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2013 DIGILAW 512 (JHR)

Vindhya Construction v. State of Jharkhand

2013-04-17

APARESH KUMAR SINGH

body2013
Judgment 1. Heard counsel for the parties. The petitioner is aggrieved by the notice dated 7.7.2012 (Annexure-11) published in the Hindi newspaper 'Prabhat Khabar' by which the N.I.T dated 7.4.2012 for carrying out special repairing work of the road between Church Road – College More, Giridih, Bengabad- Madhupur road measuring 2.65 km has been cancelled in view of the letter dated 29.6.2012 contained in letter no. 1498 issued by the Road Construction Department, Government of Jharkhand. Petitioner has also prayed for quashing of the subsequent N.I.T.s dated 2.7.2012 (Annexure-12) and 28.7.2012 (Annexure-13) for the same work. During the pendency of the writ application with respect to the aforesaid N.I.T.s, vide interim order dated 23.8.2012, it was directed that the work in question shall not be allotted to any other persons in the meantime. According to the petitioner, after having participated in the N.I.T dated 7.4.2012(Annexure-1) and having been found eligible as the lowest bidder, the Executive Engineer, Road Construction Department, Road Division, Giridih by his letter dated 17.5.2012 (Annexure-4) directed the petitioner to enter into an agreement after furnishing the required earnest money of Rs. 2,42,000/- and also ensuring presence of such plants, machinery and laboratory etc. at the work site for execution of the work apart from furnishing work programme and phasing of work before entering into the agreement. It was further made clear that even after execution of the agreement if any of the document furnished by the petitioner was found to be forged then the earnest money of the petitioner will be forfeited and the agreement would be cancelled . This letter was followed by another letter dated 6.6.2012 (Annexure-6) by the same Executive Engineer to the petitioner asking him to deposit the earnest money as aforesaid within a period of 3 days for entering into the agreement. However, according to the petitioner he deposited the same on 8.6.2012(Annexure-7) and informed the same to the Executive Engineer for entering into the agreement(Annexure-8). In the meantime, according to the petitioner some development took place which is reflected from the communication of the same Executive Engineer dated 15.6.2012(Annexure-9). As per the said letter the Executive Engineer informed the petitioner that he had approached the Jharkhand High Court challenging non- allotment of the work to him under the same division. In this connection the petitioner was informed that documents submitted by him were declared invalid by the tender committee. As per the said letter the Executive Engineer informed the petitioner that he had approached the Jharkhand High Court challenging non- allotment of the work to him under the same division. In this connection the petitioner was informed that documents submitted by him were declared invalid by the tender committee. The affidavit to that effect has also been filed before the High Court in the said case. In the aforesaid background it was indicated that no allotment of work would be made to the petitioner before obtaining proper guidelines from the higher officials of the department and that without obtaining work order he will not execute the work in the said division. The petitioner responded vide Annexure-10 and, thereafter, on 7.7.2012 the newspaper notice was issued canceling the N..I.T itself, acting upon the decision of the Road Construction Department vide letter no. 1498 dated 29.6.2012. The petitioner also challenged the subsequent N.I.T.s, (Annexure-12 and 13 dated 2.7.2012 and 28.7.2012 respectively) which related to the same work, by which the respondents were inclined to allot the work in respect of which the petitioner has moved this Court being aggrieved by the impugned notice. However, the N.I.T.s were not given effect to because of the interim order and affidavit were exchanged in the meantime. The respondents now have preferred I.A. No. 357 of 2013 seeking vacation of stay of the allotment of the said work as on account of the interim order public works in question have remained unexecuted. Respondents have sought to justify the impugned notice on the ground inter-alia that the documents of the petitioner submitted at the time of finalization of tender were examined by the tender committee after issuance of the letter dated 17.5.2012(Annexure-4) and it was found that the documents which were furnished by the petitioner in the earlier tender, which were declared invalid, have been furnished in the instant tender as well; that this amounts to violation of the terms and condition of the N.I.T. under which the respondents were entitled to cancel the N.I.T itself. Learned counsel for the respondents further submitted that much weight should not be attached to the communication dated 15.6.2012 (Annexure-9) issued by the Executive Engineer as they were in connection with another writ petition wherein petitioner has not been allotted work for having furnished certain documents declared invalid. Learned counsel for the respondents further submitted that much weight should not be attached to the communication dated 15.6.2012 (Annexure-9) issued by the Executive Engineer as they were in connection with another writ petition wherein petitioner has not been allotted work for having furnished certain documents declared invalid. As such, petitioner should not be permitted to make out a case of grudge or bias against the officer concerned as in any case upon the direction of the department itself the impugned notice dated 7.7.2012 has been issued and the respondents have chosen to cancel the N.I.T itself as no agreement has been entered into with the petitioner and also no work order has been allotted to him. I have heard counsel for the parties at length and gone through the relevant materials on the record including the impugned notice. The petitioner had participated in the N.I.T dated 7.4.2012(Annexure-1) for execution of work relating to repairing of the road between Church Road – College More, Giridih, Bengabad- Madhupur road measuring 2.65 km for an estimated cost of Rs. 84,73,046 to be executed within a stipulated period of 3 months. It is not in dispute that petitioner was found to be lowest bidder and after the decision was taken by the tender committee on scrutiny of the bids of the participant bidders, communication dated 17.5.2012(Annexure-4) was issued to the petitioner asking him to enter into the agreement for execution of the work after depositing earnest money as also complying with certain formalities. He was also reminded of the same by another letter dated 6.6.2012 of the Executive Engineer pursuant whereto earnest money was deposited by the petitioner. In the meantime the communication was issued by the Executive Engineer on 15.6.2012 addressed to the petitioner, language of which created an impression of bias in the mind of petitioner relating to fair treatment as he had moved this Court in connection with non- allotment of work in another tender. Thereafter, the impugned notice dated 7.7.2012(Annexure-11) has been issued canceling the tender itself. The facts which has been indicated herein above shows that it is not the case where the department was indulging in inter- departmental correspondence while finalizing the tender and no communication was issued to any interested successful participant / tenderer. Thereafter, the impugned notice dated 7.7.2012(Annexure-11) has been issued canceling the tender itself. The facts which has been indicated herein above shows that it is not the case where the department was indulging in inter- departmental correspondence while finalizing the tender and no communication was issued to any interested successful participant / tenderer. In the present case after the tender committee had arrived at an informed decision relating to the eligibility of the petitioner as L-1 bidder, communication dated 17.5.2012(Annexure-4) was issued to him to enter into an agreement. This communication, obviously gave him a locus- standi to assert that his offer had been accepted. On subsequent reminder by the Executive Engineer, earnest money was also deposited by the petitioner for entering into the agreement. Once the petitioner had been communicated about the intention of entering into an agreement based upon the decision of the tender committee, any subsequent change in the decision of the department or tender committee who are said to have found infirmity in the documents of the petitioner, ought to have been communicated to him in order to enable him to respond to it to defend himself. The petitioner, in such circumstances had a cause of action to approach this Court. The impugned notice canceling the N.I.T itself therefore has resulted in adverse consequences to the petitioner as he was already communicated the decision of the respondents on being found the successful bidder, to enter into an agreement. This Court is concerned with the decision making process and not on the merits of the decision taken. Admittedly, the impugned notice has been issued without any opportunity of show cause to the petitioner at the threshold stage of entering into the agreement where requirements of non-arbitrariness and fairness in executive action are to be confirmed to. In such circumstances, therefore, the action of the respondent in canceling the N.I.T does appear to have been vitiated in law and suffers from violation of Principle of Natural Justice. Accordingly, the impugned notice dated 7.7.2012 is quashed. Petitioner has also apprehension of bias on account of the communication dated 15.6.2012 issued by the Executive Engineer concerned. In that view of the matter, it would be in fitness of things that the respondents take an informed decision in respect of the cancellation of the N.I.T after giving due notice to the petitioner and opportunity to him to defend himself. In that view of the matter, it would be in fitness of things that the respondents take an informed decision in respect of the cancellation of the N.I.T after giving due notice to the petitioner and opportunity to him to defend himself. Therefore, in order to eliminate apprehension of bias, the concerned Engineer in Chief, Road Construction Department, Government of Jharkhand shall pass a reasoned and speaking order by giving due notice to the petitioner in accordance with law in relation to the instant work. Let the aforesaid exercise be conducted within 6 weeks from the date of receipt of the communication of the order. Any decision to allot the work or to invite fresh tenders would be taken consequent upon the reasoned and speaking order passed by the Engineer in Chief , Road Construction Department, Government of Jharkhand. With the aforesaid observation and direction, the writ petition is disposed of. I.A. No. 357 of 2013 is also disposed of.