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2023 DIGILAW 605 (JK)

Khanday Construction v. UT of J&K

2023-10-09

RAHUL BHARTI

body2023
JUDGMENT : 1. These two writ petitions being connected are earning their adjudication through this judgment. 2. Out of the aforesaid two writ petitions, writ petition WP (C) 2115/2022 came to be filed first on 22.9.2022 for a cause of action which had accrued in the form of passing of an award dated 17.9.2022 by the General Lok Aalat in a case between the respondent 5 Hakeem Mudasir and respondent 6 Abdul Majeed Sheikh against Executive Engineer, PHE JIM Budgam and three other PHE officials. 3. In terms of said award, a compromise purportedly came to be given approval by the said General Lok Adalat and the compromise was between respondents 5 and 6 as applicants and the Executive Engineer PHE JIM Budgam and officials subordinate to him as non-applicants. 4. In terms of this General Lok Adalat award embodying the compromise, a contract work was agreed to be executed by the respondents 5 and 6 on the approved prevalent rates and work was allotted to respondents 5 and 6 above named to the exclusion of the petitioner. In this award, there obtains a reference to the petitioner as being lowest bidder (L1) but despite that fact the petitioner was not figuring in the proceedings so originated before the General Lok Adalat purportedly arranged by District Legal Services Authority, Budgam. 5. Finding itself being upstaged from its claim of earning the allocation of contract as being L1 bidder with respect to an e-NIT no. 02/PHE/Bud/Civil of 2022-23 dated 18.4.2022 issued for the works specified therein, the petitioner came forward with the institution of the writ petition WP(C) 2115/2022 for seeking quashment of the General Lok Adalat award dated 17.9.2022 and further seeking allotment with respect to the allocation of the contract work in its favour as being the L1 and also seeking appropriate proceedings against the Executive Engineer, Jal Shakti, PHE Division Budgam being signatory to the award so procured by the respondents 5 and 6. 6. This court, in terms of order dated 27.9.2022, came to take cognizance of this writ petition and directed stay with respect to effect and operation of the General Lok Adalat award under challenge leaving the official respondents free to finalize the tender in accordance with law. 7. 6. This court, in terms of order dated 27.9.2022, came to take cognizance of this writ petition and directed stay with respect to effect and operation of the General Lok Adalat award under challenge leaving the official respondents free to finalize the tender in accordance with law. 7. Before the respondents, both official as well as the private respondents 5 & 6, in the writ petition WP (C) 2115/2022 could come up with the respective reply/response, on account of subsequent developments taking place, the petitioner came forward with the institution of the second writ petition i.e. WP (C) 2220/2022 filed on 3.10.2022. 8. In this second writ petition, the array of respondents was the same as that obtaining in the first writ petition WP(C) 2115/2022. The cause of action for the institution of the second writ petition was issuance of a corrigendum no. PHED/Bud/CC/4841-47 dated 24.9.2022 issued by Executive Engineer, PHE Division Budgam in terms whereof the earlier tender evaluation made in which the petitioner was found to be L1 was revoked and the technical evaluation report was directed to be reframed by the tender evaluation committee and opening of financial bid was carried on 27.9.2022. Thus, these developments came into picture after institution of first writ petition by the petitioner on 22.9.2022 but before passing of interim order dated 27.9.2022. 9. In the second writ petition, the petitioner came seeking quashment of the said corrigendum communication dated 24.9.2022 and financial evaluation exercise dated 27.9.2022 as the petitioner was sought to be ousted from the consideration on the basis of General Lok Adalat award. 10. In response to the first writ petition WP (C) 2115/2022, the official respondents came to submit their reply on 15.11.2022 whereas the private respondents 5 and 6 came to submit their reply on 14.12.2022. The petitioner came to submit its rejoinder on 20.12.2022. 11. In response to the second writ petition, the official respondents came to submit their reply also on 15.11.2022 whereas the private respondents 5 and 6 submitted their joint reply on 14.12.2022. 12. The official respondents in their respective replies to the aforesaid two writ petitions have come up with the same version and so is the private respondents 5 & 6. 13. 12. The official respondents in their respective replies to the aforesaid two writ petitions have come up with the same version and so is the private respondents 5 & 6. 13. From the pleadings so obtaining from the record of the said two writ petitions, the facts and circumstances come out as under: i) The Executive Engineer (Jal Shakti) PHE Division Budgam invited tenders by issuance of e-NIT no. 02/PHE/Bud/Civil of 2022-23 dated 18.4.2022 for the works as enlisted therein and which being Laying & Fitting of Delivery and Distribution Mains consisting of GMS Tubes and Ductile from Pipes of different Nominal Bores along with Pipe Fittings and Control Valves; Construction of Ground Service Reservoirs (GSRs); Slow Sand Filtration Plants; Execution of ancillary civil works like Spring Covers, Boundary walls, Protection works, etc. at various Water Supply Schemes of Division Budgam of Kashmir Province of UT of J&K, under Jal Jeevan Mission (JIM). ii) The total number of Works enlisted and envisaged under the said e-NIT are 28. iii) In its writ petition WP (C) 2115/2022, the petitioner has nowhere mentioned as to which particular item of work out of 28 enlisted work items it had submitted its bid or it had submitted its bid for all the 28 enlisted work items. iv) The petitioner has claimed that it came to be declared as L1 but without disclosing as to for which particular item its bid was held to be L1 as against L2 bid of the respondents 5 and 6. v) However, it is borne out from the annexure-3 accompanying the writ petition, that the petitioner had submitted its bid for item No. 3 and item No. 4 of the 28 enlisted work items. vi) With respect to the bids submitted by the petitioner qualifying to be L1, objections came to be raised that it had not uploaded latest income tax returns (ITRs) for 2022–23 and as such that required a review of the decision for which communication came to take place between Executive Engineer, Jal Shakti (PHE) Division Budgam with Superintending Engineer, Hyd. Circle Budgam, wherefrom it is borne out that IT Returns submitted by the petitioner was for the financial year 2019–20 which otherwise was supposed to have been for the year 2022-23 as per e-NIT conditions seeking latest ITR. Circle Budgam, wherefrom it is borne out that IT Returns submitted by the petitioner was for the financial year 2019–20 which otherwise was supposed to have been for the year 2022-23 as per e-NIT conditions seeking latest ITR. Accordingly it was proposed to revoke the tender evaluation by rejecting the bid of the petitioner and in place accepting the bid of private respondents 5 and 6. vii) The Superintending Engineer concerned at its end left the Executive Engineer, Jal Shakti (PHE) Division Budgam to attend the situation at his own level after fulfillment of all Codal formalities and EFR. viii) The bid of the petitioner came to be approved by the Tender Evaluation Committee after examining all attending aspects and considering the rules laid down in the Book of Manual for the Procurement of 2019 and GFR 2017. ix) The private respondents 5 and 6 in their reply came forward to state that they moved the District Legal Services Authority, Budgam against the Executive Engineer, Jal Shakti (PHE) Division Budgam which resulted in passing of the award by the General Lok Adalat. However, in their reply the respondents 5 and 6 have nowhere mentioned as to how they enabled themselves and under which provision of law they submitted the matter to District Legal Services Authority, Budgam for it to take cognizance of the matter and that too at the back of the petitioner against whose L1 status the issue was being agitated, resulting in settlement between respondents 5 and 6 on the one hand and the Executive Engineer, Jal Shakti (PHE) Division, Budgam on the other hand to oust the petitioner from the position of L1 bidder for the two works out of 28 works for which the petitioner had submitted its bids. x) In response to the second writ petition of the petitioner the official respondents have also referred to the fact of the private respondents 5 and 6 approaching the District Legal Services Authority, and have also spelled out the circumstances in which the bid of the petitioner was disqualified resulting in issuance of a corrigendum dated 24.9.2022 and consequent revision of the bids to hold and declare the respondents 5 and 6 as L1 bidder and issuance of letter of intent (LoI) in their favour for starting the work. xi) The respondents 5 and 6 on their part in response to the second writ petition have come forward with the take that they have even started the work on site and lifted the material from the Divisional Stores so as to cast an impression as if the allocation of the contract in favour of the respondents 5 and 6 has come to be acted upon. 14. Upon institution of the second writ petition, this court in terms of order dated 27.9.2022 came to stay the impugned allotment in favour of the respondents 5 and 6 so it is not understandable and fathomable as to how come the official respondents have let the private respondents 5 and 6 even pick up the contract work for any execution. It is in this backdrop of the facts and circumstances of the case that this court is to accord adjudication to the matter and which is not going to detain this court for a long in the face of admitted position of facts that it seems that the Executive Engineer, Jal Shakti (PHE) Division Budgam and the PHE Establishment, Budgam have literally made mockery of the tendering of the work. In the first instance if the bid of the petitioner for the said two works was found to be deficient in terms of meeting the requirements of Income Tax Returns (ITRs), then it should not have been entertained at the first instance much less arriving to the stage of being declared as L1. Secondly, if having declared the petitioner L1, there was no occasion for the respondents 5 and 6 to take up the matter to the District Legal Services Authority, Budgam because the said Legal Services Authority is neither a civil court competent to take civil suit nor an arbitrator envisaged under e-NIT in reference. 15. Secondly, if having declared the petitioner L1, there was no occasion for the respondents 5 and 6 to take up the matter to the District Legal Services Authority, Budgam because the said Legal Services Authority is neither a civil court competent to take civil suit nor an arbitrator envisaged under e-NIT in reference. 15. There is nothing on record for this court to discern as to under which provision of law the respondents 5 and 6 came to resort to the proceedings before the District Legal Services Authority and how the said Authority came to entertain the said proceeding for referring the matter for Lok Adalat adjudication leading to the extent of passing of impugned award that too upon mutual consent obtaining between the respondents 5 and 6 and Executive Engineer, Jal Shakti (PHE) Division Budgam as if public exchequer is matter of bounty to be a matter of give and take before a Lok Adalat. This entire course of events seems to be seriously compromise in one aspect or the other and as such that cannot earn any relief or a reprieve be it in favour of the petitioner or that of the respondents 5 and 6. Therefore, the two writ petitions are disposed of in the sense that the purported allotment, if any, of the works in reference by the Executive Engineer, Jal Shakti (PHE) Division Budgam in favour of the respondents 5 and 6 is set aside with a direction to the Chief Engineer Kashmir, Jal Shakti (PHE) Department to undertake fresh tendering process for the said two work items. In addition, the Chief Engineer Kashmir, Jal Shakti (PHE) Department is also directed to set up a departmental enquiry against the then Executive Engineer, Jal Shakti (PHE) Division Budgam who made himself privy in the proceedings before the District Legal Services Authority, Budgam, for facilitating passing of general lok adalat award in reference at his own discretion. Upon conclusion of said enquiry to be conducted by the Chief Engineer, Jal Shakti (PHE), Kashmir himself if any wrongdoing is found forthcoming then to proceed accordingly for act of omission or commission amounting to misconduct, be it criminal or service, against the erring Executive Engineer, Jal Shakti (PHE) Division Budgam. This court, however, further sets aside the General Lok Adalat award. Let for the tendered works in reference there be fresh tendering by the Jal Shakti (PHE) Budgam. 16. This court, however, further sets aside the General Lok Adalat award. Let for the tendered works in reference there be fresh tendering by the Jal Shakti (PHE) Budgam. 16. Copy of this judgment be forwarded to the Chief Engineer, Jal Shakti (PHE), Kashmir for notice and compliance.