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IN THE HIGH COURT OF DELHI AT NEW DELHI
Satish Chandra Sharma, Subramonium Prasad, JJ.
Nagendra Yadav – Appellant
Versus
Govt. of NCT of Delhi & Anr. – Respondents
W.P.(C) 1835 of 2023 & CM APPL. 7010 of 2023
Decided On : 03-03-2023
Tender Discharge - Operation and Maintenance of Water Meter Test Bench Facility - [Tender Discharge] - [Operation and Maintenance of Water Meter Test Bench Facility] - [Tender in question was floated by the DJB for operation and maintenance of water meter test bench facility for testing of water meters of size 15 mm to 40 mm diameter for a period of 5 years. The Petitioner participated in the tender process and was declared as L1 bidder on 31.05.2022. On 31.08.2022 an LoI was issued to the Petitioner asking him to furnish a performance guarantee of Rs.3,58,200/- and in compliance of the said letter a performance guarantee of Rs.3,58,200/- was furnished by the Petitioner herein on 02.09.2022. Material on record also indicates that when the work was not awarded to the Petitioner, the Petitioner approached this Court by filing a Writ Petition, being W.P.(C) 909/2023, praying for issuance of a writ of mandamus to the DJB to award the contract to the Petitioner herein. On 02.02.2023, the DJB issued a letter discharging the tender in question.]
Fact of the Case:
The Petitioner participated in a tender for operation and maintenance of a water meter test bench facility, was declared as the lowest bidder, and submitted the required performance guarantee. The DJB did not award the work to the Petitioner, who then filed a Writ Petition seeking a writ of mandamus to award the contract. Subsequently, the DJB issued a letter discharging the tender.
Finding of the Court:
The court found that the DJB had valid reasons for discharging the tender, including the earmarking of the land for a school and the underutilization of the existing testing bench. The court also directed the DJB to return the performance guarantee with interest due to their inaction.
Issues: The issues involved the DJB's decision to discharge the tender, the validity of the reasons provided, and the return of the performance guarantee to the Petitioner.
Ratio Decidendi: The court held that the DJB's decision to discharge the tender was based on valid reasons and fell within the discretion of the tendering authority. It also emphasized that no right is accrued to any party until the contract is awarded. Additionally, the court directed the DJB to return the performance guarantee with interest due to their inaction.
Final Decision: The petition was dismissed, and the DJB was directed to return the performance guarantee to the Petitioner with interest.
JUDGMENT
Subramonium Prasad, J.
1. By way of the present Writ Petition, the Petitioner seeks to quash letter dated 02.02.2023, bearing No.DJB/EE(T) M-10/2022-23/1153, issued by the Respondent No.2 herein/Delhi Jal Board (hereinafter referred to as 'the DJB') by which the DJB has discharged the tender bearing NIT No.03 (2021-22) having tender ID: 2022_DJB_219683_1 (hereinafter referred to as 'the tender in question'). The said tender was issued by the DJB for operation and maintenance of water meter test bench facility for testing of water meters of size 15 mm to 40 mm diameter for a period of 5 years.
2. The facts of the case reveal that the Petitioner participated in the tender in question and the Petitioner was the lowest bidder. It is stated that vide letter dated 31.08.2022, a Letter of Intent (LOI) was issued to the Petitioner herein by the DJB directing the Petitioner to submit an irrevocable performance guarantee of Rs.3,58,200/-, i.e. 3% of the awarded cost, within 10 days from the date of issuance of the letter. It is stated that in compliance of the letter dated 31.08.2022, the Petitioner herein submitted the requisite performance guarantee of Rs.3,58,200/- in the form of an FDR in favour of DJB on 02.09.2022.
3. At this juncture it is pertinent to mention that in Delhi there are two centres for testing water, i.e. one at Pitampura and the other at Nizamuddin. The tender in question pertains to the water testing centre at Nizamuddin. It is stated that in order to execute the work under the tender in question, the Petitioner has invested substantial amount of money for employment of skilled and expert manpower, technical know-how research team and a laboratory and for building a robust infrastructure etc.
4. It is stated that since the work was not awarded to the Petitioner even after issuance of LoI, the Petitioner wrote a letter dated 02.11.2022 to the Chief Secretary, GNCTD, IP Estate, New Delhi, complaining about the conduct of DJB in not awarding the work to the Petitioner in terms of the tender in question. It is stated that since DJB was not taking any action, the Petitioner herein sent a legal notice dated 22.12.2022 to the DJB requesting for award of the contract to the Petitioner. It is stated that being aggrieved by the inaction of the DJB, Petitioner herein filed Writ Petition, being W.P.(C) 909/2023, praying for issuance of a writ of mandamus to the DJB to award the contract to the Petitioner herein. Notice was issued in the said Writ Petition on 24.01.2023. It is stated that on 02.02.2023, in order to circumvent the Writ Petition and to wriggle out of its contractual obligation, DJB issued a letter discharging the tender in question.
5. It is this action of the DJB which has been challenged in the instant Writ Petition.
6. On 14.02.2023 learned Counsel appearing for DJB prayed for some time to file a reply in the matter. Reply dated 22.02.2022 has been filed.
7. In the reply it has been stated by the DJB that it received a letter on 19.10.2022 from A.C (Land & Estate) about handing over the land near Nizamuddin, where the facility was to be set up, to the GNCTD for setting up a school. It is stated that on 17.11.2022 and 29.11.2022, meeting was convened to discuss the issue and in that meeting A.C (Land & Estate) informed that vide resolution: No.636 dated 24.8.2018 it had been resolved that the DJB land admeasuring 3511 sq. mtrs. on the left bank of Sunehri Pul Nallah near Nizamuddin west (site where the Centre was to come up) had been transferred to the Education Department of GNCTD for setting up a school. In the reply it is also stated that the DJB was informed by the Water Project Wing that total 1200 Non-AMR Meter have been tested during the period 01.09.2021 to 31.08.2022, i.e. 100 meter per month at the existing L&T bench which has a capacity of 40 meter per week or 2080 meter per year against which only 1200 meters were tested for which they have been paid about Rs.2,00,000/- and the contr
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