CWP No. 7159 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh CWP No. 7159 of 2008 Date of Decision: 08. 09.2008 Sunil Khasa ...... Petitioner Versus State of Haryana and others ...... Respondents Coram: Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice Ajay Tewari 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Akshay Bhan, Advocate for the petitioner. Mr.Sanjeev Kaushik, Addl. Advocate General, Haryana for respondents No. 1 to 4. Mr. Dheeraj Chawla, Advocate for respondents No. 5, 6 and 7. **** Ajay Tewari, J. This is a petition filed to challenge the allotment of contract of labour and cartage operation made in favour of respondent No.7. It is averred that sealed tenders were invited by the District Food and Supplies Controller, Sonepat (Haryana) from the Arthia Association/Labour Contractors for doing the labour and cartage operation for the year 2008-2009 in respect of various State procurement agencies. The contract for HAFED and CONFED for Gohana Mandi was allotted to one Ranbir Singh who had offered the rate of 404%, the petitioner being the CWP No. 7159 of 2008 2 second lowest tenderer. However, the said Ranbir Singh surrendered those contracts and, as per the averments in the petition, instead of offering the same to the petitioner, those were allotted to 2 other persons on 16.4.2008 and 18.4.2008 respectively at a much higher rate than that which had been offered by the petitioner. Within a fortnight the petitioner was before this Court having filed the present petition and reiterating that he was prepared to execute both the contracts at his quoted rate of 445% as against the subsequent award of tenders at 600% and 675 % respectively. In the written statement it is averred that at the time when Ranbir Singh surrendered his contracts, an emergent situation had arisen. More than 5 lacs bags of wheat were lying in the open and the situation worsened due to rain. To meet this emergency all the tenderers including the petitioner were called but the petitioner refused to do the work and that is why the contract/s had to be awarded to other persons who, incidentally had not even submitted any tenders. However, no document has been placed on record by the respondents to substantiate their averment that indeed all the interested persons were summoned or that the petitioner had refused to execute the job. Mr. Akshay Bhan, learned counsel for the petitioner, has very fairly stated that a large component of the work having been concluded substantive relief cannot be available to his clients as on today. However, he asserts that the averment regarding the unwillingness of the petitioner is ex facie incorrect since in that eventuality there would have been no occasion for the petitioner to approach this Court. He prays that in the circumstances it would be appropriate if this Court issues directions so that at least this kind of unfair practice does not recur. It is his argument that in such CWP No. 7159 of 2008 3 situations, what is done is that one person submits an unreasonably low tender only with the purpose of dropping out subsequently. Thereafter, the tender is allotted to some other person at a much higher rate in connivance with the officials so as to result in abnormal profits to the successful allottee. Having given our anxious consideration to the matter we have come to the conclusion that though it may not be possible for this Court to return a finding that the instant contract was manipulated in the manner suggested by Mr. Akshay Bhan, yet we feel that the allegations cannot be dismissed out of hand also. The argument of the counsel for the respondents that the defaulting contractor would be black listed and that for this reason no body would play the sacrificial goat as suggested by Mr. Akshay Bhan is not a complete answer since a non-serious surrogate tenderer would be hardly affected by blacklisting or even forfeiture of security. In the circumstances we feel that it would be necessary for this Court to make an order which would prevent recurrence of this practice. We, therefore, direct the official respondents to consider whether in case of default by the contractor, notice must go to the second lowest tenderer. In emergency even telegraphic notice for 24 hours can be sent. The respondent No.1 is directed to take a decision on this aspect and submit the same to this Court within a period of three months from the date of receipt of a copy of this order. We also deem it appropriate to direct the respondent No.1 to look into this entire episode to streamline working out of such arrangements in future. This is necessary because in case the allegations made in the CWP No. 7159 of 2008 4 petition are correct it would mean that wrongful loss has been caused to the State because of motivated and extraneous considerations. In case it is found that the allegations made in the petition are substantiated, remedia action be taken including recovery from the guilty official/s in addition to penal proceedings. Let this be done within three months from the date of receipt of a copy of this order. The Court Secretary is directed to hand over a copy of this order under his own signatures to Mr. Sanjeev Kaushik, Addl. Advocate General, Haryana for onward transmission to the respondent No.1 for necessary action. (AJAY TEWARI) JUDGE (ADARSH KUMAR GOEL) JUDGE September 09, 2008 sunita