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2010 Supreme(Gau) 155
IN THE HIGH COURT OF GAUHATI (ITANAGAR BENCH)
P.K. Musahary, J.
Hes Infra (P) Ltd.
Vs.
State of Arunachal Pradesh and Ors.
WP (C) Nos. 359(AP) and 3193 of 2009 (PS)
Decided On: 02.03.2010
For Appellant/Petitioner/Plaintiff: A. Kashyap, S.K. Deori, D. Lazi, L. Tapa and T. Talu, Advs.
For Respondents/Defendant: R.H. Nabam and G. Deka, Advs.
Headnote:
Contract - Consideration to the tender of the petitioner – Evidence - It is his further submission that petitioner having paid revenue by way of depositing fees for tender papers has fulfilled condition and its tender papers cannot be rejected outright because same were procured in name of - Engineering Enterprise – Held, Here in this case there is no record to show that sufficient number of qualified bidders as per norms laid down in manual submitted tenders- As per record only bidders have come forward without disclosing their status as contractors- It appears that respondent authorities have not verified the status of renderers and their suitability as per manual - If it is so it is definitely against public interest - Public interest demands that authorities concerned must invite tender for work in question from qualified renderers and offer opportunity of being considered as per their merit and suitability- What is most striking is that Tama Fabrication Works has been favored as the lone qualified bidder after withdrew its financial bid - It means the luck has favored Fabrication Works - Such luck cannot be allowed to work in favor of a particular party against public interest - Petition dismissed
P.K. Musahary, J.
1. The Executive Engineer, Seppa Division, PWD, Arunachal Pradesh (Respondent No. 3) issued a Notice Inviting Bid (NIB) on 28.5.2009 for construction of Bailey Bridge between Namra and many other villages under Seijosa Circle, the bid documents of which are to be purchased from his office on payment of fee of Rs. 3,000 from 8.6.2009 to 20.6.2009. The petitioner firm sent one Shri Kuli Tachang as its authorised representative to procure the tender/bid documents from the office of the respondent No. 3 on 26.6.2009 but he was not supplied with the same on the ground that the tender date had already expired. The original date for procuring the tender papers was extended up to 30.6.2009 by issuing a Corrigendum dated 19th June, 2009. Having come to know about the same, the petitioner firm requested one Shri Matung Tachang to purchase the tender documents on its behalf. He purchased the tender documents on payment of requisite fees in cash. The petitioner firm is represented by Shri Kuli Tachang and the said Matung Tachang is his elder brother but unfortunately Shri Matung Tachang, being illiterate, failed to mention the name of the petitioner firm and by mistake obtained the tender papers in the name of M/s. T.K. Engineering Enterprise. Although, the tender papers/bid documents were obtained in the name of M/s. T.K. Engineering Enterprise, the tender papers were submitted in the name of M/s. HES Infra (P.) Ltd. Hyderabad, the present petitioner. The petitioner's tender was rejected on the ground that no tender papers/bid documents were purchased by it. The petitioner wrote a letter dated 14.7.2009 addressed to the respondent-Chief Engineer requesting him to consider the petitioner firm for awarding the contract. The respondent authorities did not consider the petitioner's case and recommended the case of only one tenderer, namely, M/s. Tama Fabrication Works, Naharlagun for acceptance by the Cabinet Sub-Committee. The petitioner has filed the present petition seeking the following relief(s):
(a) Issue appropriate writ directing PWD, Seppa to give due consideration to the tender of the petitioner.
(b) Direct PWD, Seppa not to throw out the tender of the petitioner on collateral or subsidiary considerations.
(c) Direct the authority to stay the process and not open Financial Bid till this case is disposed off.
(d) Pass such other order or orders which this hon'ble court may deem fit and proper in the interest of justice.
2. I have heard Mr. A. Kashyap, learned Counsel for the petitioner as well as Mr. R.H. Nabam, learned Senior Government Advocate, appearing on behalf of the State respondents.
3. Mr. A. Kashyap, learned Counsel for the petitioner submits that Shri Matung Tachang, who purchased the tender/bid documents on behalf of the petitioner firm was an illiterate person and he depended on available literate help to make an application and get tender/bid documents and he purchased the same by mistake in the name of M/s. T.K. Engineering Enterprise. Such mistake is a result of human oversight and no reasonable man would disqualify the petitioner on this ground alone. The rejection of petitioner's tender/bid without giving him an opportunity of hearing is against the principle of natural justice and an act of arbitrariness inasmuch as the ground of rejection is too hyper technical and patently discriminatory. By referring to present day's E-tender system, Mr. Kashyap submits that tender/biding documents are available through online and can be downloaded by anyone and it is not necessary to buy tender/bidding documents in the name of a particular party. Anyone who obtained tender document online may fill-up and submit the same on payment of requisite fees. At the stage of submission of tender, the relevant consideration is payment of requisite fees and the State is concerned only with revenue realisation from the intending tenderers. In this respect, he further submits that there is no term or condition in the ten
