SHIV SINGH Vs. UNION OF INDIA AND ANOTHER

JUDGEMENT

(1.) IN response to N.I.T. for earthwork in embankment and cutting including side drains and ancillary work and construction of 23 Nos. minor bridges between Ch. 45146 to 56850 m. in connection with Udiapura Chhatarpur section of Lalitpur -Khajuraho New B.G. Rail Line, the petitioner submitted his tender form along with a security amount of Rs. 50 thousand in the office of the respondent No. 2 which was found to be the lowest. Petitioner was called for negotiations vide letter dated 17 -10 -2003 (Annexure/R -2). Petitioner appeared for negotiation on 28 -10 -2003 and put his signatures on the offer -sheet whereby the rates were reduced by 1%. Respondents informed the petitioner about acceptance of his tender vide letter dated 10 -12 -2003 (Annexure/P -4) and asked the petitioner to execute the agreement after depositing the security amount. Thereafter, vide letter dated 7 -4 -2004 (Annexure/P -11) the petitioner was again asked to execute the agreement within 48 hours. It was also informed that in case of failure, the respondents would be free to cancel the contract in terms of Clause 62 of General Conditions of Contract and the work will be got done at the risk and cost of the petitioner (Annexure/P -11). Thereafter, the respondents issued the impugned order dated 15 -4 -2004 (Annexure/P 14) cancelling thereby the tender of the petitioner and further forfeiting the earnest money deposited by the petitioner. It was also observed in Annexure/P -14 that the work would be got done on the basis of risk and cost of the petitioner.

(2.) CASE of the petitioner is that the entire terms and conditions of the tender were not accepted by him and he had not put his signature about acceptance. This was also taken note of by the Dy. Chief Engineer (Construction) Jhansi. Petitioner vide his letter dated 6 -8 -2003 (Annexure/P -2) issued under Postal Certificate (Annexure/P -3) informed the respondent that the petitioner has not put his signature on the terms and conditions mentioned in the tender form as the same were not acceptable to him. Despite it, the petitioner was informed vide Annexure/P -4 that his tender was accepted and he was required to execute an agreement after depositing the security amount. Again vide letter dated 17 -12 -2003 (Annexure/P -5) issued under Postal Certificate (Annexure/P -6), the petitioner informed respondent No. 2 that he had not accepted certain terms and conditions as was already informed vide Annexure/P -2. The petitioner vide Annexure/P -5 informed that unless the terms and conditions are amended, the petitioner was not ready and willing to sign the agreement or to execute the work. The respondents again ignoring Annexure/P -5 asked the petitioner vide Annexure/P -7 dated 19 -3 -2004 and P -8 dated 22 -3 -2004 to execute the agreement without amending the terms and conditions. Petitioner did not accept it, since, the terms and conditions of the tender were not amended. Thereafter, the petitioner was asked to execute the agreement within 48 hours vide Annexure/P -11 dated 7 -4 -2004. In response, the petitioner wrote a letter dated 9 -4 -2004 (Annexure/P -12) informing thereby that while submitting the tender he has not accepted certain terms and conditions involving financial repercussions. Ultimately, the respondents vide Annexure/P -14 cancelled the tender of the petitioner and forfeited the earnest money. A representation dated 22 -4 -2004 was submitted which was not decided therefore, the petitioner submitted Writ Petition No. 1002/2004 at Gwalior Bench which was dismissed for want of jurisdiction. Hence, this petition. During pendency, the petitioner received a letter dated 22 -11 -2004 (Annexure/P -17) requiring the petitioner to deposit Rs. 42,13,862 as the contract was rescinded and the work was awarded to new agency at the risk and cost of the petitioner.

(3.) PETITIONER has challenged Annexure/P -14 and P -17 mainly on the ground that the terms and conditions mentioned in the N.I.T. were not binding on the petitioner since, the same were not accepted by him. The tender was submitted by the petitioner without accepting the entire terms and conditions which is evident from the absence of his signature. The petitioner had not put his signature on each and every page of the tender form and in the absence of signature on the terms and conditions, the tender could not have been validly accepted. Moreover, the petitioner had sent repeated reminders that certain conditions were not accepted by him. Therefore, the petitioner could not be compelled to execute the agreement contrary to his objection to certain terms and conditions. Consequently, the action of forfeiture as well as assigning the subject work to other agency at the risk and cost of the petitioner is totally illegal and arbitrary.