High Court · 2009

The petitioner is a proprietorship firm. In response to Annexure-4 NIT dated 24.6.2006 (Annexure-4 to the writ petition) inviting sealed and superscri bed tender in two bid system for disposal of waste material on (cid:28)as is where is basis (cid:29), the petitioner responded to the same by submitting its tender. The ite m in question is (cid:28)Screw Press Rejects (cid:29) and quantity was indicated as 20,000 Metr ic Tone (MT).

3. The petitioner became the successful bidder as he quoted the rate of Rs .38.48/MT. Accordingly, the petitioner was awarded with the contract by order dated 6.10.2006 (Annexure-5 to the writ petition). It was indicated in the ord er that the disposal order would remain valid up-to 31.10.2008 subject to exten sion of another one year depending upon satisfactory performance. Pursuant to the aforesaid work order, the petitioner started lifting (cid:28)S 4. crew Press Rejects (cid:29) from the premises of the respondent-Corporation. It is the c ase of the petitioner that it was his expectation that he would get the extensi on for a period of one year as stipulated in Annexure-5 work order dated 6.10.2 006. The petitioner by his Annexure-9, 10 and 11 representations dated 16.8.2008 , 22.8.2008 and 29.8.2008 made request to the respondent-Corporation to grant t he extension of the period of contract by another one year from 1.11.2008 to 31. 10.2009.

5. It is the case of the petitioner that in view of the aforesaid stipulati on made in Annexure-5 work order, it is entitled to get such extension of one y ear. By Annexure-12 letter dated 30.10.2008, the petitioner was advised to conti nue the lifting of (cid:28)Screw Press Rejects (cid:29) until further instruction and the pet itioner continued to lift the same beyond the stipulated period i.e. 31.10.200 8. In the meantime, the authority by its Annexure-13 letter dated 19.11.2008 i nformed the petitioner that the term of the work order has been extended for a further period of 3 (three) months till 31.1.2009. In the letter, it was also indicated that the contract might be short closed depending on the finalizatio n of the new contract.

6. After the aforesaid developments, the respondent-Corporation issued Ann exure-14 NIT dated 15.11.2008 for lifting of the Screw Press Rejects to the tu ne of Rs.5520/-MT mentioning the period of contract as one year. The petitioner is aggrieved by such issuance of fresh NIT as according to the petitioner, it is entitled to get the extension in terms of the work order dated 6.10.2006 (Annex ure-5 to the writ petition).

7. The respondents in their counter affidavit have denied the contentions raised in the writ petition to which the petitioner has filed rejoinder affidavi t. In the counter affidavit, it is the stand of the respondent-Corporation that the petitioner cannot claim extension of the term of the contract as a matter of right. According to the respondents, it took a conscious decision to float fresh NIT in view of the fact that the price of the Screw Press Rejects has a bnormally increased and that the period of contract with the petitioner has com e to an end. The matter relating to issuance of fresh tender in view of the ch anged circumstances was discussed at different levels and eventually, a consciou s decision was taken to go for fresh tender. In Paragraph 17 of the counter aff idavit, the respondents have given particulars of 8 parties, who participated i n the fresh tender process and their quoted prices have also been indicated. For a ready reference, the paragraph is quoted below :- That with regard to paragraphs 18, 19, 20, 21., 22, 23, 24, 25, 26 & 27 (cid:28)17. the answering respondent states that in pursuant of the NIT published on 15.11 .08, altogether eight parties participated in the tender and their technical bid s were opened on 05.12.08 and thereafter price bids were opened. The particulars of the eight parties who participated in the tender process and their quoted pr ice are produced herein below :- Sl. No. Name of the party Rate quoted Remarks Per MT (in Rupees)

8. M/s SS Enterprise M/s Jalan Impex M/s Saraogi Paper Mill Pvt. Ltd. 3,210/- VAT inclusive 616/- Taxes extra. 529/- Taxes Extra M/s DNA Agrotech Pvt.Ltd. 866/- Taxes M/s S.P. Traders M/s Star Paper & Board Mill 1,450/- Taxes extra. 207/- Taxes Md. Younus Ali

419.51 Taxes extra M/s Assam Paper Mill (P) Ltd. 266/- Taxes The allegation of the writ petitioner that the NIT has been floated to favour s ome private contractors is absolutely without any basis. It is stated with respe ct that a fresh tender has been floated on the expiry of the contract of the wri t petitioner and therefore, no violation of fundamental rights or any legal righ ts can be alleged against the respondent corporation. It is also stated with res pect that the writ petitioner has no right to continue beyond the period of cont ract i.e. beyond 2 years. Therefore, the present writ petition is not maintainab le under Article 226 of the Constitution of India, as the writ petitioner has fa iled to establish any violation of any fundamental and/or other constitutional rights. Moreover, there is no balance of convenience and/or prima facie case in favour of the writ petitioner. Under these circumstances the NIT dated 12.11.20 08 published on 15.11.08 is not liable to be interferred with. (cid:29) It will be pertinent to mention here that the rate, at which the contra 8. ct has been awarded to the petitioner is Rs.38.48/MT and compared to that price, the price which the respondent-Corporation is presently getting, is much more h igher. In fact, in paragraph 18 of the counter affidavit, the respondent-Corpora tion, upon a reference to the interim order passed in this proceeding dated 5.11 .2008, by which it was provided that while the fresh tender process would contin ue but no final order should be passed, has stated that the respondent-Corporati on has finalized the tender in favour of the highest bidder but in terms of the said interim order, has not issued final work order. Thus, as against the prese nt rate of the petitioner, which is Rs.38.48/MT, the respondent-Corporation is g etting the price of Rs.3210/MT which is the highest bid as per the aforesaid quo ted price of different parties.

9. Mr. K.N. Choudhury, learned Sr. counsel assisted by Mr. R. Dubey and Mr . S. Shyam, learned counsel for the petitioner strenuously argued that in view o f the specified term in the work order, the petitioner is entitled to get the e xtension of working period. He submitted that the respondents have acted unfair ly in not granting extension to the petitioner. On being asked as to whether th e petitioner is ready to offer any higher bid, Mr. Choudhury, learned counsel fo r the petitioner submitted that the petitioner is ready to offer the rate of Rs. 320/- MT and not beyond that. Be it stated here that the petitioner has not par ticipated in the new tender process. Mr. A.K. Goswami, learned Sr. counsel assisted by Mr. J. Roy, learned co 10. unsel for the respondent-Corporation submitted that apart from the fact that the petitioner cannot claim extension of the period of contract as a matter of c ourse, the respondent-Corporation having received better price, which is not eve n comparable with the present price, which the Corporation is getting from the petitioner, has done nothing wrong in taking the decision to go for a fresh ten der. Referring to the stand in the counter affidavit, he submitted that since t he price of the materials, in the meantime, rose abnormally, the respondent-Corp oration cannot grant extension to the petitioner at the cost of revenue of the Corporation. As regards the particular stipulation in the work order, his submi ssion is that the expression - (cid:28)satisfactory performance (cid:29) will not only mean the satisfactory performance of the petitioner, but all round satisfactory performa nce of the contract itself.

11. I have considered the rival submissions and the materials on record. I h ave also gone through the records produced by the learned counsel for the respon dent-Corporation wherefrom I find that the respondent-Corporation upon floating the fresh tender and on receipt of various tenders has taken a decision to off er the fresh work order to the highest bidder. As regards the prayer of the petitioner for extension of the period of 12. contract, the authority upon a threadbare discussion of the matter, took a consc ious decision to go for fresh tender instead of granting further extension to th e petitioner. Such decision has been taken in view of the admitted fact that the present price of the materials has gone up considerably compared to the earlie r price.

13. The only question for determination is as to whether the particular stip ulation that the work order would remain valid up to 31.10.2008 subject to exten sion for another one year depending upon the satisfactory performance would bind the respondent-Corporation to invariably grant extension to the petitioner for another one year. Admittedly, the work order was for the specific period up to 31.10.2008 and for the specific quantity. The petitioner has executed the work order and it was also granted extension for 3 (three) months. In the meantime, it was found that the price of the materials has gone up considerably, which is also evident from the above quoted chart, as indicated in the counter affidavit. The present price being offered by the petitioner is Rs.38.48/MT. As against such price, the respondent-Corporation is getting the price of Rs.3210/-MT.

14. When the particular stipulation speaks of (cid:28)satisfactory performance (cid:29), th e term will have to be understood in the touchstone of overall scenario and not only the performance of the petitioner. Apart from that, the respondent-Corpor ation did not bind itself to invariably grant extension of the contractual peri od by the stipulation made in the work order. After all, the extension of the p eriod of contract cannot be claimed as a matter of course. The very condition i tself stipulated that the contract would remain valid up to 31.10.2008, which ho wever, was subject to extension. The expression - (cid:28) subject to extension (cid:29) its elf means that the same is not automatic. It will be dependant on facts and ci rcumstances including the changed circumstances.

15. The NIT itself indicated that the period of contract would be for two years. The quantity of materials was also indicated. When the petitioner was g ranted extension for another 3 (three) months by letter dated 19.11.2008, it was clearly stipulated that the contract might be short closed depending on the fin alization of new contract. With such terms, the petitioner accepted the exte nsion and thus, it cannot turn round the same so as to seek Mandamus from this C ourt for a direction to the respondents to grant full term of extension of one y ear. By no stress of imagination, the particular stipulation in the work order, which is the foundation of the case of the petitioner cannot be interpreted to b e mandatory provision that under any circumstance, the petitioner would be entit led to extension for another one year. As observed above, the term (cid:28)satisfactor y performance (cid:29) will be inclusive of the satisfactory performance of the contrac t itself and not the narrow interpretation of the satisfactory performance of th e petitioner.

16. For all the aforesaid reasons, the prayer made in the writ petition cann ot be granted. Consequently, the writ petition is dismissed. The interim order dated 5.12.2008 stands vacated.