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2011 DIGILAW 772 (GAU)

Klas Enterprises v. State of Nagaland and Ors.

2011-09-15

A.K.GOEL, AMITAVA ROY

body2011
1. Heard Mr. U. Bhuyan, learned senior counsel assisted by Mr. Saikia for the appellant and Mr. T. Ao, learned Government advocate, Nagaland. Also heard Mrs. M. Hazarika, learned senior counsel for the respondent No. 6. This appeal has been preferred against the order of the learned Single Judge declining to interfere with the order of cancellation of work allotted to the appellant for construction of Integrated Housing and Slump Development at Kezocha Town. The work was allotted in pursuance to tender notice dated 16.3.2011 after due evaluation of the bids received vide order dated 25.3.2011. Subsequently, at the instance of respondent No. 6, the impugned order dated 4.5.2011 was passed cancelling the allotment in favour of the appellant and allotting the work to respondent No. 6. Since the impugned order was passed without giving any opportunity of hearing to the appellant and without mentioning any reason for cancellation of the work order, the appellant challenged the same as arbitrary and bad in law. The writ petition was contested by the State of Nagaland as well as by the private respondents. The private respondents stated that the appellant was not eligible having not completed the requisite quantum of work during the last five years. Certain other objections were also raised by the said respondents. The learned Single Judge adjudicated on the issue as to whether the appellant had completed the requisite quantum of work and concluded that 50% of the tendered amount of work had not been executed by the appellant, which rendered the appellant ineligible for obtaining work order. In these circumstances, the impugned order was not interfered with. At the outset, we may refer to the finding recorded by the learned Single Judge, which is as follows - "From the aforesaid work completion certificate, the petitioner spent Rs. 1,58,82,534 for civil works, Rs. 19,85,316 for water supply and plumbing and Rs. 15,88,253 for site development, which comes to Rs. 1,94,56,103 only in total. It means that the petitioner could not execute 50% of the tendered amount of the aforesaid works. The petitioner-firm has furnished misinformation and misled the Tender Board. 1,58,82,534 for civil works, Rs. 19,85,316 for water supply and plumbing and Rs. 15,88,253 for site development, which comes to Rs. 1,94,56,103 only in total. It means that the petitioner could not execute 50% of the tendered amount of the aforesaid works. The petitioner-firm has furnished misinformation and misled the Tender Board. From the aforesaid facts, which have been verified from the original record, it is established that the petitioner firm furnished misinformation suppressing the correct information at the time of filing the tender papers with intention to mislead the settling authority and get the settlement order issued in its favour. The petitioner firm was, in fact, not eligible for obtaining tender papers and get the work order as it could not fulfil the requirement/precondition laid in clause 2(a) of the NIT." The learned counsel for the appellant, assailing the above finding, submits that the issue raised in the writ petition was not raised before nor considered by the authority allotting the wurk and the appellant had not been given any opportunity of hearing before issuance of the impugned order of cancellation. He submits that if given an opportunity the appellant will be able to show that the allegation was incorrect and motivated. On this aspect of the matter, the learned counsel for the respondents are unable to dispute this factual submission that the allegation was never considered by the authority nor opportunity given to the appellant. In these circumstances, we are of the view that the work having been allotted to the appellant, if the same was to be cancelled, the allegation which was the basis of cancellation of the work order should have been confronted to the appellant. In absence thereof, it is not for this court to go into such allegation involving a disputed question of fact and the concerned authority is liable to take a decision on the allegation after due opportunity to the appellant. The impugned order upholding cancellation of allotment of work on an allegation which was neither considered by the appropriate authority nor the appellant had opportunity to meet, could not have been upheld. In the fact of the present case, we need not go into the larger question of rigid application of principles of natural justice in a situation where allegation may be patently well founded. In the fact of the present case, we need not go into the larger question of rigid application of principles of natural justice in a situation where allegation may be patently well founded. For the above reasons, without expressing any opinion on the merits of the allegation, we set aside the impugned order and direct the appropriate authority to take a fresh decision in the matter within two months from the date of receipt of a copy of this order. The parties would be at liberty to put forward their view points within two weeks. The appeal stands disposed of. _____________