NATIONAL CONSTRUCTIONS Vs. STATE OF NAGALAND

JUDGEMENT

(1.) THIS intra -court appeal is filed by the respondent No.5 in the Writ Petition No.11(K)/2013 under Rule 2(3) of Chapter V -A of the Gauhati High Court Rules against the judgment and order dated 26.8.2013, allowing the writ petition and setting aside the work order dated 10.12.2012 issued by the Chief Engineer, Police Engineering Branch, Nagaland, Kohima (respondent No. 3) in favour of the appellant for construction of permanent Headquarter for 15th NAP(IR) Mahila Ba, at Mpetsa (Construction of approach roads, Firing Range, Play Ground and Providing water supply system at Mpetsa) Gr -'A', with a further direction to the State respondents to allot the work in question to the best tenderer out of the rest of the tenderers.

(2.) THE work order in question in favour of respondent No.5/appellant was issued pursuant to a tender notice dated 04.10.2012 issued by the respondent No.3 inviting sealed tenders from Class -1 registered contractors of Nagaland PWD and fixing 1300 hours on 06.11.2012 as the time and date up to which tenders would be received in respect of two items of works including the work in question. It was also indicated that tenders would be opened at 1330 hours on 06.11.2012. The estimated cost for the work in question was projected at Rs.5,27,49,500.00 and time for completion was indicated as 18 months. The tender notice contained certain terms and conditions and Clause -13 of the tender notice required the tenderers to produce the latest Income Tax Clearance Certificate. It was provided that tenders which were not accompanied with earnest money would summarily be rejected. Further stipulation in the tender notice was that any failure on the part of the contractors to comply with the tender conditions would entail summary rejection of the tender.

(3.) THE stand of the State respondents as reflected in the affidavit filed was to the effect that Annexure - B to the writ petition, which the petitioners claimed to be the Comparative Statement, was not the Comparative Statement and the said document is only a copy of the tender opening register and as the respondent No.5 had not submitted the Income Tax Clearance Certificate, in the said tender opening register, an endorsement, namely, "disqualified" was made. Subsequently, the authority came across a letter dated 13.02.2003 issued by the Government of India, Ministry of Finance & Company Affairs, Department of Revenue, Central Board of Direct Taxes, which provided that no Income Tax Clearance Certificate shall be required to be furnished by any person while filing a tender for the purpose of obtaining commercial contracts as also while submitting tender to Government Departments. The tendering authority sought clarification from the Government with regard to the aforesaid letter dated 13.02.2003 and a clarification was received from the Government to follow the notification and qualify the firm. Accordingly, the Comparative Statement was prepared showing the tender of the respondent No.5 as regular and the same was submitted to the Government for approval. Consequent upon grant of approval by the Government vide letter dated 10.12.2012 for issue of work order to the respondent No.5, the work order was issued.