, Mirzapur after conducting the enquiry has recommended suspension of the senior marketing inspector, Sri G. P. Singh vide letter dated 4-9-2002 Annexure 3 to the writ petition. As stated in paragraph 10 of the writ petition an enquiry was held against these illegal acts and the Marketing Officer, Mirzapur recommended to the Regional Food Controller, Varanasi Division vide enquiry report dated 20-8-2002 to black list respondents 6 and 7. True copy of the enquiry report is Annexure 4 to the writ petition. However, despite these recommendations no action was taken against the respondents 6 and 7 or against the Senior Marketing Inspector Sri G. P. Singh. 6. In paragraph 12 of the writ petition it is alleged that the officials of the Food and Civil Supply Department, district Mirzapur and Sonbhadra are also in collusion with respondents 6 and 7 and they have influenced the Regional Food Controller, Mirzapur in such a manner that they have been granted transport contracts again and again continuously for the last three years without any tender. Others are not allowed to participate in the contract and thus there is violation of Article 14 of the Constitution. True copy of the representation of the petitioner and other contractors is Annexure 5 to the writ petition. The Commissioner, Mirzapur by order dated 12-4- 2002 addressed to the Regional Food Controller, Vindhyachal Division called for an explanation as to why new contractors are not being registered and old contractors are being given contracts at the old rates. True copy of this letter is Annexure 6 to the writ petition. The Commissioner, Mirzapur has also requested the Commissioner Food and Civil Supply, U. P. to direct the Regional Food Controller, Mirzapur to register new contractors and finalize the contract after inviting the tender Vide Annexure 7 to the writ petition. 7. It is alleged in paragraph 17 of the writ petition that the Regional Food Controller Vindhyachal Division, Mirzapur has again and again extended the period of transport contract given to the Respondent Nos. 7. It is alleged in paragraph 17 of the writ petition that the Regional Food Controller Vindhyachal Division, Mirzapur has again and again extended the period of transport contract given to the Respondent Nos. 6 and 7 for the last three years without calling for any tender. 8. This petition discloses an alarming state of affairs. It is well settled that public contracts are in not largesse as held by the Supreme Court in Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628 . Ordinarily, before any public contract is granted there must be an advertisement in well known newspapers having wide circulation in which the date and place of the public auction/tender is fixed so that all eligible persons can apply and there can thus be compliance of Article 14 of the Constitution. This will also ensure transparency in administration. 9. In the present case this entire procedure has been given a complete go bye and instead respondent No. 3 has been fragrantly violation the law and evidently in collusion with respondents 6 and 7 has been granted transport and work contracts without calling for any tender. This has been done year after year since the last three years or so. Not only Article 14 of the Constitution has been violated but also the G. O. dated 13-5-2001 Annexure 1 to the writ petition which states that contract shall be given by inviting tender has been violated. What is shocking is that these contracts have been granted to persons who are under a cloud as stated in paragraphs 9 to 12 of the writ petition. There are serious allegations against respondents 6 and 7 who appear to be in collusion with the Senior Marketing Inspector. The Marketing Officer Mirzapur has recommended to the Regional Food Controller to black list the respondents 6 and 7 and the district Magistrate has recommended for suspension of the Senior Marketing Inspector Sri G. P. Singh with whom respondents 6 and 7 appear to be in collusion. However, no action has been taken against these persons for reasons best known to the Government and instead the malpractice has been allowed to continue. 10. The allegations in the writ petition are unrebutted and no counter-affidavit has been filed and we see no reason to disbelieve the same. However, no action has been taken against these persons for reasons best known to the Government and instead the malpractice has been allowed to continue. 10. The allegations in the writ petition are unrebutted and no counter-affidavit has been filed and we see no reason to disbelieve the same. There is total violation of Article 14 of the Constitution because other eligible persons were not given opportunity to apply for the contract. 11. It has been by the Supreme Court in State of Haryana v. Jageram, AIR 1983 SC 1207 , and Ram and Shyam Company v. State of Haryana and others, AIR 1985 SC 1147 , that public contract should not ordinarily be given by private negotiations. 12. In Panchu v. Collector, 1999 (1) JCLR 692 (All): 1999 (1) AWC 817 and Ram Pravesh Vishwakarma v. State of U. P. , 2003 (1) (51) ALR 791. etc. this Court held that public contract should be granted only after public auction/public tender after publicity in newspapers having wide circulation in the area, otherwise there will be violation of Article 14 of the Constitution. 13. Since the allegations in the writ petition are unrebutted we have to accept the same. Thus it must be hold that there was no tender before awarding the contract to the respondents 6 and 7 and evidently it was done by private negotiations and in collusion with the authority concerned. Hence, any contract awarded to respondents 6 and 7 are consequently quashed. 14. The petition is allowed. The respondents 6 and 7 are restrained from functioning as transport contractors of the department. 15. Since this petition has brought to light a case of fragrant violation of law and grant of public contracts illegally (which may only be the tip of an iceberg) we direct the Secretary, Food and Civil Supply, U. P. to order a through investigation into the matter and strong legal action against those responsible for those illegalities must be taken. Compliance report must be sent to this Court at the earliest. 16. Let a copy of this judgment be sent by the Registrar General of this to the Secretary, Food and Civil Supplies and Chief Secretary, U. P. forthwith. Petition allowed. .