IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 6378 of 2011-G Decided on: 18.10.2011 Anil Thakur …Petitioner. Versus State of H.P. & others …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioner: Mr. Ajay Vaidya, Advocate. For the respondents: Mr. Vivek Singh Thakur, Additional Advocate General, with Mr. Rajesh Mandhotra, Deputy Advocate General, for respondent No. 1. Mr. Bhupender Gupta, Senior Advocate, with Mr. Neeraj Gupta, Advocate, for respondents No. 2 to 4. Deepak Gupta, J. (Oral) By means of this petition, the petitioner has prayed that the order whereby contract has been awarded by respondents No. 2 to 4 in favour of respondent No. 5 be quashed and set aside and they be directed to award the contract of the said work to the petitioner. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- 2. Briefly stated, the facts of the case are that the respondent - H.P. Housing and Urban Development Authority (hereinafter referred to as the HIMUDA) invited sealed tenders for two works. We are only concerned with work No. 2, which related to providing and fixing pre-painted sheet roofing on the Welfare office Building at Solan, District Solan. One of the conditions of the tender was that it should be accompanied with earnest money of ` 11,150/- and another condition was that tender would not be issued to those contractors/firms, who have delayed the work more than 50% time of the contractual obligation. 3. It is not disputed that only three firms submitted tenders and the petitioner was initially the lowest bidder, having submitted a bid for ` 4,56,919.25/-. Thereafter, he was asked by the Negotiation Committee of the HIMUDA to negotiate and lower his rates, but he sent a communication stating that his rates were competitive and he would not lower them any further. Thereafter, the Negotiation Committee of the HIMUDA called respondent No. 5, who was the next lowest bidder, for negotiations and though, he had initially quoted a sum of ` 5,42,936.26/-, he after negotiations reduced the same to ` 4,28,289.38/- and thereby became the lowest tenderer. The HIMUDA awarded the contract to him and thereafter, the petitioner filed the present writ petition. 4. The two grounds raised by Mr. Ajay Vaidya, learned counsel appearing on behalf of the petitioner, are that respondent No. 5 admittedly had earlier delayed another contract more than 50% of the stipulated time and his tender could not be taken into -: 3 :- consideration. This fact is not denied by the HIMUDA, but according to the HIMUDA, in the interest of competition, it decided to relax this condition in favour of respondent No. 5. 5. The second contention of Mr. Vaidya is that though respondent No. 5 had initially submitted the earnest money of ` 11,150/-, but when he found that he is not the lowest tenderer, he asked for refund of the amount and when negotiations were held, there was no earnest money lying in deposit with the HIMUDA and this earnest money was again submitted by respondent No. 5 after negotiations were held on 18th August, 2011. 6. Prima facie, I am of the opinion that the HIMUDA should not have considered the tender of respondent No. 5, since even according to the HIMUDA, it, in another case, caused delay of more than 50% of the stipulated time. No doubt, any party inviting tenders has the power to relax the conditions, but normally, it is expected that in the advertisement itself, it should be clearly stated that it has the power and may in appropriate cases relax the conditions. 7. Mr. Ajay Vaidya, on instructions received from his client, states that even now, he is willing to match the lowest offer of respondent No. 5 and is willing to do the work for a sum of ` 4,28,289.38/-. Keeping in view the fresh offer of the petitioner, who was the lowest bidder earlier also and keeping in view the fact that respondent No. 5's tender could not have been entertained in view of the condition referred to above and since at the stage of negotiations, there was no earnest money lying in deposit, I am of -: 4 :- the considered view that since the petitioner has now made a genuine counter offer, which will meet the lowest tender submitted by respondent No. 5, it would be appropriate to set aside the order whereby the contract was awarded in favour of respondent No. 5 and the HIMUDA is directed to award the same in favour of the petitioner for ` 4,28,289.38/-. 8. The writ petition is disposed of in the aforesaid terms. No order as to costs. Copy Dasti. (Deepak Gupta) Judge October 18, 2011 (rajni)