D P KUMAR Vs. STATE

JUDGEMENT

(1.) In the writ petition, the petitioner challenged the validity of the order accepting the quotation/tender submitted by the Respondent 6, Mackintosh Burn Ltd. and the consequential work order, if any, issued in that behalf. The writ petition was moved on 26-9-84 whereupon an ex parte interim order was passed restraining the respondents from giving any effect to or acting on the basis of the purported order accepting the quotation/tender submitted by the Respondent 6 M/s. Mackintosh Burn Ltd., and the consequent work order, if issued, for completion of the remaining construction of 'Banga Bhaban' at No. 3, Hailey Road, New Delhi-1 and from issuing any further order till the disposal of the Rule. Thereafter in terms of the order passed by this Court, the petitioner served copies of the writ application on all the respondents including the respondent 6, M/s. Mackintosh Burn Ltd. But nobody appeared to contest the matter on behalf of the said Respondent 6. The State Respondents appeared and filed an application for vacating the interim order. The petitioner also filed application for contempt alleging violation of the order passed by this Court. The matter was heard, but thereafter because of the change of the determination, this Court could not hear the matter. At this stage at the instance of the State Respondents, the matter was assigned by the Learned Chief Justice to this Court to hear and dispose of the matter. Initially, the State Respondents stated that they would not file any affidavit in the matter and that the application for vacating the interim order should be treated as affidavit-in-opposition in the writ application. The learned Advocate General appearing on behalf of the State submitted that the parties agreed that the matter might be finally disposed of without issuing any Rule on the basis of the petition, the application for vacating the interim order and the records of the case. Thereafter, the respondent was also given liberty to file an affidavit-in-opposition and the Respondents 1 to 5 also filed an affidavit-in-opposition.

(2.) The dispute in this case relates to the tender for construction of 'Banga Bhaban', New Delhi. The petitioner's case is that the Superintending Engineer, Public Works Department, Presidency Circle I, Government of West Bengal issued a notice inviting tender "for construction of the 7 storied building at the existing site of Banga Bhaban, New Delhi". By the tender notice dt. 26-8-80 which is annexure 'A' to the petition, the estimated value of the work put to tender was Rs. 35 lakhs approximately. Pursuant to such notice, the petitioner submitted tender and that it appears that the Superintending Engineer, Presidency Circle, for and on behalf of the Governor of West Bengal, informed the petitioner that the tender of the petitioner at the rate of 26.3% above the schedule of rates attached with the tender for the said work had been accepted. The petitioner was requested to submit copies of the agreements as required in this behalf with the usual conditions, the letter of acceptance non-fulfilment of this conditions, the letter of acceptance of the tender would be considered automatically cancelled. The Superintending Engineer, Presidency Circle while communicating the decision of the State Government by the Memo No. 3037/228/57-VII dt. 1-10-80 also informed that "the Govt. has decided to take up the work of the front portion in the first stage amounting to Rs. 13,42,000/- (for both structural and S and P) though it has in its mind to complete the whole project phase-wise. Under the circumstances you are requested to take up the work of front portion and accordingly deposit in advance to the Deptt. as reserved price for demolition of the structure of the said portion and its disposal. Necessary work order will be issued to you by the Executive Engineer, City Division, after the above instructions are complied with." By the letter dt. 3-10-80, the petitioner informed the Superintending Engineer, Presidency Circle, the Respondent 2 herein that the tender was called for the rear portion, i.e., 7 storied building at the site of the Banga Bhaban and accordingly, the rates were quoted and that it was alleged that the Government have subsequently decided to take up the work of the front portion which was a smaller work and that as such it would not be possible for the petitioner to take up the work for the front portion at the tendered rate. It was further stated by the petitioner that "the work worth Rs. 35 lakhs as per your schedule of rates is carried on without any stoppage and completed within the period of eighteen months." Thereafter by the letter dt. 30-10-80, the Superintending Engineer, Presidency Circle-I requested the petitioner to submit an offer without prejudice to the earlier offer and/or negotiation and also free from any condition in a sealed cover for the construction of the 7 storied building at the existing site of Banga Bhaban. It was further stated that the work of front block only would be "amounting to Rs. 13,42,000/- with the time of completion being y months from the date of issue of the work order." Pursuant to the said letter dt. 30-10-80, the petitioner by the letter dt. 15th Nov., 1980 informed the said Respondent 2 as desired in the said memo, the petitioner for the front block quoted the rate which was 40% above the schedule of rate and the rate for the work of the front block followed by the work on the rear block including the stair room would be 29.3% above the schedule of rates. Thereafter by the memo dt. 20th Jan., 1981 which is annexure "E" to the petition, the Superintending Engineer, P. W. D. Presidency Circle, informed the petitioner for and on behalf of the Governor of State of West Bengal that "Your rate at 26.3% (twenty six point three per cent) above the schedule of rates of the Presidency Circle-I (P.W.D.) for 1980-81 both for Building and Sanitary Plumbing works, for the above noted works, as offered to the Chief Engineer, P.W.D. has been accepted by me for and on behalf of the Governor of West Bengal. You are therefore requested to submit copies of agreement in quadruplicate (3 copies in West Bengal F. No. 2911 (ii) and one copy on plain paper) along with Rs. 19,500/- as reserved price for demolition of the existing buildings to this office through the Executive Engineer, City Division within 15 days from the receipt of this letter failing which this letter of acceptance of the said work will be considered automatically cancelled. Necessary work order will be issued to you by the Executive Engineer, City Division if the above instructions are complied with. This is in supersession of this Memo No. 3037 dt. 1-10-80 which is hereby cancelled. It appears that in terms of the Memo No. 112/22B/57 dt. 20-1-81 which is Annexure "E" to the petition, the petitioner complied with the necessary formalities but no work order was issued and nothing was communicated to the petitioner and no reason whatsoever was disclosed why the work order was not issued. Thereafter, all of a sudden by the Memo No. 571 dt. 11-3-83, the Respondent 2, the Superintending Engineer, Presidency Circle, informed the petitioner that regarding the construction of Banga Bhaban" I have to inform you that the Government has decided to call fresh tenders for the rear portion and as such the necessity for a fresh rate contract with you, for the rear block is noted out. The Government is however agreeable to execute the basement portion of the rear block i.e. by the roof of basement floor as per of your original agreement, but since you have already completed the major portion of the same in the meantime, I would, therefore, request you to please apply for extension of time to the Executive Engineer, City Division, for the period required by you to complete the constructional portion up to the roof of the basement floor." Thereafter, it appears that along with the petitioner, the respondent 6, M/s. Mackintosh Burn Ltd., also submitted tender and whose offer rate was actual cost plus 20% as profit, whereas the rate quoted by the petitioner was 26.3% above the schedule of rates and that the Government decided to accept the offer of M/s. Mackintosh Burn Ltd. The respondents 1 to 5 in their affidavit-in-opposition stated that the rate quoted by the respondent 6, M/s. Mackintosh Burn Ltd., was according to the opinion of the Chief Engineer, P.W.D. the lowest and furthermore the said company was under the management of the State Government and that the said decision for accepting the tender of M/s. Mackintosh Burn Ltd., had the approval of the Government and the Finance Department considered interest of the Government and also of State Government managed company. It was further stated on behalf of the said respondents that the rate quoted by the petitioner was informal and not in accordance with the notice inviting tender and that was the reason for rejecting the tender of the petitioner, D.P. Kumar. This affidavit was affirmed on behalf of the Respondents 1 to 5 by Shri Sachindra Kumar Sen, Chief Engineer, Public Works Department. It was further stated in the said affidavit that the authorities by allotting the work to the respondent 6 acted in accordance with the terms and conditions of the tender. Further, the authorities according to the terms and conditions reserved the right to reject and/or accept any tender without assigning any reason and the petitioner by submitting the tender had no right that his tender must be accepted by the authorities. Further, the State Government in accepting the tender of the respondent 6 which is a government company alleged to have considered all aspects, particularly the financial interest of the Government as well as the interest of the public. Under the circumstances, it was stated that by accepting the tender of the respondent 6, the authorities acted with reasonableness and for public interest. The xerox copies of the tenders submitted by the petitioner as well as by the respondent 6, M/s. Mackintosh Burn Ltd., have been annexed to the petition as Annexures "A" and '7' respectively. The petitioner's rate was (a) 26.3% above current schedule of rates (1983-84) for building sanitary and plumbing works (b) 4.6% above rate not appearing in the circle in respect of non-schedule work. The respondent 6 submitted the tender only for the following works : "Cost + 20% (Cost plus twenty per cent)"

(3.) In the affidavit-in-reply, the petitioner made analysis of the rates quoted by the petitioner and M/s. Mackintosh Burn Ltd. From analysis of the rate, the petitioner tried to establish that in respect of schedule works, the rate quoted by M/s. Mackintosh Burn Ltd., would be 30% above the schedule and as against 27% above schedule of the rates in respect of the petitioner. For non-schedule items, the petitioner by the said analysis tried to establish that the rate quoted by M/s. Mackintosh Burn Ltd., would be 17.5% above the schedule as against 4.5% above the rates in respect of the petitioner. In other words, on the basis of the said analysis the petitioner submitted that the statements made in the affidavit-in-opposition on behalf of the State Respondent that the rate quoted by the respondent 6 was lower was wholly incorrect, baseless and in any event such a statement has been made only to mislead the Court. It was further submitted that the actual cost is a variable factor and with the increase of the cost of material the actual cost would increase and that it was stated in the tender notice one has to specify clearly the rate whether the same was above schedule of rate or below the schedule of rate. The quotation, cost plus 20% profit is an indefinite figure. The cost plus 20% is an unascertained sum and that the same might altogether exceed the budget amount fixed by the State Government in this behalf and that it was further submitted on behalf of the petitioner that such acceptance of such type of rate as has been done from the respondent 6, had never been done by the Department concerned earlier.