y^^SSw-, ll^D CF0000154103 /^poe^v4?i^d ^J^lji^} "^^'<&L 7^ ~H^^i^^ ^ ^l^cs^Q ^^ L>/ AMENDED PETITIONAS PER HON, COURT ORDER DT 28.10.2004 INTHEHIGH COURT OF JUDICATURE AT BILASPUR FCHHATTISGARH1 WRIT PETITION N0. SS^Qp 2004 [•^ 6T/L| PETITIONER c^ •;^^C^.1C--^ „-. Shiv Singh Chouhan s/o late Shyamji Chouhan, aged 36 years, occupation-Engineer & Contractor, r/o 27 Kholi, BUaspur (CG). ^^^^••" ^dMOCav'; ,<*-•"° VERSUS ,-a^:: -^ -,/EESPQNDENTS v ^ k^"^- ^ ^y^ Ui^ 1. State of Chhattisgarh through Secretary, Panchayat, D.K.S. Bhawan, Raipur (CG). 2. Nagar Panchayat, Takhatpur, District Bilaspur through its Chief Executive Officer, Nagar Panchayat, Takhatpur. 3. Chief Executive Officer, Nagar Panchayat, Takhatpur. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN NATURE OF CERTIORARI, MANDAMUS, PROHIBITION AND OTHER SUITABLE WRIT OR WRITS, DIRECTION OR DIRECTIONS, ORDER OR ORDERS: A-r--ft- ^ COURT 0s JUDICATURS ,4T B2L,4SPUR, CHHATriSSARH Writ Petition No.3218 of 2004 Sniv Sinah CnQuhan -Versus" State of Chhotti^aarh A other^ POST FOR. ORDER ON^A.FEBRUARy. 2Q05 Sd/- L.C. Bhadoo Judge A' F • ^ \\ L HI61-J COVKT OF JUDICATURE ^T BILASPUP, (CHHATTSS^RH) wr'lf P@Tlf"n No. 33iS Qf ZQW Shiv SinQh ChouhQn -Vcrsus- Stote of ChhQttisgarh <S other^ Pre^ent: Shri Abhishek Sinho, Advocote^ For the petitioncr, Shr^ N, K. Agraw'al, by. A. 6.^ For the St^te/re^pondent No.l. 5hri Sanjay K. Agrawal Advocate'. For re^pondcnt No^.2 and 3. OR & E R (Passed on ^^_February, 2005) L.C, BHADOO, J. The petiTloner ha-s preferred this wn'T periTJon under ArTicle 226/227 of the Con^titution of Indja que^tionjna th©action of respondents No.2 and 3 whereby the respondents hod not the tender form to tlie petltioner to enable him to partJcipate in the tender process. (2) Brief facts leading to filing of this writ pBtition are that ^espondent No.3 issued notice inviting tenaers on 1-9-2CJ04 (Annexyre-P/i) whlch wa^ publi^hed on 3-9-2004 in the newspap^r, Jnvlt^d appiications from the intending tenderers in a sealed enveiope by 17-9-200^ in respecT of exeeution of 1-5 w©rk^under th@ area of Naqar Panchayat Takhatpur on jabour rat^s- Ths case of ths pstltionsr is that on 16-9-2004 ths petiTJoner approached respondenT No.3 for supply of The tender form aiong with the terms and concjitions of the NJ,T and for that purpose th^ petitioncr aiso dcposited the amount (Annexure-P/2). The petitioner mode a written application to respondent No.3 but the same was not acknowkdged by r^spondent No,3/ th^r^fore, he approached the Tahsildar, TakhaTour, as respondent No,3 not supplyjng the tender form, he made j ^ Page 2 of9 a vvrstten reque^t (Annexurs-P/3) also, Th©n17-9-2004 beina a hoSiday, 18- 9-2004 being Saturday and 19-9-2004 being Sunday, the tenders were not opened and the same were opened on 20 Septernber 2004. In the m^antim^/th^ p^ti+ion^.r b^Jng aogrieved by the actlon of r^^ponde.nt No.3 approached Ifte Sub &(visiQnal Officer on 18-9-2004 and made an appiicatlon Annexure-P/4. On that, the S.D.O. ordered for suppiy of the tender form to the petitioner, even then thc tender form wa^ not suppiJed to hlm. (3) Further cass of the petitioner is that the respond^nt^ dld everyThing in a very secretive manner without makino pubiic Rnown abouT the proces^ and that was being done oniy to favour the persons of th^ir choic®and other persons, Even In the NJ,T., which was pubiished In the newspGper, the eiigibility crltsriG was not Incc'rporatsd. Th© appr'oximate co^t of th^ work to b^ ^x^cutad wa^ ai^o not m^ntion^d in th^ N.Z.T. The period of compietlon of work WQS aiso not mentfoned and' the retevant tnformation, which wa^ mandatory' in nature, not mentioned in the NJ.T,. The respondents ought to have worked in a transparent and fair manner, The resoonaents acted in utter vioiation of the ChhattisQarh AAuniclpaiitt€^ (the Conduct of Buslness of th^ MQyor-ln-CouncSI/Pr^^lcl^nt- in-Counci! and the Powers and Functions of the Authoritles) Ruies, 1998 (hersinafter referred to as '•the ftu!©31998'). (4) Repiy has been fiied on behoif of respondents No.2 Qnd 3 in which it has besn mentloned tnQt NJ.T* was pLsbijshed in th©newspuper and 17-9-2004 b^ina a hoiiday, a corrig^ndum wa^ is^ued and th^ days w^r@ extended UD to 20 SeDtember 2004. It Is further stated that EMO can be depo^ited in ca^h and the term^ and condition^ of the notice dated 3r'a September 2004 aiso prepared, copy of the i<3 Annexure-R-2/3. As per the terms and condmons of the NJ<T. only tho^e ccsntractorss were ^ij^ibte to partlcipat^ sn the t^nd^r process whose nam^s were regi^te.r^d in the &oy€rnm€ntDepartment and in that connectlon, thcy were required ro ^ubmit the regi^tration certificate at the tim©of purcha^e of the Page 3ofcl t-3nder document^. As the petitjoner wa^ not a registei^ed eontractor with ony of the Government deportment and he was not heyiiig o.ny wgjstro.tion certificate, therefore, hs WGS not satisfying ths eiigibJilty crltsria, QS such he wa^ not ^ntitbd to purcha^e th^ tender form. The p^tition^r did not contact the resDondents up to 15-9-2004 whereas, N.I.T. was pubijshed on 3»9-2004. Eyen accordlnq to the Rules^. 1998, the reqistration of a contractor 'with a particular department of (5Fovernment for jssuance of the tender form and for award of contract, Rest of the aib^ations have been dented by the re^pondents. ftejoind^r has also be^n flJed on behaif of the Detltioner\ (5) Z have h^ard b<srned coun^el for the partie^. (6) The fir^t and fc'remo^t attack of counse! for the petittoner that the NJ.T in que^tion (Anrsexure-P/1) not jn consonance with the Rubs, 1998, a5 in the N.LT the eiigJbHity criteria of t-he contractor, nature of the work. estjmated cost and time not pLibilshed, thercfore, whote tender process was vltiateci, Hc further argued that in The firs-t N.I.T. the tenders were invsted for executing 15 works on a labour rate whe-reas, iater on, it was incorporate-d for ^uppiy of the mat^ria!, which wcus not in tha oriainai NJ.T, which wa^ not pubjic. He furTher araued thaT even the terms and conditions prepa?wted bter on m order to m©etthi^ chaSbnge of the writ petition a?id the petitjoner was not a.iiow^d to pa.rtjcipate in the process. (7) On the other hand, iearned coun^el for the re^pondent^ had not srgued on this aspect. H€ only argued thQt the petitioner was not cljgjbie to participate jn the NJ.T he not registered with any of the Sovernment department for executing the contract, (8) On the oTher hand, Jearned counsel for ?he petjtioner replied that had it made know"n in the N.I.T. it^eif that the intendina tenderer^ must be register'ed with the Sovemment department. then the petitioner couid have renewed hls regjstration which was ajready there but expired at 'T-T) Page4of9 the time of pubiication of NJ.T in que^tion, Therefore, on thj^ grsound hi^ petjtlon eannot be thrown away. (9) Hayin9 heard learned coun^el for the partie^, I have peru^ed the rejevant record and casc !aw. As per the amended provi^.ions dated 1 Aprii 2u03 in the ChhatTlsgarh Munjcjpaiities (the Conduct of of the Mayor-in-Councli/Prasident-ln-CouncJi and the Powers and Functlons of the Authorities) Ruies, 1998, rule 5-8 was inserted which envisages ThGt 'provision^ of Chhattisaarh Works Department Manuaj ^haii be foijowed in the: purchajse of buiiding materiais for pubiic work5.? Therefore, in vie^v of the above Gmendment. the P.W.D. manuai was made appiicabte and QS per clause 2.079 of the P,W.D. AAanuaj it vva^ necessary that the ?liotice invitin9 t&nder's shouid be In one of the forms printed in Appendix 2.10 and 2,11, Appendix 2.10 specifie-s that It wiil be pubiished Jn prescribed form which Is r^produced a^ undar:- 1. 2. N.I.T. Form issued to. Tender invited from.«.«»,»..........Cfasscontractor.. Due date of t^nder. Name of work. R 6. 7. 8. 9. 10. Amount of estimate. Amount of contract. Amount of earnest money. Cost of tender. Time aibwed for compietion......^ Works to be done on scheduie of rotes issued by\ Torce rrom......„.„..„. Th^refore, Jt i^ an admitt^d po^jtion that th^ NJ,T, in que^tion wag not issued in conformlty wlth the P.W.D. ManuaJ and as far.as the iaw on the point l^ concemed, the Hon'ble Apex Court In the matter of D<sycsrQm Shetty Vs. Thc InternQtlonaS Airport AuthorJty of Indjfs and others reported in AZft COURT he?d that: "^n executive authority mu^t ba ri9orously h^Sd to the standards by which It orofesse^ its actlons to be judaed and it must scrupuiousiy observe those Page 5 of 9 r^ -^tandards on pdn of invaiid^tion of an act in viobtjon of them.^ The Hon'bie Aoex Courr further observed thaT; 'Tt i^ indeeci unthinkable that in a democracy bv the rute of iaw th© executjvc Gwemmcm or anv of its officers shouid arbjtrary power over the intere^t^ of the indivjdua!. Every action of the executive ©ovemment must be snformed with reason ond shouid be free from arbitrarjness. That is the very of the ruie of iaw and it^ bare minlmai requlr^ment/ It further ob^erved that^ "...,..«..«<a^overnmsnt when it enters into contract or when it is administering and 11 cannot. wirhouT adequate reason, exclude any person from dealjng with it or take away iarge^ arbjtrarjly. When the ^overnment is trcding with th^ public,.,.,«.,,^»«..^.,......^««,.^,,Th€ a.ctivitjes of the (Sovernment have a pubiic eiement and, therefore, there ^houid be fdr-ne^ and equallty. The State not enter into any contract with anyone, but if it does so, it must do so fdriy without discrimination and wlthout unfair procedure," In the matter of Pybllc Schooi V, Hyda eth^r^ reportecl in (1996) 5 Supr^m^ Courr Cas^^ 510 th^. Hon'blc Court has held that: "V"\Vhen pubiic authonty' di^charge^ it^ pubiic duty the word 'otherwise' wou!d bs construed to be consistenT with the pubiic purpose and ond uneQuivocal auideiines or ruies are necessary and th@ publjc authorjty' CQnnot discharge its dufv at the whlm and fancy of the pub!ic authorities or under their gorb or cioaR for any extraneous ccnslderation, It wouid depend upon the nature of the scheme and ob iect of pubJjc purpo^e souaht to be achjeved- In al! cases rcJevant criterion shouid be predetermined by speciflc ruies or regujations and pubjished for the pubilc. Therefore, the pubiic authoritie^ are rcquired to makc n@c^3^ary specific regubtions or va!id guidelines to exercise ^it^ Page 6 of 9 their discretionary powers; otherwise, the ^aiutary procedure wouid be by pubiic auction.if (10) In th^ mattar of butt6a Xssocsates Pvt, Ltd, V\ Indo Merchantsses Pvt. Ltd. and others reported In (1997) 1 Suprem®Courr 53 the Hon'bb Apex Court has held thcxt: "Whatever orocedure the &overnment Drooose^ to foliow in Gcceptjna the tender must be cieariy stated in the tender notice, The consjderatjon of the tenders recBived and the proce.dure to be foilowed in the matter of accegtance of a tender shouid be transparenf rasr and Qpen. \JVhiJe a bona fide arror or error of judament ^ouid not certalniy matter, any abu^e of power for extrsneous reason^ wouid The authorJTies concerned."' Therefore, In vlew of the iaw idd down bv the Hon'bie ADCX Court it wa^ the bounden duty of respondent No.3 while j^^uina the NJ.T, he ought to have acted in a tran^parent, fair and in open manner. As per the P.W.u. manuai resDondent No3 reouired to NJ.T, and to aive ail thc dctali^ In the NJ.T, stself, If w^ look into the NJ»T.(Annexure-P/l) by any stretch of Jmaoination it connot be terwed os In conformlty wsth the p,W-b. manual a^ mentioned above. Neither the eijgibllity criteria of the contractor is m^ntion^d nor th^ nature of 15 yvork^ which were to b^. executed mentloned, nor the cost of the work and tjme schedule vi^jthin which the work was to be executed was mentioned, Therefore, respondent No.3 acted In a very secretive and in contraventlon of the estGblished principte of law and the prescrsbed manner under the P.VV.D. AAanuai whlk i^^uin9 the NJ,T./ a^ ^uch fh^ action of ra^pond^nt No3 wa^ totaiiy iiiegai and was not In conformity with The requlrement of P*W\D. Manuai and the same was arbitrary. (11) Now, comina to the questlon of rndntdnablilty of the writ petition, it is an admitte-d position that on the- date when NJ.T. and on the date i.s:. 16-9-2004 when the p^tjtioner approach^d respondcnt No.3 for supply of The NJ.T form, the petiTloner was not a registered Page 7 of9 ^ontractor with any of th©^overnment depa^tment, Lo^t date for ^©ilina the SM-I.T, form was 16-9-2004 and on thQt doy ti-se petitioner approached rsspondsnt No.3 for suoply of the NJ,T. to hlm. Therefore, he couid not hesva been ^uppiied the NJ.T. form b^cause he was not registered on that day with any of the (Sovernment departrnent. That being the iast date, there i^ no force in the arguments of jearned counseJ for the petjtioner that had it known to the petitioner that oniy the regi^tered contractors a.re aiiowed to participate in the NJ.T, h.e couid have r^aj^terad hlms^if wlth the 5ov€rnsT,^nt department, When h^ him^eif respondent No.3 for suppiy of NJ,T. form on the last day, then how he to regl^ter him^eif wlth the department? Even in Annexur€"Ra'2/3,, t&rms and condition.s of NJ.T, in !ast para it has b^en specjfjcaily menTioned that terms and conditions of the NJ.T. were shown to the petitioner, but -after seeina, he rafu^ed to ^ian the ^ame. Even in Annexure-R-2/5 ietter a'ated 20Th September 2004 sent by the Chief Exscutlvs Officer, Nagar Panchayat, Takhatpur, to S.D.O., Kota, it has speciflcaliy m^ntlon^d that as th^ petitioner is not a regist^r^d contractor, thereforc, he is not entitied To participate in The Tender proces^. (12) In this connection, one Mohd, Asif has fiied the affidavit (Anns.xure-R-2/6). He ha^ stated that on 16-9-2004 the petitioner eams to th^ office of Nagar Panchayat and requE^ted for issuance of tsnd^r form for The work. The terms and conditjon-s v re shown to him and he ai^o inform^d that regi^tration of the. contractor in any $ov^rnm©nt departrTient for of form. After readina the tsrms and conditions carefully, he informed hini that he is not registered with any of the ^overnment department and thereiafter, he refu^ed to sign on the terms and condjtions. Therefore, jn view of the specific affidavit given by Mohd< A^if, empioyee of Nagar Panchayat, Takhatpur, Di^trict^ liiGspur and to that effect is availabie on the NJ.T^ therefore, there is no reason before this Court to disbeiieve the affldavit of this :^. Page 8 of9 employee and to disbeiieve th@ stand taken by the re^pondents. On 16-9- 2004, the petjtiotier himsejf approached the respondents Qnd that being last day for issuanc® of the NJ,T. form and therefore, there was no occa^ion for the patltioner to 9^! him^aJf r^gist^rad with any Sovernment deDartment, as such on that day he not eligibie to particjpate in the tender proce^^. A^ ^uch, on the request of the petitjoner tender proce^^ cannot be quashed because if the tender process i^ quashed, then the respondents are required to undertake fresh tender process and that may be cletrlmental to the public Intere^t and escaiation of prlces is a!so iikely to be there. Moreover, is no ajiegation that the have awarded the contraet or thc tcnder form of a per^on wh© not otherw^ eligib!€ to participat^ in the tcnd^r proc^ss or any other jil.egaijt)/ ha-s taken place in ^eiecTing The contract. In this respect, I am fc^rtified in my opinion by the decsdon of the Hon'bb Apex Court in th© matter of RQunaq IntemationaJ Ltd, V. I.V.R. ConytTuetlon Ltd. Qnd reported in (1999) 1 Courl- 492. Zn par-a-8 of the Judgm^nt it ha^ held that: 18ut th-e chailenger, the respondent, dld not fulfil the auaiifyina criterion. Therefore, any judiclai rcilef at the instance of a parw which does not fuifii the crjteria To be mispiaced/< (13) SJmiJarJy, the Djvlsion Bench of Orlssa Hlgh Court jn the matter of Myralldhar v. of oth^r^ i"?eported in 1998 A I H C 2488 has he-id that: npree©ndition of po^^e^^ion of uroad making machinerse^ !ik© Hydrcuilc Pcxver Fini^her with eiectr'onie sensor device" - Possessson of paver withouT eiectronjc devlce " Conditlon nor fuifiiied/" Ther©fore,refu^oi to i^su©tender form to a person vvho does not requisite machinerjes not ilieaai. A!so in the mattcr of (P) Ltd. and another V\ Airport' Aythorlty of Page 9 of9 n[''i. India and an@+h@r reported in (1996) 10 -Syppeme CQyri& Cas^s 760 the Hon'bie Court heid That; "Petitioner applyina for tender form on ground that it had compieted major part of such work^-3 He!d, precondition of compietion of the works havlna not satisfled, there no jiJeciailTv in respondent-s not giving ths tender form/' (14) Therefore, when on the date ie. 16-9-2004 the petitioner approached respondent No3, he was not reg.istered with the 6>overnment as such he was not entitled to pQt-Tlcipate sn the tender process and purchase the tender form. Thersfore, on this ground the patitioner l^ not ^ntitled to maJntain the writ petition, (15) In th@ rc^ult, the wrst petjtion is liabb to be dismissed, as th^ pctitioner not ejigibie to participate in the tender process, and it is accQrdingiy dismi^^ed, Thc.re wlll bc no ordcr a^ to cost^. ______ Sd/- L.C. Bhadoo Judge Barve