High Court
Case Details
WP(C) 2352/2013 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. D. Choudhury, learned counsel for the petitioner. Also heard Mr. B.J. Ghosh, learned State Counsel. I have also heard Mr. J. Singh, learned counsel ap pearing for respondent No.4. The matter pertains to construction of Multi Purpose Hall for AP at the Paschim Nalbari, Solmara Anchalik Panchayat under award of 4th Assam State Finan ce Commission during the year 2011-12, for which the contract has been awarded t o the respondent No.4. Assailing the same, the petitioner has contended that the action of the respondents for awarding the contract to the respondent No.4 is f ounded on malafide exercise of power and that his bid was ignored although he ha s fulfilled all the requisite criteria. As regards the experience as indicated i n the tender notice, which is furnishing of Experience Certificate from the auth ority for at-least 32 lakhs in a single similar works and for sanitary and water supply. At the time of purchasing tender papers, the petitioner purportedly encl osed along with his tender document, the following certificate (Annexure-2). (cid:28)OFFICE OF THE EXECUTIVE ENGINEER, PWD, PCC DIVISION, DISPUR, GUWAHATI-781006. TO WHOM IT MAY CONCERN Completion Certificate This is to certify the work (cid:28)Construction of the Office Building (2nd Fl oor) of Inspectorate of Boilers, Assam (cid:29) has been completed in all respects with the full satisfaction of the department. The related details of the work are men tioned as follows :- Administrative Approval No. : GLR(RC) 134/2007/102 dated 04/12/2008. Work Order No. ADP/518/2008/08 dated 26.02.2009. Name of Contractor : Ranjit Kr. Chakrabarty, Milan Nagar, VIP Chowk, Guwahati. Tender Amount : Rs. 45,94,616.00. Sd/- Asstt. Executive Engineer PWD, Building Sub- Division, Guwahati-1 sd/- Executive Engineer PWD, PCC Division, Dispur, Guwahati-6. (cid:29)
Legal Reasoning
On a bare perusal of the said certificate, it will be found that the sai d certificate does not indicate anything in respect of experience in sanitary an d water supply works, as was required to be furnished along with the tender pape rs. However, Mr. D. Choudhury, learned counsel for the petitioner submits that i f the estimate pertaining to the said work is taken into account, it will be rev ealed that the petitioner has the experience of sanitary and water supply works conforming to the requirement of the tender notice.
Decision
In the counter affidavit filed by the respondents denying the aforesaid plea of the petitioner, it has been stated that the petitioner having not furnis hed the requisite experience certificate pertaining to the water supply and sani tary works, the same was duly taken note of by the tender committee. It has been stated that the petitioner submitted the completion certificate issued by the E xecutive Engineer, PWD, it does not indicate anything about the experience in sa nitary and water supply works. It has been categorically stated that no letter o f administrative approval and /or estimate was furnished by the petitioner at an y point of time as claimed in the writ petition. In paragraph 5 of the counter affidavit, referring to the 3 (three) tend ers received, it has been stated that as per the comparative statement, the bid submitted by the petitioner was not recommended and his tender did not accompany any certificate showing completion of and / or undertaking of sanitary and wate r supply works. The comparative statement was placed before the tender committee for approval which met on 5.3.2013. Upon evaluation of the tender submitted by the parties, the tender committee recommended for awarding the contract to the r espondent No.4. Mr. D. Choudhury, learned counsel for the petitioner placing reliance on the decision of the Apex Court reported in (2012) 6 SCC 464 (Tejas Construction s and Infrastructure Private Ltd. Vs. Municipal Council, Sendhwa and another) su bmits that when the estimate pertaining to the contract as indicated in the exp erience certificate would have revealed the experience gathered by the petitione r in water supply and sanitary works, it was incumbent on the part of the respon dents to take into account the said aspect of the matter and than to consider th e case of the petitioner at par with other tenderers. In the said decision, the Apex Court was concerned with the question as to whether the respondent No.2 involved in the said case had executed a single w ater supply scheme for the requisite value. It was contended that the works exec uted by the said respondent was distinct and different works which did not const itute a single integrated water supply scheme. The alternative submission was th at the work executed by the respondent No.2 also did not specify the requirement of the tender notice, inasmuch as, the said work did not involve the constructi on of particular intake wall which was an essential part of the work for any int egrated water supply scheme. When it was noticed that the High Court has examined the question of eli gibility of the respondent No.2 in reference to the work executed by him and rec orded finding that any of the work executed by the said respondent had fulfilled the requirement of the tender notice, the Apex Court declined to interfere with the order of the High Court. Unlike the said case, in the instant case, there i s nothing to indicate that the petitioner has executed works relating to water s upply and sanitary although much has been emphasized in the certificate annexed to the writ petition, which has been quoted above. Mr. B.J. Ghosh, learned State Counsel referred to the stand of the respo ndents in the counter affidavit and also the decisions reported in 2006) 11 SCC 548 (B.S.N. Joshi & Sons Ltd. Vs. Nair Coal Services ltd. and Ors) ; (2007) 14 S CC 517 (Jagdish Mandal Vs. State of Orissa and others) and (1999) 1 SCC 492 (Rau naq International Ltd. Vs. I.V.R. Construction Ltd. and others) submitted that t he petitioner having not fulfilled the requisite criteria and the decision havin g been taken by the authority upon consideration of the tender documents submitt ed by the tenderers on their own merits, cannot be interfered with lightly on th e basis of the aforesaid plea of the petitioner. In the affidavit-in-reply filed by the petitioner, it has been admitted that the particular experience certificate that was produced by the petitioner d oes not indicate the experience relating to water supply and sanitary work. It h as been contended that the petitioner can produce the petitioner can produce the estimate before this Court so as to show that the particular work executed by t he petitioner duly fulfills the requirement of experience of water supply and sa nitary work. It is not for this Court to make any analysis of the estimate so as to come to a finding that the petitioner duly fulfills the requirement of the e xperience as indicated in the tender notice. I have gone through the entire materials on records including the file i n which the impugned decision has been taken by the tender committee to award th e contract in favour of the respondent No.4. On perusal of the same including th e comparative statement, noting is discernible that the respondents deviated in any manner from the established norms towards awarding the contract. The tender committee having exercised its discretion to award the contract to the responden t No.4, I am of the considered opinion that this Court exercising the power of j udicial review under Article 226 of the Constitution of India cannot sit on appe al over the said decision of the tender committee. In view of the above, I do not find any merit in the writ petition and a ccordingly it is dismissed, leaving the parties to bear their own costs. Interim order operating in this proceeding stands vacated.