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2017 DIGILAW 143 (JK)

Kamal Nain Singh v. Union of India

2017-03-17

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : DHIRAJ SINGH THAKUR, J. 1. In the present writ petition, the petitioner has challenged the tender notice No. CE(P)BCN/13/2015-16, dated 25.02.2017, whereby the respondent No. 3 re-tendered the work pertaining to providing laying and compaction of ready mix for WMM 75 mm thick (compacted), WMM 100 mm thick (compacted) bituminous (HMP) mix for DBM 50 mm thick (compacted, BC 40 mm thick (compacted), prime and track coat for surfacing works between KM 135 to KM 145 on road Basoli Bani Bhaderwah in 114 RCC Road Sector under 35 BRTF Project Beacon in J&K State and also for quashing the tender notice No. CE(P)BCN/14/2015-16, dated 25.02.2017, whereby the respondent No. 3 re-tendered the work pertaining to providing laying and compaction of ready mix for WMM 75 mm thick (compacted), WMM 100 mm thick (compacted) bituminous (HMP) mix for DBM 50 mm thick compacted, BC 40 mm thick (compacted), prime and track coat for surfacing works between KM 89 to KM 102 on road Basoli Bani Bhaderwah in 114 RCC Road Sector under 35 BRTF Project Beacon in J&K State. Malice in law has been alleged against the Chief Engineer, Project Beacon, C/o 56 APO in regard to re-tendering of the aforementioned contracts. 2. It is stated that tenders in respect of same works had been floated and bids received. The Chief Engineer recommended the allotment of the contract in favour of the lowest tenderer in regard to these works. However, certain complaints were received by the Director General Border Roads in this regard alleging therein that the works recommended in favour of the lowest tenderer were the result of the cartelization amongst the contractors. 3. It appears that the Director General Border Roads upon verification accepted the aforementioned fact and ordered re-tendering of the works in question. Needless to say that the petitioner in the present petition had also submitted his tenders in that tendering process but since he was not the lowest tenderer, therefore, no recommendation had been made in his favour by the Chief Engineer in that tendering process. 4. The said work after the decision taken by the Director General Border Roads came to be re-tendered vide NIT dated 02.08.2016. This time the rates quoted by the petitioner were found to be the lowest. 5. 4. The said work after the decision taken by the Director General Border Roads came to be re-tendered vide NIT dated 02.08.2016. This time the rates quoted by the petitioner were found to be the lowest. 5. Another fact, which requires to be highlighted is that this time the rates quoted by the petitioner were approximately 1 crores less in respect of one NIT and in the other NIT almost 2 crores less than the rates quoted by the L-1 in the previous tendering process. As a necessary consequence, it can be said that the rates quoted this time by the petitioner is lower than the rates quoted by him in the previous tendering process. In the ordinary course, the petitioner being the lowest tenderer ought to have been recommended for allotment of the contract. 6. As stated by the learned counsel for the petitioner, contract could be allotted only after receiving approval of the Director General Border Roads in terms of the delegations of the financial powers which guides the contract of allotment in this particular case. However, it appears that instead of declaring the petitioner as a successful bidder and allotting him the contract, the Chief Engineer himself has decided to re-tender the contract, as a consequence whereof two NITS bearing Nos. CE(P)BCN/13/2015-16 & CE(P)BCN/14/2015-16, dated 25.02.2017 have been floated. 7. Learned counsel for the petitioner asserts that the said works are being re-tendered because of the fact that the Chief Engineer is trying to justify his past action in recommending the allotment of contract with higher rates to the Director General Border Roads. By holding the bids of the petitioner to be much on the lower side, the Chief Engineer is trying to suggest that the works cannot be executed at the rates quoted by the petitioner. It is urged that the decision of the Chief Engineer to re-tender the contracts is thus bad and suffers from the principle of malice in law. 8. Mrs. Sindhu Sharma, learned ASGI appearing for the respondents on Caveat objected to the petitioner on two grounds. Firstly, it was stated that this Court has no jurisdiction to entertain this writ petition, inasmuch as according to Clause 48 of the NIT, only the High Court at Srinagar had the jurisdiction to entertain the dispute. It becomes necessary at this stage to reproduce Clause 48, which envisages as under:- "48. Firstly, it was stated that this Court has no jurisdiction to entertain this writ petition, inasmuch as according to Clause 48 of the NIT, only the High Court at Srinagar had the jurisdiction to entertain the dispute. It becomes necessary at this stage to reproduce Clause 48, which envisages as under:- "48. Legal Jurisdiction:- Legal jurisdiction for this contract agreement shall be "Jammu & Kashmir High Court, Srinagar only." 9. Insofar as, existence of clause 48 is concerned, it does exist in the NIT, however, this has to operate only after the contract agreement come into existence. Since, no contract agreement has yet come into existence and the decision has been to re-tender the process of allotment of contract, therefore, Clause 48, in these circumstances does not operate at all. 10. The next objection raised by the learned counsel for the respondents was with regard to the powers of the Chief Engineer to re-tender a contract work, despite the fact that the bids of particular tenderer may be the lowest. While there is nothing wrong in the said preposition of law that mere submission of a lower bid does not entitle a tenderer to seek allotment of a contract, yet the Court has to see as to whether the decision to re-tender the contract was taken bonafidely or not. 11. Even when, learned counsel for the respondents had tried to urge that the decision to re-tender had been taken after obtaining the requisite financial assessment report on the basis of the bids submitted by various tenderers, the said financial assessment report has not been produced before this Court, without which it cannot be presumed that the decision taken was in the right perspective. 12. However, some opportunity is required to be given to the official respondents to produce the relevant record to justify their action. In the meantime with a view to protect the interest of the parties it would be just and proper to allow the process of tendering to go on. The petitioner would be at liberty to submit his bids in pursuance to the re-tendered contract works, by virtue of the impugned NITs, which are in question in this petition. The bids, however, shall not be opened till further orders from this Court. The petitioner would be at liberty to submit his bids in pursuance to the re-tendered contract works, by virtue of the impugned NITs, which are in question in this petition. The bids, however, shall not be opened till further orders from this Court. Meanwhile, Director General Border Roads shall take an appropriate decision after examining the entire matter as to whether the decision taken by the Chief Engineer, Project Beacon is legitimate or not. Let the needful be done preferably within a period of three weeks from today. 13. List again on 10.04.2017. Meanwhile, detailed objections be filed and relevant record be also produced.