BIBHU BHUSHAN CHOUDHURY Vs. UNION OF INDIA AND

JUDGEMENT

(1.) The rationale behind the exercise of discretion in awarding a contract by the official respondents (Railways authority) is the key note of this proceeding under Article 226 of the Constitution of India, which has surfaced in the following circumstances:The respondent No. 4 issued Notice Inviting Tender (NIT) for the balance work against CA, No. CON/GOP/90 dated 13-8-1996 at Dudhnoi for construction of staff quarters, station approach road, colony road, drainage, Hume Pipe Septic Tank Circulating area etc including other ancillary and development works in connection with construction of a new Broad Gauge Rly line from Jogighopa to Guwahati. The notice mentioned above had specified the period of completion of the work, earnest money, approximate value of the contract by the said authority insisted that the earnest money should be in cash or in any of the acceptable forms i.e. Deposit receipts. Pay orders, Demand Drafts, Aters. TDRS, NSCs which should be drawn in favour of Financial Adviser and Chief Accounts Officer/Construction. N.F. Railway, Maligaon except Bank Guarantee Bond earnest Money in the form of Bank Guarantee Bonds i.e. to be accepted. The Petitioner along with others including the Applicant/Respondent No. 5 submitted their respective tender. According to the Petitioner tenders were opened in presence of the tenderers and the petitioner was found lowest tenderer as per his quoted bid money was Rs. 87,21,145/- and the Applicant/Respondent No. 5 was found to be the 2nd lowest tenderer as his bid value was Rs. 91,17,075/-. The petitioner asserted that the Official Respondents instead of negotiating with him as the lowest tenderer in defiance of its own circular dated 15-1-1999 they started negotiation with the applicant/respondent No. 5 over looking the legitimate right and expectation of the petitioner. The petitioner further contended that his tender was going to be rejected on the pretext that his earnest money in F.D.R. was wrongly shown in favour of Dy. FA and CAO/Construction N.F. Railway, Maligaon instead of FA and CAO Construction N.F. Rly, Maligaon, in spite of his letter in writing dated 27-9-1999 sent to the Bank Authority admitting the clerical mistake. The Bank Authority by its letter dated 1-10-1999 requested the Railway Authority to treat the aforesaid FDR as issued in the name of Financial Adviser and Chief Accounts Officer, construction, N.F. RailwayMaligaon. By the said letter the authority also requested to treat the same as integral part of the above FDR for all practical purposes. According to the Applicant/respondent No. 5 petitioner's tender was summarily rejected as per the rule and regulations of the NIT. According to the petitioner the respondents in a most illegal fashion were bent upon to allot the contract with the applicant/respondent No. 5 overlooking the genuine claim of the petitioner. Hence the writ petition challenging the legality and validity of the impugned contract.

(2.) This Court by its order dated 20-11-1999 issued a notice of motion and in the interregnum passed an order restraining the official respondents to finalise the tender process.

(3.) The respondent No. 5 applicant herein submitted an application praying for vacation or modification of the interim order dated 30-11-1999 of this Court which was numbered and Registered as Misc. case No. 1340/99. In the said application the respondent No. 5 - Applicant has stated that the application of the petitioner was summarily rejected for not fulfilling the terms of the NIT and he was called upon by the official respondents for negotiation vide a letter dated 23-10-1999 for achieving the reduction of the rates in connection with the tender on 26-10-1999 at 15.00 hours. In terms of the aforesaid communication the respondent No. 5 applicant went for negotiation and rates were finally lowered down to the extent of Rs. 84,85,306/- which was accepted by the Railway authority and by order dated 2-12-1999 the respondent No. 5 applicant was advised to attend the office within seven days from the receipt of that letter of acceptance to sign the contract agreement, the documents of which were made ready for signature. The letter also authorised the respondent No. 5 Applicant to commence the work on the strength of the said letter of acceptance to ensure completion of the work within a continuous period of four months from the date of issue of the acceptance letter and accordingly asked him to contact Dy. Chief Engineer/Con. N.F. Railway/Goalpara/Assistant Engineer/CON-II/N.F. Railway Dudhnoi to undertake the work early.