JUDGMENT (CAV)

1. Heard Mr. Ashish Giri, learned counsel for the petitioners and Mr. Mithilesh Kumar Upadhya, learned AC to Government Pleader-3 for the State.

2. The petitioners/company has challenged the order of blacklisting dated 08.11.2019 (Annexure-4) issued under the signature of Deputy Election Commissioner, Gopalganj whereby the petitioners/company has been blacklisted from participating in any tender published in the District of Gopalganj.

3. The facts giving rise to this petition is that pursuant to the NIT for preparation of voters list for sixth Vidhan Sabha segment in the parliamentary constituencies of Gopalganj under two bidding system published vide NIT dated 08.08.2019 (Annexure-1), the petitioners/company also submitted its bid and was declared successful in the tachnical bid. The total 26 items were published for tender. In the financial bid for 12 items, the petitioners/company was rated to be the lowest tenderer because of its having quoted zero rate. For the other 10 items, petitioners/company was again found to be the lowest tenderer and for remaining four items, one company in the name of M/s Datatek Software Solution Pvt. Ltd had quoted the lowest price. For those four items for which M/s Datatek Software Solution Pvt. Ltd was the lowest tenderer, the petitioners/company was asked to give an affidavit that it would accept offer for those four items also but only at the rate quoted by the aforesaid M/s Datatek Software Solution Pvt. Ltd.

4. Learned counsel for the petitioner submits that the Respondent/authority entered into rate negotiation with the petitioners/company and communicated its offer vide letter dated 26.09.2019 (Annexure-2) where amongst others, petitioners/company was directed to file an affidavit agreeing to proceed with the work by matching the lowest rate in four items which was offered by the other tenderer, as would be evident from para-3 of the said letter. The petitioners/company, however, vide letter dated 28.09.2019 (Annexure-3) responded to the offer of the respondent and clarified that it can proceed with the work only with the original offer made by it inasmuch as the zero rate offered in 12 items is to be compensated by the petitioners/company from other items rate to make the same financially viable for the company. Accordingly, the petitioners/company submitted its affidavit which is at page 30 of the writ petition as a counter offer of the company for entering into the agreement of the original offered rate.

5. He further submits that the Respondent/authority found the affidavit submitted by the petitioners/company to be misleading and did not accept the same and as a result, cancelled the tender but while doing so also proceeded to blacklist the petitioners/company from further participating in any tenders in the District of Gopalganj on the ground that the affidavit so provided by the petitioners/company was not in terms of the direction of the Respondent inasmuch as the petitioner did not agree to match lowest rate as directed/offered by the Respondents.

6. It has also been submitted by the petitioner that the impugned order of blacklisting is wholly arbitrary, whimsical and is violative of Articles 14 and 19(1)(g) of the Constitution of India as there was no concluded contract between the parties, as such, the question of blacklisting did not arise and the order of blacklisting, thus, became wholly without jurisdiction. Learned counsel next submits that the impugned action amounts to forcing the petitioner to enter into the contract on the unilateral terms which was not agreeable by the petitioner and as per the provisions of Sections 7, 10, 13, 14 and 46 of the Contract Act 1972, no person can be forced to enter into a contract. Referring to Clause 22 (GA)(4) (5) of the terms of NIT, learned counsel submits that the power of blacklisting could have been exercised by the authority only once an agreement was entered into between the parties and if the petitioner had failed