D. Biswas, J.

1. The Food Corporation of India issued a tender notice on 14.12.2001 (Annexure-C) inviting sealed tenders from the experienced and financially sound parties for appointment as transport contractors for a period of two years from Haibargaon Railway Siding/Station to FCI godowns at Nagaon. The Petitioner submitted his tender documents along with other tenderers in pursuance of the aforesaid tender notice. M/s. Deep Enterprise quoted the lowest rate while the writ Petitioner quoted the second lowest rate. The former quoted 268% above the scheduled rate while the writ Petitioner quoted 534% above the scheduled rate. Another participant Sri Amarjit Singh quoted 876% above the scheduled rate.

2. Petitioner's case is that the tender documents submitted by M/s. Deep Enterprise were incomplete and defective and, as such, the writ Petitioner being the second lowest valid tenderer should have been considered by the Respondent authority for appointment as transport contractor, if necessary by initiating negotiation. Instead of doing that, the Respondent authority issued a fresh tender notice dated 11.3.2002 wherein two other transportation centres have been included. Petitioner's grievance is that he being the lowest valid tenderer ought to have been taken into confidence and the authorities should have negotiated with him for settlement of rate so as to make it viable and executable. Instead, the Respondent authority without cancelling the earlier tender process and without any discernable reason issued the impugned tender notice in complete negation of the principles of law. Hence, this petition for cancellation of the tender notice dated 11.3.2002 (Annexure-H) and for further direction for award of the contract works to the Petitioner after negotiation.

3. The writ petition was filed on 2.4.2002. The matter was taken up by the Court on 4.4.2002 as unlisted motion as it was not listed in usual course. The Court while issuing notice by the order dated 4.4.2002 observed as follows:

in the interim, it is directed that the Respondent authority may proceed with the tender process, but final order of allotment shall not be passed without leave of this Court.

4. The Respondent authority in their affidavit-in-opposition, in para 11, with reference to the NIT dated 14.12.2001, admitted that no eligibility criteria was stipulated in the tender notice except the terms and conditions specified therein. The affidavit appears to be in the form of denial of the averments made by the writ Petitioner. In para 8 of the Misc. application (MC 1094/2002), it is stated that the NIT dated 14.12.2001 has been scrapped/withdrawn as the negotiation held with the lowest tenderer i.e. M/s. Deep Enterprise failed. In para 7 of the additional affidavit filed, the Corporation denied to have any negotiation with M/s. Deep Enterprise at any stage either before or after cancellation of the tender. The stand taken by the Corporation in the Misc. Case No. 1094 of 2000 and in the affidavit appears to be contradictory.

5. I have heard Mr. A.K. Purkayastha, learned Counsel for the Petitioner and Mrs. A. Hazarika, learned Counsel for the Corporation. From the pleadings on record and the arguments advanced by the learned Counsel for the parties, the dispute can be narrowed down in the following questions:

1. Whether any negotiation was made with M/s. Deep Enterprise?

2. Whether the tender documents submitted by M/s. Deep Enterprise were valid and in accordance with the terms and conditions specified in the tender notice?

3. Whether fresh notice of tender issued by the Corporation without considering the tender submitted by the next lowest valid bidder i.e., the writ Petitioner is permissible?

6. It would appear that the Senior Regional Manager of the Corporation vide letter dated 6.3.2002 informed M/s. Deep Enterprise that since they failed to submit the required documents/certificates as per earlier communication, the security money deposited by them is forfeited