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2006 DIGILAW 981 (PAT)

Ram Sundar Prasad Singh v. Union Of India

2006-11-01

NAVANITI PRASAD SINGH

body2006
Judgment 1. The present writ application had originally been filed by the petitioner for quashing the tender notice dated 25.2.2006 and for a direction to the respondents to finalise the tender filed pursuant to notice, inviting tenders, dated 17.1.2006 for settlement of car parking agent/contractor by issuance of licence in this regard in respect of Patna Junction Railway Station (Northern side). Subsequently, by amendment, the third tender notice dated 24.6.2006 for the same purpose was also challenged. 2. The ground for challenging the said notices was, inter alia, that the petitioner had filed his tender pursuant to the first tender notice dated 17.1.2006 and was notfound ineligible but for wrongful consideration, in order to favour an ineligible tenderer, the first tender was cancelled and subsequent tender notice was issued, to, some how, accommodate the earlier ineligible tenderer, who happens to be the influential person. These actions are said to be discriminatory and arbitrary. 3. The alleged ineligible tenderer was made a private party-respondent and noticed by this Court, but has chosen not to appear. The other contesting respondents were the Union of India, Divisional Railway Manager, East Central Railway, Danapur and Senior Divisional Commercial Manager, East Central Railway, Danapur, who have appeared and filed counter affidavits. 4. With the consent of the parties appearing the writ application was heard for final disposal at the stage of admission itself. 5. The facts of the case, in brief, are as follows: The petitbner pursuant to notice inviting tender for appointment of parking agent/ contractor licensee to collect parking fee was appointed/given licence for a period of two years from 2003. The said licence was valid upto 3.9.2005. There was no complaint against the petitioner and he has complied with the terms of licence. As no timely action was taken for fresh settlement, the petitioner, in view of his past performance, was allowed to continue on earlier settlement terms and conditions for a short period upto 3.3.2006. In the meantime on 17.1.2006 an advertisement (Annexure 1) was published inviting tender fpr settlement for a period of three years. The last date for filing tender was 8.2.2006. 6. In the tender notice, so published, on 17.1.2006, some of the salient features therein were in regard to parking charges, which was Rs. 15/- for three hours and additional Rs. 5/- for further three hours. The last date for filing tender was 8.2.2006. 6. In the tender notice, so published, on 17.1.2006, some of the salient features therein were in regard to parking charges, which was Rs. 15/- for three hours and additional Rs. 5/- for further three hours. So far as eligibility condition is concerned, it was said that the tenderers should have completed in last three financial year at least one similar nature of work for public sector undertaking/Govt. for a minimum value of 35% of the advertised tender value. He must have sufficient financial capacity to undertake the tender. With regard to solvency, it was said that tenderers have to submit solvency certificate from nationalised bank to the extent of 40% of tender value. The earnest money was fixed at Rs. 38,850/-. The minimum estimate/ licence fee for three years, which was the tender value, was fixed at Rs. 51,73,568/-. 7. The petitioner filed his tender with requisite documents in the prescribed form. There were two other tenderers apart from the petitioner. On 8.2.2006, the technical bids were opened in presence of petitioners representative. He found that the papers annexed by one of the other tenderers, supported by documents, were wrong and forged. He did not file proper solvency certificate from nationalised bank. Finding these discrepancies the petitioner wrote to the authorities asking that the said person be disqualified as he was ineligible and considering the tender given by the petitioner, who had past experience for the. same work as well, the tender should be given to him. Instead of proceeding with the tender the authorities cancelled the tender without disclosing any reason. They said that they had cancelled the tender on administrative ground and then proceeded to issue the second tender notice dated 25.2.2006. Petitioner submits that this action of cancellation of the tender, in fact, is an action to save the authorities from embarrassment of declaring private respondent ineligible as the said respondent had some influence in the railways. 8. The second tender notice dated 25.2.2006 having been issued, the petitioner has pointed out material difference with the first tender notice. It was pointed out that the area being the same, now the parking rates were reduced from Rs. 15/-for three hours to Rs. 10.00 for three hours. The eligiblity condition of having work experience of having done such a work for PSU/Govt. It was pointed out that the area being the same, now the parking rates were reduced from Rs. 15/-for three hours to Rs. 10.00 for three hours. The eligiblity condition of having work experience of having done such a work for PSU/Govt. was deleted, in relation to which certificates were wrongly furnished in the earlier tender by the private-respondent. The value of work done earlier was increased from 35% to 150% of the advertised tender value. The clause of financial capacity as well as the clause requiring filing of solvency certificate were deleted, both of which could not be complied with by the private-respondent in the first tender. The earnest money was increased from Rs. 38,850.00 to Rs. 50,000.00 and the minimum estimate licence fee for three years was increased from Rs. 51,73,568/-to Rs. 75,20,974/-. Petitioner asserted that eligibility conditions relating to financial capacity and solvency certificate were purposely deleted to accommodate the private-respondent who earlier could not furnish those certificates validly. 9. It is not disputed that pursuant to second notice inviting tender dated 25.2.2006 no tender was filed. Again a third tender notice was issued on 23.4.2006 in similar terms to the second tender notice but again there was no response. Again a fourth tender notice was issued. This time, the earnest money was increased from Rs. 50,000.00 to Rs. 1,50,420.00 with other conditions remaining the same as in the second tender notice wherein changes had been made as indicated above. Here again there has been no response. The petitioner asserts that as he had complied with conditions of the first tender issuance of subsequent tender notices varying the conditions were arbitrary and only to keep him out and waiting to make a settlement with the private respondent, who has now chosen not to respond in view of the writ application being filed exposing him. 10. The railway authorities in their counter affidavits have denied any ulterior motive. In their counter affidavits they have stated that they were forced to cancel the first tender because of administrative reason. It was said that there was an arithmetical miscalculation in fixing the minimum estimate/licence fee for three years, which in term is the minimum guaranteed amount which a tenderer had to pay for the period and it is with this correction the second tender notice was issued. No paper was enclosed to justify this stand. It was said that there was an arithmetical miscalculation in fixing the minimum estimate/licence fee for three years, which in term is the minimum guaranteed amount which a tenderer had to pay for the period and it is with this correction the second tender notice was issued. No paper was enclosed to justify this stand. Nothing was said as to why other essential eligibility conditions were revised. The court then required them to file documents in support of their assertion. It was filed as a rejoinder to petitioners reply to the counter affidavit. A perusal of the documents, so filed, being the proceeding of the Tender Committee does show that there was an arithmetical miscalculation. 11. In the first tender notice the annual earning was calculated on basis of 76,650 cars being parked for upto three hours, parking fee being Rs. 15/- and upto six hours being 1,71,715, the parking rate being Rs. 5/-. This was later corrected to Rs. 10/-. Though on behalf of the petitioner the property of fixing the number of vehicles for long time parking at the railway station at more than twice normal parking was challenged but later not pursued. Even to this court it appeared that at railway station how it was estimated that the number of vehicles parking upto six hours, more than three hours was more than twice the number of cars parking for less than three hours. However, as no such issue was raised one need not pursue this matter. This change of calculation was directly reflected in the calculation of the total three years licence fee. This caused the cancellation of first tender notice and issuance of subsequent corrected tender notice. Regrettably so far as deletion of essential eligibility condition is concerned it was not sought to be justified rather what was sought to be suggested was that merely because of arithmetical miscalculation, the tender was cancelled. 12. From the aforesaid facts, it is clear that from the records it does not appear that the first tender was cancelled after consideration of the tenders filed. The first tender was cancelled because of arithmetical miscalculation which did make substantial difference in the minimum licence fee but that is not the end as essential conditions, one of having experience of doing similar work for PSU/Govt. and another with regard to financial capacity were omitted without any reason. The first tender was cancelled because of arithmetical miscalculation which did make substantial difference in the minimum licence fee but that is not the end as essential conditions, one of having experience of doing similar work for PSU/Govt. and another with regard to financial capacity were omitted without any reason. It is too much of a coincidence that these two were the conditions, which the private respondent was unable to fulfil, in the first tender. They were deleted in the subsequent tender, for which the respondents are unable to give any cogent reason. 13. In the aforesaid circumstances this court is left with no option but to hold that deletion of those two requirements, as indicated above, in the second and subsequent tenders was without any reason. Its deletion was arbitrary and apparently, only to discriminate or for some other undisclosed purpose. 14. The fact remains that railways have proceeded with second, third and fourth tender without response. Railways now working as commercial organisation, should wake up and realise the reason and make correction in respect thereof. It is obvious that hypothetical licence fee for three years, as calculated by them, appears to be unrealistic at least for the present, but this court cannot go into that question because it is for the authorities to decide what is good or bad for them. 15. At the time of final arguments, learned counsel for the railways sought leave of this court to issue fresh tender as in the interregnum the railways themselves were doing work and finding it difficult. To the court this appear to be strange plea for the simple reason that the problem was created by the railways themselves. They could have very well permitted the earlier licencee to continue till fresh settlement was made. They did not choose to do that. They kept re-advertisements, changing conditions making it easy on some parts or more onerous on other parts and then prayed to this court as if this court restrained them from taking fresh steps. While issuing the third and fourth tenders they did not seek leave of this court then why now? 16. The question now is as to what is to be done by this Court. While issuing the third and fourth tenders they did not seek leave of this court then why now? 16. The question now is as to what is to be done by this Court. In my view, I have already found that deletion of experience and financial capacity in the second tender onwards being arbitrary and discriminatory it is expected that earlier conditions would be reintroduced. The railways are free to re-tender the same on such other conditions as may be stipulated which could be judged on its own merit if challenge was ever to be made. 17. So far as cancellation of first tender is concerned, that cannot be challenged because there were arithmetial mistake in the first tender though the railways had always the right to ask the tenderers of the first tender to increase their minimum guaranteed amount to save the first tender, they did not choose to do so. 18. With the aforesaid observation leaving the railways to decide future course of action this writ application stands disposed of.