MUNISH KUMAR BANSAL Vs. STATE OF PUNJAB

JUDGEMENT

(1.) BY means of this writ petition filed under Article 226/227 of the Constitution of India, the petitioner-firm seeks writ in the nature of certiorari and prays for quashing of orders dated 31.8.2009 and 24.4.2009 by which earnest money of Rs.15,34,000/- deposited by it has been forfeited. According to the petitioner, these orders are not only illegal, arbitrary and void but without jurisdiction and contrary to principles of natural justice as well. The writ petition has been filed in the following factual background.

(2.) THE petitioner, which is a partnership concern registered under the provisions of the Indian Partnership Act, had submitted its bid pursuant to the notice inviting tenders (NIT) issued by the Executive Engineer, Construction Division, PWD, B&R, Branch Muktsar under the State of Punjab. The said NIT was for the work of construction of raising/widening/strengthening of Kauni Khirkianwala-Bhuttiwala-Thandewala to Bye Pass Road Muktsar RD 0.00-19.88 Km. The bids were to be submitted in two parts, namely, financial as well as technical bids along with earnest money in the shape of FDR for Rs.15.34 lacs. After processing the technicalities of tenders of petitioner and others, the Tender Evaluation Committee found the petitioner to be eligible. On this, the financial bids were opened and the bid of the petitioner was lowest. However, another contractor, namely, M/s. Yadav Builders, who was the second lowest, issued legal notice dated 16.2.2009 to the respondents stating that the petitioner was not technically viable and had no bidding capacity. On that basis, it claimed that the contract be awarded to it instead of petitioner. After receipt of this legal notice, the respondents addressed letter dated 17.4.2009 to the petitioner seeking certain clarifications and stating that if the clarification/documents are not supplied by 20th April, 2009, earnest money of the petitioner would be forfeited. As the petitioner failed to respond, vide communication 24.4.2009 the earnest money was forfeited stating as under in the said letter:

(3.) A perusal of speaking order dated 31.8.2009 would reveal that to be eligible to participate in the bids, one of the conditions was that the bidder should have executed two works of Rs.5 crores or one work of Rs.10 crores each year in the last three years. Objection of M/s. Yadav Builders was that turnover of the petitioner in the last three years was not Rs.30 crores but it was much less. It had also not executed two works of Rs.5 crores or one work of Rs.10 crore each year in the last three years, though it was wrongly shown in the tender documents. In fact, it had included sublet work in World Bank Division, PWD, B&R Division, Ferozepur which was factually incorrect. It was also alleged that the balance-sheet annexed with the tender documents by the petitioner was fake and incomplete which could be verified from the Income Tax Department. It is on this basis that various letters including letter dated 18.2.2009, 27.2.2009, 27.2.2009, 12.3.2009, 25.3.2009 and finally letter dated 17.4.2009 were written asking the petitioner to supply further documents to show that it fulfilled the eligibility requirements, but the petitioner had not done so. As the petitioner failed to give any explanation, due to submission of wrong information/clarification in the technical documents, the Tender Processing Committee had decided to forfeit the earnest money. This order also mentioned that information was sought from the Income Tax Office which had provided requisite information vide Letter No.244 dated 6.5.2009 and that did not tally with the information given by the petitioner in the technical bid which clearly showed that false documents/ information was given. Additionally, it was also stated that the petitioner had given in writing on 26.2.2009 that its bid capacity had been changed and, therefore, the bid capacity be recalculated, which meant that the petitioner had modified its offer within the validity period.