BASANT KUMAR BUCHARIA Vs. DVC

JUDGEMENT

(1.) This Judgment shall dispose of two Appeals, they being MAT No. 2143 of 2005 and MAT No 2211 of 2005. Appeal No. 2211 of 2005 is against the Judgment of the learned single Judge dated 9.11.2004 in W.P. No. 20449(W) of 2004. The learned single Judge by that Judgment had allowed the writ petition filed by the two petitioner, namely, Calcutta Industrial Supply Corporation ('CISC' for short) and its partner Shri Narayan Prasad Agarwal. By that it was directed that the second part of the petitioners' tender should be considered and till such time, the final decision regarding the issue of tender order should be deferred till such time. The writ appeal No. MAT 2143 of 2005 is against the Judgment of the learned single Judge dismissing the Writ Petition No. 5953(W) of 2005 filed by the applicant Basant Kumar Bucharia in his capacity as a Proprietor of M/s. Amrit Coal Carriers, a proprietory concern. Both the appeals invoke a common subject of a tender floated by the Damodar Valley Corporation (hereinafter called 'DVC' for short). The said DVC invited offers by floating notice dated 7.5.2004 by way of the Tender whereby bids were invited from the prospective bidders for transportation of coal from various coal colleries to DTPS which is a unit of the DVC at Durgapur.by road. It, inter alia. provided by way of Clause 3.2 that the sealed tender Part I-Technical Commercial and Earnest Money and Part II-Price Bid would be received by the Superintendent Engineer (Technical) DVC, DTPS upto 11.30 A.M on 16.7.2004. The Part I. namely. Technical and Commercial Bid along with Earnest Money was to be opened on the same day at 12-00 noon. The price bid was to be opened only for the bidders whose Technical and Commercial Bid was accepted and the subsequent date to be intimated later on. This datewas later on extended upto 22.7.2004 and 23.7.2004. It was further extended upto 4.8.2004 and 5.8.2004. Accordingly on 4.8.2004, the prospective bidders including the Amrit Coal Carriers and CISC submitted their respective bids. Each bidder had to furnish a Bank Guarantee of Rs.10 lacs on account of earnest money as per the notice of tender. On 5.8.2004 Part I of the tender comprising of Techno Commercial Bid and the Earnest Money was opened in presence of six bidders by the DVC. This included the bids by the Amrit Coal Carriers and the CISC also. However, it was found that the Bank Guarantee of all the bidders were not in order and consequently the respondent DVC extended the time to furnish Bank Guarantee to 30.9.2004. On 30.9.2004 all the bidders except the CISC resubmitted the Bank Guarantee of Rs. 10 lacs in favour of the respondent DVC. The CISC admittedly did not furnish the Bank Guarantee on that date. Some bidders including the Amrit Coal Carriers were informed by letters by the DVC that the Techno Commercial Bid was accepted by them and the Amrit Coal Carriers was further intimated that the price bid would be opened on 1.11.2004 at 10.30 A.M. Such a letter went to two other bidders, but not to CISC. On 1.11.2004, the price bids of the three bidders were opened, they being the Amrit Coal Carriers, M/s. B.K.B. Transport (P) Ltd. and M/s. Balaji Mining & Minerals in presence of all the three bidders and it was found that the rate quoted by the Amrit Coal Carriers was the lowest.

(2.) The CISC moved a writ petition before the learned single Judge of this Court being Writ Petition No. 20449(W) of 2004. In that writ petition, in all the three respondents were joined as the parties, they being the DVC, the Chief Engineer, DTPS and the Superintending Engineer (Technical), DTPS, DVC, Durgapur. In that writ petition, it was complained by the CISC that they were not allowed to take part in the tender process meaning thereby that their price bids were not opened perhaps on the ground that they had offered their Bank Guarantee late by one day. The other bidders whose Techno Commercial Bid was accepted and whose price bid was already opened on that date, were not made parties to this petition. The learned Judge on 9.11.2004 passed the follow order:

(3.) Probably as a result of this order, the DVC and the DTPS sent a letter dated 1.2.2005 to the Amrit Coal Carriers that the price bid of CISC was going to be opened on 4.2.2005. This was objected to by M/s. Amrit Coal Carriers by a letter dated 3.2.2005 through their Advocate- on-Record, M/s. Khaitan & Co. By that letter, the DVC was asked not to proceed with the opening of the price bid of the CISC. On 4.2.2005, however, the said price bid was opened. At that time, the representative of the Amrit Coal Carriers was informed that the price bid was opened pursuant to the direction given by the High Court in the order dated 9.11.2004 on the writ petition filed by the CISC. Then, Amrit Coal Carriers obtained the copy of the Writ Petition No. 20449(W) of 2004 and filed further a Writ Petition No. 5953 (W) of 2005 wherein an interim order was passed on 4.4.2005 whereby the DVC was restrained from finalizing the tender for a period of six weeks. This order was further extended upto 20th June. 2005. However, there was an appeal filed against this order by the DVC. The appeal was, however, disposed of by the Division Bench of this Court whereby the single Judge was directed to dispose of the writ petition itself. The said writ petition was heard on 20th June, 2005. However, the learned single Judge dismissed the same. Therefore, an appeal being MAT 2143 of 2005 came to be filed against the order dismissing the writ petition filed by the Amrit Coal Carriers. While this appeal was pending, another appeal also came to be filed against the order dated 9.11.2004 passed by Alok Kumar Basu, J. which was registered as MAT No. 2211 of 2005. The delay in filing the Appeal No. 2211 of 2005 was condoned and that is how, the appeals were heard today.