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Gauhati High Court · body

2008 DIGILAW 101 (GAU)

Rana Kumar Phukan v. Union of India and ors.

2008-02-06

B.K.SHARMA

body2008
1. The petitioner, a contractor, who responded to the particular Notice Inviting Tender (NIT) is aggrieved by the action of the respondents in returning the tender documents, he had submitted. 2. In response to the NIT in question for the work "Prow. of Hard Standing for VEH Receipt Area of 41 VH Coi under GE, Guwahati" the petitioner by his letter dated 8.8.2007 requested the respondent No. 6 to issue tender documents. He also deposited the requisite cost of Rs. 500. In response to the request, he was issued with the tender documents by letter dated 13.8.2007. The last date of receipt of tender was 11.9.2007 upto 15.00 hrs. By letter dated 21.8.2007 certain amendments in respect of the tender documents were effected. 3. On the schedule date, i.e., 11.9.2007, when the petitioner went to the office of the respondent No. 6 to submit the tender documents, he was informed that the last date had been postponed as some further amendments in the tender documents were in the offing. According to the petitioner, he was verbally informed that the last date would be notified in due course. 4. After the postponement of receipt of tender documents, when the petitioner was anxiously waiting for the intimation, he on a visit to the office of the respondent No. 6 could come to know that the Annexure-E impugned letter dated 27.9.2007 had been issued to him directing to return the tender documents, citing administrative reasons. On the other hand, the last date of submission of tender was fixed as 5.10.2007. The impugned letter dated 27.9.2007 addressed to the petitioner by the respondent No. 7, reads as follows : "1. Reference to this office letter No. 8826/A/26/E8 dated 13th August, 2007, 8826/A/32/E8 dated 21st August, 2007 and telegram bearing No. 8826/A/35/E8 dated 11th September, 2007. 2. Please return the subject tender documents along with amendment and telegram forwarded vide letters under reference due to administrative reason." 5. The petitioner is aggrieved by the aforesaid action on the part of the respondents. It is his case that while the last date of submission of tender had been extended to 5.10.2007, he could not have been debarred from participation in the tender process after issuance of tender documents to him. The petitioner is aggrieved by the aforesaid action on the part of the respondents. It is his case that while the last date of submission of tender had been extended to 5.10.2007, he could not have been debarred from participation in the tender process after issuance of tender documents to him. According to the petitioner such action on the part of the respondents is arbitrary and illegal and also violative of the principles of natural justice, administrative fair play and the fundamental rights guaranteed under the Constitution of India. 6. The respondents have filed their affidavit-in-opposition justifying their action. It has been contended that the petitioner a registered, Class-D contractor and presently engaged in contractual works under the respondents has been served with 5 Slow Progress Notices due to unsatisfactory work performance. Copies of the notices have been annexed to the affidavit-in-opposition as Annexure- 1A, 1B, 1C, 1D and 1E. According to the respondents, in such a situation, the impugned letter dated 27.9.2007 had to be issued as per the instructions of Headquarter, Chief Engineer, Eastern Command, who is the enlisting authority in respect of the petitioner. The respondents have denied the allegation of mala fide and colourable exercise of power. 7. In paragraphs 10 and 11 of the counter affidavit, the respondents have stated that as per MES Rules & Procedures, if any contractor is aggrieved by any issue/non-issue of tender by any MES authority, he is entitled to prefer appeal before the next higher engineering authority. In fact, the information was incorporated in the NIT, copy of which has been annexed as Annexure-2 to the counter affidavit. The relevant paragraph of the NIT is quoted below: "2. Invitation for application for issue of tender does not constitute any guarantee for issue of tender to applicant, even to enlisted contractor of appropriate class. Issue of tender will be decided by the Accepting Officer based on, inter alia, past track records, financial position and experience of similar works executed by the applicant/contractor. The Accepting Officer shall consider applications received up-to-date of receipt of application/extended date of applications for issue of tender. The applicant/contractor will be informed regarding non-issue of tender without assigning reasons. The applicant/contractor, if he so desires may appeal to the next higher Engineer authority, with a copy to the Accepting Officer. The Accepting Officer shall consider applications received up-to-date of receipt of application/extended date of applications for issue of tender. The applicant/contractor will be informed regarding non-issue of tender without assigning reasons. The applicant/contractor, if he so desires may appeal to the next higher Engineer authority, with a copy to the Accepting Officer. No appeal/representation shall be entertained in respect of applications for issue offenders received after the due date of receipt of application/extended date of receipt of applications." 8. According to the respondents, having regard to the past track record of the petitioner, he was not entitled to issuance of tender documents, but the same was inadvertently issued to him. As a consequence of which the impugned letter dated 27.9.2007 had to be issued to him for return of the tender documents. 9. The petitioner has filed an affidavit-in-reply. As regards the show-cause notices issued to him, attributing fault on his part for slow progress of works, the petitioner, tried to justify the failure on his part. According to the petitioner, the effect of the impugned decision virtually being his removal from the enlistment, he was entitled to a show-cause notice enabling him to explain his case. 10. I have heard Mr. D. Saikia, learned counsel for the petitioner as well as Mr. S. Bhattacharyya, learned counsel representing the respondents. Mr. Bhattacharyya, has also produced the records. I have considered the submissions made by the learned counsels as well as the materials on record. 11. The Annexure-2 NIT dated 23.7.2007 containing the above quoted clause has not been annexed to the writ petition. Thus, at the time of entertaining the writ petition, this court was not apprised of such a clause in the NIT. This aspect of the matter has been indicated in view of the fact that this court without being apprised of the said clause, passed an interim order not to finalise the tender process. 12. At the time of issuance of the NIT, 5 show-cause notices were pending against the petitioner. This aspect of the matter has also not been mentioned in the writ petition. Contrary to such a position what has been stated in paragraph 1 of the writ petition is that the petitioner has successfully and satisfactorily executed several contract works under the respondents. This aspect of the matter has also not been mentioned in the writ petition. Contrary to such a position what has been stated in paragraph 1 of the writ petition is that the petitioner has successfully and satisfactorily executed several contract works under the respondents. The NIT itself indicated that the invitation would not constitute any guarantee for issue of tender even to the enlisted contractors and that the issue of terder would be decided by the Accepting Officer based, inter alia, on past track records, financial positions and experience of similar works executed by the contractor. 13. There being allegation of slow progress of works in as many as 5 contractual works, in respect of which the Annexyure- 1A to IE show-cause notices were issue to the petitioner, said position was a valid consideration before the authority to decide as to whether the petitioner should be issued with the tender documents. It is on record that before issuance of the tender documents to the petitioner, the said position relating to the performance of the petitioner was not brought to the notice of the authority, who had issued the tender documents. However, immediately on coming to know about the said position and upon formation of a decision, the respondents issued the impugned letter dated 27.9.2007 asking the petitioner to return the tender documents indicating administrative reasons. Such a course of action on the part of the respondents cannot be said to be arbitrary or illegal and actuated with mala fide intention and based on colourable exercise of power. The NIT itself having indicated the clause and the petitioner having responded to the same without any reservation was bound by the said clause. Inadvertent mistake on the part of the respondents cannot give rise to an actionable claim on the part of the petitioner. 14. I have gone through the records produced by the learned counsel representing the respondents. The records have revealed that among the enlisted contractors, the name of the petitioner appears with the remark "slow progress". Against the column, "whether considered capable of handling more load", the remark is "NO". In the enlistment chart, total value of works in hand and approximate value of works completed have also been indicated, based on which the aforesaid remarks have been made. Apart from the petitioner, some other contractors in the chart have also been awarded with the same remarks. In the enlistment chart, total value of works in hand and approximate value of works completed have also been indicated, based on which the aforesaid remarks have been made. Apart from the petitioner, some other contractors in the chart have also been awarded with the same remarks. Thus, it cannot be said that the petitioner has been singled out or that the respondents have taken the impugned decision without any materials. The records also indicate some other letters issued to the petitioner, warning him of cancellation of the contractual works. Most importantly, in respect of some other contractual works for which NIT was issued, the petitioner was informed of the decision not to issue tender to him and consequently the cost of tender documents drawn by way of demand drafts was also returned. 15. On perusal of the records, what has emerged is that the formation of the opinion in respect of the performance of the petitioner cannot be said to be without any material. The situation will have to be judged on the basis of the same. As observed above, issuance of tender documents inadvertently and calling back the same upon detection of such mistake, cannot lead to an actionable claim on the part of the petitioner. The particular clause in the tender is also not under challenge. In the matter of issuance of tender and awarding of contract, etc., the authority is the best judge and the writ court exercising its power of judicial review under article 226 of the Constitution of India cannot lightly interfere with the decision of the authority unless the same is proved to be the result of illegal, arbitrary, mala fide and colourable exercise of power and so also violative of principles of natural justice and constitutional provisions. The present case is not of that kind. 16. As noticed above, as per the above quoted clause in the NIT, the petitioner is entitled to prefer appeal/representation to the appropriate authority. Although, the respondents have stated about the performance of the petitioner in respect of the pending contractual works, no opinion is expressed on the correctness or otherwise of the same. What is emphasized is that the respondents on the basis of such performance and/or materials was within its competence and jurisdiction to take the decision not to issue tender documents to the petitioner. What is emphasized is that the respondents on the basis of such performance and/or materials was within its competence and jurisdiction to take the decision not to issue tender documents to the petitioner. The decision making process of the respondents cannot be said to be founded on any illegality. Be that as it may, it will be open for the petitioner to prefer appeal/representation, before the appropriate authority. 17. Writ petition is dismissed with the above liberty. There shall be no order as to costs.