A K CONSTRUCTION Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) MR. A.K. Mehta, learned counsel for the petitioner, submitted that the work with regard to Tender Notice No. 3/2010-11 was given to respondent no. 8-M/s Harsh Construction after relaxing condition nos. 11 and 12 contained in Tender Paper, and had the petitioner known that such clauses would be relaxed, it could have also taken part in the tender. He further submitted that the Secretary, Rural Development Department, Government of Jharkhand by his letter dated 22.5.2010 addressed to all the Deputy Commissioners of Jharkhand asked them to follow the PWD Code according to which, the tender papers were to be sold from three places i.e. office of the Executive Engineer, Superintending Engineer and Chief Engineer, but in this case the tender papers were sold only from the office of the Executive Engineer.

(2.) LEARNED Advocate General, in reply, submitted that the said letter of the Secretary was directory in nature. He further submitted that in view of the advancement of the technology , it was not thought necessary to sell the tender papers from all the three offices as it was given on the website and it was advertised in local newspaper. He further submitted that admittedly petitioner was not eligible as per clauses 11 and 12 of the tender paper, and it is not known whether he was eligible as per clause 3 thereof. He relied on paragraph 7 of (2000) 2 SCC 617-Air India Ltd. Vs. Cochin International Airport Ltd.

(3.) HOWEVER, it could not be disputed by learned Advocate General, that clauses 11 and 12 were waived/relaxed while awarding work to respondent no. 8, though he offered some explanation for such decision. According to the petitioner, it did not take part in the tender as he was not eligible in terms of clauses 11 and 12. It is settled position that if any terms is to be waived/relaxed, it should be notified so that the parties who become eligible, after such relaxation/waiver, may also take part in the tender.