R.S. BANSAL Vs. M.P. HOUSING BOARD

JUDGEMENT

(1.) BY this writ petition, preferred under Article 226 of the Constitution of India, the Petitioner has prayed for issue of writ in the nature of certiorari for quashment of the order dated 13.8.1996 contained in Annexure -P.13 whereby the earnest money deposited by the Petitioner has been forfeited by the M.P. Housing Board (hereinafter referred to as the Board').

(2.) THE facts as has been narrated in the petition are that the Petitioner is a 'A' Class contractor, and registered with the Board. According to the Petitioner the Executive Engineer of the Board, Respondent No. 2 herein, invited tenders on 2.3.1996 for construction of 72 Senior MIG (G+2) Flats and development work at Nehru Nagar Bhopal from the A -4 Class contractors. The estimated costs of the work was Rs. 165.81 lakhs and the cost of the tender was Rs. 2000/ -and earnest money to be deposited by the intending tenderer was Rs. 1,24,400/ -. The Petitioner after purchasing tender papers submitted tender on 2.3.1996 alongwith the earnest money. The Petitioner's tender was a conditional one. The special conditions as setforth by the Petitioner has been brought on record as Annexure -P.2. It is stated that in all, five contractors including the Petitioner submitted their tenders and all have incorporated certain conditions. The Respondents called a meeting on 11.3.1996 of all contractors and on 14.3.1996 communicated a letter vide Annexure -P.9 after drawing the common conditions for the tender, The Respondent directed the contractors including the Petitioner that they can submit their revised offers based on common conditions and the Respondent will be at liberty to accept any offer including the original. The Petitioner accordingly submitted revised tender increasing rate by 1 % and the same was done on 18.3.1996. All the tenders including original offers and revised offers were opened on 18.3.96. Petitioner's tender was opened first. When Petitioner's rates were read out, the Petitioner found that there were clerical mistakes in rates written in words relating to item No. 2.05 (Steel) at page 6 and item No. C/02 (Cement concreting) at page 59. In first case the rate mentioned in figure was Rs. 16,500/ - per M.T. but in words "On thousand six hundred fifty". As far as item No. C/02 is concerned the rate was mentioned Rs. 700/ - per Cum wherein words "Seventy only" was stated. It was pointed out by the Petitioner that the rates in figures were rightly stated but the words gave an incorrect reflection. According to the Petitioner he immediately submitted a letter to the Respondent No. 2 for correction on the rates in words and the said letter was accepted by the Executive Engineer and taken on record with the signatures of all the remaining contractors and 'no objections' from them were also taken on record. This was done before opining of the tenders of the other contractors and even before opening of the revised offer of the Petitioner. The aforesaid letter has been brought on record as Annexure -P.6. After opening of all the tenders, the Petitioner's offer was found to be the second after corrections were carried out. The Petitioner waited for acceptance of corrected rates by the Respondent but they did not communicate him till 7.6.1996 and as the Petitioner was not in a position to know the actual situation he did not want to remain in a dilemma and communicated to the Respondent by letter dated 7.6.1996 withdrawing the offer dated 2.3.1996 and 18.3.1996. Though the Petitioner sent the letter of withdrawal, the Respondent accepted the Petitioner's tender by letter dated 24.7.1996 on the basis of rates quoted in figures and asked him to execute the contract. Similar letter was sent to the Petitioner on 27.7.1996 contained in Annexure -P.9. It is averred in the petition that the validity of the period of offer of 120 days expired on 29.6.1996, and therefore, Respondents could not have accepted his earlier rate after expiry of the period. It is also put forth that there is reference to the letter dated 15.7.1996 where in it has been mentioned that the offer of the Petitioner was approved, but the Petitioner had not received that communication. It is averred that the Petitioner vide his letter dated 30.7.1996 had made it clear that he had not received the letter dated 15.7.1996. It is also put forth that as the Petitioner had withdrawn the offer on 7.6.1996 he cannot be compelled to execute the agreement. However, ignoring the stand of the Petitioner the Respondents, vide letter dated 13.8.1996 forfeited the amount of earnest money. The said order of forfeiture has been brought on record as Annexure -P.13. It is averred in the writ petition that action of the Respondents is contrary to the law governing contract as there was no acceptance of the offer given by the Petitioner, and hence question of forfeiture of earnest money does not arise. It is pleaded that the offer made by the Petitioner was corrected immediately after opening of the tender but acceptance by letter dated 27.7.1996 even after reminder has been served not in terms of corrected offer, but as per the previous one, and therefore, it cannot be regarded as due acceptance. It is also averred in the petition that in any case of the offer could remain valid for 120 days, and it cannot be extended by taking into consideration the date of revised offer. With these averments prayer has been made for quashing of Annexure -P.13 and for issue of a direction to Respondents to return the earnest money to the Petitioner.

(3.) A rejoinder had been filed by the Petitioner to the counter affidavit filed by the Respondents stating that the Board is an instrumentality of the State and cannot act arbitrarily contrary to the mandate enshrined under Article 14 of the Constitution of India. It is also putforth that there is no disputed questions of fact and the petition is entertainable against such action of the Board. It is highlighted by the Petitioner that the corrected offer made by the Petitioner was accepted by the Respondent and was taken on record with the signatures of the remaining tenders and that should have been considered as the real offer by the Petitioner. It is also highlighted that neither the Board nor any officer ever communicated that they had ignored the Petitioner's letter indicating the correction.