High Court
Case Details
WA 147/2013 BEFORE HON’BLE MR. JUSTICE K. SREEDHAR RAO HON’BLE MR. JUSTICE B. D. AGARWAL Judgment and Order [ O R A L ] (K Sreedhar Rao, J) Considering the principles laid down in the Apex Court, as discussed ab
Legal Reasoning
The respondent No. 2 called tenders for construction of SCERT Annexe and Trainin g Centre Building at Kohima, Nagaland on 09-03-2011. The appellant is one of the tenderers. The respondent No. 5 is the successful tenderer. The tender notifica tion stipulated that the rates should be as per SOR 2008. The approximate value to be quoted is also mentioned in the tender. The appellant submitted the tender 4% above the SOR. The respondent No. 5 submitted tender 10% above the SOR. The tenders were opened on 22-03-2011 and the tender of respondent No. 5 was accepte d. Accordingly, the work order was issued to respondent No. 5 on 01-04-2011. The appellant filed the writ petition on 12-08-2011 submitting that since his tende r rate is being lesser than the quoted rate of respondent No. 5, his tender ough t to have been accepted. It is also submitted before the learned Single Judge th at the respondent No. 5 has not commenced any work pursuant to the work order. A n interim order was issued against the respondent No. 5. The learned Single Judg e in paragraphs 9, 10, 11, 12 and 13 made the following observations and the wri t petition came to be dismissed. Hence, this writ appeal by the writ petitioner. (cid:28)9. ove, turning to the present case, the award of contract to the private Responden t No.5 has been challenged basically on the ground that the NIT was not called f or, for the site for which the DPR was prepared. In the DPR, it is started that ne multi-storied building be constructed on the site where SCERT classes are pre sently conducted. The modification of the DPR is evident from the internal Page No.1(Annexure-D of the petition). The amounts quoted earlier were modified subse quently. However, there is no mention that this modification/alternation was ma de after exchange or change of the sites. 10. The petitioner, herein, participated in the bid process by submitting se aled tender in Form F-2, which is the Form of PWD, Nagaland. It is submitted by the learned counsel for the respondent that in Form F-2, it has been specificall y mentioned that the Firm will state, inter alia, the copies of specifications, designs, and drawings, and any other documents required in connection with the w ork signed for the purpose of identification by the Project Engineer and shall a lso be opened for inspection by the Contractor at the office of the Project Eng ineer during office hours. The contractors have to sign the Form for execution o f the work specified in the written memorandum at the rates specified therein, a nd in all respect with the true intent and meaning or the specifications, design s, drawings and instructions, in writing. The petitioner also participated in th e tender process by tendering the Form F-2 and the contractors were also advised to physically visit the site. Therefore, the petitioner cannot claim that he wa
Legal Reasoning
s misled by the respondent authorities. 11. Admittedly, the new site is adjacent to the old site exchanged by the re spondent authorities. All the bidders participated in the tender process on the basis of the same NIT and the same DPR. There is no averment in the writ petitio n that there will be any change with regard to const of materials, transportatio n, etc. due to change of site. Three is, however, specific averment made by the respondent authorities that the cost of materials, transportation, labour charge s and soil condition, of both the sites, are the same. The distance between the 2 sites is hardly 400 feet and the respondent authorities decided that the DPR p repared for the old site, can be utilized for the new site and the average cost of construction will remain the same. It was urged by the learned counsel for the petitioner that the tender w 12. as floated in the month of March, 2011 and the impugned work order was issued on 01.04.2011. The work is yet to be started by the private Respondent No.5 and it will not be possible for the said respondent to complete the work, in question, as per the NIT. Therefore, learned counsel for the petitioner, has further urge d this Court that for the benefit of all, a direction may be issued to the respo ndent authorities to invite tender for the work, in question. 13. This Court declines to comment as to what course the respondent authorit ies should adopt in the changed circumstances attributed to lapse of time. It is for them to decide whether to continue with the old bid or not, and if necessar y, they may float a fresh tender, for the work, in question. However, this writ petition is hereby dismissed for the reasons, discussed above. Interim order, if any, shall automatically stand vacated. (cid:29) In this appeal, a status quo order has been granted by this Court on 26- 2. 06-2013. Sri GN Sahewalla, the counsel for the appellant strenuously submitted t hat the acceptance of tender of respondent No. 5 is illegal and untenable in law . The stipulation of the tender did not specify the inner and outer limit of var iation rates in the tender to be submitted. 3. The modification in the rates is not a part of the tender, therefore, th e appellant had no knowledge and notice of the norms that would be followed in a ccepting the tender. The decision of Supreme Court in Dutta Associates Pvt. Ltd. versus Indo Merchantiles Pvt. Ltd. and others, reported in (1997) 1 SCC 53 is relied on to focus the point that all the essential criteria for acceptance of t he tender have to be disclosed in the tender notice. Any subsequent modification without proper information to the public, who participated in tender process, w ould be bad in law. In paragraph 7, the Supreme Court has made the following obs ervations: (cid:28)7. In the circumstances, we affirm the judgment of the Division Bench in writ a ppeal on the grounds stated above and direct that fresh tenders may be floated i n the light of the observations made in this judgment. We reiterate that whateve r procedure the Government proposes to follow in accepting the tender must be cl early stated in the tender notice. The consideration of the tenders received and the procedure to be followed in the matter of acceptance of a tender should be transparent, fair and open. While a bona fide error or error of judgment would n ot certainly matter, any abuse of power for extraneous reasons, it is obvious, w ould expose the authorities concerned, whether it is the Minister for Excise or the Commissioner of Excise, to appropriate penalties at the hands of the courts, following the law laid down by this Court in Shiv Sagar Tiwari v. Union of Indi a reported in (1996) 6 SCC 558 and (1996) 6 SCC 599 (In re, Capt. Satish Sharma and Sheila Kaul). (cid:29) 4. In view of the ratio laid down in the decision cited, it is strenuously argued that acceptance of tender of respondent No.5 is illegal and liable to be set aside. It is further argued that the appellant came to know about the illega l acceptance of the tender of respondent No.5 in the first week of August, 2011 and that immediately the writ petition was filed. It is contended that the respo ndent No.5 has not commenced any work; therefore, no prejudice would be caused t o respondent No.5 if his tender is cancelled. On the other hand, it is submitted that the appellant’s tender being the lowest and as per the stipulation in the tender notice, his tender should be accepted and he should be given the work ord er. 5. The counsel for the respondent No.5, rebutting the submission made at th e Bar, submits that the contention that respondent No.5 has not commenced any wo rk, is incorrect. The counsel contends that in the affidavit filed before the Hi gh Court on 5.12.2011 the respondent No.5, at paragraphs 7 and 8 deposed to the following effects: (cid:28)7. That with regard to the statements made in paragraph 9, 10 and 11 of the writ petition the deponent denied the statements made therein and states that, though, the DPR was submitted on 06.04.2009 the department i.e. SCERT considerin g the larger public interest Vide letter dated 18.08.2010 wrote to the Principal , Government Higher Secondary School Kohima (GHSS) for exchange of building of S CERT and the GHSS, Kohima. Accordingly, the MOU was signed between the aforesaid two parties on 20.08.2010 on the condition that the GHSS, Kohima will hand over the site adjacent to the SCERT presently occupied by the barrack type building, which is partly occupied by the Asstt. Teacher of GHSS and partly carpentry she d, site of the old condemned grade-IV quarter and the unused Bus garage. On the other hand, the SCERT will surrender the Hill type building along with the two s taff quarter situated above the School building in exchange for the site adjacen t to the SCERT office. It is pertinent to state that the aforesaid exchange of s ite was entered between the two parties as the initial proposed site for constru ction of the SCERT Annexe building is within the GHSS complex and if the said bu ilding of SCERT is constructed therein disturbances will be created during schoo l hours due to frequent entry of trainees and resource persons including vehicle s. Hence, considering in all aspects and in the interest of the public more part icularly for the students of the GHSS the MOU dated 20.08.2010 was signed betwee n the parties. The deponent further states that the DPR prepared by a private firm name ly, J.S. Architect and Associates cannot be termed as final and binding upon the department for construction of the proposed building, the same is subject to al teration/modification by the department after considering the site for construct ion. Accordingly, in the present case, after signing the MOU dated 20.08.2013 an d obtaining the land clearance from the concerned authority the Executive Engine er PWD (H) Education Division Vide letter dated 07.03.2011 communicated to the C hief Engineer PWD (Housing), requesting to observe necessary codal formalities f or execution of works at the new proposed site. Accordingly, the DPR prepared fo r the old site was modified/altered by 3 officers under the supervision of the S uperintendent Engineer PWD (Housing) Circle No.-II Kohima which is evident from a bare perusal of the DPR annexed to the writ petition. And, as such, the conten tion of the writ petitioner that without preparing a new DPR for the new sit NIT dated 09.03.2011 was published is not tenable. In the rejoinder affidavit, dated 25-06-2012, the following averments ha 8. That with regard to the statement made in Paragraph-12 of the petition, the deponent denies the statements made therein and states that, the distance be tween the old and the new proposed site is hardly 400 ft and there is difference in respect of the soil conditions and topography of the two sites. The deponent further states that from the perusal of the DPR annexed in the writ petition no where it has been indicated or stated that the same is meant for the constructi on of the SCERT annexe and training centre at the old site above the GHSS, Kohim a. Hence, failure of structure by constructing at the new basing on the structur al design of the old site does not arise in the present case as the site have be en verified and by the technical expert. (cid:29) 6. ve been made by the respondent No.5: (cid:28)I, Shri Thejao Sekhose, son of Shri Kedukietuo Sekhose, aged about 50 years, pr esently residing at Kenuozou Colony, Kohima, Nagaland do hereby solemnly affirm and states as follows: That I am the proprietor of the M/s T. S. Prime Agency, Regd. No. NPW/ C 2. lass-1/ 474 Kohima, Nagaland. As such, I am fully conversant with the facts and circumstances of the case. 3. That the deponent begs to state that during the pendency of the court’s proceeding, this Hon’ble Court by its order dated 09-05-2011 pleased to vacate t he interim order passed in the present case. In view of vacating the said interi m order, the construction work of SCERT Annexe and training building is already started and foundation lay out were done after dismantling the old building at t he proposed site on 11.05.2012. The design and measurement of the building was c arried out by the Architect consultant along with the department Engineer and he ad of department. Accordingly, the site order book was opened as per the terms a nd condition of the work order. However, when the works are in progress and inte rim order was re-issued by this Hon’ble Court dated 16.05.2012 and discontinued the work. 4. The deponent begs to state that the document demonstrate that work alrea
Decision
dy started with a huge investment from the contractor. Further, it is clearly sh own that the DPR prepared for the said project is meant for the said present con struction site. Therefore, the claim of the petitioner as alleged has no basis a nd the writ petition is liable to be dismissed. 5. That the statements made in this affidavit in paragraphs-1 -3 are true t o my knowledge and belief and the statement in paragraph-4 is my humble submissi on made before this Hon’ble Court (cid:29). 7. In view of the above materials, it is submitted that the contention that the respondent No.5 has not commenced the work is untenable since the responden t No.5 has taken preliminary steps to get the site exchanged to make it a feasib le plot for construction and thereafter construction has also been started. 8. Smt. T. Khro, Senior Government Advocate for Nagaland, in support of the order of the learned Single Judge, submitted that the acceptance of tender of r espondent No.5 is valid in law. After issuance of work order on 01-04-2011, the respondent No.5 had taken step for exchanging the site and he had also commenced the construction work, but because of the interim order, the construction had t o be stopped. There has been delay and latches on the part of the petitioner in approaching the Court. Therefore, the dismissal of the writ petition by the lear ned Single Judge is fully justified and does not call for any interference. In r espect of acceptance of the tender of respondent No.5, it is submitted that the tender rates submitted by the appellant was 4% above the SOR 2008, but the rates of SOR 2010 was published later on. The tender rate submitted by the appellant was found to be unworkable in view of the market rate as per SOR 2010 and the te nder of respondent No. 5 was in consonance with SOR 2010 therefore, it was accep ted. 9. On consideration of the submission made at the Bar, it discloses that th ere appears to be some default on the part of the respondent No. 2 in not fully informing the norms of the tender so as to make the participants to be fully awa re of the stipulation and the guidelines that is likely to be followed at the ti me of acceptance of tender. The SOR 2010 was not published. Had it been publishe d perhaps a corrigendum would have been issued that SOR 2010 would apply and not SOR 2008. However, it is noticed that disadvantage is applicable to all the ten derers it is not only to appellant. 10. The contention of the appellant that the respondent No. 5 has not commen ced any work does not appear to be true. The learned Single Judge, in the order, in paragraphs 11, 12 and 13 has made the following observations while dismissin Admittedly, the new site is adjacent to the old site exchanged by the re g the writ petition: (cid:28)11. spondent authorities. All the bidders participated in the tender process on the basis of the same NIT and the same DPR. There is no averment in the writ petitio n that there will be any change with regard to cost of materials, transportation , etc. due to change of site. Three is, however, specific averment made by the r espondent authorities that the cost of materials, transportation, labour charges and soil condition, of both the sites, are the same. The distance between the 2 sites is hardly 400 feet and the respondent authorities decided that the DPR pr epared for the old site, can be utilized for the new site and the average cost o f construction will remain the same. It was urged by the learned counsel for the petitioner that the tender w 12. as floated in the month of March, 2011 and the impugned work order was issued on 01.04.2011. The work is yet to be started by the private Respondent No.5 and it will not be possible for the said respondent to complete the work, in question, as per the NIT. Therefore, learned counsel for the petitioner, has further urge d this Court that for the benefit of all, a direction may be issued to the respo ndent authorities to invite tender for the work, in question. 13. This Court declines to comment as to what course the respondent authorit ies should adopt in the changed circumstances attributed to lapse of time. It is for them to decide whether to continue with the old bid or not, and if necessar y, they may float a fresh tender, for the work, in question. However, this writ petition is hereby dismissed for the reasons, discussed above. Interim order, if any, shall automatically stand vacated. (cid:29) 11. The preliminary steps are taken by the respondent No. 5 to get the site exchanged to make a feasible plot for construction. The said efforts do constitu te a part of the commencement of the work after the work order. During pendency of the writ petition, there appears to be some other significant developments. T he learned Single Judge had granted interim order against the respondent No. 5; therefore, the construction was stopped. The interim order came to be extended f rom time to time, but the same lapsed on 09-05-2012. Later on, the Court granted the interim order till disposal of the writ petition on 16-05-2012. Between 09- 05-2012 to 16-05-2012, there was no interim order. During the said period, the r espondent No. 5 laid the foundation stone on 11-05-2012 after dismantling the ol d building in the proposed site. In view of the interim order dated 09-05-2012, he had to discontinue the further construction work. Therefore, it cannot be sai d that the respondent No. 5 never made any effort to proceed with the constructi on activities after the issuance of work order. 12. That apart, we find that there appears to be substantial delay and latch es on the part of the appellant in approaching the Court. The contention that th e appellant came to know about issuance of work order just before filing the wri t petition is not credible. As a vigilant participant in the tender, he should b e aware of the progress of the proceeding of the tender and the issuance of work order to the respondent No. 5. There appears to be delay of more than 5 months in filing the writ petition. In view of the peculiar circumstances, the effort m ade by respondent No. 5 in taking effective steps and measure, pursuant to the w ork order, should also be kept in mind. The respondent No. 5 has also undertaken that he would abide by the rates quoted in the tender and he would not ask for enhancement of rates. At this stage if the tender of respondent No. 5 is set asi de, there should be retender, the question of allotting the work to the appellan t does not arise. Such a situation would unnecessarily lead undue delay in imple menting the project and also escalation of cost, which would be the financial bu rden of the State, besides it would cause prejudice to the respondent No. 5, who has made some substantial efforts of securing the feasible plot for constructio n and also laid foundation after receipt of the work order. Therefore, in view o f the delay and latches, we decline to interfere with the order of the learned S ingle Judge. 13. Accordingly the writ appeal is dismissed.