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IN THE HIGH COURT OF GAUHATI
Iqbal Ahmed Ansari, J.
G.M. Lanong - Appellant
Vs.
Meghalaya State Electricity Board – Respondent
WP (C) No. 295 (SH) of 2007
Decided On: 11.10.2010
Constitution of India, 1950 – Articles 226, 14 – Tender – Order of injunction – Aggrieved by the order, private respondent preferred an appeal, which gave rise to FAO 2(T) of 2007, whereby the private respondent sought to get the order of injunction, set aside and vacated – It was contended by the private respondent, in the appeal, that the work, allotted to the private respondent, was different from the one, in respect whereof the said tender notice, had been floated and which had been, in course of time, cancelled – It was also contended in the appeal, by the private respondent, against the order of injunction, that since the work, which had been allotted to the private respondent, was a new work and the allotment of the new work was not under challenge, the question of granting injunction, restraining the private respondent from executing the newly allotted work, did not arise. – Held, Court is of course, required to determine of the quantum of loss, which the petitioner might have suffered – Present writ petition is not the appropriate proceeding for awarding of damages to the petitioner for the loss, which the petitioner has suffered. – He must, however, be compensated for denying him the right to equal treatment under Article 14 of the constitution. – Neither the State respondents nor can the private respondents be, therefore, completely exonerated and they need to be directed to pay, apart from the cost of proceeding, some amount as a public law damages to the petitioner – Court find that the decision making process of awarding the contract, in question, was arbitrary and denial of opportunity to the petitioner participate in the tender process was wholly illegal, mala fide and arbitrary. – In such circumstances, the award of the contract needs to be set aside. – However, considering the fact that the execution of the contract is over, it would be illogical to set aside the awarding the contract to private respondent. – Writ Petition Disposed of
Iqbal Ahmed Ansari, J.
1. Pursuant to a tender notice, dated 1.3.2006, floated by the respondent No. 2, namely, Chief Engineer (GT), Meghalaya State Electricity Board, Lumjingshai, Shillong, Meghalaya State Electricity Board (in short, 'MeSEB'), inviting sealed bids from reputed EHV line construction contractors/Joint Venture Firms/Consortium of two or more Firms as partners for the Construction of 132KV Double Circuit Transmission Line on 220KV Towers from Myntdu Leshka Stage IHEP to the 132 KV sub station at Khliehriat, Jaintia Hills, Meghalaya, India, the petitioner, a contractor carrying out the contract works of high voltage electricity transmission lines, as a joint venture partner, submitted its bids for allotment of the work. The respondent No. 4,which is a private limited company incorporated under the Companies Act, 1956, also participated in the tender process, the tender process consisting of two-bid system, namely, techno-commercial bid and financial bid. No other person participated in the said tender process seeking allotment of the contract works. The petitioner claims that having learnt that the financial bid of the respondent No. 4 (who is hereinafter referred to as 'the private respondent) had been opened, on 13.11.2006, the petitioner sent a letter, on 15.11.2006, addressed to the respondent No. 2, namely, chief Engineer, MeSEB, stating to the effect, inter alia, that the petitioner had come to know that the financial bid of the private respondent had been opened on 13.11.2006, but the petitioner's financial bid had not been opened, though the petitioner's bid fulfilled all the technical criteria of eligibility. The petitioner further requested the respondent No. 2 that the petitioner's financial bid may be opened and that no decision may be taken on the offer of the private respondent alone. Thereafter, the petitioner received a letter, dated 01.12.2006, from respondent No. 3, namely, Superintending Engineer (G.T.), MeSEB, informing the petitioner that the techno-commercial bid of the petitioner was found to have not fulfilled the criteria for consideration of the price bid. The petitioner was, however, requested to submit, for placement in the next meeting of the Tender Evaluation Committee, certain papers/documents for consideration of the petitioner's technical bid, the documents, so sought for, being:
(i) Annual Turnover for last 5 (five) years, Clause No. 3.3.1(A) of GCC Application form 2 A/2.
(ii) Specific Technical Criteria: Clause No. 3.3.1(C) Successful Commissioning Certificate that have been approved and issued by the respective project authorities.
(iii) Particular Experience Record: Clause No. B181 of Price Bid amended vide corrigendum No. CE (GT)/2005/TT-10 A/44, dated 27.03.2006.
(iv) Current contract Commitments: As per Application -4 and
(v) Equipment Capabilities: Clause No. 3.4.2 of GCC-Application 5.
2. By its letter, dated 11.12.2006, the petitioner furnished all the requisite particulars as had been asked for by the letter, dated 01.12.2006. While so furnishing the requisite particulars by its letter, dated 01.12.2006, the petitioner also expressed its concern that the petitioner had been asked to provide certain materials after a lapse of about seven months since the date of opening of the techno-commercial bid, particularly, when the petitioner had not been given any information, during the said period of more then six months, about the fate of its tender, and reiterated its request for opening of its financial bid. Thereafter, respondent No. 3, namely, Superintending Engineer (GT), MeSEB, issued a letter, dated 23.03.2007, addressed to both the petitioner as well as the private respondent, informing them that due to unavoidable circumstances and in accordance with clause (10) of the General Conditions of Contract, the tender process had been cancelled and that price bid of both the tenders, i.e., the petitioner well as the private respondent, and the earnest money, deposited by e
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