High Court · 2012

The writ petitioner is challenging the letter dated 3.10.2000, issued by the Divisional Engineer, Telecom Project, BSNL, Aizawl, whereby allotment of ce rtain works to the writ petitioner have been terminated. Pursuant to the aforesa id termination letter dated 03.10.2009, the respondents have also issued a fresh NIT dated 05.03.2011 and the same has also been challenged. In other words, if the first prayer of the writ petitioner is accepted by this Court it will certai nly have reflection on the legality of the NIT dated 05.03.2011.

3. Heard Sri B C Das, learned Senior Counsel for the writ petitione rs and Sri BN Sarma, learned Standing Counsel for the Bharat Sanchar Nigam Limit ed (BSNL). None appeared for the Union of India, i.e., the respondent No. 6. I h ave also gone through the pleadings of both the parties.

4. The factual matrix is that the respondents floated a tender for (cid:28)Over Head Aerial Optical Fiber Cable Construction Works (cid:29) in different routes on 04.02.2009. The writ petitioner was one of the tenderers. Their bids against 8 (eight) Sections out of 10 Sections were accepted. After the selection, the writ petitioner was informed by the respondents vide letter dated 21.04.2009 to comp lete the following formalities: (cid:28)(1) A commitment in writing to complete 100 % work with the stipulated time period with a minimum progress of 1.5 Km per week. (2) Material Security Deposit @ Rs. 5,000/- per Km (Total Rs. 12,30,00/- for 246 Km) in the form of crossed Demand Draft drawn from any nationalized bank in fav our of (cid:28) The Accounts Officer, BSNL, NETF, Silchar (cid:29) payable at Silchar. This MSD will be a non-interest bearing deposit for any period what so ever. (3) Eight Agreement Deeds according to Section VIII of Bid Document to be ex ecuted on non-judicial stamp papers of Rs. 100/- each in presence of the undersi gned. (4) agreement. (cid:29) Eight passport size photographs are also to be submitted along with the

5. Pursuant to the aforesaid communication, the writ petitioner dep osited Material Security Deposit (MSD) only against Section No. 8, i.e., Zero-Sa iha, for a sum of Rs. 1,47, 500/-. The MSD was deposited on 26.06.2009 and by th e same letter, the writ petitioner promised to deposit the MSD of Rs. 2, 25, 000 /- against Section No. 7 by 01.07.2009. For the remaining items, the writ petiti oner requested the BSNL to adjust his payments against other works executed by h im. However, the proposal and formula advanced by the writ petitioner did not fi nd favour of the respondents. Accordingly, the respondents issued a notice to th e writ petitioner on 26.08.2009, either to deposit the MSD for the remaining Sec tions by 07.09.2009, else his earnest money will also be forfeited.

6. The aforesaid notice was purportedly received by the writ petiti on on 03.09.2009. Instead of making any prayer for extension of time to deposit the MSD a pleader’s notice was issued to the respondents on 04.09.2009, challeng ing the legality and constitutionality of the notice dated 26.08.2009. Be that a s it may, the respondents took a liberal view and did not take any punitive acti on till 07.09.2009. On the other hand, another letter was issued on 09.09.2009, extending the time for deposit of MSD till 23.09.2009.

7. It is the petitioner’s case that the aforesaid letter dated 09.0 9.2009 was received by fax on 18.09.2009, which was a holiday in West Bengal. 19 .09.2009 was a Saturday and it was followed by gazetted holidays on account of S unday and ’Idd’ festival. Be that as it may, instead of depositing the MSD by 23 .09.2009, the writ petitioner sent another letter to the respondents on 19.09.20 09, seeking further 15 days’ time, i.e., till 02.10.2009 for deposit of the MSD amount or adjust the MSD amount against the payments due to the writ petitioner from the department. However, this prayer was not acceded to by the BSNL and the work allotment letter was cancelled and a fresh NIT has been issued.

8. Sri Das, learned Senior Counsel for the petitioner submitted tha t before terminating the work order the respondents were incumbent to at least c onvey their decision regarding adjustment of payments against other works. Havin g not done so, as contended by the learned counsel, the impugned termination ord er dated 03.10.2009 is illegal and liable to be set aside and as a consequence, the fresh NIT dated 05.03.2011, should also go. Per contra, Sri Sarma, learned counsel for the respondents submi 9. tted that adjustment of any amount against other works executed by the tenderers against the MSD was not stipulated in the NIT. The learned counsel submitted th at the tenders are bound to fulfill the terms and conditions of the NIT in lette r and spirit and if there is any non-compliance of the terms and conditions of t he NIT, the respondents are/ were at liberty to either reject or to cancel the a llotment of the works.

10. Admittedly, the writ petitioner was not allotted with any work o rder. The dispute arose at the initial stage itself. As noted earlier, the writ petitioner was selected for offer of 8 items against 10 items. In the letter dat ed 21.04.2009, the writ petitioner was requested to complete certain formalities including deposit of the MSD of Rs. 12,80,000/-. If the aforesaid letter was co ntrary to any terms and conditions of the tender, the writ petitioner should hav e protested at that stage itself. However, the writ petitioner partially accepte d the conditions only with Item No. 8 by way of depositing MSD on 26.02.2009. Th ereafter, the writ petitioner failed to deposit the MSD amount for the next more than 3 (three) months on one pretext or the other. I have already mentioned ear lier that in the counter notice dated 04.09.2009, validity of the notice dated 2 6.08.2009 was challenged without making any prayer for extension of time. In thi s way, the subsequent letter dated 19.09.2009 was sent only to linger the issue regarding deposit of MSD. I would also like to mention here that even in the let ter dated 19.09.2009, there was no clear-cut commitment from the side of the pet itioner about depositing MSD by 02.10.2009. In this letter also, the offer to de posit the MSD was a qualified one.

11. In my considered opinion, since the writ petitioner failed to co mply with the terms and conditions of the NIT, more particularly, laid down in t he letter dated 21.04.2009, no legal right is vested upon the petitioner to get the work orders. Since the selection of the writ petitioner has been terminated after giving sufficient time and notice to deposit the MSD amount, the action of the respondents does not suffer from the principles of natural justice and fair play.

12. sequently, the same is hereby dismissed. In the result, I do not find any merit in the writ petition. Con