IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1027 of 2007 (M/S) M/s J S P Constructions, II-C-201, Nehru Nagar, Ghaziabad- 201001, through its Partner Mr. J.P.Jain, S/O Mr. S.C.Jain, R/O Flat No.5, II Floor, III-B-2, Nehru Nagar Ghaziabad-201001. …… Petitioner. Versus Bharat Heavy Electricals Limited, HEEP, Haridwar-249403, Uttarakhand through its Chairman & Managing Director and three others. … Respondents. Sri Davesh Bishnoi, learned counsel for the petitioner. Sri B.P.Nautiyal, learned counsel for the respondents 1-3. Sri V.K.Kohli, Senior Advocate, with Sri I.P.Kohli, learned counsel for the respondent no.4. Date June 11, 2008. Hon’ble B.S.Verma, J. Sri Davesh Bishnoi, learned counsel for the petitioner, Sri B.P.Nautiyal, learned counsel for the respondent nos. 1 to 3 and Sri V.K.Kohli, Senior Advocate, with Sri I.P.Kohli, learned counsel for respondent No. 4. Heard learned counsel for the parties and perused the record. This writ petition has been filed for the following reliefs:- A. Issue a suitable writ, order or direction in the nature of certiorari quashing the Letter of Intent (Annexure No.1) of respondent no.1. B. Issue a suitable writ, order or direction in the nature of mandamus directing the respondent nos. 1 to 3, to issue Letter of Intent in favour of petitioner. 2 C. Pass such and further orders as this Hon’ble Court may deem just and proper in the facts and circumstances of the case. D. Award the cost of the writ petition in favour of the petitioner. Brief facts, giving rise to the present writ petition, are that the petitioner is aggrieved by the Letter of Intent of respondent no.1 issued to respondent no.4 for construction of foundation and other works for testing facilities of 800 MW TG Set vide its Office letter No. FCS/NIT/06-07/113/1382 dated 8-2-2007 whereby the respondent no. 4 was required to submit the requisite documents along with requisite security deposit within a week from the date of receipt of letter or latest by 19.2.2007 for signing of contract agreement. The respondent no. 4 was further required to submit Employee State Insurance Code Number, valid Labour Licence and Contractor’s All Risk Insurance Policy as per tender conditions. It was mentioned therein that the date of start will be reckoned from 26.2.2007 and the project was to be completed within 8 months as per tender conditions. The respondent no. 1 had floated a tender enquiry for Tender No. FCX/06-07/113 dated 27.11.2006 for the aforesaid works and sealed offers were invited in two parts, i.e. (i) Techno- Commercial offer and (ii) Price Bid. The petitioner along with respondent no. 4 and seven others had participated in the tender. Sealed offers were submitted as per instructions. In all nine tenders were received. The Techno-commercial offers were opened on 20- 12-2006. After evaluation of techno-commercial offers, only six tenders qualified for the second level, i.e. price bid. Petitioner also qualified for the same and the respondent no. 3 invited them to participate in the opening of price bids, which were opened on 20- 1-2007. The price bid of the petitioner, which was exclusive of service tax, was the lowest. 3 The grievance of the petitioner is that the respondent no. 1 misinterpreted the price bid of respondent no. 4, which was inclusive of service tax to be the lowest. Petitioner had also informed the respondent nos. 1 to 3 about the true position of law on service tax through letters dated 27.1.2007, 9.2.2007 and 22.2.2007, but they did not care to respond them, hence this writ petition has been preferred. Petitioner has assailed the letter of intent issued by respondent no. 3 (Annexure No. 1) mainly on the ground that the price bid of the petitioner being exclusive of service tax was the lowest bid. However, the respondent no. 1 misinterpreted the price bid of respondent no. 4, which was inclusive of service tax to be the lowest bid. Counter Affidavit on behalf of respondent no. 4 was filed by Shri Akhilesh Kumar Agarwal, Project Engineer of the respondent no.4. In the counter affidavit the averments made in the writ petition have been specifically denied and in paragraph no. 21 the respondent no. 4 has taken the stand that the price bids as per condition no. 51 of the Special Conditions of the Contract were required to be inclusive of all the taxes and duties but the petitioner did not comply with the said condition and his price bid was not required to be considered. It has been denied that the respondent no. 1 had misinterpreted the price bid of respondent no. 4. It was specifically stated that the respondent no. 4 had rightly given his offer taking into consideration all the terms and conditions of tender documents and his price bid was inclusive of all the taxes and duties, which included service tax and the same was rightly accepted being the lowest price bid. Supplementary Counter Affidavit was filed on behalf of the respondent no.4 on 9-7-2007. In paragraph no. 5, it was stated that the out of the total value of the work i.e. Rs. 3,91,67,283.31, the respondent no. 4 has already executed the work 4 to the tune of Rs. 1 Crore against which a bills of Rs. 80 Lacs has already been raised. Besides, the respondent no. 4 had made an investment of Rs. 70 lacs for the execution of the awarded work. It is pertinent to mention that in the Letter of Intent (Annexure No. 1) it was specifically provided that the execution of contract work/project would start from 26.2.2007 and the project would be completed within a period of eight months, thereby the date of completion would be 26-10-2007. Thus, it is obvious that the period of execution of project had already expired after eight months from 26-2-2007. The petitioner has annexed copy of tender notice as Annexure No. 2 to the writ petition. In Clause No. 51, it is specifically mentioned inter alia that “the quoted rate should be inclusive of all taxes and duties as applicable.” It is the admitted case of the petitioner that the price bid of the petitioner was exclusive of service tax, which has been rightly ignored by the respondent no. 3 and there is no question of misinterpretation of price bid of respondent no.4. The Letter of Intent was rightly issued in favour of the respondent no.4. The period of execution of contract has already expired a long back. In the facts and circumstances of the case and in view of the discussion made in foregoing paragraphs, the writ petition is devoid of merit and is liable to be dismissed at the admission stage. The writ petition is dismissed. Costs easy. All pending applications stand disposed of. ( B.S.Verma, J. ) RCP 5 6