RAJINDRA & COMPANY Vs. STATE OF PUNJAB

JUDGEMENT

(1.) CMS 17352 and 15823 of 2006 The rejoinder filed by the petitioner to the written statement of respondents-1, 2 and 4 and the written statement filed on behalf of respondent-5 are taken on record. The CMs stand disposed of. CWP 11706 of 2006

(2.) THE petitioner firm - M/s. Rajindra and Company, it is submitted, is engaged in executing huge works including roads, buildings, etc. It has earlier done work for the respondent-PWD B&R Department and executed their works for over Rs. 5.00 crores during the period 2002-03. In the following year of 2003-04, the works are stated to be of much higher amount. The works were completed to the complete satisfaction of the respondent department who even issued certificates (Annexures P1 and P2) in this regard. Notice inviting tenders (Annexure P3) was issued by the respondent department for strengthening of the Mamoon-Madhopur road KM No. 0.00 to 16.30 in district Gurdaspur under the RIDF-NABARD-XI scheme. The petitioner being eligible, completed the necessary formalities and applied for the same. During the tender process he came to know that with a view to oust his claim as a successful tenderer, some terms and conditions of the tender notice were being changed by respondents-1 and 2. Besides, inspite of the fact that the project was a NABARD sponsored/financed project and the terms and conditions had been settled by it, the respondents-1 and 2 for reasons and considerations best known were changing the terms and conditions to suit a particular category. Accordingly, the petitioner-firm served a legal notice dated 14.7.2006 (Annexure P4) on respondents-2 and 3. It expressed its apprehension that the terms and conditions were being changed not only after the tenders had been invited but had been duly accepted by the department. The petitioner received a letter dated 19.7.2006 (Annexure P5) from the Executive Engineer, Construction Division, PWD B&R Branch, Pathankot (respondent-4). He was informed about opening of the financial bid on 21.7.2006. The petitioner was present at the time of opening the financial bid on 21.7.2006 and his apprehension was confirmed. A contractor namely R.K. Mahajan and Company (respondent-5) who was not eligible was made eligible by diluting the terms and conditions that were earlier specified. The said contractor - R.K. Mahajan and Company (respondent-5) was in fact required to have and was asked whether it had executed any work of Rs. 10.00 crores or two works of Rs. 5.00 crores each during the last three years. However, no certificate could be produced by the said contractor. Till date, no allotment of the work has been done but the petitioner-firm believes that the allotment was now being made in favour of the said contractor (respondent-5) who was ineligible even to apply for the tender. It is stated that the petitioner believes that the terms of the tender have been diluted on account of political, extraneous and arbitrary considerations without publication of any change in the terms and conditions. The petitioner, by way of the present petition under Articles 226/227 of the Constitution of India, seeks a mandamus directing respondents-1 and 2 to strictly adhere to the terms and conditions of the notice inviting tender and to allot the work to lowest tenderer without diluting or tailor-making the same to favour a party; besides, not to allot the work to respondent-5.

(3.) IN the written statement filed by respondent-5, a preliminary objection has been raised to the effect that the petitioner raised no-objection when the technical bid was opened on 10.7.2006 in his presence and thereafter when the financial bids were opened on 21.7.2006. Therefore, the petitioner-firm is estopped by its act and conduct to challenge the award of the tender in its favour. The filing of writ petition, it is stated, is nothing but an attempt to stop the carrying out the contract relating to the strengthening of Mamoon-Madhopur road awarded to respondent-5. The petitioner is laying challenge to the commercial contract and the manner of its implementation which cannot be agitated under Articles 226/227 of the Constitution of India. It is further stated that the contract was awarded to respondent-5 only after opening of the financial bids. The Tender Processing Committee held that the tender offered by respondent-5 was the lowest and there was an extra saving of an amount of Rs. 4,19,696/-. The location of the plant of respondent-5 near the site of the contract and the past performance of respondent-5 while executing the earlier contract sanctioned in its favour in the previous year by the same department also showed that the award of work in favour of respondent-5 was in the interest of the department and the public at large.