A.S. Khathing v. Lunsat Kipgen & Ors.

Shri Lunsat Kipgen; & Ors. -Versus- …Appellant … Respondents …Appellant … Respondents …Appellants … Respondents …Appellant … Respondents …Applicant … Respondents W.A. No. 71 of 2021; & Ors. BEFORE HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR HON’BLE MR. JUSTICE LANUSUNGKUM JAMIR ORDER (ORAL)

30.05.2022 Sanjay Kumar (C.J.): [1] By common judgment & order dated 22.11.2021, a learned Judge of this Court allowed W.P. (C) Nos. 355 and 356 of 2019. In consequence, the work order dated 28.02.2019 in respect of Package No. MN0 661 and the work order dated 19.02.2019 in respect of Package No. MN0 6323, issued in favour of respondent No. 4 in each writ petition, were quashed and the authorities were directed to ensure that the work orders in respect of these Packages were issued in favour of the writ petitioner within a time frame. Aggrieved thereby, respondent No. 4 in W.P. (C) No. 355 of 2019 filed W.A. No. 71 of 2021 while respondent No. 4 in W.P. (C) No. 356 of 2019 filed W.A. No. 73 of 2021. The State of Manipur and its authorities filed W.A. No. 75 of 2021 aggrieved by the common judgment & order in so far as it pertained to W.P. (C) No. 335 of 2019 and they filed W.A. No. 76 of 2021 in so far as it related to W.P. (C) No. 356 of 2019. MC (W.A.) No. 122 of 2021 was filed in W.A. No. 71 of 2021 seeking suspension/stay of the judgment and order. [2] Heard HS Paonam, learned senior counsel, appearing for the appellant in W.A. No. 71 of 2021; Mr. N. Jotendro, learned senior counsel, appearing for the appellant in W.A. No. 73 of 2021; Mr. S. Niranjan, learned Government Advocate, appearing for the appellants in W.A. No. 75 & 76 of 2021; W.A. No. 71 of 2021; & Ors. and Mr. Kh. Tarunkumar, learned counsel for the contesting respondent No. 1 in all the writ appeals, the petitioner in W.P. (C) Nos. 355 and 356 of 2019. [3] The irrefutable facts in this matter manifest the sorry state of affairs prevailing in the State of Manipur in so far as award of contracts is concerned. Blatant nepotism and favoritism displayed by the authorities to tilt the balance in favour of their ‘blue eyed boys’, to the exclusion of worthy contractors and to the detriment of public interest and the exchequer, is rampant in the State of Manipur. Award of the work orders in relation to the two subject Packages is a case in point. [4] The bids for the two Packages were to be initially valid for a period of 90 days. As rightly pointed out by the learned Judge, this was to enable the authorities to complete the tendering process within that time frame. If they failed to do so, it was for the authorities to request the bidders to extend the validity of their bids. Surprisingly, only respondent No. 1/writ petitioner was held disqualified on that ground. It is not forthcoming from the record as to how the bids of the other two contractors, viz., the appellants in W.A. Nos. 71 & 73 of 2021, stood extended and under what circumstances. The undeniable fact also remains that respondent No.1/writ petitioner was the lowest bidder, but his bid was overlooked and work orders were issued to the other two contractors, at a greater cost for the State and the Exchequer. The authorities even went to the extent of suppressing material facts from this Court. According to them, the Tender Committee had taken a decision on 15.10.2018 that the bids of the two chosen contractors were more responsive and that respondent No. 1/writ petitioner had failed to extend the validity of his bid. However, this fact was not W.A. No. 71 of 2021; & Ors. disclosed to the Court on 20.02.2019, when W.P. (C) No. 135 of 2019 filed by respondent No.1/writ petitioner was disposed of, directing the authorities to consider his representations before issuing the work orders for the subject Packages. The learned Judge was therefore perfectly justified in holding that the process of tender was not conducted in a transparent manner by the authorities and that they had done so in such a way so as to favour selected contractors. [5] This being the pathetic state of affairs prevailing, this Court is informed that the selected contractors completed a major portion of the work in relation to both Packages. In so far as Package No. MN0 661 is concerned, Mr. Gunabanta, learned counsel, would state that approximately 46% of the work stands completed, while in relation to Package No. MN0 6323, Mr. N. Jotendro, learned senior counsel, would state that the work is almost complete. That being one aspect of the matter, this Court is informed that the latest edict of the Supreme Court, in terms of the decision in M/S. N.G. Projects Limited Vs. M/S. Vinod Kumar Jain & Ors. [Civil Appeal No. 1846 of 2022 dated 21.03.2022], is that, even if this Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still this Court should refrain from interfering with the grant of tender and, instead, relegate the party to seek damages for wrongful exclusion. [6] That being so, this Court finds no purpose served in turning back the clock at this stage and directing award of these partly-completed contracts to respondent No. 1/writ petitioner, who was subjected to patent injustice despite being the lowest bidder. In terms of the liberty envisaged by the Supreme Court, it is left open to respondent No. 1/writ petitioner to approach the competent Civil Court and seek damages for his wrongful exclusion from W.A. No. 71 of 2021; & Ors. participating in the tender process for the subject works. It would be open to him to implead, in their personal capacity, the members of the Tender Committee and all others in the Government hierarchy who were responsible for his exclusion and seek damages from them individually also. The State of Manipur would be well advised to put its house in order at least in future so that these planned and deliberate injustices are not perpetuated at the cost of public interest and the exchequer. This Court need say no more. The writ appeals are disposed of with the above observations. In consequence, MC (W.A.) No. 122 of 2021 shall stand closed. A copy of this order shall be forwarded to the Chief Secretary, State of Manipur, for guidance and necessary action in future cases. Though highly deserving, we refrain from imposing costs. JUDGE CHIEF JUSTICE Sandeep W.A. No. 71 of 2021; & Ors.