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2015 DIGILAW 537 (PAT)

Fibroplast v. State of Bihar

2015-04-01

BIRENDRA PRASAD VERMA

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BIRENDRA PRASAD VERMA, J.:–Heard the parties. 2. The petitioner has filed the present writ petition under Article 226 of the Constitution of India assailing the validity and correctness of corrigendum contained in letter no.113 dated 25.02.2010 (Annexure-10) issued under the signature of the respondent no.3 whereby specifications given in purchase order dated 23.12.2009 (Annexure-6) for supply of inflatable rescue motor boats has been amended. The petitioner has further prayed for issuance of a direction to the respondents to take supply of 60 inflatable rescue motor boats from the petitioner-company. 3. It is not in dispute that Government of Bihar, Water Resources Department floated tender notice no.6 of 2009-10 dated 16.10.2009 (Annexure-2) re-inviting the sealed tenders for supply of certain equipments for Disaster Management Department, Government of Bihar. One of the items for which tender notice was issued was supply of inflatable rescue motor boat. 4. It is also not in dispute that the petitioner-company besides others submitted their tenders whereafter purchase orders were issued. So far as the petitioner is concerned, purchase order was issued on 23.12.2009 for supply of 60 inflatable rescue motor boats. Admittedly, the petitioner has not supplied the aforesaid inflatable rescue motor boats till date. Beside the petitioner, some other companies/authorized dealers were also issued purchase orders for supply of inflatable rescue motor boats. In view of certain objections raised by some prospective suppliers including Raksha Polycoats Private Limited, Pune regarding specifications given in the purchase orders so issued, specifications given therein for supply of inflatable rescue motor boats were amended by the impugned corrigendum dated 25.02. 2010. The claim of the petitioner is that without insisting for compliance of those specifications, the supply of inflatable rescue motor boats from the petitioner-company be directed to be taken by the respondents. Learned counsel appearing on behalf of the petitioner submits that once the purchase order was issued by the respondent no.3, the specifications of inflatable rescue motor boats could not have been changed by the respondent no. 3 by the impugned corrigendum dated 25.02.2010. 5. The respondents have contested the case of the petitioner by filing their counter affidavit. Learned State counsel submits that in view of the averments made in the counter affidavit, no relief can be granted to the petitioner in the present writ petition, as according to him, the facts stated in the writ petition are under serious dispute. 6. 5. The respondents have contested the case of the petitioner by filing their counter affidavit. Learned State counsel submits that in view of the averments made in the counter affidavit, no relief can be granted to the petitioner in the present writ petition, as according to him, the facts stated in the writ petition are under serious dispute. 6. By way of rebuttal, learned counsel appearing on behalf of the petitioner submits that even disputed question of fact can be adjudicated upon in a proceeding under Article 226 of the Constitution of India. In support of his above contention, he has placed reliance on the judgments of the Hon’ble Apex Court in the cases of ABL International Limited and another Vs. Export Credit Guarantee Corporation of India Ltd. and others [ (2004) 3 SCC 553 ] and Michigan Rubber (India) Limited Vs. State of Karnataka and others [ (2012) 8 SCC 216 ]. 7. After having heard the parties and on consideration of the materials available on the record, this Court is of the opinion that the reliefs sought for on behalf of the petitioner cannot be granted in the present proceeding. It is now well settled that in a contractual matter, the commercial interest of the parties is of paramount importance. What should be the specifications of the inflatable rescue motor boats for the use of the Disaster Management Department, Government of Bihar to cope with the eventuality of disaster in the State of Bihar is well within the domain of the purchaser/respondents and that cannot be dictated by the supplier/petitioner. Those equipments were to be purchased for safety and security of human lives in case of disaster. Since the petitioner has failed to fulfill the specifications of the inflatable rescue motor boats, there is no question of issuance of any direction to the respondents for taking supply of such inflatable rescue motor boats from the petitioner-company which do not fulfill the specifications fixed by the respondents. It is also well settled that terms and conditions of tender/contract cannot be subject matter of judicial scrutiny unless action of tendering authority/contracting party is found to be malicious and misuse of statutory powers. In a government contract, the bidders participating in the tender processes have no other right except the right to equality and fair treatment. It is also well settled that terms and conditions of tender/contract cannot be subject matter of judicial scrutiny unless action of tendering authority/contracting party is found to be malicious and misuse of statutory powers. In a government contract, the bidders participating in the tender processes have no other right except the right to equality and fair treatment. Reference in this connection may be made to a judicial pronouncement of the Hon’ble Apex Court in the case of Meerut Development Authority Vs. Association of Management Studies and another [ (2009) 6 SCC 171 ]. 8. So far as the present case is concerned, no case of arbitrariness or mala fide has been made out by the petitioner. The corrigendum as contained in Annexure- 10 is not only with respect to the purchase order of the petitioner-company, rather it applies with equal force with respect to the purchase orders of other companies as well. Therefore, it cannot be legally faulted. 9. For the reasons recorded above, the writ petition has to fail and is, accordingly, dismissed, but there shall be no order as to costs. The interim order dated 18.05.2010 passed by a Bench of this Court stands vacated.