N D GROVER Vs. STATE OF M P

JUDGEMENT

(1.) INVOKING the extra-ordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India the petitioner has prayed for issuance of a direction to the respondents to open the tender submitted by the petitioner and further to consider the offer of the petitioner in accordance with law and award the work in his favour as his offer is the lowest. There is a further prayer to conduct an enquiry with regard to the conduct of the respondent No. 5 and to grant any other relief/reliefs as may deemed just and proper in the facts and circumstances of the case.

(2.) THE facts as have been exposited in the writ petition are that the petitioner is a Class V contractor and is registered with the Water Resources Department. The competent authority of the Water Resources Department had published a notice inviting tenders in the month of November, 2000 for the construction of Panda Tank which was valued at Rs. 59. 60 lacs. The petitioner participated in the bid and his offer was the lowest. He was awarded the work by the respondent No. 5, Chief Engineer, Sagar. While the petitioner was carrying on the said work, concerned Department again issued a notice inviting tender for similar project relating to construction of Hathna Tank, vide NIT No. 2/2001-2002, dated 24-5-2001. A copy of the notice inviting tender has been brought on record as Annexure P-1. As per the said tender notice the date of receipt of tender was 26-7-2001 and the date of opening the tender was 2-8-2001. It is putforth that work involves Rs. 53. 80 lacs to be completed in 18 months including the rainy season.

(3.) ACCORDING to the writ petitioner to obtain the tender documents the pre-requisites are that a person or a firm has to deposit the registration certificate in the necessary class along with income tax clearance certificate. The petitioner submitted his registration certificate and income tax clearance certificate along with his application with the requisite amount of Rs. 3500/-and the same were submitted along with an application for supply of the tender documents in question. The application for the supply of tender form along with annexed documents was duly approved by the competent authority issuing tender and the same had been duly marked on the application itself approving the issue of tender forms to the petitioner. The petitioner submitted his offer along with the required details of work done earlier and the experience which was required for the post qualification. It is averred in the writ petition that it has always been the practice of the department that the registration and income tax clearance certificate are always taken before supply of the tender documents without which it is not possible for any person to obtain the tender forms. It is pleaded in the petition that Clause 2. 1. 2 deals with opening of a tender and the said clause clearly stipulates that only those bidders who fail to qualify in post-qualification shall not be considered and their bids would be considered as non-respective. "post qualification" as per the tender conditions are contained in Annexure 3 annexed with the tender and it pertains only to the experience, financial turnover, physical turnover, bid capacity and the nature of work executed earlier by the tenderer. Once tender forms have been supplied to the bidder after submission of registration and income tax clearance certificate, the same has to be opened for the purpose of post qualification bid. It is setforth in the petition that the tenders were opened on 2-8-2001. The respondent No. 5 was due to retire in the same month itself and had always wanted to somehow extend undue benefit to the respondent No. 6. The petitioner learnt through his representatives present at the time of opening of tender that his bid was not being opened due to non-supply of registration as well as income tax certificates. He immediately faxed a letter on the same day pursuant to the telephonic discussions with the respondent No. 5. The petitioner clearly informed the respondent No. 5 that non-opening of the tender was illegal and unjustified since copies of registration and income tax clearance certificates had already been submitted and were on record with the respondent No. 5 who after due satisfaction and verification of the same had himself authorised for issuance of tender documents from his office. It is the case of the petitioner that for the earlier work tender forms were supplied to the petitioner under the authorisation of the respondent No. 5 after submission of registration and income tax clearance certificates and thereafter a letter was issued to him to produce the relevant documents, after his bid was accepted. It is averred in the petition that the respondent No. 5 who had followed a different procedure in respect of the previous work has adopted a different one in regard to the present work in question and he has, in a most arbitrary and mala fide manner, done so as he was to retire on 31-8-2001. It is also putforth that as the respondent No. 5 has taken the decision on the last date before his superannuation his entire action is vitiated. It is also urged in the petition that the petitioner is already executing a similar work and hence, it does not lie in the mouth of the respondent No. 5 to doubt the registration of the petitioner as a contractor, and insistence on the accompanying of documents which were already filed at the time of issuance of tender has no legs to stand upon. With the aforesaid averments the relief/reliefs have been sought for as has been indicated hereinabove.