Jee Enn Engineers vs State and Others

Muzaffar Hussain Attar, J.—The Government in order to further augment the drinking water supply to Sopore Town decided to commission

Water Treatment Plant comprising of Pre-set-ting Tank, Flash Mixer, Clariflocculator and Filter House with all Mechanical/Electrical works as a

composite unit including construction of 0.5 MG (5 Lac Gallons) capacity RCC clear water Reservoir at Sharkwara, District Baramulla. The

Executive Engineer PHE Division Spore issued Gist of tender notice No. 25/PHE/Sopore of 10/2009. The tender notice was issued for and on

behalf of the Governor, of J&K State wherein sealed tenders affixed with Rs. 5/- revenue stamps were invited for the aforementioned work as a

turn-key job, on three cover system, as per detailed tender documents, from the registered PWD ""A"" Class Contractors/reputed firms/concerns

having experience in the field of construction works of similar nature for which they were required to produce documents before issuance of tender

document(s). The tender documents were to be received before 07th Dec. 2009 upto 3 P.M. in the office of Chief Engineer, Kashmir PHE

Department. The date of the tender notice was extended and the last date for receipt of tender document was fixed 10th Feb. 2010. The petitioner

submitted his tender document. The Contract Committee for fixation of Contract for ""Design, Provision, Construction etc in its meeting held on

24th Jan. 2011 decided to put the aforementioned work to fresh tender on the ground that the concerned Executive Engineer had issued

corrigendum on 20th Jan. 2010 and as per the Committee's decision same should have been done before short listing of contractors/agencies and

should have been given wide publicity both in print and electronic media to facilitate the participation of more contractors/agencies in the NIT in

first instance. The Chief Engineer Kashmir PHE send communication to Superintending Engineer circle Baramulla/Bandipora bearing No.

PHE/DB/19076-79 dated 31.01.2011, wherein he was asked to direct the concerned Executive Engineer to invite fresh tender after discussing the

case with Technical Cell of the directorate. It is this communication which is called in question in this writ petition on the ground that in the tender

document for construction of the aforementioned work, in clause 2.15(a) (iii), it was provided that the average annual turnover for the last three

years should not have been less than Rs. 100 lacs for similar type of work, which would mean that for each year the annual turnover should have

been Rs. 100 /- lacs and for three years it would have been Rs. 300/- lacs and the corrigendum issued did not change the condition of the tender

notice of which the tender document forms part and the decision to re-tender the work was made for malafide reasons of allotting the work to

some blue eyed persons, notwithstanding this fact that the petitioner was a lowest tenderer.

Respondents 1 to 3, 10 and 11 have filed reply affidavit/objections in which it is stated, that the corrigendum made material change in the terms

and conditions of the tender notice and same was required to be given wide publicity in order enable all those persons who would not have

submitted the tender documents earlier on the understanding that they were not eligible to afford them opportunity to participate in tender process

and it was decided to re-tender the work.

Heard Ld counsel for parties Considered the matter.

Ld counsel for the petitioner submitted that in arbitrary exercise of power the decision was taken by the Committee to re-tender the work, when

as a matter of fact, by issuance of corrigendum no material change has taken place in the terms and conditions of the tender document. Ld counsel

in his wisdom submitted that earlier condition contained in the tender document had the same effect as that of

the corrigendum, in as much as earlier also the annual turnover was of Rs. 1 /-crore per year. Ld counsel submitted that the corrigendum would not

require to be given wide publicity for the reason that being part of the tender document was to be obtained by the interested persons from the

office of the concerned authorities. Ld counsel further submitted that the decision to re-tender the work has been made only for oblique motive of

allotting work to one Mr. Khurshid Ahmad Zaz.

Mr. Shah Aamir Ld counsel for respondents submitted that the last date for filing of tender document was extended up to 10th Feb. 2010 and

the corrigendum which in the submission of the Id counsel had the effect of changing the terms and conditions of the tender notice/document, was

issued on 12th Jan. 2010 by the Executive Engineer, but no publicity was given to the same, which act of the authority has prejudiced the eligible

persons who would have responded to the tender notice had same been brought to their notice. Ld counsel submitted that the work is of great

public importance and because of pendency of this writ petition the respondents could not proceed further in the matter. Ld counsel also submitted

that the petitioner in terms of the tender notice dated 19th Oct. 2009 which was published in the daily News paper and also in terms of the

corrigendum is eligible to participate in the process of seeking allotment of work. Ld counsel submitted that in the facts and circumstances of this

case, the petitioner cannot be said to be aggrieved person as none of his rights in law have been infringed.

The work which was ordered to be tendered is of significant public importance in as much as the drinking water is to be made available to the

citizens of Town of Sopore.

In view of the issues raised by both the parties, the matter falls in the narrow compass. The questions which would require to answered are:

(a) Whether the terms and conditions viz ""average annual turnover for the last three years should not be less than 3/-crores for similar type of

work"", would mean that average annual turnover should be Rs. 100/- lacs or it should be as Rs. 300/- lacs in terms of the conditions contained in

the tender document which is part of the tender notice published on 21st of Oct. 2009 and last date for submission of document wherein was fixed

10th Feb. 2010.

(b) Whether the corrigendum issued by Executive Engineer on 20th Jan. 2010 which provided ""change in terms and conditions of the earlier tender

document would require to be given wide publicity.

(c) Whether in the facts and circumstances of this case, it can be said that the decision taken by Contract Committee to re-tender the

aforementioned work is taken for malafide reasons and in arbitrary exercise of power.

(d) Whether the petitioner's being the lowest tenderer, confers right on him for allotment of the work.

In terms of the tender notice of which the tender document is part, it was provided that average annual turnover for the last three years should

not be less than Rs. 300/- lacs for similar type of work. ""Average annual turnover is having reference to Rs. 300/- lacs per year"", which otherwise

would mean that average annual turnover for last three years should not be less than Rs. 900/- lacs for similar type of work.

The expression used in the tender document thus lead to this conclusion and a reasonable person after reading the said condition of the tender

document can reach to same conclusion. Assuming for the sake of arguments, as submitted by Id counsel for petitioner, the expression

aforementioned does not mean that annual turnover for last three years should not be less than 900/- crores but it would be Rs. 300/crores, even

then in such eventuality, a person of common understanding will not take it like that. On the reading of this condition the person would only come

to conclusion that the average annual turnover for last three years has not to be less than Rs. 900/- lacs for similar type of work. In such situation a

group of eligible persons must not have responded to the tender notice. The tender notice in such circumstances has prevented' a host of eligible

persons not to respond thereto, thus prevented them from carrying on their trade, business/occupation as guaranteed under Article 19 of the

Constitution. Even otherwise if the submission of the Id counsel for the petitioner is accepted which is vehemently denied by the other side that the

average annual turnover as mentioned in the tender document has to only 100/- lacs per year then in view of the corrigendum issued which has

substantially modified this term and condition of the tender notice/document, original condition of the tender document is rendered arbitrary in as

much as people of different understanding would understand the same condition in their own way, thus, in process excluding the eligible persons

from responding to the tender notice and participating in the process of allocation of work. The submission of Ld counsel for the petitioner in this

behalf fails.

In view of the above discussions it would become imperative on the respondent-authority to give wide publicity to the corrigendum issued by

Executive Engineer on 20th Jan. 2010 as there was substantial change made in terms and conditions of tender notice/document, in as much as it

was provided that the average annual turnover for the last three year shall not be less than Rs. 100/- lacs. This change would certainly make other

persons eligible who were not eligible in terms and on the basis of the earlier terms and conditions of the tender notice/tender document. In

absence of any wide publication given to the said corrigendum the entire process initiated in terms of the tender notice which was published on 21st

of Oct. 2009 would be rendered illegal in as much as class of eligible tenderers would be deprived of their right to participate in the allotment of

work. The corrigendum would require to be given wide publicity.

When malafidies are alleged against the authorities then same is prima-facie to be proved by making necessary pleadings and by placing on

record However, in certain circumstances malice in law can be found from the actions of the authorities. In this case in order to be fair to all the

eligible persons a decision

has been taken to re-tender the work which cannot be said to have been taken for malafide reasons. The decision taken to re-tender the work is

bonafide.

Mr. Zaz being not party in writ6 petition no averment made can be looked into. Even otherwise petitioner's right to participate in tendering

process is intact.

The petitioner even if as per his claim, being lowest tenderer would not confer any right on him to seek annulment of decision of the authorities

to issue fresh tender notice. By merely being lowest tenderer, in law of contracts, does not mean that such person is vested with legal right. It is

only after on the basis of concluding the tender process the authorities allot work to successful tenderer, the infringement of which can be called in

question in the court of law. Being lowest tenderer in all circumstances does not mean that he is the only person who is to be allotted work. There

are instance to show that in the public interest the claim of the lowest tenderer can be rejected by the authorities.

For the above stated reasons, this petition being merit less is dismissed. Interim order shall stand vacated.