The Additional Municipal Commissioner, Begusarai Municipal v. Corporation, Begusarai
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2639 of 2013 ====================================================== M/S Jawahar Lal Bhardwaj, Ashok Nagar, Begusarai, P.O., P.S. And District- Begusarai Through The Proprietor Om Prakash Bhardwaj S/O Sri Jawahar Lal Bhardwaj R/O Mohalla- Ashok Nagar, Begusarai, P.O., P.S. And District- Begusarai .... .... Petitioner/s 1. Begusarai Municipal Corporation, Begusarai through the Mayor 2. The Mayor Begusarai Municipal Corporation, Begusarai 3. The Additional Municipal Commissioner, Begusarai Municipal Versus Corporation, Begusarai 4. M/S Hidayat Enterprises, Patna through the Additional Municipal Commisioner Begusarai Municipal Corporation, Begusarai .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. S.B.K.Mangalam Mr. Chandan For the Corporation : Mr. Tej Pratap Singh For Resp. No. 4 : Mr. Basant Choudhary, Sr. Advocate Mr. Rakesh Kumar ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 5 02-05-2013 Learned counsel for the petitioner is permitted to correct the designation of the respondent no.3, as the Additional Municipal Commissioner in the course of the day. Heard learned counsel for the petitioner and learned counsels for the Begusarai Municipal Corporation and private respondent no.4. The petitioner has approached this Court against the non-grant of work order in his favour by the respondent Begusarai Municipal Corporation and the grant of the same to the respondent no. 4 who was the highest among the four bidders 2
Legal Reasoning
Patna High Court CWJC No.2639 of 2013 (5) dt.02-05-2013 2 / 10 although the petitioner was the lowest bidder. The petitioner, respondent no. 4 and two other contractors applied against a tender notice published on 6.12.2012 by the respondent-Begusarai Municipal Corporation for filing of the sealed tenders for the technical and financial bids in separate envelopes. The tender was for the supply of outdoor electric light and fittings, i.e., electrical lamps with their fittings. The tender notice clearly provided that the items should be of the branded companies and the names of several companies were also specified except for certain accessories and fittings, etc. It was further provided that the price should be quoted including all taxes. It was also provided in the notice that the supplies had to be made within 15 days of the supply order being issued. After the technical bid as many as four tenderers including the petitioner and respondent no. 4 were qualified and upon opening the price bid the petitioner came out as the lowest tenderer and the respondent no. 4 as the highest tenderer with respect to both the Sl. Nos. of the tenders which were for two separate set of electrical lights and fittings. It is the stand of the petitioner that he complied with all the terms and conditions of the tender and had also produced his samples along with other tenderers. However, the 3 Patna High Court CWJC No.2639 of 2013 (5) dt.02-05-2013 3 / 10 Empowered Standing Committee of the respondent-Corporation decided the tender in favour of respondent no. 4 and work order dated 15.1.2013 was issued in favour of respondent no.4. Aggrieved by the same the petitioner has approached this Court. Learned counsel for the petitioner submits that the respondents have acted contrary to the terms and conditions of the tender notice by giving the contract to the highest bidder among the four bidders instead of the petitioner who was the lowest bidder. It is submitted that all the four tenderers having been found qualified at the technical bid stage and the tender notice itself specifying that the branded items should be produced including specific names of certain manufacturers whose items the petitioner had agreed to supply in his tender papers, there was no occasion for the Empowered Standing Committee to have further taken a cursory look of the samples and come to the conclusion that the samples of the respondent no. 4 were of superior quality. It is urged that the same is in the face of the tender notice and there is no expertise in the Empowered Standing Committee of the respondent-Corporation to decide by merely looking at the electrical samples produced as to which were superior or not superior that too when the branded items as required by the tender notice had been offered and produced as 4 Patna High Court CWJC No.2639 of 2013 (5) dt.02-05-2013 4 / 10 sample by the tenderers including the petitioner.
Legal Reasoning
Learned counsel further submits that the tender notice clearly mentioned that the price quoted should be inclusive of all taxes yet not only the contract has been given to the highest bidder but the work order has been issued exclusive of VAT which amounts to further enhancing the price and leads to increase of liability of the respondent-Corporation by about Rs. 9 lacs on account of VAT apart from the difference of rate of about Rs. 11 lacs between the petitioner and the respondent no.4. It is thus, submitted that the respondent-Corporation has acted in gross abuse of its authority in taking decision on the tender causing huge loss to the extent of Rs. 20 lacs to the Corporation. Learned counsel also points out that the respondents have further shown undue favour to the respondent no. 4 by allowing him to continue his supplies even beyond the period of 15 days as required by the tender notice and the work order. Many of the supplies were shown as received in the Corporation but, they were, as a matter of fact, in the godown of the respondent no. 4, which fact with respect to at least some of the items, is admitted by the respondents. Learned counsels for the respondent-Corporation as also respondent no.4, on the other hand, have sought to rely on 5 Patna High Court CWJC No.2639 of 2013 (5) dt.02-05-2013 5 / 10 the decision of the Empowered Standing Committee taken at its meeting dated 8.1.2013 which has been brought on the record as Annexure-D to the counter affidavit filed on behalf of the Corporation. It is their stand that the Empowered Standing Committee has given more importance to quality and not the rate so that better quality of goods would lead to good and lasting service. It is, however, admitted that no opinion of any expert has been taken except to assert that the Empowered Standing Committee was the competent authority to decide about the purchase of materials. The allegation of favour and collusion has been denied. Emphasis has been placed on the fact that the respondent no. 4 had agreed to supply the materials of Crompton Company which was of better quality. Having considered the submissions of learned counsels for the parties and the materials on the record, this Court finds the action of the respondent-Corporation as wholly unacceptable. The Empowered Standing Committee of the Corporation may have the authority to decide the tender finally but once a tender notice has been issued incorporating certain terms and conditions, any decision should be in accordance with the said tender notice. The tender notice is not intended to 6 Patna High Court CWJC No.2639 of 2013 (5) dt.02-05-2013 6 / 10 mislead the tenderers rather it is supposed to be lay down clear guidelines not only to the tenderer but also to the decision maker as to what is to be purchased. The tender notice itself was clear that the tenderers were to quote rates only for reputed brands and some of them were specified in the tender notice. Once the same has been done, this Court fails to understand as to what greater expertise the Committee had to decide among those which were to be purchased. As a matter of fact, if the Empowered Standing Committee was of the view that the purchase should be made of the goods of a particular company that should have been advertised so that all the tenderers would have been on equal footing while filing their tenders. The action of the Empowered Standing Committee appears to have been to ensure that the respondent no. 4 is granted the contract irrespective of the price quoted by him. In this regard, it would be useful to refer to the comparative chart of the rate on which the four tenderers had agreed to supply the CFL set and street light set, the two items under the tender notice:- Comparative Chart Name of tenderer Sl No. Rate of article to be purchased Item No.1, CFL set Rate of article to be purchased Item No.2, Street Light 7 Patna High Court CWJC No.2639 of 2013 (5) dt.02-05-2013 7 / 10 1. Hidayat Enterprises, Patna 2. Hindustan 479/- (Crompton) 479/- (Philips) 2190 (Havels) 2434/- (Crompton) 3. Commercial Agency, Bhagalpur M/s. Jawaharlal Bhardwaj, Begusarai 4. Milan Company, Begusarai Trading (Philips, Havels, 394/- Bajaj, Haloneze, Osram) 469/- (Haloneze) Guarantee 12 months 1949/- (Havels) 1990/- (Haloneze) Guarantee months) 12 It is evident from a look at the aforesaid comparative chart that all the tenderers had filed their tenders with respect to materials of standard companies which had been specifically mentioned in the tender notice. The rate quoted by the petitioner for CFL set was the lowest at Rs. 394/- whereas that of the respondent no. 4 was the highest at Rs. 479/-. Similarly, for street light the rate quoted by the petitioner was the lowest at Rs. 1949/- only whereas that of the respondent no. 4 was the highest at Rs. 2434/-. It is the settled principle of tender process that once the financial bid is opened after the assessment at the technical bid stage then unless there are good and sound reasons, the lowest bidder cannot be easily excluded. Here the case was clearly of tender of materials of the manufacturers which had been stated in the tender notice itself and thus there was no 8 Patna High Court CWJC No.2639 of 2013 (5) dt.02-05-2013 8 / 10 further occasion for the Empowered Standing Committee to sit in judgment over the quality of materials and it was also not open to the Empowered Standing Committee to override the terms and conditions to reach any conclusion. The foul action of the respondents is all the more made out by the supply order dated 15.1.2013 issued in favour of the respondent no.4 in which he has not only been given the benefit of higher price quoted by him but also the prices have been shown excluding VAT, whereas as per the tender notice the price quoted was to include all taxes. Such action can only be considered a gross abuse of authority on the part of the respondent-Corporation by those who decided the tender for reasons best known to them. Attempt has been made on behalf of the respondents to show that the sample supplied by the respondent no. 4 was of superior quality but nothing has been brought on the record by the Corporation to justify the same, although a comparative reference to the type of samples produced is to be found in the counter affidavit of the private respondent no.4. The petitioner has denied the said description of samples stating that these descriptions are false and materials produced by the petitioner and other tenderers were of better quality in comparison to the supply made by the respondent no.4. In this regard he also refers 9 Patna High Court CWJC No.2639 of 2013 (5) dt.02-05-2013 9 / 10 to minutes of the meeting of the Empowered Standing Committee which, as rightly pointed out by learned counsel for the petitioner, shows tampering with the minutes with respect to the allegations which have been introduced against the petitioner of his having not deposited the samples in the office and even taken away the same after the closure of the tender. This Court strongly condemns such action on the part of the respondents and this shows the extent to which they have gone in ensuring that the tender is settled in favour of the highest bidder respondent No. 4 causing huge loss of Rs. 20 lacs to the Corporation. Thus, on a consideration of the entire facts and circumstances of the case, the writ application is allowed. The work order dated 15.1.2013 in favour of respondent no. 4 is quashed and the respondents are directed to proceed with the tender process in accordance with law from the stage of the opening of the financial bids and their consideration. It is made clear that in case any loss has occurred to the Corporation on account of awarding the supply order to the respondent no.4, the Additional Municipal Commissioner shall ensure that such loss is recouped from the persons responsible for the loss to the Corporation. S.Pandey/- (Ramesh Kumar Datta, J) 10 Patna High Court CWJC No.2639 of 2013 (5) dt.02-05-2013 10 / 10