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2010 DIGILAW 893 (CAL)

Dey Enterprise v. The Union of India

2010-07-30

SYAMAL KANTI CHAKRABARTI

body2010
Judgment :- Syamal Kanti Chakrabarti, J.: 1. In the present writ petition the sole proprietor, the petitioner no. 2 Mr. Amal Dey of M/s. Dey Enterprise has claimed that on 08.04.2008 two tenders being nos. TI/CTD/OPC-Laying/2007-08/1 and TI/CTD/OPCLaying/ 2007-08/2 were floated by the respondents for Optical Fiber cable laying work but there was no scope for unempanelled contractors to participate to bid the tender which was earlier entertained by them. So he made a representation on 23.04.2008 before the respondent no. 4 praying for issue of necessary corrigendum in their rules for enlistment of contractors for cable construction works which was effected in 2004. The last date of submission of such bid tender was 06.05.2008 up to 13 Hrs. and the date of opening of such bid was fixed on 06.05.2008 at 14 Hrs. Since he received no reply he filed a writ petition being W. P. No. 8379(W) of 2008 which was moved on 09.05.2008. The Hon’ble Court allowed him to participate in such tender process and so he did not proceed with the said writ petition which was dismissed as not pressed. He has fulfilled all the eligibility criteria as mentioned in his tender papers but the result of his application was not intimated to him for more than 4 ½ months though the respondent authorities scrutinized all tender applications through technical tender bid on 28.05.2008. On 16.10.2008 he went to the office of the respondents and came to know that financial tender bid in respect of the said assignment was going to be held on 24.10.2008 for which some of the participants were duly intimated. So he sent a representation to the respondents on 17.10.2008 praying for allowing him to participate in the financial bid, but to no effect. Therefore, he has filed the instant writ petition praying for allowing him to participate in the financial tender bid held on 24.10.2008 after publishing the result of the technical bid held on 28.05.2008. 2. The respondent nos. 2 to 7 have opposed the move in their affidavit-in-opposition and denied the allegation. They have claimed that the result of technical bid in the instant case was duly communicated to all concerned on 28.05.2008 which will be evident from the recorded statement as at Annexure R-1. It is further contended that the petitioner no. 2. The respondent nos. 2 to 7 have opposed the move in their affidavit-in-opposition and denied the allegation. They have claimed that the result of technical bid in the instant case was duly communicated to all concerned on 28.05.2008 which will be evident from the recorded statement as at Annexure R-1. It is further contended that the petitioner no. 2 was personally present on the date of opening of the tenders on 28.05.2008 and signed himself as a representative of petitioner no. 1 along with all other participants. As per tender notice the participants were required to submit documents to prove his eligibility class but he has not submitted any such certificates in support of his claim and as a consequence he was declared unsuccessful in the technical bid and in the relevant remarks column it has been specifically mentioned as “not submitted”. As he was unsuccessful in the technical bid he was not invited to participate in the financial bid at a later stage. In fact there was no unfairness or biasness on the part of the respondent against the petitioner no. 1. 3. In his affidavit-in-reply the writ petitioner no. 2 in paragraph no. 4(d) has claimed that in order to deprive the writ petitioner the respondent had inserted one word “not” before the word “submitted” in the relevant column for producing document to prove “eligibility class of contractor” even though he submitted such documents at the time of filing his application. He has further claimed that the purpose of such heinous act of inserting the word “not” had virtually taken off the eligibility criteria of the petitioner even though at the time of opening of the said tender in the said column it was written as “submitted” in the relevant other column. In fact along with his tender paper he annexed relevant certificate issued by the respondent authorities during the year 2005-06 showing the amount received by him for Optical Fiber cable laying work amounting to Rs. 24,00,090/- as per certificate issued by Chief Accounts Officer (SBP), Calcutta Telephones dated 13.06.2006 (Annexure P-3 to the writ petition) and another certificate issued by the Chief Accounts Officer (SBP), BSNL, Calcutta Telephones dated 03.01.2008 showing the remuneration for similar work done in 2006-07 amounting to Rs. 29,45,047/-. 4. 24,00,090/- as per certificate issued by Chief Accounts Officer (SBP), Calcutta Telephones dated 13.06.2006 (Annexure P-3 to the writ petition) and another certificate issued by the Chief Accounts Officer (SBP), BSNL, Calcutta Telephones dated 03.01.2008 showing the remuneration for similar work done in 2006-07 amounting to Rs. 29,45,047/-. 4. Learned lawyer for the respondent has claimed that it is a question of fact as to whether there has been any tampering of the word “submitted” as “not submitted” in the relevant document executed in presence of all the participants who signed the same (R1) and the same cannot be proved without any external aid. But in determining merit of this writ petition no such evidence can be proved and as such no relief can be granted to the petitioner in such writ petition and as such the same is not maintainable. He has relied upon the principles laid down in 2004(3) SCC 553 (paragraph37) and 2007(1) CLJ 70 (Paragraphs 7, 8 and 9) in support of his contention. Learned lawyer for the petitioner on the contrary has argued that the facts and circumstances of the above case will not be of any relevancy in determining the issues involved in the present writ petition and as the respondents have not raised any such issue on maintainability at the initial stage and they are not at liberty to raise the question of maintainability at any stage of the proceeding. 5. Having heard the learned counsels for both the parties and on perusal of the petition and connected documents filed at appears from the relevant statement signed by 13 participants on 28.05.2008 (Annexure R-1 to the A/O filed by the respondents) that the respondent no. 2 signed the same on behalf of his company M/s. Dey Enterprise, the petitioner no. 1. In the relevant column no. 3, in his case, it was written as “not submitted”. Be that as it may it is admitted by the writ petitioners that in presence of writ petitioner no. 2 the tender papers were opened on 28.05.2008 and he signed such document with the remarks “submitted” which has been tampered subsequently as “not submitted” only to deprive him from participating in the financial bid. Be that as it may it is admitted by the writ petitioners that in presence of writ petitioner no. 2 the tender papers were opened on 28.05.2008 and he signed such document with the remarks “submitted” which has been tampered subsequently as “not submitted” only to deprive him from participating in the financial bid. Therefore, it is apparent on the face of record that the petitioner was invited to be present at the time of opening the technical bid and no prudent man will take out his two certificates annexed with his tender papers to disqualify him which could be detected forthwith in his presence and he might challenge the same instantly. But his long silence from 28.05.2008 till 16.10.2008 remains unexplained. Admittedly all information regarding such tender was available in the website of the BSNL in their website “www.calcuttatelephones.com”. If after waiting reasonable time from 28.05.2008 the writ petitioners made least effort they could gather relevant information from such website and in case of non-availability he could submit his representation during this period of 4 ½ months. Therefore, merely by averment it cannot be proved that the respondent authorities manipulated their own documents after 28.05.2008 only to disqualify the present writ petitioners from participating in the financial bid. In fact the writ petitioner no. 2 himself remained silent for a long time after knowing the result of the technical bid on 28.05.2008 and subsequently only to frustrate the operation of financial bid on 24.10.2008 he filed the instant writ petition on 22.10.2008, i.e., only two days before the financial bid even without giving reasonable time to the Court for adjudication of his claim before the financial bid. Nothing prevented him from approaching the Writ Court for necessary redress immediately after technical bid on 28.05.2008 and he has decided not to proceed with the writ petition being W. P. No. 8379(W) of 2008 and dismissed the same as not pressed on 09.05.2008 at his own peril. The relevant order of this Hon’ble Court dated 09.05.2008 is quoted below:- “Subsequent to filing of this writ petition, the petitioners’ grievance have been redressed by the authorities. The writ petition stands dismissed as not pressed. There shall be no order for costs. Urgent Xerox certified copy, if applied for, be furnished to the parties within 3 days from the date of putting in the requisites therefor.” 6. The writ petition stands dismissed as not pressed. There shall be no order for costs. Urgent Xerox certified copy, if applied for, be furnished to the parties within 3 days from the date of putting in the requisites therefor.” 6. I also fully subscribe to the views rendered by the learned lawyer for the respondents that the dispute regarding insertion of the word “not” before the word “submitted” in column no. 3 of Annexure R-1 to A/O is a pure question of fact which cannot be decided without evidence and as such no remedy is available in this Writ Court. 7. The writ petitioner has argued at length regarding his eligibility criteria on the basis of certificates issued by the respondents in his favour and the value of the work done by him in the previous financial years, but I am not inclined to discuss all these points in view of the fact that unless the issue of insertion of the word “not” before the word “submitted” is proved it is useless for the Court to decide the eligibility criteria of the writ petitioner to grant any relief as claimed. 8. Considering all these aspects I hold that there is no merit in this writ petition which is accordingly dismissed. Consequently the C.A.N. 2571 of 2009 for early disposal of the matter is not required to be considered and thus disposed of. 9. I make no order as to costs. 10. Urgent Photostat certified copy of this order, if applied for, be given to all the parties upon compliance of all necessary formalities.