-rts^-s.- HIGH COURT OF JUDICATURE. CHHATTISGARH AT BILA8PUR Writ Petitioa No. 2039 of2003 PETITIONER: .i- M/ s Taaraa Tm'an Tube weUs, through its proprietor Mahendra Jam S/o Hukuia Chaad Jain, aged about 42 years, resident of LokhoH Naka Chowk, Rajnaadgaon, TehsU and Distdct Rajnandgaon (Chhattisgarh) -Versus- RESPONDENTS: The State of Chhattisgarh fhrough its Secretary, Departinent of Nagar Palik N^ain, Maiitzalaya, D.K.S. Building Raipur, TehsU aad District-Raipur (CG). The Commissioner, Nagar PaUk Nigaia, Rajnaadgaon, Tehsil aad Distdct Rajnaiidgaon (CG). The Mayor, Nagar Palik Nigam, Rajnandgaon, TehsU aad District^ Rajnaadgaon (CG), The CoUector, Rajnaiidgaon, Tehsil aad District Rajnandgaon (CG), M/ s Bafha Construction Coinpany, Near Kainal Talkies, Bharkapara, Rajnaiidgaon (CG). POST FOR ORDER ON /9/A 5EPTEMBER. 2003 Sd/- L.C. Bhadoo Judge f^fi^ September, 2003 ^- HIGH COURT OF JUDICATURE. CHHATTISGARH AT BILASPUR Writ Petition No. 2039 of 2003 PETITIONER: RESPONDENTS: M/ s Taaraii Taraa Tube weUs, fhrough its proprietor Mahendra Jaia S/o Hukum Chand Jaia, aged about 42 years, rcsident of Lokholi Naka Chowk, Rajnaadgaon, Tehsil aad Distilct Rajnaadgaon (Chhattisgarh) -Vei-sus- 1. TheStateofChhattisgarh fhrough its Secretaiy, Depailment of Nagar PaUk Nigaxa, Maatralaya, D.K.S. Biuldmg Raipur, TehsU aiid Distiiet-Raipur (CG). 2, The Commissioner, Nagar Palik Nigam, Rajnanidgaon, Tehsil and District Rajnaadgaon (CG). 3, The Mayor, Nagar Palik Nigad, Rajnaadgaon, TehsU aad Distorict, Rajnaadgaon (CG). 4. The CoUector, Rajnandgaon, Tehsil aiid District Rajnaadgaon (CG). 5, M/s Bafna Constniction Compaay, Near Kamal Talkies, Bharkapara, Rajnandgaon (CG). Shri Shailendra Soni counsel for the petitioner. Shri Ranbir Stagh, Govt. Advocate for respondents No, 1 and 4. Shri Ravmdra Agarwal, counsel for fhe respondents No, 2 and 3. Shri Anaad Shukla, counsel for rcspondent No.5. Before: Hon*ble Shri L.C. Bhadoo, J. L ORDER (Passed on f^ ^eptember, 2003) ...) ^ \ 1. The petitioner has preferred this writ petition under Article 226/227 ofthe Coustitution of India chaUenging the decision of fhe Respondeut No.2 by wliich the Respondeut No.2 has bifurcated fhe contract of uistalling 52 tube wells borings iuito two parts and awarded 50% contra.et to fhe petitioner and 50% contract to the Respondent No.5. 2. The petitiouer's petition is fhat fhe petitioner is a rcgistered finn haviaig its registration No.4654/Panji/Sasha/ Muaa/ Lof Swa/Yaa/Vi/99 aad fhe petitioner firm is expert m driUiag work, 3, The Respondent no.2 Le, Nagar Paltka Nigam, Rajnaadgaon floated a tender on 26,5,2003 uiviting tenders from. the eligible tenderers/contractors who are rcgistered and workmg in Public Health aiid Engmeering Department for canying out flie tube weU work ia its area, 4. In response to the notice iavitmg tender fhe petitioner, respondent No.5 aad one P, C, Jaia submitted fheir tenders aad quoted fheir rates for execution of tube weU work, The tenders were opened ia presence ofall the tiiree tenderers and a comparative chart Ex,P/5 was prepared on 3rd June 2003 after operdng the tenders, 5. On 25th June, 2003 a special meeting of the general body of fhe Municipal Corporattion was convened aad m that meeting flie decision was taken that the tube weU work should be awarded 50% to the petitioner and 5(P/o to the Respondent No,5. A copy oftiie decision taken m the meetiag is Annexure P/6. The Respondent No.2 vide its memo dated 26.6.2003 Annexure P/7 coinniurdcated to fhe petltioner to execute aa agreement wifhin fhree days for boring of26 tube weUs ia the jurisdi^tion of Minucipal Corporatioa. 6. AU fhe rates quoted by the petitioner were approved by fhe Respondent No,2 except item No, 3(a), and 4 and ftiey altercd fhe rates quoted by fhe petitioner, The petitioner had not quoted aay rates for item No. 5 aad 6 but the respondents- aufhorities awarded the rate of Rs, 125/- for item No,5 aiid Rs.400/- for item No.6. The RespondentNo.2 awarded 50% ^ M' </ contract to fhe Respondent No.5 011 the rates quoted by fhe petitioner. 7. The petitioner submitted a detaUled reply to the notice Annexure P/7 which is Annexure P/8. The petitioner quoted Rs. 25759.00 for 125 m.m, whereas the Respondent No,5 quoted Rs, 26789,00 tliereby flie difference between two is Rs, 1030 ia. each complete bore, Smiilarly for 150 ni.m, the petitioiier quoted rate of Rs, 25885,00 and Respondent No.5 quoted Rs, 26909.00 fhereby the difference betwreen fhe two is Rs, 1024/- m per complete bore but tih-e Respondent No,2 awarded fhe contract for bonng 26 tube wells to fhe petitioner aad 26 tube weUs to tiie Respondent No,5. 8. Accordiag to fhe petitioner as per the N,I,T. aU fhe borcs should have been doue by D, T. Ring Machiae aad it is submitted fh.at except fhe petitioner no other contractor possess D. T. Ring Machine for bores. It has further been mentioned by the petitioner fhat fhe Respondent No.2 for benefiting the Respondent No.5 overlooking the tenns aad conditions on his own free wiU aad m aa illegal aiid arbitraiy nianner favoured the Respondent No,5 knowuig fully weU that thie rates quoted by fhe Respondent No,5 were not the lowest rates fhaa the rates quoted by the petitioner, The purpose of mvitiag tender was fhat to get more work on reasonable rates. But ia fhis case fhe Respondeut No.2 has floated fhe N,I,T. for 52 tabe wells but awarded 50% work to the Respondent No,5 whose rates were higher than tiie rates quoted by the petitioner, ThercfQre, a writ in fhe naturc of certiorad quashiag the impugned decision dt 25,6.2003 beissued. 9. Retum has been filed ou behalfoffhe Respondents No. 2 aad 3 ia which they have mentioned fhat the tenders were iavited on 3,6.2003 and comparative statement was prepared, After preparation of comparative statement the tender was kept before the tender comLmittee which had not approved the tender rates aad fixed the standaid lowest rates which was also approved aad passed by flie special ineeting of General Body of Municipal Corporation. It is denied fhat the^ r^ </.;A development charge aad rcgistrivily survey Le. two works mentioned at Sr.No. No, 5 aad 6 should have done by fhe contractor at their own cost, AU the tender rates quoted by the tenderers were disapproved by fhe tender cominittee, aad new lowest rates were approved by fhe General Body of the Municipal Corporation, Rajnaadgaon fhercafter notices were also issued to the petitioner aad Respoudent No,5 for their consent The rates approved by the committee is 25559,00 for 125 ni.m, aad Rs, 25685.00 for 150 m.m, which is less thaa ffae rates quoted by fhe petitioner aad also by the competitors takiag part m flie tender. In Clause 5 it is meiitioned fhat the Officer competent shaU have a right to rcject all or aiiy of fhe tender aad the rates approved by fhe committee is less ttiaa fhe rates quoted by fhe petitioner aad the oflier coinpetitors, There is no financial loss to the Municipal Corporation as mentioned by the petitioner, tiierefore fhe petition be dismissed, lO.The reply has also been filed by ftie Respondent No.5 in which it has been mentioned fhat tiie Municipal Corpora.tion tender committee took the decision on which ftie tender item was awarded to him aad after entering iato aa agreement he iavested huge auiount for doiag the allotted work but no work order is issued till now and if the Respondent No,5 is not allowed he wiU suffer fhe loss of huge amount, 11.1 have heard leamed counsel for the parties. 12. It is admitted position fhat fhe tender was invited by tiie Respondent no.2 for boring of 52 tube wells aiid iii rcsponse to fhat the petitioner, Respondent No,5 and oue P. C, Jam submitted fheir tender and a comparative chart Annexiire P/5 was prepared. If we peruse flie comparative chart the graad total of fhe rates quoted by the petitioner, for mstallation of one tube well, was lowest, rates quoted by the respondent No.5 were next lowest aad Uie rates of Shri P. C. Jam were highest, The petitioner^s rates for 125 ni,m, was Rs. 25759 and for 150 m.,in. 25885 and fhe rates of Respondent No,5 for 150 m.m. 26909 and for 125 m.m. 26789.00. Thercforc, tlie •^ petitioner was the lowest tenderer. As per fhe settled principle th.e Respondent No,2 or the tender committee m the jBrst mstaace ought to have called the petitioner aiid should have asked hun for fhe reasonable rates which are fbced by the tender committee aad iffhey were acceptable to fhe petitioner then fhe contoract should have been awarded to him, If fh.e petitioner was not agreeable to those rates m fhiat case the tender committee was withia its right to award the contract to flie Respondeiit No.5 bemg the next lowest tenderer. But m fhis case the committee coiicenied as well as fhe Respondent No,2 devised tlieir own method and acted ia. a most arbitraiy aad unreasonable maauer without first askmg fhe petitioner they themselves spUt fhe contract into t^o parts aad decided to award 50P/o contract to the petitioner aad 50% contract to the Respondent No.5. 13. The rates of tlie petitioner were lowest aad only the lutes of two iteins were reduced by tiie tender coinimttee. The comniittee ought to have had asked to fhe petitioner as to whether it is acceptable to him aa.d if it was not acceptable to tJie petitioner thaa fhey ought to have had awarded fhe contract to the Respondent No,5. In this case even fhe petitioner accepted fhe rutes fixed by the Respondent No,2, fherefore there was no question of splittmg the contract aad ftiere was no provision ia the notice uiviting tender that the Respondent No.2 will be weU within its right to split the contract. More over it has nowhere been said that the petitioner fina was not capable to execute fh.e whole contract, More particularly the petitioner has mentioned m para 5.12 of the petition that the petitioner firm is fhe only firm which possess fhe D, T. Ruig Machiae for boring the tube wells and no ofher firm is possessiag fhat machine. It shows titie competence of the petitioner. More over the objection of the petitioner is con'ect wifh. regard to spUttiag the contract, A perusal of the Annexure P/l N.I,T, shows that the coHdition No, 1 aad 2 rcveals that the contractor was supposed to conduct fhe survey ofregistdvily aad after installation he was w b ( -y ^- • \ also supposed to haadover the tube weU after coniplete testing. The condition No.3 also lays dowii that according to the need for fhe purpose of bormg fhe tube weU in fhe streets In well Riag Machiae will be used aad for fhat tiie petitioner has said fhat he is in possessiou offhat machiae aad notihiag has been said about it by fhe Resplendent No,5. Therc is no provision m the N,I,T. by which the Respondent No,2 or the Comniittee is aufhorized to spUt fhe contract and as has been mentioiied by fhe petitioner fhat the committee has unnecessarily fbced fhe rates for Item No, 5 aad 6 as Rs, 125/- and Rs, 400/- whercas this was to be done by the contractor himself wifhout aiiy cost aad fhat is why the petitioner had not quoted ftie rates ofthese two items. 14.The respondents are trustee oftitie pubUc nioney aiid they are duty bound to act aad conduct tiiemselves m a most rcasonable, fair aiid traasparent manner, Since they are deaUng witih. the pubHc raoney, they were uot eiitltled to chao.ge fhe terms aad conditions of fhe N.I,T. or spUt the contiuct at their own, They have acted in a most unreasonable and arbitraiy mauner by not offering their rates first to the petitioner bemg the lowest tenderer aiid it is not fhe case of the respondents that fhe tender of the petitioner was notwitihdn fhe conformity offhe requirenient offh.e N,I,T. or he was not capable to execute fhe order alone or his past track rccord was not up to the mark. 15.In view of fhe above by all nieans the decision of fhe respondent No,2 caiinot be said to be just, fair and reasonable ia spUttmg fhe contract, therefore, it is Uable to be quashed quc^awarding ofthe contract to the respoudent No.5, 16.In fhe rcsult fhe writ petition ofthe petitioner is allowed aad tihie decision ofthe respondent No.2 ia awardiag the contract for bormg of26 tube weUs to Respondent No,5 is quashed. Thakur Sd/- L.C. Bhadoo Judge