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2017 DIGILAW 82 (JK)

Bismillah Enterprises Pulwama v. State

2017-02-21

RAMALINGAM SUDHAKAR

body2017
JUDGMENT : 1. Mr. M.M. Amin, Advocate representing M/s Bismillah Enterprises Pulwama and M/s Famous Engineers Wanpora Proprietors states that his clients have completed the work issued vide NIT No. 11 of 2013 dated 10.12.2013 on 13th June, 2014 and are entitled to payment for work done. 2. Hence in writ petition OWP No. 1819/2015, petitioners pray for a writ of mandamus commanding the respondents to release the pending bill amount to the petitioners. Furthermore petitioner seek direction to the respondents to pay interest on the amount which respondents are liable to pay the petitioners. 3. In the meanwhile another writ petition bearing OWP No. 381/2014, has been filed by the unsuccessful tenderer for the following reliefs:- (i) One in the nature of, mandamus commanding the respondents to allot the contract work of all the six works reflected in the advertise Notice in favour of the petitioner made pursuant to NIT No. 11 of 2013 dated 10-12-2013. (ii) One in the nature of mandamus commanding the respondents to compensate the petitioner for the loss suffered by the conduct of the respondents to the tune of Rs.10 Lakh. (iii) One in the nature of the mandamus commanding the respondents to produce the record of the case before this Hon'ble Court for the scrutiny of this Hon'ble Court. In view of the common issue involved both the petitions are taken together for disposal. 4. Mr. L.A. Lateef, Advocate, appearing for the petitioner in OWP No. 381/2014, the unsuccessful tenderer submits that the petitioner was the lowest bidder. That his tender was not accepted despite a directions issued by this Court vide order dated 03-04- 2014. It is apt to reproduce the said order below:- "Notice in the writ petition as also in the CMP returnable within two weeks. On asking of the Court, Mr. Chashoo waives notice on behalf of the respondents. Learned counsel for the petitioner is directed to furnish a complete set of writ petition to learned counsel for the respondents latest by tomorrow. If needful, is done, objections within notice period. In the meantime, it is provided that the respondents shall consider the case of the petitioner for allotment of work in question, strictly on the touchstone of the rules governing the field keeping in view of the fact that the petitioner is the lowest bidder as is being claimed by him." 5. Mr. In the meantime, it is provided that the respondents shall consider the case of the petitioner for allotment of work in question, strictly on the touchstone of the rules governing the field keeping in view of the fact that the petitioner is the lowest bidder as is being claimed by him." 5. Mr. L.A. Latief, Advocate further submits that the respondents did not comply with the said direction. Therefore the petitioner (M/S A.H. Electric Enterprises) filed a contempt petition bearing No. 349/2014 which is pending disposal. 6. Mr. R.A. Khan, learned AAG submits that statement of facts have been filed by Executive Engineer, Electrical Division Pulwama in the contempt petition wherein it is clearly mentioned that the petitioner (M/S A.H. Electric Enterprises) the unsuccessful bidders participated in the bid. The tenders were compared on opening the bids. The petitioner did not qualify as the lowest bidder in respect of any of the works. Hence he was not granted the word order. There is no basis for the relief sought and pleaded for dismissal. 7. In OWP No. 1277/2014, petitioner seeks the following reliefs:- "(i) That the official respondent be prohibited from issuing the allotment of contract in favour of any contractor for the tender notice dated 10-12-2013 and the respondent's be directed to allot the same contract in favour of the petitioner at offered rate by the petitioner by calling him for negotiations to that effect the appropriate writ, order or direction be passed in favour of the petitioner and against the respondents as same shall be in the interest of justice and equity. (ii) That by issuance of a writ of certiorari the decision taken by the respondent with regard to preparing the second comparative statement for tender notice dated 10-12-2013 which is illegal may be quashed in the interest of justice. (iii) A Committee be also directed to be constituted for examination of the said matter by calling the entire records from the respondents with regard to the subject matter and the action in accordance with such committee report be taken against the delinquent officials by passing appropriate orders to that effect against them by registering FIR against them also under law by allowing the writ petition with heavy costs as same shall be the interest of justice and for saving the public exchequer." The petitioner is the unsuccessful bidder. 8. 8. An interim order passed in OWP No. 1277/2014, the operative part is as follows:- "....In the meantime, while respondents may proceed with tendering process, decision thereon shall be deferred till next date of hearing." 9. The above writ petition is filed by the unsuccessful bidder on the premise that the official respondents have not granted the tender work to any other bidder and that no payment should be released to any other person. The intention appears to being the respondents to negotiating table. 10. In the writ petition bearing OWP No. 381/2014 objections have been filed by the official respondents stating therein that the main controversy is with regard to NIT No. 11 of 2013 dated 10- 12-2013. The said NIT is the subject matter in all the three writ petitions. 11. Executive Engineer, Electric Division Pulwama in the objections states that the work was allotted to the M/S Bismillah Enterprises Pulwama and M/S Famous Engineers Wanpora as they were the lowest bidders. The two companies have already completed the work and certificates have been issued by the Executive Engineer, Electric and Maintenance Division Pulwama in their favour on completion of the work. 12. The contention that A.H. Electric Enterprises is the lowest tenderer is denied as totally wrong. In the objections it is also mentioned that an order was passed by this court in the writ petition bearing OWP No. 1277/2014 on 14-08-2014 wherein this court has ordered that in case petitioner is the lowest tenderer, then work must be allotted to him as per the rules. Since the A.H. Electric was not the lowest tenderer there was no question of allotting work to him. The respondent repudiated the claim of the unsuccessful bidder. 13. Be that as it may. Objections filed by the official respondents' states that before the order dated 14-08-2014 was passed in OWP No. 1277/2014, the work orders have already been granted in favour of bidders who were found as the lowest. Further the work has been executed and completed and certificate issued. 14. Mr. M.M. Amin, Advocate would specifically submit that the contract in respect of his client was completed on 13th June, 2014 well before the order dated 14-08-2014 was passed. Therefore the question of restraint on payment does not arise. This fact is established by the records submitted by the official respondents as annexure 2 to the objections. 14. Mr. M.M. Amin, Advocate would specifically submit that the contract in respect of his client was completed on 13th June, 2014 well before the order dated 14-08-2014 was passed. Therefore the question of restraint on payment does not arise. This fact is established by the records submitted by the official respondents as annexure 2 to the objections. The plea of the unsuccessful bidder appears to be based on no material and contrary to facts. The successful tenderers if they have completed the work are entitled to full payment. 15. In this view of the matter, the mandamus as sought for in OWP No. 1819/2015 directing the respondents to release the amount for the work completed is allowed. Writ petition OWP No. 1819/2015 is accordingly ordered. 16. So far as the other two writ petitions are concerned, the relief of mandamus, commanding the respondents to allot contract work pursuant to NIT No. 11 of 2013 dated 10-12-2013 cannot be granted because the contract has already been granted in favour of M/S Bismillah Enterprises Pulwama and M/S Famous Engineers Wanpora and they have completed the work as stated by the official respondents. The relief of allotting the work as per NIT No. 11 of 2013 does not arise and the mandamus sought for is declined. The relief of mandamus claiming compensation in OWP No. 381/2014 for the aforesaid reasons is declined. Writ petition is accordingly dismissed. 17. In so far as the reliefs sought for in OWP No. 1277/2014, is concerned, the same cannot be granted because the question of calling the petitioner for negotiations does not arise in respect of a tender that is completed. The relief of Certiorari has also become infructuous for the aforesaid reason. The prayer to direct the registering of FIR against the delinquent officials has no legal basis. These are bald and unsubstantiated allegation made with vested interest and hence rejected. 18. The writ petition OWP No. 1819/2015 is allowed. 19. Writ petition OWP No. 381/2014 and OWP No. 1277/2014 are dismissed- consequently the contempt No. 349/2014 is closed.