BHAGYA KALITA Vs. STATE OF ASSAM AND ORS.

JUDGEMENT

(1.) IN this application under Article 226 of the Constitution (sic) Petitioner, Sri Bhagya Kalita, has challenged the award of work relating to instruction of about 16 k.m. of road work on NH -31 under Rangia NH Division (sic) the State of Assam to Respondent No. 8, M/s Eastern Enterprise.

(2.) RELEVANT facts, briefly, are that by a Notice Inviting Tenders dated 8.11.95 for short 'NIT') issued by the Chief Engineer, Public Works Department (Roads), (for brevity, 'Chief Engineer'), application bids for pre -qualification were (sic) from experienced and competent contractors for execution of the aforesaid subject of construction of about 16.000 K.ms of road works on NH -31. The said (sic) inter alia, stated that the pre -qualification shall be based on an objective evaluation of details regarding past performance, technical and financial capabilities and resourcefulness of the applicants and that the Chief Engineer reserved the right to reject any or all pre -qualification applications without assigning any reason. As per the said NIT, along with their application bids for pre -qualification, the intending applicants were also required to submit financial tender, but such financial tenders of only those bidders who were found technically suitable by the Ministry of Surface Transport, New Delhi, (herein after referred to as the 'MOST') were to be opened. Pursuant to the said NIT, several tenderers including the Petitioner and the Respondent No. 8 submitted their application bids for pre -qualification as well as their financial tenders on 27.12.95. Thereafter, the Chief Engineer sent the pre -qualification bids and the financial tenders of different tenderers with his comments to the MOST. The pre -qualification bids were evaluated by the MOST and the results of the said evaluation of the pre -qualification bids were sent along with the unopened financial bids to the Chief Engineer. The Chief Engineer then intimated six tenderers including the Petitioner and the Respondent No. 8 in his letter dated 29.3.96 that they had been pre -qualified for the (sic) subject to the conditions stated in the said letter and that their financial bids would be opened in his office at 1.00 p.m. on 4.4.96. As scheduled, the financial bids were opened on 4.4.96 and it was found that the financial bid of the Petitioner was in lowest at 35.50% above the schedule of rates enclosed with D/NIT at Rs. 6,18,73,22 and that of the Respondent No. 8 was the second lowest at 45% above the schedule of rates enclosed with D/NIT at Rs. 6,62,11,205/ -. Thereafter, the Tender Commission recommended for awarding the work in favour of the Petitioner, but the work (sic) awarded in favour of the Respondent No. 8. Aggrieved, the Petitioner filed the present Civil Rule and prayed for interim orders directing the State -Respondents (sic) to issue the work order in favour of the Respondent No. 8.

(3.) AT the hearing, Mr. Ranjan Gogoi, learned Counsel appearing for the Petitioner, contended that the records would show that the Petitioner was (sic) awarded the contract because his previous performance in respect of some (sic) contracts has not been satisfactory. He contended that as per the NTT, the Petitioner submitted his pre -qualification document and in the said pre -qualification document he gave the details of different works that were executed by him and were (sic) executed by him amongst all other particulars. The pre -qualification document of the Petitioner was duly considered by the Chief Engineer and (lie MOST and, thereafter, the Petitioner was intimated by letter dated 29.3.96 that he had been pre -qualified for the work subject to certain conditions namely, adequate proof of availability of modern machinery as per MOST specification, adequate proof of firm arrangement made by contractor to procure sufficient quantity of required quality materials, and firm execution programme from start to finish of various items of work. It is only after the Petitioner was found to be pre -qualified that the financial tender of the Petitioner and other tenderers were opened and the tender of the Petitioner was found to be the lowest. But, thereafter, when the Tender Committee recommended that the contract should be awarded to the Petitioner his tender being the lowest, the State Government at the behest of die Minister, PWD, again raked -up the question of previous performance of the Petitioner. He further submitted that when the State Government called for a report with regard to the previous performance, of the Petitioner, initially in its letter date 11.9.96 the Office of the Chief Engineer reported to the Secretary to the Government of Assam, Public Works Department, that the progress of one of the works undertaken by the Petitioner on NH -39 was not satisfactory and that there was absolutely no progress of the work of the Petitioner in respect of a bridge across river Jarnuna since June, 1994 but by its subsequent report dated 25.9.96, the office of the Chief Engineer informed the Secretary to the Government of Assam, Public Works Department, that the Petitioner has not been able to proceed in respect of the aforesaid balance work as an amount of Rs. 6 lacs due to the Petitioner was yet to be cleared by the Department and that the Petitioner was found to be the pre -qualified contractor by MOST and that the Chief Engineer, P.W.D. and the Commissioner and Secretary to the Government of Assam, P.W.D., had certified about his past performance. Mr. Gogoi vehemently argued that the State Government does not appear to have considered the subsequent report dated 25.9.96 of the office of the Chief Engineer which certified about the satisfactory previous performance of the Petitioner. He submitted that it is a settled law that while awarding a contract, the authority has to take into consideration all relevant aspects and if some relevant aspect has been (sic) the decision of the authority in awarding contract, is liable to be quashed by the Court. Mr. Gogoi further contended relying on the averments made in the reply of the Petitioner to the affidavit -in -opposition filed by the Respondents that the Respondent No. 8 had teen awarded the contract works relating to strengthening of the existing lane pavement in K. Ms. 393 -397 under Jorhat NH Division in NH -37 (sic) in the inspection report dated 11.9.96, the office of the Regional Pay and Accounts office, MOST, has observed that only 35% of the works has been completed in about 32 months against the stipulated 12 months of completion and that the quality of the work was sub -standard. But the State Government has ignored this report (sic) the performance of the Respondent No. 8 a copy of which had been sent to the Chief Engineer. Mr. Gogoi then urged that in any case the Petitioner and the Respondent No. 8 were found to be pre -qualified and their financial lenders were opened and it was found that the financial bid of the Petitioner was the lowest and that of the Respondent No. 8 was the second lowest, but the State Government in a discriminatory manner called for a report with regard to the previous performance of the Petitioner, but did not call for a similar report with regard to the previous performance of the Respondent No. 8. The obvious intention of the authorities was to ensure that the Petitioner is excluded from the award of the work and that the Respondent No. 8. was awarded the work. The impugned decision of the State Government therefore to award the contract in favour of the Respondent No. 8 was on the facts and in the circumstances of the case violative of the rights of the Petitioner to equal treatment and fair play under Article 14 of the Constitution. In support of his contention, Mr. Gogoi relied on the decisions of the Supreme Court in the cases of Mis Kasturi Lal v. State of J and K. : AIR 1980 SC 1992, Common Cause, A Registered Society v. Union of India and Ors. : (1996) 6 SCC 530, and Shivsagar Tiwari v. Union of India and ors : (1996) 6 SCC 558. In the latter two decisions, Mr. Gogoi pointed out that the Supreme Court has held that the exercise of discretion by public authority in the matter of awarding largesse must be transparent, just, fair and that the authorities cannot enjoy absolute discretion to pick and choose in arbitrary and discriminatory manner a person of their choice in awarding such largesse. In the instant case, according to Mr. Gogoi, the Petitioner's tender was the lowest and the award of the contract to Respondent No. 8 has resulted in violation of the right of the Petitioner under Article 14 of the Constitution and the Court should direct the authority to re -consider the matter if it is not inclined to affect the progress of the work by quashing the contract in favour of the Respondent No. 8.