WP(C) 1115/2009 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY These two cases pertain to the tender notice dated 30.1.09 issued by the Chief E ngineer, PWD (Roads), Assam, whereby bids were invited for 3 works under the non -lapsable Central Pool of Resources (NLCPR) Scheme. The NIT pertains to the fol lowing 3 works:- (1) Improvement of Batabari Kopati Road in Darrang District under NLCPR- val ue of work is Rs.209.58 lakhs. (2) Improvement of Dalgaon Kopati (Orang Dalgaon) Road in Darrang District u nder NLCPR- value of work is Rs.224.36 lakhs. (3) Upgradation of Dalgaon town to Sialmari via Dhekerigaon, Kharpurihabi Ro ad under Darrang District under NLCPR- value of work is Rs.236.08 lakhs. 2. The writ petitioner in WP(C) No. 1115/09 submitted his tender for the wo rk against serial No. 1 and it is on record that the tenders of Respondents 5 an d 7 along with the petitioner were found to be the tenderers who had given the m ost competitive (L1) bids. 3. The petitioner contends that the NIT works were selected on the basis of the priority legitimately specified by the concerned Member of Parliament (M.P. ). But the petitioner further contends that later there was an inappropriate rec ommendation by the M.P. (respondent No. 9) who by communication dated 3.1.09 (A nnexure-9) recommended that the NIT works be awarded to respondent No. 7 Ashotos h Chakraborty, a registered PWD contractor of his constituency. It is submitted that due to such unwarranted intervention of the M.P., the official respondents were prevented from considering the competitive bid of the petitioner and accord ingly the decision making process in selection of tenderer is contended to be vi tiated. 4. The petitioner in WP(C) No. 690/09, however, was not a tenderer but is a public spirited citizen of the locality, who challenge the entire tender proces s in pursuant to the NIT dated 30.1.09 by contending that all the 3 works should have been advertised in a single package as in that event better quality works could have been ensured by participation of more competent contractors. FIRST CASE 5. In the counter affidavit filed by the Chief Engineer (Roads), PWD, Assa m in WP(C) NO. 1115/09 it is averred that in respect of the work against serial No. 1, the work order has been issued to the respondent No. 5 Krisan Harlalka w ho was one of the three, whose bid was found to be the L1. It is further averred that the department had not received any recommendation letter from the M.P. pu rportedly making recommendation to award the contract to Ashotosh Chakraborty. T he respondent pleads that since the concerned work was never awarded to the reco mmended person, the very foundation for the case set up by the petitioner is mis sing and therefore the writ petition should be dismissed. 6. For the 3 L1 bidders, Ms. R. Deka, learned counsel submits that consider ing the work experience, of the 3 tenderers who were at par with each other, Kis an Harlalka (respondent 5) was selected for his eafrlier experience and since no recommendation has been made by the M.P. for him, the allegation of political i nterference in the selection of tenderer is totally unfounded. 7. Mr. B. Gogoi, learned counsel who appears for respondent No. 6 and who h as been issued the work order against serial No. 2 i.e. Improvement of Dalgaon K opati (Orang Dalgaon) Road in Darrang District under NLCPR, submits that since the petitioner in the present case had not filed his tender in respect of the wo rk order granted to respondent No. 6, the writ petition ought to be dismissed as the petitioner not being a tenderer has no right to challenge the work order or the tender process in respect of such work. 8. Having considered the rival submissions, I find from the materials on re cord that no work order was issued to the contractor recommended by the M.P. (re spondent No, 9) and the contract was awarded on merit to Mr. Harlalka (responden t No.5) who was one of the L1 tenderer. In such circumstances, I find no merit i n the petition which is based on the unfounded allegation that contractor was se lected on recommendation given by the Member of Parliament. Accordingly, the wri t petition is dismissed. SECOND CASE 9. In WP(C) No. 690/09, the petitioner challenges the tender notice dated 3 0.1.09 by contending that the recommendation made by the Member of Parliament as well as by the Planning and Development Department of Govt. of Assam, to tender all the 3 works in a single package was ignored. It is contended by the petitio ner that if all the three works would have been awarded as one package, more com petent tenderers would have participated in the tender process which would have enhanced the quality of the executed work and public would have benefited in the process. 10. The petitioner also alleges that there has been certain amount of duplic ation in the three works as part of those 3 works were earlier executed under ot her schemes of the Government. To substantiate the allegation, Mr. S.K. Medhi, l earned counsel for the petitioner refers to the enquiry report dated 8.5.08 (Ann exure-14) given by the Chief of Division (PP), Planning and Development Departme nt of the Govt. of Assam. 11. In the affidavit filed by the Chief Engineer (Roads) PWD, Assam, the all egation of duplicity of works have been categorically denied and it is averred t hat expenses earlier incurred of certain repairing works to ensure that the 3 ro ads are in reasonable communicable stage, have already been excluded. Therefore it is submitted that the allegation of duplication of the works have been adequa tely addressed by the department. 12. It is further averred by the Chief Engineer that since 3 separate estima tes were prepared against three different roads for execution of works under NLC PR and administrative approval was also issued by the Ministry of DONER, Govt. o f India separately for the 3 works, the works could not be clubbed together in a single package. It is further averred that amalgamation of all the 3 works in a single package does not necessarily ensure better quality and a conscious decis ion has been taken to have the 3 works executed separately to ensure that the wo rks can be timely executed, through resources available with three contractors r ather than a single contractor. 13. The explanation of the department that unbundling of the work would ensu re timely execution is seriously questioned by Mr. Medhi by referring to the tim e schedule stipulated for completion of the works. Since all the three works wer e to be completed by 31.3.2010, Mr. Medhi points out that major part(s) of each of the 3 works have remained incomplete so many months after the due date of com pletion and this belies the credibility of the explanation furnished by the depa rtment, for not considering the request, to tender all the 3 works in a single p ackage. 14. It is seen from the communication dated 13.7.2010 of the Executive Engin eer, PWD of the Mangaldoi Rural Road Dvn. addressed to the Chief Engineer that 3 0%, 58% and 15% of the 3 works have been completed till the date of the said com munication and from the said letter it is apparent that, the contractor(s) as we ll as the department have failed to adhere to the scheduled date i.e 30.3.2010 f or completing the work(s) in question. 15. To explain the delay in completion of the works, the learned standing co unsel of the department submits that the running bills of the contractor(s) have not been paid because of which, the timely execution of the works could not be ensured and one of the reason for non-payment of the contractors’ bills is cited as this litigation, which is pending in the Court. 16. I find from the case records that no interim order was passed by this Co urt for withholding contractors’ payment or stopping the respondents from procee ding with the work. In such circumstances, it is not understood as to why the du e payment(s) of the contractor(s) has been stopped, which has resulted in poor p rogress of the work. 17. However, be that as it may, the petitioner has not been able to show tha t the executing department i.e. the State PWD in respect of NLCPR works was lega lly obliged to offer all the 3 work(s) as a single package, as suggested by the concerned M.P. Since the department was not duty bound to accede to the request of the MP to either award the contract in favour of a particular contractor or t o award all the 3 works in a single package, I see no legal right in favour of t he petitioner, to challenge the tender process, merely because tenders were invi ted separately for the 3 works and not as a package contract. Furthermore, since estimates for all the 3 works were prepared separately and administrative appro val was also granted for three separate work(s), no fault is found with the depa rtment merely because, it failed to invite tenders for all the three works in a single package as was requested by the MP. 18. Undoubtedly, the reason furnished by the Chief Engineer i.e. timely comp letion of works for not offering the 3 works in a single package is found to be belied by the incomplete state of work(s), but even then, nothing is found to co mpel the department to accede to the request(s) to give the 3 works in a single package. 19. It is seen that there has been very slow progress of the works, which we re expected to be completed by 31.3.2010, or before the Monsoon Session commence s. Even though several months have gone by, the work(s) have remained incomplete . The intervening monsoon may also further delay the completion of the works. 20. In view of the above, I deem it appropriate to close these 2 petition(s) by directing the official respondents to gear up and to take all necessary step s so that the suffering(s) of the user public are assuaged by early completion o f the works. 21. The petitions are disposed of accordingly.