Mohammad Amin Lone @APPELLANT@Hash State Of Jammu & Kashmir And Others

The Executive Engineer PWD (R&B) Division, Kishtwar, herein respondent No. 3, issued e-Tender Inviting Notice (NIT) No. 82/2013-14 dated

01.03.2014 inviting tenders from approved and eligible contractors for execution of the work, namely, ‘Construction of edge wall and semi pucca

B/wall in Km Ist RD (0-200) on Mandri link road’. The NIT provided inter alia that the bids (tenders) will be opened on 13.03.2014 at 1200 hours

online. Petitioner claims to have submitted his tender, besides two other bidders, namely, Mohd. Ramzan Sheikh and Jalal-ud-din. Respondent No. 3,

however, cancelled the NIT by issuing a notification vide his No. 6310-6386 dated 11.03.2014 ‘due to poor publicity as represented by President

Contractor Association Kishtwar’. The notification dated 11.03.2014 is impugned in this petition.

Heard Mr. Faheem Shokat Butt, Advocate appearing on behalf of the petitioner and Mr. H. A. Siddiqui, learned Sr. AAG, appearing on behalf of

the respondents and perused the record.

The impugned notification dated 11.03.2014 has been challenged by the petitioner, primarily, on the ground that the NIT has been cancelled with the

intention of accommodating blue eyed contractors of respondent No. 3 under the lame and illogical excuse of poor response. It is contended that in the

eventuality of poor response, the date for submission of tenders could have been extended instead of cancelling the NIT.

In the objections filed by respondent No. 3 as also the status report filed by him, respondent No. 3 has admitted that he cancelled the NIT in

response to the representation made by the Contractors Association, Kishtwar stating therein that the NIT was not widely published. Submission of

three tenders in response to the NIT, however, has not been denied. The stand taken by respondent No. 3 is that the Tender Inviting Authority was

well within its right to cancel the tender in term of condition No. 2 of the General Condition of the NIT.

The status report filed by respondent No. 3 reveals also that after cancellation of the NIT by respondent No. 3 the inhabitants of the area, who

were likely to be affected by the non execution of the work, had lodged complaint with the Vigilance Organization of the State, which had referred the

same for inquiry to the Additional Deputy Commissioner, District Vigilance Officer, Kishtwar. The Additional Deputy Commissioner, Kishtwar vide

his letter No. 16/DCK/Compllt. Dated 18.06.2014 conveyed to the Vigilance Organization inter alia that the work in question was needed ‘at the

site due to sliding zone to protect both the roads, namely, HastiSarthal road and Mandri Link Road and residential houses and Government Middle

School Mandri on down side the road’ and also that ‘the President Contractor Association Kishtwar had also intimated that he had not lodged

any such complaint against the PWD Officers/officials but someone has misused his name and he categorically disassociate himself from such

complaint’.

Undisputedly, the respondent No. 3 cancelled the NIT on 11.03.2014, that is, two days before the date fixed for opening of the tenders. As per the

petitioner, he and two other bidders, namely, Mohd. Ramzan Sheikh and Jalalud-din had submitted their tenders. This is not denied by respondent No.

As per respondent No. 3, the NIT was cancelled by him only for the reason that the President Contractors Association, Kishtwar had represented

that there was poor publicity of the NIT. However, the President of Contractor Association intimated the Additional Deputy Commissioner, Kishtwar

that no such representation was made by him and that someone had misused his name.

The reason for which respondent No. 3 cancelled the NIT issued for execution of a work of urgent nature would indicate lack of seriousness in his

approach. Clause 2 of the General Conditions incorporated in General Instructions to the bidders indeed reserves inter alia the power of the accepting

authorities to accept or reject any or all of the tenders before or after their opening without assigning any reason thereof. However, this power is not

meant to be exercised at will and whimsically or in an arbitrary and unreasonable manner. The accepting authority is vested with such a power to

safeguard the interest of the employer, in general and in the better interest of the work to be executed, in particular. Respondent No. 3 would have

acted within his power under clause 2 (supra) had he taken the appropriate action after being satisfied that there was poor response to the tender but

was not justified in exercising this power simply on a complaint said to have been filed by the President Contractor Association, without ascertaining

the genuineness of the complaint and without expressing his own satisfaction as to whether there was poor response to the NIT. The eventuality of

poor response to the satisfaction of the accepting authority could well have been met with by extending the date for submission of bids. Cancellation of

the NIT altogether cannot be said to be an apt decision.

The inaptness in the action of the respondent No. 3 has earlier been noticed by this Court in the order passed on 08.11.2017 and this Court

therefore, directed respondent No. 3 and the District Superintending Engineer, PWD (R&B) Circle Doda to appear before this Court in person to

explain their stand in the matter in backdrop of the report of the Additional Deputy Commissioner, District Vigilance Commissioner, Kishtwar dated

01.06.2014 (supra). This Court observed also that Executing Engineer should not be allowed to discharge his duty in such an arbitrary manner as is

apparent from the facts of the case. Explanation on behalf of these two officers, however, has not been received.

I would, thus, hold that the cancellation of the NIT by respondent No. 3 was an unjustified and arbitrary act on his behalf. The NIT should not have

been cancelled with a stroke of pen merely on a complaint that there was poor publicity of the NIT. Respondent No. 3, if there was any complaint,

should have expressed his satisfaction about genuineness of the complaint, insufficiency of publicity of the NIT and as to whether there was poor

response to the NIT. After satisfying himself he should have taken appropriate decision, which could also have been other than cancellation of the

NIT altogether.

The important question, however, arising is, what consequence the cancellation of NIT should follow after gap of four long years. This question

has been considered by me in light of the submission made by the petitioner’s counsel at bar that the petitioner, if found to be the lowest bidder,

would be willing to execute the work even now at the same rate/cost as offered by him four years back.

It may be stated here that a tendering process is an administrative action of the State and its instrumentalities, which should have least judicial

interference/intervention, though such administrative actions and decisions are not totally immune from the power of judicial review and interference

under Article 226 of the Constitution of India. It is important to say that mere participation in tendering process does not confer any right, much less

right of allotment of work, on a bidder even if he turns out to be a highest bidder or the lowest bidder depending upon whether the contract is for sale

of public property or for execution of works on behalf of the Government. All that a participating bidder is entitled to is a fair, equal and non

discriminatory treatment in the matter of evaluation of their tenders (see Central Coalfields Limited and ors. v. SLL-SML (Joint Venture Consortium

and others), AIR 2016 SC 3814,Michigan Rubber (India) Limited v. State of Karnataka and others, (2012) 8 SCC 216, Tata Cellular v Union of India,

(1994) 6 SCC 651 andMaa Binda Express Carrier and another v North East Frontier Railway, (2014) 3 SCC 760.

Asking the respondents to go ahead with the same tendering process would result in compelling the respondents to get the work executed at the

same estimated cost, which has been assessed four years back and at the same lowest rate, which has been offered by one of the three bidders four

years back. I wonder whether such a course would be in the better interest of the work to be executed and therefore, it needs to be left to the wisdom

and discretion of the Government/Executing Agency to refix the estimated cost of the work and issue fresh NIT or to get the work executed in

accordance with the NIT issued four years back. At the same time, it needs to be emphasized that the petitioner has been compelled for avoidable

litigation and has to suffer in either case.

Viewed thus, while disapproving the cancellation of the NIT and quashing the impugned notification dated 11.03.2014, following directions are

issued:

a) the respondents may go-ahead with the tendering process commenced by virtue of the e-NIT No. 82/2013-14 dated 01.03.2014 (supra) or

b) it shall be open for the respondents to refix the estimated cost of the work and issue fresh Tender Inviting Notice,

c) respondents are imposed with Rs. 50,000/- as costs of litigation to be paid to the petitioner before going ahead with the same tendering

process/issuing fresh Tender Inviting Notice or within four weeks hereafter, whichever is earlier,

d) respondent No. 1 shall take appropriate action against respondent No. 3 after providing him opportunity of being heard for unjustified and arbitrary

cancellation of NIT by him by virtue of notification dated 11.03.2014 and it shall remain open for respondent No. 1 to recover the amount of costs

from respondent No. 3 and,

e) respondent No. 1 shall within six months hereafter submit action taken report to this Court in regard item (d) above and the Registrar Judicial shall

place the same before appropriate Bench of this Court.

Disposed of.