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2007 DIGILAW 363 (ORI)

SRI. YASEEN KHAN v. EXECUTIVE ENGINEER

2007-05-15

ASOK KUMAR GANGULY, I.MAHANTY

body2007
JUDGMENT : 1. Heard Learned Counsel for the parties. 2. This writ application has been filed by Md. Yaseen Khan as the Respondents are not opening his commercial bid as technical bid submitted by him is found by them to be non-responsive. With, such grievance, this writ application was filed before this Court on 9.2.2007. On I 2.2007, a Division Bench of this Court granted ex-parte an interim order to the extent that if the work order was not issued till then, the same should not be issued. The said interim order is continuing till date. 3. In this matter, counter affidavit has been filed by the Opposite Parties 1 to 7. In the said affidavit filed by the Executive Engineer, Muran Dam Division, Upper Indrabati Hydro Electricity Project, various facts have been disclosed relating to the defects in the tender submitted by the Petitioner. Out of all the facts, such have been disclosed the most vital fact has been disclosed at Annexure-D the said affidavit. The said Annexure-D is a letter addressed to the Executive Engineer (O.P. 1) signed by the Petitioner himself on 12.1.2007 below: I had tendered for the work against Sl. No. 1 & Sl. No. of the aforesaid Tender Call Notice. I had duly submitted the requisite technical bid and commercial bid for each of the work. The technical bid was opened on 11.01. 007 at the schedule time while I was present in your office chamber. On to-day, i.e., 12.1 2007 while I reported myself in your office chamber at the time of opening of commercial bid was verbally intimated by yourself abut disqualification of my technical bid and hence my commercial bid should not be opened. Hence, under this circumstance, I request your kind self to return me both the technical as well as commercial bid for the aforesaid two Nos. works as per clause No. 1 of term and condition laid down in the aforesaid tender call notice. 4. On a perusal of the said letter, it clearly appears that the Petitioner had withdrawn the bids and made a request to the authorities in writing to return him both the technical and commercial bids filed by him for the tender in question. After writing the said letter on 12.1.2007, this Writ Petition has been filed on 9.2.2007. But the contents of the said letter have been suppressed in the Writ Petition. After writing the said letter on 12.1.2007, this Writ Petition has been filed on 9.2.2007. But the contents of the said letter have been suppressed in the Writ Petition. In paragraph 5 of the Writ Petition, it has been stated 11.1.2007 was the date fixed for opening of the technical bids in respect of work No. 1 and work No. 2 when the Petitioner came to know that for the work No. 1, there were two participants including himself. After verification of he technical bids for both the works, the Executive Engineer, (O.P. No. 1) in whose office the bids were opened, verbally told him that the technical bids submitted by him were in order and accordingly he intimated the Petitioner to remain present for the opening of the commercial bid on 12.1.2007. When the Petitioner went to take part in the commercial bid, on that day, the Petitioner was informed by the Engineer that his commercial bid was not going to be opened on the ground that he was disqualified in respect of the technical bid. The reason s for such disqualification was also stated to be non submission of requisite work experience for the last tree years. According to the Petitioner such observation of O.P. 1 was completely contrary to his earlier version, i.e., at the time when But in the said paragraph, the Petitioner has not mentioned about his aforesaid letter asking for return of both the technical as well as commercial bids for the aforesaid two Nos. of tenders submitted by him. This Court is of the opinion that this is a very vital suppression of a material fact. From the said letter dated 12.1.2007, it is clear that Petitioner has withdrawn his bids. 5. In a Writ Petition, all the material facts must be disclosed by the Petitioner with sufficient candour and clarity. In the present case we are of the view that suppressing very vital facts, the Petitioner obtained an ex parte interim Order Dated 14.2.2007 from this Court and stopped the public auction from being finalized till date. 6. Therefore, we are constrained to observe that In the facts of the case that the Petitioner has not come to the Court with clean hand and has not disclosed the fact about the withdrawal of his tender. As a result of which, this Court was misled to pass an ex-parte interim order. 6. Therefore, we are constrained to observe that In the facts of the case that the Petitioner has not come to the Court with clean hand and has not disclosed the fact about the withdrawal of his tender. As a result of which, this Court was misled to pass an ex-parte interim order. In our considered view, it is an abuse of the process of law for which we are compelled to impose costs on the Petitioner. It is well settled that when a Writ Petition is filed and ex-parte interim order is obtained, the principle of 'uberrima fide' governs the situation. The Petitioner must, at this stage, display utmost good faith and bona fides in his pleading. That is totally lacking in this Writ Petition. 7. On the above grounds itself, the Writ Petition is to be dismissed and we dismiss the same with costs of Rs. 25,000/- (Rupees twenty five thousand) to be paid by the Petitioner to the Opposite Party No. 1. Such cost be deposited within six weeks from today, failing which the Opposite Party No. 1 is at liberty to realize the same by treating the same as arrears of land revenue. 8. In view of dismissal of the Writ Petition, the interim Order Dated 14.2.2007 which has been continued from time to time stands vacated. 9. Misc. Case Nos. 1522 and 2621 of 2007 are accordingly disposed of. 10. Issue urgent certified copy. Final Result : Dismissed