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2008 DIGILAW 735 (GAU)

Savizo Chadi v. State of Nagaland

2008-09-26

P.K.MUSAHARY

body2008
JUDGMENT P.K. Musahary, J. 1. Heard Mr. R. Iralu, learned Counsel for the petitioners. Also heard Mr. N. M. Jamir, learned Govt. Advocate for the State-respondents and Mr. A. Zho, learned Counsel appearing for private respondent Nos. 4 and 5. 2. Pursuant to the Notice Inviting Tender (NIT) No. PSTY-1/2002 dated 22.2.2008 for the supply of stationery and misc. items published by the Home Department, Printing and Stationery Branch, Govt. of Nagaland, for the year 2008-09, the petitioners submitted applications in the name and style of M/s. Savizo Chadi and Co., M/s. Naga Paper Agency and M/s. Kohima Enterprises, quoting their respective rates for each item and samples in terms of the said tender notice. The petitioners' tenders alongwith 5 others were approved. Thereafter, vide a Memorandum No, PSTY-1/2002 dated 17.7.2008, the Govt. conveyed the approved rates for the purchase/supply of the items to various Govt. Departments/Offices in Nagaland for the year 2008-09 with immediate effect. However, when the process of the tender and its acceptance was in progress, the respondent No. 2 hastily issued supply order to respondent No. 4, vide order No. HOME/NAZ-2/STY/2005 dated 2.7.2008 for the supply of 34 stationery items to the tune of about Rs. 7 lakh and the same identical items were awarded to respondent No. 5 by order No. HOME/NAZ-2/STY/2006, to the tune of about Rs. 7 lakhs, with the stipulation to supply the items within 15 days from the date of issue of the order with a further direction to intimate the Chairman, Delivery Committee, one day in advance by the supplier concerned. On receipt of the information about the supply order being issued to respondent Nos. 4 and 5, the petitioners immediately submitted a joint protest representation dated 28.7.2008 alleging that the authorities had adopted an unfair means and secret procedure by placing the supply order to the 2 Firms who did not participate in the tender process and that such action is illegal, arbitrary, discriminatory and unknown to procedure established by law and further asked to cancel/revoke the supply order. It is submitted by Mr. R. Iralu, learned Counsel for the petitioners that neither respondent No. 4 nor respondent No. 5 is in the list of the approved Firms and rates. It is submitted by Mr. R. Iralu, learned Counsel for the petitioners that neither respondent No. 4 nor respondent No. 5 is in the list of the approved Firms and rates. In fact, no tender paper was ever submitted by either of them when the tender was floated and all the items mentioned in the impugned supply orders are items published in the tender notice dated 22.2.2008 and there was no separate tender notice for the items awarded to respondent Nos. 4 and 5. The supply order was issued hastily and through back-door in pick-and-choose manner defeating the whole purpose of calling for applications through the said tender notice. It is further submitted by the learned Counsel for the petitioners that the manner in which supply order was issued to respondent Nos. 4 and 5 is unknown to law and such action is most arbitrary, discriminatory and the supply order was issued for collateral purpose in addition to the fact that the action is mala fide and by the impugned actions of the respondent No. 2, the petitioners have been deprived of their entitlement and legitimate expectation. Being highly aggrieved by the arbitrary actions of the respondent authorities in issuing the impugned supply order dated 2.7.2008, the petitioners have approached this Court by way of filing the present writ petition for redressal of their grievances. 3. At the time of hearing, Mr. Iralu, learned Counsel for the petitioners, produced a Memorandum No. PSTY-1/2002 dated 21.4.2008 constituting a Purchase Board alongwith the minutes of the meeting of the said Board held on 30.4.2008 wherein the said Board recommended the rates of stationery and misc. items for the year 2008-09. 4. An affidavit-in-opposition has been filed by the State-respondents stating inter-alia that the supply for stationery and misc. items were allotted to the private respondents as a measure of stop-gap arrangement by the Nazaret Branch before the finalization of the tender in question as the entire Secretariat, the seat of the State Government, was running short of the stationery and misc. items and heavy pressure was coming from different Branches/Cells. Faced with such a situation, the 'respondent authorities issued the supply order dated 2.7.2008 to the private respondents for supply of the materials within a period of 15 days. Mr. Jamir, learned Government Advocate, submits that the private respondents have already supplied the stationery and misc. items and heavy pressure was coming from different Branches/Cells. Faced with such a situation, the 'respondent authorities issued the supply order dated 2.7.2008 to the private respondents for supply of the materials within a period of 15 days. Mr. Jamir, learned Government Advocate, submits that the private respondents have already supplied the stationery and misc. items as per the supply order and the materials so supplied have already been distributed amongst the various Branches/Cells in the State Secretariat. However, the bills against such supply of materials are yet to be paid to the private respondents due to the interim order dated 8.8.2008 passed by this Court to the effect that no payment be made in respect of the articles supplied by the respondent Nos. 4 and 5, which was further extended vide orders dated 12.8.2008, 20.8.2008 and 22.8.2008. 5. An affidavit-in-opposition has also been filed by the private respondents 4 and 5. Mr. A. Zho, learned Counsel appearing for the said respondents, submits that they have already supplied the materials as per the supply order and they are entitled to payment of bills at the rate fixed by the State Government in the said supply order. 6. Mr. Iralu, learned Counsel for the petitioners, in his reply, submits that the private respondents are not entitled to payment of bills against the materials supplied by them as the impugned supply orders were issued by the State Government allotting the works without their participation in the tender process and the allotment was made in violation of the existing established procedure and rule of law. 7. On the other hand, it has been fairly submitted by Mr. Jamir, learned Government Advocate, that since the State Government has already approved the rates in respect of the various stationery and misc. items, there would be no problem on the part of the respondent authorities to issue supply orders in favour of the petitioners in respect of the items quoted by them in their respective tender papers. 8. I have considered the rival submissions made by the learned Counsel appearing for the parties. In the present writ petition, the petitioners have made the prayers only to the extent "as to why the impugned supply order dated 2.7.2008 issued to the respondent Nos. 8. I have considered the rival submissions made by the learned Counsel appearing for the parties. In the present writ petition, the petitioners have made the prayers only to the extent "as to why the impugned supply order dated 2.7.2008 issued to the respondent Nos. 4 and 5 should not be set aside and quashed and why the petitioners should not be allotted the supply of the items on the strength of the already approved rates and samples as directed by the competent authority, in the interest and for the ends of justice". In view of the submissions made by Mr. Jamir, learned Government Advocate and also the prayers made by the writ petitioners, as stated above, this writ petition is disposed of with a direction to the respondent authorities to issue the supply orders to the writ petitioners as per the items mentioned in their respective tenders at the rate approved by the Government within a period of 15 days from the date of receipt of this order. 9. It is, however, observed herein that the manner in which the private respondents were awarded the supply works, it is found that the same is not at all proper and not in accordance with the established procedure in the matter of distribution of public largesse inasmuch as the impugned supply orders were issued to the private respondents who did not admittedly participate in the tender process and that too, at the rates not approved by the State Government. Therefore, the illegal settlement/distribution of public largesse as made by the respondent-authorities merits interference by this writ court as the same are violative of the fundamental right to carry on business and the right to life guaranteed under Articles 19 and 21 of the Constitution of India. Here again the principle of right to equality before law enshrined in the Constitution of India under Article 14 has also been violated and has, eventually, caused discrimination against the petitioners. The mandate of Article 14of the Constitution of India is to prevent discrimination against equal competitors or equally placed persons. In a recent case of Reliance Energy Ltd. v. Maharashtra State Road Development Corporation Ltd. (2007) 8 SCC 1 , the Apex Court, while stressing on reasonableness in Govt. action including in contractual matters, mandated that judicial review is intended to prevent arbitrariness and it is to be exercised in larger public interest. In a recent case of Reliance Energy Ltd. v. Maharashtra State Road Development Corporation Ltd. (2007) 8 SCC 1 , the Apex Court, while stressing on reasonableness in Govt. action including in contractual matters, mandated that judicial review is intended to prevent arbitrariness and it is to be exercised in larger public interest. It is reiterated in the said case that if the State Policy or Act, even in contractual matter, fails to satisfy the test of "reasonableness", then such an action or decision should be declared unconstitutional. The horizon of life has been expanded to include "opportunity" under Article 21 of the Constitution of India. The "rule of law" which is the heart and essence of the parliamentary democracy must be maintained at any cost. 10. Guided by the mandates given by the Apex Court, I have no other alternative but to quash and set aside the impugned supply order dated 2.7.2008 and the same is accordingly quashed hereby. 11. The Govt. of Nagaland, should not, in future, resort to such illegal and arbitrary action in the matter of giving the contract of supply of stationery and misc. items, etc., to the persons who do not participate fin the tender process and at a rate not approved by the State Government. The State Government is also directed to issue necessary Govt. Circular/Guidelines for awarding contract works in respect of supply of stationery and misc. items, etc., if such Circular/Guidelines are not yet issued by the Government, as early as possible, to prevent any arbitrary and illegal action by the settling department or authority. 12. In view of the above discussions, it is seen that since the impugned supply order dated 2.7.2008, as stated in the affidavit-in-opposition by the State-respondents, was issued only as a measure of stop-gap arrangement to meet the urgent and pressing needs of the stationery and misc. items within the State Secretariat and the same having already been supplied by the private respondents, in my considered opinion, there would be no bar to pay the bills to the private respondents against the materials supplied by them. 13. With the above observations and directions, the present writ petition stands allowed. 14. The interim order dated 8.8.2008, extended vide orders dated 2.8.2008, 20.8.2008 and 22.8.2008, passed by this Court, stands vacated. Petition allowed.