AKHTAR BROTHERS Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The brief facts leading to the present petition are that the petitioner firm is registered as A-IV Class Contractor. The respondents called for tendering for Mahanadi project for remodelling, earth work and construction of Kirana Distributory and its minors of Bhatapara Branch Canal Group No. 42/G. The notice inviting tender was issued on 7-3-1991. The petitioner submitted its tender in the office of Superintending Engineer, MRP Disnet Circle, Raipur on 14-5-1991. The tender was for sum of Rs. 67,05 lacs. After opening the tenders, a note was prepare by the Executive Engineering recommending that out of seven tenders the tender of the petitioner being lowest and reasonable, be accorded necessary approval. This agenda note was recommended by the Superintendent Engineer, MRP Disnet Circle, the tender above Rs. 50/- lacs was required to be placed before the Progress Reviewing Committee. The Committee is obliged to submit its recommendation to the Control Board for major projects. The tender was required to be placed before the Control Board by the said committee with its recommendation but instead of placing the tenders before the said committee the Chief Engineer rejected the tender on the ground that there was wide difference between first and second tenders. The Chief Engineer accordingly rejected the tender. The order of rejection was challenged by the petitioner- firm on the ground that Chief Engineer had no jurisdiction to accept or refuse the tender because under the rules it could only be accepted or rejected by the Control Board. This Court in M.P. No. 2729/91 decided in favour of the petitioner quashed the order of rejection and directed further that quashment of the order passed by the Chief Engineer shall not preclude the Control Board from exercising its powers of rejection in respect of the tenders in question after applying its mind to the facts of the case. The respondents took up the matter to the Supreme Court in Special Leave Petition No. 14274/93 but it was dismissed after notice to the petitioner on 7-2-1994. The Chief Engineer, Mahanadi Project prepared the agenda note and observed that the price of the tender was above 3.30% in comparison to the rates of C.S.R. of 4/91 if similar type of the tender is called for the same project, the possibility of higher rates from 15 to 25 percent cannot be ruled out. He also observed that calling of the fresh tender may cause unnecessary delay. He was also of the opinion that as there was no work in Dharsiwa Legislative Assembly area, on execution of the work, fleeing away of the labours can be checked. The Chief Engineer also recorded a note that in case the petitioner's tender is accepted, then an affidavit be obtained from the present petitioner contractor that price adjustment G.C. 32 shall not be from publication date of tender but from the date of judgment of the Supreme Court i.e. 7-2-1994. The proposal for securing affidavit was not accepted as it was not in accordance with law. The matter was placed before the Progress Reviewing Committee. The Committee was informed that the percentage of soil work was about 40% and construction work was about 60%. It was also informed that the department would suffer less expenses if the soil work was carried out by the machines of Land Development Corporation. The Chief Engineer also stated that if the escalation of price is calculated from the year 1991, then an amount of 17% extra would be payable to the contractor and as such the tender shall be 20% higher. On the recommendations of the Chief Engineer, the Progress Reviewing Committee refused to recommend the tender of the petitioner to the Control Board. The rejection of the tender is being challenged before this Court on the ground that Chief Engineer at one place has stated that the earth work cannot be got done through machines and on the other hand has recommended that the earth work should be done through the machines. The Control Board rejected the tender without applying its mind contrary to the directions of this Court. It was also submitted that the work of Bhatapara Canal cannot be compared with the similar nature of work of Hasdeo Bango Project, which is at a distance of 250 kms. The earth work is required to be done according to the topography of the particular place. The petitioner made a representation to the control Board, but the Control Board did not entertain the said representation. The petitioner has challenged the rejection of the same.

(2.) The respondents in their return submitted that the matter was placed before the Progress Reviewing Committee for submitting its recommendations. The Progress Reviewing Committee under its recommendations dated 27-5-94 recommended not to accept the tender of the petitioner, therefore, the case of the petitioner was finally rejected. The Committee also submitted that cost of the earth work quoted by the petitioner was on higher side in comparison to the existing cost. The Committee further made a recommendation that the work which could be carried out through the machines, then such work should be got done through the machines and the work which cannot be carried out by the machines, then only the said work should be carried out by manual labourers. The Control Board after considering the recommendations of the Committee accepted the recommendations and as a consequence of the recommendations after due deliberation an application of the mind rejected the tender submitted by the petitioner as it was not found to be economical.

(3.) It was further contended that the petitioner had no right of acceptance of the tender. The only right available to him, according to the respondents, was of consideration Annex.-R-1 which is the comparative study of the rates which shows that the petitioner's tender was on higher side and its acceptance would have caused unnecessarily financial burden on the respondents; the recommendations of the Chief Engineer were not binding. According to the respondents as the work is to be got done through the departmental machines, no new tenders are being floated and if the work is got done through the departmental agency the costs would not go high. It was also submitted that the work allotted to the other agency under Ex. P-13, is not similar to the work under Ex. P-1.