SHILLONG MUNICIPAL BOARAD Vs. LATIPLANG KHARKONGOR

JUDGEMENT

(1.) The Shillong Municipal Board (hereinafter referred to as "the Board") issued notice inviting tender (in short "NIT"), dated 20.02.2003, for collection of toll gates/ parking fees in respect of Mawiong Toll Gate and 3rd Mile Toll Gate for a period of one year from the date of issue of the work order(s). The minimum tender in respect of Mawiong Toll Gate being rupees 65 lakhs and in respect of 3rd Mile Toll Gate being rupees 10 lakhs. The respondent Nos. 2 and 4, namely, Shri Latiplang Kharkongor and Shri Manbha Rani submitted their tenders along with four others for the 3rd Mile Toll Gate. The remaining respondents were tenderers in respect of Mawiong Toll Gate. In the NIT, dated 20.02.2003, aforementioned, one of the conditions was that the earnest money of 10% of 65 lakhs and 10% of 10 lakhs for Mawiong Toll Gate and 3rd Mile Toll Gate respectively must be deposited by the tenderer. The respondents herein submitted the requisite earnest money along with their respective tender papers. The NIT aforementioned also specified that withdrawal of the tender shall cause forfeiture of earnest money. Before the tenders of the respondents herein could be accepted by the Board, all the respondents herein withdraw their offers on different dates. However, in terms of the condition specified in the NIT that withdrawal of tender shall cause forfeiture of the earnest money, the Board refused to refund the earnest money, when the petitioners, as tenderers, claimed return of their earnest money. Aggrieved by the board's decision not to refund the earnest money, respondents filed independent writ petitions, which were registered as WP(C)Nos. 181, 182, 183, 184, 185 and 186(SH)2003.

(2.) The appellants resisted the writ petitions aforementioned by filing their affidavitin-opposition, the case of the appellants be- ing, in brief, thus: The request made by the petitioners for withdrawal of the earnest money was kept in abeyance by the Board pending settlement and award of the work order pursuant to the tenders received. On completion of all the formalities, the Board decided to accept the offer of respondent No. 1, herein, who was the highest bidder; but before the work order could be issued to the respondent No. 1, the Board received a letter from the said tenderer expressing his inability to carry out the work and withdraw his tender. The Board, thereafter, decided to issue work orders to the remaining petitioners; but all of them withdraw their tenders on different dates before the acceptance of their tenders could be communicated to them by the Board. As the tenders were withdrawn en masse, though on different dates, the Board had to settle the tender in favour of the lowest bidder. The writ petitioners had, thus, formed a cartel to kill the competitiveness from the tender process and thereby caused financial wrong to the Board. In terms of the condition of the NIT that withdrawal of tender shall cause forfeiture of the earnest money, the Board is not liable to refund the earnest money.

(3.) We have heard Mr. KS Kynjing, learned Senior Counsel, assisted by Mr. K. Sunar, [learned counsel appearing on behalf of the appellants, and Mr. G. Bhattacharjee, learned (counsel appearing on behalf of the respondents.