M/s Dalip Singh Adhikari vs State Of Uttarakhand And Others

Sudhanshu Dhulia, J.

The petitioner before this Court is a partnership firm, which is registered as a Class 'A' Contractor with various department of the State Government. The writ petition has been filed by one of the partners. The petitioner had applied as one of the applicants for grant of contract for construction of road i.e. "Padampuri - Herakhan Road, Km. 54 to Syura - Kaunta - Kakore - Harshital". It was the two bid process. The petitioner was declared as technically qualified and thereafter in the financial bid he was also declared as L-1. Subsequently, a recommendation was made in favour of the petitioner on 15.01.2018 by the Procurement Evaluation Committee for awarding the contract for construction and maintenance of "Padampuri - Herakhan Road, Km. 54 to Syura - Kaunta - Kakore - Harshital". However, the contract was not granted to the petitioner.

Meanwhile regarding another contract which was already awarded to the petitioner, a complaint was made against the petitioner, in which a show cause notice was given to the petitioner and proceedings were

already on. In the said proceedings, an order was passed on 16.1.2018 (i.e. the date after the contract was recommended to be given to the petitioner relating to present case), whereby the registration of the petitioner as Class 'A' Contractor with Public Works Department was cancelled on ground that the petitioner had obtained the contract on the basis of wrong certificate. The petitioner challenged the order dated 16.01.2018 in a writ petition bearing Writ Petition (M/S) No. 700 of 2018 which was dismissed by this Court vide order dated 19.03.2018. The petitioner preferred a special appeal against the order dated 19.03.2018, which was also dismissed by a Division Bench of this Court vide order dated 26.04.2018. Thereafter the petitioner approached the Hon'ble Apex Court by filing an S.L.P. bearing SLP No.19361/2018, in which the Hon'ble Apex Court on 10.08.2018 has passed the following orders:

"Application for exemption from filing O.T. is allowed.

Issue notice.

There shall be stay of operation of order dated 16.01.2018 passed by the Senior Staff Officer-II, office of the Engineer in Chief, PWD, Dehradun, in the meantime."

Meanwhile, in the present case, when inspite of the petitioner being L-1, the contract was not executed in his favour, he was constrained to file the present writ petition before this Court. The challenge of the petitioner was that the order dated 05.05.2018, whereby the bid of the petitioner has been cancelled, is totally a non speaking order and without assigning any reason.

In the counter affidavit filed by the State, the only reason assigned is that the registration of the petitioner as Class 'A' contractor with the Public Works Department was cancelled on ground that he submitted a forged/fabricated experience certificate in another contract. The learned State Counsel has relied upon Clause 3.2 of the Instructions to Bidder, which reads as under:-

"3.2. Bidders shall not be under a declaration of ineligibility for corrupt and fraudulent practices by the Central Government, the State Government or any public undertaking, autonomous body, authority by whatever name called under the Central or the State Government."

The petitioner was never ineligible as the declaration was not made by the petitioner subsequent to the order dated 16.1.2018, but prior to it. In the present contract, the declaration was made by the petitioner prior to passing of the order dated 16.1.2018, as the last date for receiving the bids was 13.12.2017. Although by the order dated 16.1.2018, the registration of the petitioner as Class 'A' contractor with the Public Works Department has been cancelled for the reason that the petitioner had given wrong experience certificate of cutting the hills of a certain magnitude. This experience certificate though was given to the petitioner by the relevant authorities but on inquiry it was found that the petitioner had no experience. This was the only reason.

Under the Procurement Rules of the State Government, the Rules categorically state that though the State or its instrumentalities are not bound to give the contract to L-1 but in case the contract has to be refused to L-1, valid reasons must be assigned. In the present case, absolutely no reason has been assigned but by a telegraphic order the entire process has been cancelled. This cannot be done.

The petitioner alleges bias and political rivalry, inasmuch as the complaint has been made by a sitting MLA and the fact remains that the younger brother of the petitioner contested election from the rival party. In any case, the order dated 16.01.2018 which is the root cause has now been stayed by the Hon'ble Apex Court.

In view thereof, writ petition succeeds and is hereby allowed. The order dated 05.05.2018 cancelling the bid of the petitioner and the notice dated 07.05.2018 by which fresh tenders have been invited are hereby quashed and set aside. In case the Department is not willing to give the contract to the petitioner, they must assign proper reasons, as per in the Procurement Rules.