IN THE HIGH COURT OP JUDICATURE AT BILASPUR Writ Petition No.!360of 2004 Mahesh Ahuja, son of Shri Mulkraj Ahuja, aged about 46 years, Proprietor M/s 'Mulkraj Ahuja 8s Sons, resident of Kelkarpara, Raipur. Versus RESPONDENJ-S:- ^'' M^ ^^// ^y^hf <i^// ^^ Jfr ?te.' •*' ^' ,^2 > State of Chhattisgarh, Through The Secretary, Ministry of Jail Affairs, D.K.S. Bhawan, Raipur. The Inspector General (Jail) Raipur The Superintendent (Jail) Raipur. The Collector, Raipur. x WRIT PETITION UNDER ARTICLES 226 8s 227 OF THE CONSTITUTION OF INDIA FOR THE ISSUANCE OF WRITS IN THE NATURE OF MANDAMUS, CERT^RARI AND /OR ORDER(S) AND /OR DIRECTION(S) IN__THE jj NATURE OF WRITS. .IIi.g,,h.umble_ae_ ^ ^ HI6H COURT OF JUDICATUREAT BILASPUR. CHHATTISSARH Writ Petition No. 1360 of 2004 Mahesh Ahuja - Versus- State of Chhattis9arh and three others POST FOR OR&B4 ON 6th SEPTEMBER. 2004 Sd/- L.C.BHADOO Judge' 7 '^ HI6H COURT OF JU&ICATURE AT_BILA.SPUR, WHATTISGAW Mohesh Ahuja - Versus- State of Chhattisgarh and three others present:- Mr. V.6. Tsmaskar, Advocate: Mr. Sumesh Bojqj, Dy, Sovt. Advocate; For the pet'tioner. For tha Stots/respondants. O.R b E (Passed on 6th September, 2004) By this writ, petition filed under Articies 226/227 cf the Constitution of India the pe+itioner has chalienged the actio'n of "espondent Nos.2 & 3 for not aliowing him to pdrticipate in the tender process of supply of food aid other items to the Jail Raipur. (2) The re!iefs sought by the petitioner in th.is petition are that the respondent/State authorities be directed to produce ail the reievant documents showing the consumption csnd supplies of the food itemsand other materials to ascertain the fact of yiolation of human and fundamental right.s a writ in the nature of mondamus be issued for directing the "esponden' State nuthorities to a!low the petitioner to participote in the process of supply of food items and other materiai required for the pri.sone-ra o' Centrai JaH, Raipur- and To direct the Sovernment to appoint an indepeiidsn- a9ency to enquire into the complaints rnade by the petitioner against var'ioii; authorities. ' i ^ •'s...;' (3) The petitioner's petition is that he is carrying the business of grain merchant and commission agent in the name and style of AVs Mulkraj Ahuja and Sons with its principal place of business at Keikarpara, Raipur. ihe petitioner is supplying various food grains etc. required for the prisoners of Central Jail, Raipur since last several years. For suppiy of the food items respondents in the first week of each calendar month invite quotations/rates. However, Jai! Superintendent t5r. Shyam Rah Singh, 60 down in-charge 5hri K.L. beshmukh and D.1.6. P.&. Verma are not aliowing the petitioner to participate in the process of supply of food items, as they want that the petitioner shouid issue biils of more quantity than suppiied by him which the petitioner rsfused, therefore, these officers are against him. Against which the petitioner made comptaints to the various authorities. Copies of the complcints are Annexure-P/2. Thereafter, these autho"ities by sending their persons are threatening him with dire consequences. The jail authorities are purchasing the food items dt higher rates against which the petitioner made compiaints, copy of the some is Annexure-P/4, and on account of that the petitioner is not being a!iowed to subrnit his quotation/rates to the jail authorities. The petitioner was rsot allowed to S participate in the tender process for suppiy of the food fte.ms slncs. June 2004. They are threatening him to biack tist. Therefore, it is aiso prayed that the detailed snquiry in the matter be directed. (4) Return of the same has been filed on behalf of respondents 1 to 4 in which it has been wentioned that instead of filing this writ petition the petitioner ought to hwe fiied csn appeal before the compe+ent authorit/ as per Chhattisgarh Jail Purti Niyam, 1968 (hereinafter referred to as Rules, 1968). The respondents are purchasing rnateriais for the jai! as per the rules, 1968. Apart from that, they are issuing separate terms and conditions for tender/quotation prspared in accordance witti Chhattlsgarh Store Purchase Rules, 2002. The petitioner is in the habit of making false and baseless allegations against the State authorities. On enquiry, the ailegations of the petitioner have been found false and baseless. JiTS. t<- petitioner' has suppressed materiai facts retating to his act of not supplying The materia's after submitting his quotation <xnd the same being apprcved- He has also suppressed that he was served with the notice da+ed 16-3-2004 and had subsequentiy defaulted 'in suppiy of materials. Oniy after such act of the petitioner, the authorities took action against the petitioner, w.hich is in accordance with the rules prescribed. The petitioner has no right to raise cny grievance regarding prisoners. In response to invitatlon for suppiy "f products dated 2-3-2004, 3-3-2004 and 4-3-2004, the pel-itioner had submitted his quotation for suppiy along with other suppiiers. The quotations were opened before the Pur-chase Commirtee and the suppliers on i-3-2004, 9-3-2004 and 10-3-2004 respectiveiy. Copy of documents giving details of action taken for opening of quotations clong with comparativs chart is Annexure-R/3. The Purchase Cominittee approved the purchases from the supplier, who had quoted the lowest rate for ths items. Ths petitioner was given supply orders dated 9-3-2004 and 13-3-2004. Copy of the same is Annexure-R/4. The petitioner refused to take the suppiy orders eyen after repeated efforts. lA notice dated 16-3-2004 wos affixed on the 'house of the petitioner giving dlrection to supply the items on 17-3-2004 by 5.00 am, in case of faiiurs the quotation wili be terminated and quotation wiil be Invited again on 18-3-2004, in which the petltioner wil! not be inciudec'. Copy of the notice dated 16-3-2004 is Annexur-e-R/5. (5) It is further mentioned in the return that the quotations fo" the wonth of April 2004 were aiso invi+ed where the petitioner had submitted his quotations. The quotations were opened on 1-4-2004 by the Purchase Committse in presence of the suppliers. In pursuance of the notice dated 16-3-2004 it was proposed not to include the quotations of the petitioner and it was decided to be rejected by the committee. Afte" the decision to rej'ect the quotations of the petitioner, the petitioner- abused Shri Oeshmukh, Assistant Jailor. A complaint was made to the Collecto", Raipur, praying fo." canceliation of licence of the petitioner and l-o inciude the name of th®petitioner in the black !ist. Copy of document giving details of action taksn on 1-4-2004 is Annexure-R/6. The petitioner ha:s not made party to the officers against whom personal allegations have been ievelled; therefors, they hove no chance to refute the allegations against them. On the complaints of the petitioner cn enquiry was instituted and after enquiry, officer on special duty to the Coilector, Raipur submitted his report on 14-7-2004. The enquiry' officer found the allegations made by' the petitioner to be false and baseiess. Copy of the so.me is Annexure-R/8. It is denied that the petitioner was not ailowsd to submlt his quotation and the person guarding the quotation box restrained the petitsoner from dropping the quotation. The petitioner- had not fulfilled the precondition of depositing the security amount of Rs.20,000/- before submission of quotation vide notice dated 27-4-2004, therefore, being Ineiigible, the petitioner had not submitted quotation. Therefore, the petition be dismissed. In the rejoinder, the petitioner has mentioned that he was regularly supplying all the materials. Even the petitioner supp!ied materials after 16-3-2004. It is incorrect to say that the petitioner had refused to taks notice dated 16-3-2004. The order of respondents debarring the petitioner from participating in the tender process and bhckhsting has not been served upon him. No chance of hearing and reply has been given to him. Non- deposit of Rs.20,000/- is not correct, in fact, when the petitione" went to deposit the swd amount, he was informed that he cannot deposit the said amoun* which wcis made a ground *o "estrain him to participate. (7) Reply of the rejoinder' has been filed on behalf of "espcndents. They have repeated the same thing which has been mentioned in the return. They have further submittad that the notice (Annexure-R/5) was Issued to the petitioner after mcking due efforts to serve upon him. 11- was affixed at the gate of his house. The resolution to send proposal to biack list the petitioner was taken due to misconduct of the petitioner. Firstly, the ^ petitioner had wil!fully defaulted from the supply of materials; secondly he abused the jail authorities on rejection of his quotation. (8) I ho.ve heard learned counse! for the parties. (9) Learned counsel for the petitioner submitted that in an arbitrary manner respondents are not allowing the petitioner to participate in the tender process for the reason that the petitione" was not ab'e to accede the i!!egal demands of the authorities. He also submitted that as far as deposit of Rs.20,000/- as securit/ amount is concerned, the petitioner was not allowed to deposit that amount. Notice dated 16-3-2004 was neyer served upon him and he was never asked for supply of the items. Suppiies were made by the petitioner eyen after 16-3-2004. (10) On the other hand, learned counse! for respondents submitted that the officers against whom personol allegations have been tevelled has not been made party, therefore, they have not been able to refute the allegcxtions levelied against them. An enquiry committee was constituted and the complaints made by •rfie petitioner were enquired into by the officer on special duty of the Coilector, Raipur and the same were found false. ft.s the ..petitionet' had not supplied the items, therefore, notice Annexure-R/5 was issued, but the petitioner refused to take the same. Even on telephone the petitioner was informed to supp!y food items, even then he had not supplied the food items. As fo,r as the question of not allowing hinn to participate and non-communication of Annexure-R/5 is concerned. it is evident from the minutes of the meeting dated 1-4-2004 in which the petitioner himself participated and everything happened in his presence, so everything came to his notice. Eyen the petitioner abused one of the officers in the meeting, therefore, a decision was taken not to allow the petitioner to participate in the tender process. It is further submitted th.at as far as the question of black listing is concerned, the petitioner has not been blacklis+ed so far and the matter is pending before the Collector, Raipur. i—— (11) After hearing counsel for the parties, I have perused the relevant records. As far as the question of blacklisting of the petitionsr is concemed, as per the arguments advanced by 'earnsd counse! for the petitioner and respondents so far the petitioner hcs not been biack (istsd and the matter is pending before the Collector, therefore, at this stage the petitioner cannot raise any grievance. If he is black listed without giv'n< oppoi-tunity of hearing, to explain and submit reply, then he wil! be at iibert/ to raise his grievance before the appropriate Forum. (12) As far as the question of aiter'native remedy is ayailable To t'he petitioner that he ought to have filed an appeal before the 1.6. (Prisons) is concerned, it is true that 'ne has not fited an appeal bsfore 1.6. (Prisons), but ns per" the allegations in the petition the authorities are biased against him and eyen he is not a!lowed to niake his point and explain his stand. Therefore, principles of natura! justice have been violated. As has been held by the Hon'ble Apex Court in the matter of Harbansiai Sahnia snd another' V. Indlan Oi! Corpn. Ltd. and others reported in (2003) 2 SUPREME COURT CASES 107 that 'writ petition under Article 226 is maintainabie where the petitionsr seeks enforcement of any of the fundamenta! rights or whe.re there is failure of principles of natur'a! justice'. Since the petitioner has alleged regarding violcation of principles of natural Justice Cind also regarding vioiation of fundamental rights under Article 19 (l)(g), therefore, I am of the opinion that this ground raised by respondents is not rpainl'ainable. (13) Now, coming to the question of not aliowing the petitioner to participate in the tender process is concerned, in this regard a!!egations and counter allegations haye been levelled. In Annexure-R/5 dated 16-3-2004 it has been mentioned that the order was sen* to the petitioner for suppiy of the materials on 11-3-2004 by Assistant Jailer Deshmukh, but the petitionsr refused to take that order. Thereafter, one j'ail guard ncrnely Dula" Singh Verma of Central Jail, Raipur was sent on 12-2-2004 at 5 pm and 13-3-2004 at 12 pm at the residence of the petitioner, but he refused to take the order. Even he was informed over telephone, but for no reason the petitioner refused +o take the order. Thereafter, it was directed to affix the said order on the residence of the petitioner and the same was affixed in which it was mentioned that if the petitioner fails to supply the materlcls, then his quotation will be cancelled and rs-quototion will be issued on 18-3- 2004 and the petitioner will not be allowed to participate in the future tender process. A perusal of the proceedings of the meeting of Purc.hase Committee dated 1-4-2004 reveals that the petitioner was present in the meeting. During the meeting, 5hr-i K.L. &eshrr,ukh, Assistant Jaiior apprised the committee thot the petitioner failed to supply the material of the Industry Branch of the Jail, therefore, the petitioner witl not be allovi/ed to participate in the tender process. The proposal of Shri &eshmukh was approved by the committee. On this petitioner started abusing Mr. Deshmukh in presence of the committee.. It was also considered that the petitioner is in the habit of making fa!se allegations against the committee, therefor-e, the case be moved before the Collector for cancellation of the licence of the petitioner and blacklisting him. It is evident from the record that the petitioner's tenders/quotations were accepted on 8 March 2004, 9 March 2004 and 10+ March 2004 and after accepting tenders,order was sent to the petitioner for supply of the material of 1-he Industi-y Branch of Jail, but the petitioner refused to take. Even on telephone he was informed about the supply order, but he refused to supply. Then a notice was afflxsd on the house of the petitioner in which It was categorically mentioned that if he fails to suppiy the material, then in future he wili not be a.!!owed to participate in the tender and quotation process. Same point was r-aised in the meeting of Purchase Committee dated 1-4-2004 and it was dscided not to allow the petitioner to participate in the tender process against which the petitioner has not preferred any appeal before 1.6. (Prisons) as envisaged in rule 14 of the Ruies 1968. (15) As far as the purchdse is concsrned, as per Rule 3 of the Rules 1968 respondents are entitled to purchase the materiais from reputed caid trustworthy suppliers, therefore, it is the satisfaction of th®Purchase Committee to decide that who is the reputed and trustworthy flrm who can supply the material. ftule 13 of Chhattisgarh Jail Purti Rules 1968 envisages that 'if the tenderer as per the agreennent fails to supply material, then Superintendent Jai! will immediately intimcite the 1.6. (Prisons) cf this fact and also give intimation in ,writing to the tsnderer in which it will be mentionsd that in case the tenderer fails to suppiy the material, then it will be purchased from the market and if oiny loss is suffered by the administration, then same will be recovered from the tenderer as a land revenue or from his security. However, in these rules noth'ng has been prescribed that in case the tendersr fcsils to supply the materiai, then in future he will be debarred from participating in the tender process. Couns?! for respondents was not able to point out that even in the terms and conditions of the tender notice there was any such condition that in co.se. of .non-supply of the material by the tenderer, the administration will be entitied to debar him from participoiting in the future tender process. Even if the petitioner had failed to supply the material in the Industry Branch of Centrai Jail, Raipur in response to the order dated 11-3-2004, then as per rule 13 of the Ruiss 1968 respondents we.re. entitled to purchase the same from the ir.arket ond 'in that process if the loss was suffered by the administration, then they were entitled to recovsr' fr'om the security amount deposited by the petitioner and a\so as land revenue. Evsn the petitioner has levelled allegation that he was not allowed to deposit Rs.20,000/- as security amount. Since there was no provision in the supply rules 1968 and in the ternns and conditions of the tender that if the petitioner wi]l not supply the material, then he wili be debarred from participating in the future tender process. In.tl'ie circumstances.respondents ought.to have issuec[ '•^L show cause notice to the petitioner asking him to exp'ain since he has faiied to supply the items as per the orders, therefore, why he should not be debarred from participating in the future tender process for supply of materia!. After receiving the expiaiation of the petitioner, they shouid have decided the case and passed appropriate order in the matter. AAost specifica!ly when so much aile9ations leyelled by ths petitioner against respondents, then they ought to have carefu! and taken decision after giving reasonable opportunity to the petitioner to explain his conduct before taking decision of debarring the petitioner from part'cipating in the tender process. Evsn otherwise, perusal of the records revesls that the petitioner was regularly supplying the material to the Centra! Jail, Raipur since last more than 4 years. The r-espondents have admitted this fact that he was regularly supplying the matsria! and ttiere was no complaint in the past about the non-supply of the material, then for failure of the petitioner to supply the materia! for once, the decision taken by respondenl's is harsh, arbitrary and irra-1-ionai and that too without affprding the opporl-unity to the petitioner to explain his conduct. More pdrticularly, when there was proyision in rule 13 of the Rules 1968 that respondents were entitled to purchase the items/materials fr-om the market at the market rates and if any !oss suffered by respondents, they were entitled to recoyer from the security deposit made by the petitioner or as land reyenue. Therefore, decision of respondents to this extsnt cannot be said to be corr'ect and in accordance with rules 1968 or as per the terms and conditions of s+hf tender. Even they have not mentioned that on account of non-supply by the petitioner how much loss was suffered by them. On the contrary, they returned the amount of Rs.30,000/- to the petitioner which was pending with respondents. (17) It is not out of place to mention here that before participating in ths tender process, the petitioner is required to fulfill all the terms ana 10 conditions of the tender, deposit the security amount and follow the rules 1968. The respondents^will be at liberty to purchase items after following procedure env'iaagedi 'in the Supply Rules 1968, Chhattisgnrh Store Purchase Rules 2002 and terms and conditions of the tender. (18) As fac as^the complaints against respondents are concerned, the committee was also constituted and the committee has already found ^' the complaints of thepetitioner false. Therefore, -tiiere is no substance in the petition to this extent. (19) In the result, the petition of the pefitioner is partly allowed. The respondents are directed to allow the patitioner to partidpate in the future tender process, of course, subject to petitioner complies with the terms and conditions of the tender and other orders of respondents which are issued in accordance with Chhattisgarh Jail Purti Niyam, 1968 and Chhattis9drh 51'ore Purcha.se Rules 2002. (20) In the facts and circumstances of the co.se, parties are ieft to bear their own cost. : Sd/- L.C.BHADOO Judge' 6-9-2004