M/s Shree Raja Rajeshwari Enterprise vs General Manager and Others

Biswanath Somadder, J.—This Letters Patent appeal arises out of an order dated 23rd September, 2011, passed by the learned Single Judge in WP No.915 of 2011. By the said order, the learned Single Judge was pleased to dismiss the writ petition.

The facts of the instant case -in a nutshell - are as follows:

The appellant (being the writ petitioner), along with four others, pursuant to a tender notice published in newspaper, submitted sealed tenders for award of contract for clearance of container goods of the Canteen Stores Department for the period 1st January, 2011 to 31st December, 2011.

The tenders were opened and it was found that one M/s Bhawani Traders was the lowest bidder followed by M/s Veeshram Associates, M/s Devendran Enterprises, M/s M.K.Agency and M/s Shree Raja Rejeshwari Enterprises, in that order. The last named firm filed the writ petition.

The lowest bidder, i.e. M/s Bhawani Traders, was issued a letter to submit willingness for executing the contract. In reply, the firm informed the authorities that it was a matter of clerical mistake and expressed unwillingness to execute the contract.

Thereafter, all the four remaining tenderers including the writ petitioner, who was placed at Sl. No.5, were advised to submit their willingness or otherwise. The second lower tenderer expressed unwillingness to accept the contract. The third lowest tenderer, i.e. M/s Devendran Enterprises, being L-3, submitted willingness to carry out the work at the rate quoted by them. The contract was accordingly awarded to M/s Devendran Enterprises on 23rd February, 2011, by the Canteen Stores Department, Ministry of Defence, Government of India.

After almost four months, the writ petitioner filed the writ petition before the learned Single Judge referring to a Central Vigilance Commission''s circular, bearing No.005/CRD/12 dated 3rd March, 2007, primarily contending that the authorities had awarded the contract to the third lowest tenderer, namely, M/s Devendran Enterprises, in violation of the said circular. According to the writ petitioner, the respondent authorities should have gone for re-tender in terms of the said circular dated 3rd March, 2007, instead of awarding the contract in favour of the L-3 bidder. In such circumstances, the writ petitioner prayed for quashing of the contract awarded on 23rd February, 2011, to M/s Devendran Enterprises.

The matter was taken up for consideration by the learned Single Judge and after considering the submissions made by the learned advocate appearing for the parties and upon perusing the materials available on record the Court held, inter alia, that there was no denial that the contract, rightly or wrongly, had already been allotted to the third lowest bidder in terms of the agreement dated 23rd February, 2011, and the contractor had already started work in terms of the contract. The Court also observed that the writ petition was filed in June, 2011, i.e. almost four months after commencement of work. The learned Single Judge also took note of the fact that a prayer for interim order in favour of the writ petitioner was rejected by the Court by an earlier dated 9th June, 2011, against which the writ petitioner had not moved any higher forum. Under such facts and circumstances, the learned Single Judge was of the view that the writ petitioner had practically no case made out and accordingly, dismissed the writ petition on contest.

Learned advocate appearing on behalf of the appellant/writ petitioner essentially reiterated the submissions made before the learned Single Judge. He also submitted that the circular of the Central Vigilance Commission dated 3rd March, 2007, made it clear that in case of the L-1 bidder backing out, there should have been a re-tender. The respondent authorities had, nevertheless, decided to award the contract in favour of the L-3, i.e., M/s Devendran Enterprises, which was palpably illegal. As such, he submitted that the learned Single Judge erred in not considering this aspect of the matter while dismissing the writ petition.

On the other hand, learned advocate representing the respondent authorities submitted that a detailed affidavit-in-opposition had been filed on behalf of his clients, being the General Manager and Area Manager of the Canteen Stores Department. He further submitted that it would appear from the said affidavit-in-opposition that his clients had relied on a letter dated 10th December, 2010, issued by the Regional Manager(South), Ministry of Defence, Government of India, which had made the position very clear with regard to the mechanism that was required to be followed for the purpose of awarding of contract, upon unwillingness being shown by the lowest tenderer to accept the contract at the rate quoted by the said tenderer.

The other aspect of the matter which has been brought to our notice by the learned advocate appearing on behalf of the respondent authorities is that it is an admitted position that the writ petitioner was positioned as L-5. The contract was awarded in favour of M/s Devendran Enterprises, being L-3, upon unwillingness shown by L-2. Neither the L-2 contractor, being M/s Veeshram Associates, nor M/s MK Agencies, being L-4, have moved Court. The writ petition was filed without even impleading M/s Veeshram Associates or M/s MK Agencies, as parties. In such facts and circumstances, he submitted that there is no merit in the appeal and the same ought to be dismissed and the order of the learned Single Judge, upheld.

From the records it appears that the contract was awarded in favour of M/s Devendran Enterprises on 23rd February, 2011. The writ petitioner approached the Court after almost 3� months. By that time, work had already started, as rightly observed by the learned Single Judge. That apart, it is noticed that neither M/s Veeshram Associates, being L-2, or M/s MK Agencies, being L-4, approached the writ Court. The writ petitioner never even bothered to implead them as parties in the writ proceeding. So far as the Central Vigilance Commission''s circular dated 3rd March, 2007, is concerned, there is not a single averment in the writ petition with regard to its binding nature or its enforceability, other than a bald assertion that the procedure adopted for awarding of the contract was contrary to the said circular. The circular appears to be a general circular regarding the methodology to the adopted for holding negotiations with L-1 in connection with tendering process. The circular appears to be marked to all Chief Vigilance Officers. However, the writ petitioner has not even impleaded the Central Vigilance Commission or the concerned Chief Vigilance Officer as a party in the writ proceeding. As such, it cannot even be positively ascertained as to whether the circular could be at all enforceable or would have any manner of application in a case where the concerned respondent authority had followed specific instructions received from the Regional Manager(South), Canteen Stores Department, Ministry of Defence, Government of India, as contained in the letter dated 10th December, 2010, a copy whereof has been annexed to the affidavit-in-opposition filed before the learned Single Judge. From the said letter dated 10th December, 2010, it further appears that the respondent No.2 had brought the matter of unwillingness of the lowest tenderer to accept the contract at the rate quoted by the said tenderer to the notice of the Regional Manager(South). Consequently, the Regional Manager (South), observed in his letter dated 10th December, 2010, that as per tender procedure, if the next lowest tenderer was found suitable and rate favourable, the Board of Officers could recommend quotation for approval of the competent authority. The Regional Manager (South), in his letter dated 10th December, 2010, categorically stated that there was no need to go for re-tender in case the party was willing to accept the contract as per quotation submitted against the advertisement.

Under such circumstances, we have no hesitation to observe that the respondent authorities had proceeded to award the contract in favour of M/s Devendran Enterprises, being L-3 in the tender process, without any arbitrariness or malafide motive. It is clear that the respondent authorities at Port Blair had simply followed the instructions issued by the Regional Manager (South) of the Canteen Stores Department, as contained in the letter dated 10th December, 2010. As such, there is no question of annulling the contract awarded in favour of the L-3 bidder.

Therefore, the dismissal of the writ petition by the learned Single Judge, upon taking into consideration the fact that the contract, rightly or wrongly, having already been allotted to the third lowest bidder in terms of the agreement dated 23rd February, 2011, and the work having already started and the fact that the writ petition was filed in June, 2011, i.e, after almost four months from starting of the work, cannot be at all held to be an erroneous decision of such a nature which is required to be set aside in appeal.

We, thus, have no hesitation to conclude that the instant appeal is thoroughly devoid of any merit and is liable to be dismissed and is accordingly dismissed.

Prasenjit Mandal, J.

I agree.