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2017 DIGILAW 925 (GAU)

Zeetendra Salai v. Guwahati Municipal Corporation

2017-07-15

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. B.D. Goswami, learned counsel for the petitioner and Mr. D. Saikia, learned Senior Additional Advocate General, Assam appearing on behalf of the respondent GMC. 2. The petitioner was earlier awarded the work of cleaning, desilting and maintenance of all city drains in Guwahati for the year 2014-17 in respect of package No. DSLT/D-IV/B. It is noticeable that the said work was allotted for the year 2014-17 and it is stated the period of earlier work is still continuing. 3. The petitioner, in this writ petition, is aggrieved by a Notice Inviting Tender dated 5.5.2017, wherein tendered bids are invited for several works of cleaning and desilting of drain in different areas in the city of Guwahati. The petitioner is particularly aggrieved by Clause 8 of the said NIT wherein it is provided that "the contractors currently engaged for ongoing desilting works under GMC may not apply for this bidding process". It is the case of the petitioner that by the said clause, the petitioner, who was earlier awarded with the contract work of cleaning and desilting, would be debarred from participating in the tender process. 4. The learned counsel for the petitioner also submits that in fact such clause amounts to blacklisting of the petitioner and it being so, the procedure adopted by the respondent authorities is in violation of the law laid down by the Hon'ble Supreme Court in Erusion Equipment and Chemicals Limited Vs. State of West Bengal & Anr., reported in 1975 AIR 226. 5. Mr. D. Saikia, learned Senior Additional Advocate General, Assam on the other hand submits that the respondent GMC had a very bad experience in the matter of cleaning and desilting of the drains in respect of the works awarded to the earlier contractors including the petitioner. Accordingly, the learned Senior Additional Advocate General seeks to justify the said Clause 8 of the NIT dated 5.5.2017 by stating that it is in the public interest that such contractors be not allowed to participate in the tender process. It is also submitted by the learned Senior Additional Advocate General that such contractors are already over burdened and in fact they are unable to perform the works already allotted to them. In such view of the matter also, the aforesaid Clause-8 of the NIT is sought to be justified. 6. It is also submitted by the learned Senior Additional Advocate General that such contractors are already over burdened and in fact they are unable to perform the works already allotted to them. In such view of the matter also, the aforesaid Clause-8 of the NIT is sought to be justified. 6. Without expressing any view on the submission of the learned senior Additional Advocate General, this Court is of the view that the ends of justice would be met if the petitioner is given an immediate show cause notice, to which he would reply within a specified period, so as to mitigate the assertions raised by the GMC against the earlier contractors that their works were not satisfactory. On the other hand, this Court is also of the view that as the work involves larger public interest, therefore, the tendering process also should not be indicted in between. 7. Accordingly, considering the balance of convenience as well as the irreparable loss that may be suffered by the petitioner as well as by the GMC as well as the prima-facie case that the petitioner has been able to make out as regards non-compliance of the law laid down by the Hon'ble Supreme Court in Erusion Equipment and Chemicals Limited (Supra) this writ petition is disposed of with a direction that within two days from today, the GMC authorities shall issue a show cause notice upon the petitioner asking him to show cause as regards his earlier contracts. Upon such show cause being shown, the petitioner shall within three days thereafter submit his reply and upon such reply being submitted, the respondent GMC authorities shall take a final decision on the performance of the petitioner as well as his eligibility and desirability of his participation in the fresh tender process. 8. In the event, the petitioner seeks for a personal hearing, the respondent GMC authorities shall intimidate the petitioner with the date and time of such hearing and it is for the petitioner to appear before the hearing. In the event, the petitioner choses not to appear, the respondent GMC authorities may proceed with the matter on the basis of the materials available on the record. Accordingly, it is provided that the petitioner be tentatively allowed to participate in the tender process and upon the aforesaid exercise being finally carried out, the aforesaid NIT shall be brought to its finality. 9. Accordingly, it is provided that the petitioner be tentatively allowed to participate in the tender process and upon the aforesaid exercise being finally carried out, the aforesaid NIT shall be brought to its finality. 9. At this stage, Mr. D. Saikia, learned Senior Additional Advocate General points out that the NIT dated 05.05.2017 comprises of 25, different works and before the show cause notice is given, the petitioner shall submit a written application indicating against which work the petitioner desires to submit his tender, so as to enable the respondent GMC to prepare the show cause notice. 10. Accordingly, the said application should be submitted by the petitioner before the expiry of the two days, which is available to the GMC authorities for issuing the show cause notice. Accordingly, if necessary, the GMC authorities may finalize the tender process in respect of the remaining works, where the petitioner is not interested without going through the aforesaid procedure. In terms of the above, the writ petition stands disposed of.