The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (C) No. 6697 of 2022 With W. P. (C) No. 6701 of 2022 --- M/s. S. K. D. Enterprises through its proprietor namely, Suman Kumar Das, Godda … … (in W. P. (C) No. 6697 of 2022) Petitioner M/s. S. K. Enterprises, through its proprietor Santosh Kumar, Godda … … (in W. P. (C) No. 6701 of 2022) Petitioner Versus 1. The State of Jharkhand through Principal Secretary, Urban Development and Housing Department, Govt. of Jharkhand, Ranchi 2. The Chief Executive Engineer-cum-Sub Divisional Magistrate, Godda 3. The Deputy Commissioner-cum-District Magistrate, Godda … … Respondents --- CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY : HON'BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioners For the Respondents
Legal Reasoning
--- : Mr. Anurag Kashyap, Advocate : Mr. Mohan Kumar Dubey, AC to AG --- 10/03.04.2024 Heard Mr. Anurag Kashyap, learned counsel for the petitioner in both the cases and Mr. Mohan Kumar Dubey, learned AC to AG for the State. 2. Since both the writ petitioners are aggrieved by the same
Decision
order, both these writ applications are being disposed of by this common order. 3. The petitioners in these writ applications have prayed for quashing of the order as contained in letter no. 2032 dated 12.10.2022 whereby and whereunder the respondent no. 3 has unilaterally cancelled work orders dated 29.08.2022 without any reason or without issuance of any show-cause notice. The petitioners have also prayed for quashing of the fresh tender notice issued vide E tender invitation no. UDD/NPG/12/2022-23 dated 18.10.2022 inviting fresh applications for allotment of the works which had already been allotted to the present petitioner being the successful bidders against which agreements were also entered into and substantial progress has been made in the allotted work. 4. Briefly stated the facts reveal that the respondent no. 2 has allotted the work order dated 29.08.2022 issued pursuant to E-Tender invitation no. UDD/NPG/01/2022-23 & UDD/NPG/02/2022-23 dated 26.04.2022 inviting rate bids from eligible contractors registered in appropriate class in Urban Development and Housing Department, Govt. of Jharkhand for undertaking the work mentioned therein. The timeline for submission of the bids and opening of the same under the said tender was initially 23.05.2022 which was extended by the respondent no. 2 till 31.05.2022. The petitioner in W.P.(C) No. 6697 of 2022 had participated in the tender process and submitted its technical and financial bid for the work pertaining to construction of renovation of Gangata Pokhar behind block field construction of Paver block in Gangata Pokhar Pind and CN of sitting stand ward no. 14 under NPG (Group-I) and the second work pertaining to renovation of Mularsh Tank, construction of Paver block road from old age home and Shanti Nagar Pokhar & construction of sitting stand ward no. 12 under Nagar Parishad Godda & a third work pertaining to construction of Paver block from house of Maharshi Mehi School to Sidho Memram via Basant Ram and house of Gautam Mandal to house of Munna Yadav, house of S. K. Choudhary to house of Ram Prabesh & construction of RCC Nala with precast slab from house of Maharshi Mehi School to Sidho Memram via Basant Ram and house of Gautam Mandal to house of Munna Yadav, house of S. K. Choudhary to house of Ram Prabesh ward no. 9, 10, 14 under Nagar Parishad Godda. On evaluation of the bids submitted by the various bidders, the procurement committee found the petitioner in W.P.(C) No. 6697 of 2022 as L-1 bidder and accordingly, the petitioner had entered into three separate F-2 agreements with the respondents and the period for completion of work was six months. It has been stated that apart from deposit of earnest money, the petitioner had incurred an amount of Rs. Ten lacs for hiring JCB, hywa, tractor, construction of temporary work station and other essentials required for initiating the 2 renovation work of the dam. After a few weeks of the commencement of the work, the respondent no. 2 vide letter no. 938 dated 07.09.2022 called upon the petitioner to stop all the construction work until further order as the work was postponed on account of some technical reasons. Pursuant thereto vide letter no. 1001 dated 10.09.2022, the successful bidders were called upon to appear before the procurement committee on 12.09.2022 at 3:00 P.M. for verification of the original documents submitted along with the bids and accordingly the petitioner has submitted the original documents for verification before the procurement committee on 12.09.2022. It has been stated that the respondent no. 3 vide letter no. 2032 dated 12.10.2022 unilaterally cancelled the work order allotted to the petitioner. Subsequent thereto the said work was re- advertised by a fresh notice inviting tender. 5. In W.P.(C) No. 6701 of 2022, the petitioner had participated in the tender process and submitted its technical and financial bid for the work pertaining to construction of PCC road & RCC Nala with precast slab from house of Gangta Main Road to Gurtandi via Mahi Palace & Rataura Chowk to river and construction of RCC Nala in Shanti Nagar, Pokhar ward no. 1, 13 & 15 under Nagar Praishad, Godda and the second work pertaining to renovation of Patpatia Bandh, Godda. On evaluation of the bids, the petitioner was declared to be L-1 bidder and two separate F-2 agreements were entered into between the petitioner and the respondents. The petitioner had also expended a huge amount of money for mobilization of his resources for finishing the work at the earliest as the work was to be completed within a period of 6 months. The work however was stayed and the petitioner and other successful bidders were directed to appear before the procurement committee on 12.09.2022 at 3:00 P.M. for verification of the original documents submitted along with the bids which was duly complied with by the petitioner, but by virtue of the letter no. 2032 dated 12.10.2022, the work order allotted to the petitioner was also cancelled. 6. It has been submitted by Mr. Anurag Kashyap, learned counsel appearing for the petitioners that the work order was issued to the petitioner and agreements were also entered into, but only on the 3 basis of some vague allegations made by certain persons, the petitioners have been directed to stop the work and the work allotted to the petitioners have been retendered. There was a concluded contract between the respective petitioners and the concerned respondents, but the respondent no. 3 unilaterally without any substantial reason and without giving any prior notice to the petitioners had cancelled the agreements impliedly. The grounds for cancelling the work order are vague which speaks of malice. He has in support of his contention referred to an order passed by this court with respect to the same impugned letter in W.P.(C) No. 5343 of 2022. 7. Mr. Mohan Kumar Dubey, learned AC to AG has submitted that though work orders were issued to the petitioners and agreements were also entered into, but on a complaint received, several deficiencies were subsequently detected in the application submitted by the petitioner and there was no option but to retender the works. The petitioners were called upon to submit certain original documents and therefore it cannot be said that the principles of natural justice have not been followed. 8. The pre-cursor to the cancellation of the work order allotted to the petitioners was a complaint received by the respondent no. 3 alleging certain irregularities in the tender process and the allotment of work and consequent to the same a committee was constituted under the Chairmanship of Additional Collector, Godda vide letter no. 1887/C dated 05.09.2002 of the respondent no. 3. The work order was stopped and an inquiry was conducted which led to submission of a joint report to the respondent no. 3 vide letter no. 1224/REV. dated 01.10.2022. The submission of inquiry report led to cancellation of the tender vide letter no. 2032/C dated 12.10.2022 and a direction to the respondent no. 2 to float a fresh tender which is the letter impugned to the present writ petitions. 9. The irregularities found in the case of the petitioner in W.P.(C) No. 6697 of 2022 is that at the time of submitting the original documents along with the bid, the character certificate of Suman Kumar Das, the proprietor of M/s. S. K. D. Enterprises (the petitioner in W.P.C. 4 No. 6697 of 2022) was submitted. At the time of inspection, the engineer Priyanshu Raj was present, who had stated about submission of his certificate to the proprietor, M/s. S.K.D. Enterprises, but he could not deposit the original certificate due to some dues in fees in the college. The certificate which was deposited did not bear the signature of the issuing authority. In this context, the proprietor of M/s. S. K. D. Enterprises and his engineer had submitted a written application. 10. So far as the petitioner in W.P.C. No. 6701 of 2022 is concerned, it was concluded that Santosh Kumar, the proprietor of M/s. S. K. Enterprises (petitioner in W.P.C. No. 6701 of 2022) is the brother of the Secretary of Nagar Parishad, Godda. The identity card of the engineer was not enclosed and the affidavit of the engineer did not contain his signature. The engineers of the petitioner Vivekanand Thakur and Bajrangi Kumar did not appear before the Inquiry Committee in spite of such specific direction. 11. What would transpire from the aforesaid according to the respondent is the gravity of the irregularities which were detected by the Inquiry Committee which led to subsequent act of cancelling the work orders and re-tender of the entire works. As would appear in the case of the petitioner in W.P.(C) No. 6697 of 2022, an intimation was given by the proprietor of the petitioner and his engineer stating the reasons for non- deposit of the original certificate. So far as the character certificate of the proprietor of M/s. S. K. D. Enterprises is concerned, initially it was submitted by one Suman Kumar Das, but subsequently at the time of opening of bids, it was the petitioner who had submitted his character certificate. As regards, the petitioner in W.P.(C) No. 6701 of 2022 is concerned, only on account of the fact that the Secretary, Nagar Parishad, Godda is the brother of the proprietor, the same could not be a ground for cancelling the work order. The other factors which according to the respondents is detrimental to the case of the petitioner in W.P.(C) No. 6701 of 2022 is with respect to the identity card of the Engineer not being enclosed and his affidavit not containing his signature. 5 12. A similar matter arising out of the same notice inviting tender was considered by this court in W.P.(C) No. 5343 of 2022 and it has been held as follows: “10. After going through the findings of the enquiry committee, we find that merely the Committee has concluded that the tax invoice “seems to be suspicious”, but what was the reason to reach at the said conclusion is missing. Merely writing that a document is suspicious will not make the said document questionable in any manner. There should be some element coupled with some reasons to reach at a conclusion that the document is suspicious. There is no reasoning nor any element to suggest as to what was the material or what was the element which makes the document suspicious. Only whimsically out of any context, it has been mentioned that the tax invoice is suspicious. This finding is nothing but an arbitrary and unreasonable finding without backing of any fact. Be it noted that the petitioner has already deposited tax invoice, which should have easily been verified by the respondents from the authorities concerned, but, admittedly no such exercise was undertaken by the respondents. 11. So far as JCB and Tipper are concerned, admittedly, the same were taken on lease and there is no embargo in taking the said machineries on lease. We find that there is no mandate that the contractor should own those machineries. These machineries can be taken on hire also. Clause 37 of the agreement reads that the tenderer must produce self-attested copies of ownership certificate or lease deed in respect of at least three out of the machineries / vehicles, namely, Dumper, Truck, Tractor, Dozer, Tanker, Pumps, Generator, Concrete Mixture, Hot Mix, Vibrator. From perusal of the said clause, it is clear that lease document or ownership certificate were required. This clause does not provide that the petitioner must be a registered owner of these machineries or vehicles. This clearly provides that the contractor can take even on lease these machineries/ vehicles, but the only condition is that copies of lease deed must be furnished. It is admitted case that lease deeds were duly furnished by the petitioner. 12. So far as the Identity Card of the engineer is concerned, we find that the petitioner claims that he had submitted hard copies of the same. Be that as it may, the same cannot be a ground to set aside the work order of the petitioner. 13. It is true that in contract matters, involving instrumentalities of the State, the judicial intervention should be minimum, but there is no bar in interfering when the action of the State / decision of the State is totally arbitrary and unreasonable. It is true that the Court does not sit in an appeal over the decision of the authorities, but if there is arbitrariness or patent illegality or perversity and 6 malafide, which is writ large and is clear from the documents itself, the Court will definitely interfere. The Hon’ble Supreme Court in the case of Tata Motors Ltd. versus The Brihan Mumbai Electric Supply & Transport Undertakings (Best) & Others reported in (2023) SCC OnLine SC 671 while referring to several other decisions of the Supreme Court, has held that the Court being the guardian of fundamental rights, is duty bound to interfere when there is arbitrariness, irregularity and malafide. Though the Court should be loathe to interfere in the contractual matters, but where there is clear cut case of arbitrariness, malafide or bias, the Court will definitely interfere. In the instant case, we find that the action of the respondents is arbitrary, irrational and perverse, which is apparent from our findings arrived at in earlier part of this order. Whimsically on grounds, which are absolutely nonest, the contract of the petitioner has been cancelled and fresh tender for the same work was floated. 14. Considering what has been held above, we are inclined to allow this writ petition. The order contained in letter dated 07.09.2022, by which the petitioner was stopped from performing the contract is hereby set aside and we further quash part of the fresh tender being E-Tender UDD/NPG/12/2022- 23 dated 18.10.2022 issued in respect of the work, which was already allotted to the petitioner. This writ petition is, thus, allowed. The work order issued to the petitioner is revived and the respondents are directed to act accordingly.” 13. So far as the present writ applications are concerned, the grounds which have been taken for cancelling the work orders in terms of the impugned letter dated 12.10.2022 appears to be fraught with perversity and malice as minor aberrations in the documents moreso when the work had already been started by the respective petitioners after investing a substantial amount of money could in no way lead to cancellation of the work order. As we have noticed in W.P.(C) No. 5343 of 2022, a coordinate Bench of this court had taken into consideration the reasons with respect to the said petitioner for cancelling the work order and has come to a finding that the act of the respondents is arbitrary, irrational and perverse. 14. In view of the aforesaid facts, therefore, the letter no. 2032 dated 12.10.2022 is hereby quashed and set aside. We also quash that part of the fresh tender issued being E-Tender invitation no. UDD/NPG/12/2022-23 dated 18.10.2023 in respect of the work which 7 was already allotted to the respective petitioners. Both these writ applications are allowed. The work orders issued to the respective petitioners are revived and the respondents are directed to act accordingly. 15. Pending I.A., if any stands closed. (Rongon Mukhopadhyay, J) (Deepak Roshan, J.) R Shekhar Cp 2 8