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2005 DIGILAW 319 (GAU)

F. Ngkur Biakvela Tioner v. State of Mizoram

2005-04-21

BROJENDRA PRASAD KATAKEY

body2005
JUDGMENT B.P. Katakey, J. 1. Petitioner by the present writ petition has challenged the order dated 28.3.05 passed by the Superintending Engineer, Public Works Department, Eastern Circle, Aizawl, awarding a contract for upgradation of Keitum-Artahkawn Road (Sh-Fomiation Cutting) 18/00-23/00 KMP (Group No. III) in favour of Mr. F. Lalmalsawma, Respondent No. 5. 2. I have heard Mr. C. Lalramzauva, learned Counsel for the Petitioner and Mr. N. Sailo, learned State counsel appearing on behalf of the Respondent No. 1 to 4 as well as Mr. M. Zothankhuma, learned Counsel for the Respondent No. 5. 3. The facts leading to the tiling of the present writ petition is that a notice inviting tender being NIT No. 3/SE(EC)/2004-2005 dated 3.12.2004 was issued by the Superintending Engineer, Public Works Department, Eastern circle, Aizawl inviting tender in sealed cover from the intending tenderers in respect of the work pertaining to the upgradation of Keitkum-Arthkawn Road (Sh-Formation Cutting) in live groups including Group No. Ill pertaining to 18,000-23,000 Kmp at the estimated value of Rs.39,81,294.85 stipulating therein that all class-2 and above contractors are eligible to submit the tender in respect of the said group-Ill work. Pursuant to the said NIT, the Petitioner, Respondent No. 5 and Ors. submitted their tenders. The tenders were opened on 17.12.04 and the comparative statement was prepared. The Petitioner offered Rs.37,82,029.56/- and the Respondent No. 5 offered Rs.37,82,055.20/-. The Superintending Engineer thereafter vide order dated 28.3.05 accepted the tender submitted by the Respondent No. 5 and issued the work order allotting work in his favour at Rs.37,82,055.20 which is Rs.25.64 higher than the rate offered by the writ Petitioner, who is a registered Class-II contractor. Hence the present writ petition. 4. Mr. C. Lalramzauva, learned Counsel for the Petitioner has attacked the order dated 28.3.05 passed by the Superintending Engineer allotting the work in favour of the Respondent No. 5 on the ground that the Petitioner being the lowest tenderer and having fulfilled all the conditions required under the notice inviting tender and his tender having been found to be in order; there is no justification in not issuing the work order in his favour, as under the CP WD manual, which is applicable to the contract executed by the P.W.D., Government of Mizoram, the lowest tender is to be favoured with a contract if he is found suitable for awarding the contract. According to the learned Counsel for the Petitioner, the Petitioner being a registered Class-2 contractor and qualified to submit the tender paper and having experience of undertaking various works successfully, the work ought to have been allotted to him, he being the lowest tenderer. Mr. C. Lalramzauva, learned Counsel for the Petitioner has further submitted that the grounds on which the work was allotted to the Respondent No. 5 by the Superintending Engineer i.e. owning Machineries mentioned in the Schedule-D to the tender, cannot be the relevant consideration, as the Schedule-D stipulates that the tenderer must either own machineries mentioned therein or must produce the agreement/MOU with the person who owns such machineries. According to the learned Counsel, the Petitioner has submitted the MOU executed by the owner of the such machineries, therefore, fulfills the condition mentioned in the Schedule-D to the NIT and therefore, the Respondent No. 5 cannot be favoured with the work order when both the Petitioner and Respondent No. 5 are in the same footing having fulfilled such conditions and the rate offered by the Petitioner being the lowest, the authority ought to have allotted the work in favour of the writ Petitioner and in not doing so authority has acted arbitrarily and therefore, the impugned order allotting the work, passed in favour of the Respondent No. 5, needs to be interfered with. The further submission of the learned Counsel for the Petitioner is that under the instructions contained in the CPWD manual the work is to be allotted within 25 days from the date of opening of the tender and in the instant case though the tenders were opened on 17.12.04, the work was allotted only 28.3.05 i.e. more than 100 (hundred) days of the opening of the tender and hence the instructions contained in the said CPWD manual has been violated and consequently the work order dated 28.3.05 issued in favour of the Respondent No. 5 is illegal being contrary to the instructions contained in CPWD manual. The further submission of the learned Counsel for the Petitioner is that Anr. ground on which the work was allotted to the Respondent No. 5 is that the rate offered by the Petitioner was 5.01 per cent below the estimated rate and rate of the Respondent No. 5 is 5.00 percent below the estimated rate. Mr. The further submission of the learned Counsel for the Petitioner is that Anr. ground on which the work was allotted to the Respondent No. 5 is that the rate offered by the Petitioner was 5.01 per cent below the estimated rate and rate of the Respondent No. 5 is 5.00 percent below the estimated rate. Mr. C. Lalramzauva, learned Counsel relying on Clause 18.12.1 of the 2003 CPWD manual has submitted that the instruction does not contain anything to the effect that the rate which is more than 5% below the estimated rate is to be rejected. The learned Counsel relying on the said clause has submitted that it provides for allowing variation up to 5% in amount over the amount worked out at prevalent mark rates and which was to be ignored. The further submission of the learned Counsel for the Petitioner is that the authority by the communication dated 21.3.05 has only asked the Respondent No. 5 whether he is agreeable to do the work at the rate offered by him in the tender submitted in the month of Dec. 04 and the said opportunity having not been given to the other tenderers including the Petitioner, he has been discriminated against and such action amounts to violation of Article 14 of the Constitution of India. Mr. C. Lalramzauva, learned Counsel for the Petitioner in support of his contention has placed reliance on a decision of the Apex Court in Union of India and Ors. v. Diiwsh Engineering Corporation and Anr. reported in 2001 (8) SCC 491 . 5. Mr. Sailo, learned State counsel relying on the affidavit-in-opposition filed and the records produced before the Court, has submitted that the differences of rate between the Petitioner and Respondent No. 5 is only Rs.25.64 paisa, which is a very negligible amount considering the estimated price of the work which is above Rs.39 lakhs. 5. Mr. Sailo, learned State counsel relying on the affidavit-in-opposition filed and the records produced before the Court, has submitted that the differences of rate between the Petitioner and Respondent No. 5 is only Rs.25.64 paisa, which is a very negligible amount considering the estimated price of the work which is above Rs.39 lakhs. According to the learned State counsel the Petitioner and the Respondent No. 5 being placed almost in the same footing, in so far as the rate offered by them, the State Respondents have decided to award the contract in favour of the Respondent No. 5 keeping in view the fact that the Petitioner is a class 1 contractor, his rate is 5% below the estimated rate variation, which is to be ignored in terms of the instruction contain in the CPWD manual and the Petitioner owns the machineries/equipments mentioned in the Scheduled D to the tender notice. The rates of the Petitioner and Respondent No. 5 being almost equal, the authority has not committed any illegality in taking into consideration the aforesaid circumstances in awarding the contract in favour of the Respondent No. 5, as those are the relevant factors while taking a decision of awarding the contract in favour of a tenderer. The learned State counsel has further submitted that the price may not always be the sole criteria for awarding a contract and the authority while awarding the contract has to take into consideration the relevant factors such as the ability of the tenderer to perform the work and also experience of the tenderer. In the instant case the Respondent authority having decided to award the contract in favour of the Respondent No. 5, by taking into account aforesaid factors, has not acted arbitrarily in awarding the contract in favour of the Respondent No. 5 and hence the Petitioner is not entitled to any relief in the present writ petition. In the instant case the Respondent authority having decided to award the contract in favour of the Respondent No. 5, by taking into account aforesaid factors, has not acted arbitrarily in awarding the contract in favour of the Respondent No. 5 and hence the Petitioner is not entitled to any relief in the present writ petition. The further submission of the learned State Counsel is that the writ Court before entertaining the writ petition must be satisfied that there is an element of public interest involved in entertaining such a petition and in the instant case the Petitioner has failed to show any element of public interest in not awarding the contract in his favour and on the other hand the public interest would have been suffered had the work not been allotted in favour of the Respondent No. 5, keeping in view the fact that the Respondent No. 5 is the best suitable person to perform the work having own machineries/equipments for himself and being a class 1 contractor and also keeping in view the period in which said work is to be completed. Therefore, according to the learned state counsel the writ petition deserves to be dismissed. 6. Mr. Micheal Zothankhuma, learned Counsel appearing on behalf of the Respondent No. 5 has also submitted that the petition filed by the Petitioner deserves to be dismissed on the ground that the Petitioner could not show the involvement of the element of public interest to entertain the writ petition by this Court. The further submission of the learned Counsel is that the price offered by the Petitioner and the Respondent No. 5 being almost equal, the official Respondents have not committed any illegality in awarding the contract in favour of the Respondent No. 5 by taking into the relevant factors i.e. the Respondent No. 5 is a class 1 contractor, and also having own machineries/equipments as mentioned in the Schedule D to the NIT. When the prices are almost same the authority has to take a decision either in favour of the Petitioner or in favour of the Respondent No. 5 and while taking such decision the authority has to take into consideration of the relevant factors and in the instant case the factors as aforesaid being the relevant factors the authority has not acted arbitrarily in awarding the contract in favour of the Respondent No. 5. Countering the argument put forward by the learned Counsel for the Petitioner that the Petitioner being the lowest tender the work ought to have been allotted in his favour, the learned Counsel for the Respondent No. 5 submits that the price is always not the sole criteria for awarding the contract. The Government while awarding a contract must consider which of the tenderer is most suitable for the purpose and who can perform the work within the stipulated period of time having capability to perform the said work. In the instant case according to the learned Counsel for the Respondent No. 5, the price offered by the Petitioner and Respondent No. 5 being almost equal, the factors such as having own equipments and machinery mentioned in Schedule-D of NIT and the Respondent's No. 5 status as class 1 contractor and the price offered by the Respondent No. 5 is within the 5% limit of the variation allowed from the estimated price, the decision was tilted in favour of the Respondent No. 5 and said consideration being relevant consideration, the action of the official Respondents in awarding the contract cannot be termed as arbitrary action. In reply to the contention put forwarded by the learned Counsel for the Petitioner that the allotment order having been passed beyond 25 days thereby violating the instruction contained in the CPWD Manual, the order of allotment is bad, the learned Counsel for the Respondent No. 5 has submitted that the said instruction is the instruction to the officer and can not be mandatory in nature as those are issued so that the successful tenderer, after acceptance of his bid does not say that he can not perform the work at the rate offered by him due to the delay in issuing the work order. The learned Counsel for the Respondent No. 5 has further submitted that the Superintending Engineer by communication dated 21.3.05 has asked the Respondent No. 5 whether he is still agreeable to under take the work at the rate offered by him in the month of December, 04 and the said communication was issued only to the Respondent on 5, as Government on 21.3.05 has taken a decision to award the contract to Respondent No. 5 by taking into account all the aforesaid relevant factors and for that purpose such communications were not issued to other tenderers, including the Petitioner as the Government has decided not to allot the work in favour of the Petitioner. Therefore, there is no discrimination in the action of the Superintending Engineer and the Petitioner has not been discriminated against. The further submission of the Respondent No. 5 is that the Petitioner himself having submitted the representation dated 21.3.05, beyond the period of 25 days, requesting the authority to allot the work in his favour, he can not turn around and challenge the order awarding the contract in favour of the Respondent No. 5 on the ground that the same was issued beyond 25 days as stipulated in the instructions issued under the CPWD manual 2003. Mr. Micheal Zothankhuma in support of his contentions has placed reliance on the decision of the Apex Court in Rauncnj International Ltd. v. I.V.R. Construction Ltd. and Ors. reported in (1999) I SCC 492 and AIR India Ltd. v. Coching International Airport Ltd. and Ors. reported in 2000 (2) SCC 617 . 7. I have considered the rival submissions put forwarded by the learned Counsel for the parties and perused the records produced by the Government before this Court. 8. Pursuant to the notice inviting tender dated 3.12.2004 issued by the Superintending Engineer for upgradation of Keitum-Artahkawn Road (Sh-Formation Cutting) in respect of group-III work, the Petitioner as well as the Respondent No. 5 along with 4 Ors. submitted their tenders, out of which 3 tenders submitted by the Petitioner, Respondent No. 5 and Mr. Lalmalsvvama were found to be valid. The Petitioner has offered a sum of Rs.37,82,029.56/- and the Respondent No. 5 offered Rs.37,82,055.20. The differences in rate offered by the Petitioner and the Respondent No. 5 is Rs.25.64 Paisa only. The estimated price fixed for the work in the NIT was Rs.39,81,294.85/-. 9. Lalmalsvvama were found to be valid. The Petitioner has offered a sum of Rs.37,82,029.56/- and the Respondent No. 5 offered Rs.37,82,055.20. The differences in rate offered by the Petitioner and the Respondent No. 5 is Rs.25.64 Paisa only. The estimated price fixed for the work in the NIT was Rs.39,81,294.85/-. 9. The Superintending Engineer, Public Work Department, after opening of the tenders submitted by the various tenderers including the Petitioner and the Respondent No. 5, has recommended the settlement of the work in favour of the Respondent No. 5 on the ground that the rate offered by him is 5.00% below the estimated price and that of the writ Petitioner, who is the lowest tenderer, was 5.01 % below the said estimated price. Since the lowest tender was not recommended for settlement, files were sent to the Chief Engineer for his approval and the Chief Engineer upon consideration of the materials on record and also the rates offered by the Petitioner and the Respondent No. 5 has approved the recommendation of the Superintending Engineer on 21.3.05 and accordingly the Superintending Engineer has awarded the said contract in favour of the Respondent No. 5. 10. The Respondent Nos. 1-4 in their affidavit-in-opposition have stated that since the rate offered by the Petitioner and Respondent No. 5 is almost same, the difference being only Rs.25.64 paisa, the authority has decided to award the contract in favour of the Respondent No. 5 as the Petitioner is a class 2 contractor having not even executed any major work, not even 1/2 the value of the instant work, in fact not executed any work during past 3(three) years. It is further been stated in the affidavit-in-opposition that the decision to award the contract in favour of the Respondent No. 5 was taken as he owns machineries and equipments as mentioned in schedule D, which the Petitioner does not and for which the Petitioner has entered into a MOU with the other owner of such equipment only. It is evident form the affidavit-in-opposition that the Respondent No. 5's rate being 5% below of the estimated value of the work and such variation being allowed under the CPWD manual, the authority has decided to award the contract in favour of the Respondent No. 5. The statement made in the affidavit-in-opposition filed on behalf of the Respondent Nos. It is evident form the affidavit-in-opposition that the Respondent No. 5's rate being 5% below of the estimated value of the work and such variation being allowed under the CPWD manual, the authority has decided to award the contract in favour of the Respondent No. 5. The statement made in the affidavit-in-opposition filed on behalf of the Respondent Nos. 1-4 to the effect that the Petitioner has not even executed any major work, not even 1/2 the value of the instant work and he has not executed any work during past 3(three) years, have not been controverted by writ Petitioner even though an affidavit in reply was filed by him against the affidavit-in-opposition filed by the Respondent Nos. 1-4. 11. Under the CPWD manual time schedule for settlement of tender has been fixed. It is evident from the said time schedule that maximum time to allot and disposal of the tender is 25 days when the tender is to be accepted by the Chief Engineer. In the instant case as the Chief Engineer was consulted, according to the learned Counsel for the Petitioner, the maximum period of 25 days is allowable for the purpose of finalization of the tender paper submitted pursuant to the NIT dated 3.12.04. The said time schedule has been given for the purpose of expediting the matter of settlement of the tender so that the successful tenderer do not subsequently say that the amount may be upwardly revised as the authority has not taken timely decision in awarding the contract. The said instructions can not therefore, be taken as mandatory and violation of which it can not be said that the awarding of the work in favour of any tenderer beyond 25 days will make the such work order illegal. The writ Petitioner also can not be allowed to challenge the issuance of the work order in favour of the Respondent No. 5 beyond 25 days, from the date of the opening of the tender, as the writ Petitioner himself vide representation dated 21.3.05 before the Chief Engineer prayed for allotting the work in his favour, which is beyond the said period of 25 days. The writ Petitioner therefore, can not be allowed to approbate and reprobate. The submission of the learned Counsel to that effect, therefore, can not be accepted. 12. The writ Petitioner therefore, can not be allowed to approbate and reprobate. The submission of the learned Counsel to that effect, therefore, can not be accepted. 12. The further submission of the learned Counsel for the Petitioner is that he has not been given the opportunity to extend the period of validity of his tender amount though such opportunity was given to the Respondent No. 5 vide communication dated 21.3.05 and therefore the action of the Respondent authority is discriminatory. The Respondent authority on 21.3.05 has decided to award the contract in favour of the Respondent No. 5 and after taking such decision the Superintending Engineer has issued the communication dated 21.3.05 (Annx. 2 to the affidavit in opposition filed on behalf of the Respondent No. 1-4) asking the Respondent No. 5 whether he was willing to do the work at the rate quoted by him. The said communication having been issued pursuant to the decision taken by the Government to award the contract in favour of the Respondent No. 5, the same need not be issued to the Petitioner as the Government has taken a decision to award the contract in favour of the Respondent No. 5. Therefore the action on the part of the Superintending Engineer in issuing the said communication dated 21.3.05 can not be termed as discriminatory action. More over, by the said communication dated 21.3.05 the Respondent No. 5 was only asked about his willingness to do the work at the rate quoted by him. That being the position the said contention of the learned Counsel for the Petitioner also cannot be accepted. 13. The Government while awarding a contract is required to take into consideration whether the person in whose favour the work is to be allotted is the suitable person to perform the work, he has the ability and whether he can perform the work within the stipulated period of time. In awarding the contract the price is not always the sole criteria. The Government in awarding the such contract has to take into consideration the relevant factors including element of public interest. In awarding the contract the price is not always the sole criteria. The Government in awarding the such contract has to take into consideration the relevant factors including element of public interest. In the instant case the Government has decided to award the contract in favour of the Respondent No. 5, rates quoted by the Petitioner and Respondent No. 5 being almost equal; as the Respondent No. 5 is a class 1 contractor and he owns machineries and equipments mentioned in schedule D of the NIT and also the rate offered by him is 5% below the estimated rate. The said factors tilted the mind of the official Respondent in favour of the Respondent No. 5. The said factors cannot be termed as irrelevant considerations while awarding contract by the Government in favour of the Respondent No. 5. Therefore, the actions on the part of the official Respondents in awarding contract in favour of the Respondent No. 5 cannot be termed as arbitrary. There is no allegation of mala fide in exercise of power by the authority. 14. In Raunaq International Ltd. (Supra) the Apex Court has held that the price is not always be the sole criteria in awarding contract by the Government and awarding the contract being the essential commercial transaction, in arriving at a commercial decision, the considerations which are of paramount importance are commercial considerations and those are: 1. The price at which the other side is willing to do the work. 2. Whether the goods or services offered are of the requisite specifications; 3. Whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific stills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important. 4. The ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; 5. Past experience of the tenderer and whether he has successfully completed similar work earlier. 6. Time which will be taken to deliver the goods or services; and often. 7. The ability of the tenderer to take follow-up action, rectify defects or to give post-contract services. Past experience of the tenderer and whether he has successfully completed similar work earlier. 6. Time which will be taken to deliver the goods or services; and often. 7. The ability of the tenderer to take follow-up action, rectify defects or to give post-contract services. The Apex Court has further held that even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction. 15. In Raunaq International Ltd. (Supra), the Apex Court has further held that the elements of public interest are, public money would be expended for the purposes of the contract, the goods or services which are being commissioned could be for a public purpose, such as, construction or roads, public buildings etc., public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously, the public would also be interested in the quality of the work undertaken. The Apex Court in the said case also strikes a note of caution that the High Court before entertaining any writ petition challenging the award of the contract by a public authority or the State must be satisfied that there is some element of public interest involved in entertaining such petition and must also be satisfied that the party which has brought litigation is litigating bonafide for public good. The Court while interfering with the decision of the said authority in awarding the contract, is also required to keep in mind that if the project is delayed the public interest may suffer. 16. In the instant case the work is for up-gradation of the road, which is a public purpose and for public good. The Schedule time for completion of the said work is 12 months. 16. In the instant case the work is for up-gradation of the road, which is a public purpose and for public good. The Schedule time for completion of the said work is 12 months. The difference of the rate offered by the Petitioner and the Respondent No. 5, as discussed above, was Rs.25.64 paisa and the Respondent authority has decided to award the contract in favour of Respondent No. 5 on the ground of his rate is being 5% below the estimated price fixed, he is a class 1 contractor and he owns the equipments and machineries as mentioned in scheduled D to the NIT, which will help in completing the work expeditiously and within the time limit fixed for that purpose. The Petitioner could not show the involvement of element of public interest in entertaining writ petition filed by him. 17. The Apex Court in AIR India Ltd. (Supra) relying on the earlier decisions of the said Court including Raunaq International has held that even when some defect is found in the decision making process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point and Court should always keep the larger public interest in mind, in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene. It has further been held that the Court cannot interfere with a decision but it can interfere with the decision making process on the ground of mala fide, unreasonableness or arbitrariness. In Union of India and Ors. v. Dinesh Engineering (Supra), the Apex Court has held that a decision, be it simple administrative decision or a policy decision, if taken without considering the relevant factors, it can only be termed as an arbitrary decision and if it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution. 18. As discussed above there is no arbitrariness in the action taken by the Official Respondents in awarding contract in favour of the Respondent No. 5 and the said decision was taken by keeping in view all the relevant factors. 18. As discussed above there is no arbitrariness in the action taken by the Official Respondents in awarding contract in favour of the Respondent No. 5 and the said decision was taken by keeping in view all the relevant factors. There is no allegation of mala fide in the writ petition. 19. That being the position I do not find any merit in the writ petition and hence the same is dismissed. No cost. Petition dismissed.