Bansidhar Majoor Kamdar Sahakari Mandli Ltd. vs Construction and Maintennace Division, Gov''t of India and 2

Honourable Mr. Justice V.M. Sahai

We have heard Mr. Mukul Sinha, learned counsel assisted by Mr. K.G.Pillai appearing for the petitioner, Mr. Mrugen Purohit, learned counsel appearing for respondent Nos. 1 and 2 and Mr. Satyam Chhaya, learned counsel appearing for respondent No. 3.

Respondent Nos. 1 and 2 invited tenders vide letter dated 23.12.2011 which was to be opened at 3.00 p.m. on 23.3.2011. The tender was for requirement of man power of 74 unskilled and 16 skilled units per day for a period of two years, which could be extended for another one year. The petitioner, respondent No. 3 and other persons submitted their tendeRs. The tenders were opened on 23.3.2011 and the tender submitted by the respondent No. 3 was found to be lowest. This petition has been filed by the petitioner challenging that the lowest tender of respondent No. 3 was not viable as rates quoted by respondent No. 3 were less than statutory requirements for each unit. The learned counsel appearing for the petitioner has placed reliance condition No. 5 of the tender wherein it is mentioned as under:

SAC reserves the right to accept or reject any offer fully or partly without assigning any reasons if the rates quoted are not rationale and viable. SAC also reserves the right to enter into parallel contracts with one or more service providers, if required.

The learned counsel for the respondent Nos. 1 and 2 has filed the affidavit-in-reply. In the affidavit, it has been stated that the tender of the respondent was the lowest and all the statutory requirements of The Minimum Wages Act have been complied with. The learned counsel for the petitioner has also urged that TDS had to be deducted per unit though there was no column for TDS in the tender document.

We have considered this submission and even if TDS is required to be deducted, ultimately if it is found that unit was not taxable, then the amount deducted under TDS scheme would be refunded to the contractor by the department. TDS is deducted at source but if ultimately it is found that the income was not taxable, then in such a case, the TDS is refunded.

So far as the rates quoted by the respondent No. 3 are concerned, the tender documents have been filed alongwith affidavit-in-reply which we have perused. Both, the petitioner as well as the respondent No. 3 have quoted the rates which were in consonance with the provisions of The Minimum Wages Act. The only difference in the amount comes in the administrative charges. The respondent No. 3 has reduced administrative charges, therefore, his tender has been accepted being the lowest. The administrative charges are nothing but profit on each unit earned by the tenderer. It is always open to the parties to reduce their profit. That will not render the contract unviable. Therefore, the decision relied upon by the learned counsel for the petitioner in Reliance Energy Ltd. and another v. Reliance Energy Limited and Another Vs. Maharashtra State Road Development Corporation Ltd. and Others, is not applicable to the facts of the present case.

For the aforesaid reasons, we do not find any merit in this petition. The petition fails and is accordingly dismissed. Notice is discharged.