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IN THE HIGH COURT OF GAUHATI
Manish Choudhury, J.
M/s Tama Fabrication – Appellant
Versus
State of Arunachal Pradesh – Respondent
Writ Appeal No. 174 of 2019, 191 of 2019
Decided On : 04-10-2019
Arunachal Pradesh District Based Entrepreneurs and Professionals (Incentives, Development & Promotional) Act, 2015 – Sections 2(b), 3(1) & 5 – Arunachal Pradesh District Based Entrepreneurs and Professionals (Incentives, Development & Promotional) Rules, 2015 – Rule 2 3 4 – Arunachal Pradesh Contractor Enlistment Rules, 2008 – Limitations on Tender Biddings – These 2(two) intra-Court appeals are preferred against the judgment & order passed by the learned Single Judge in a writ petition instituted by petitioner No.1 and its Power of Attorney Holder as petitioner No.2, who are arrayed as respondent Nos.6 & 7 in Writ Appeal No.174 and respondent Nos.1 & 2 in Writ Appeal No.191 – Notice Inviting e-tender (for short, NIT), on National Competitive Bidding was issued in respect of the work of road – By the order, the technical bid of the appellant and the petitioner was found to be responsive and it was indicated that the financial bids will be opened – The bid of the appellant having been found to be financially responsive, letter conveying approval for acceptance of the work in question was issued – By the impugned judgment, the learned Single Judge had set aside the order issued by the Executive Engineer, PWD Division as well as the order issued by the Chief Engineer (CZ-A), PWD, Government of Arunachal Pradesh – He (Appellant) further contends that as the petitioner had also not assailed rejection of its bid and had not prayed for any consequential direction, the learned Single Judge ought not to have gone into the question as to whether the Act and the Rules apply to a project, which is above Rs.10 Crores – Held, Court have already held that the Act itself does not envisage grant of any preference in respect of contracts value of which is Rs.10 Crores and above – The Act does not provide for any limitation or restriction in respect of number of works in hand of a contractor for the purpose of getting allotment of work – As noticed earlier, avowed objective of the Act is to give preference to the District Based Entrepreneurs and Professionals among different categories of entrepreneurs in project works of different amounts up to or involving Rs.10 Crores – Section 5 of the Act provides that State Government may make Rules for carrying out provisions of the Act – It is well known that Rules framed under an Act cannot travel beyond the provisions of the Act – Bearing in mind the objective of the Act, the import and purport of Rule 4(ii)(e) has to be understood – When the Act itself does not apply to cost of works above Rs.10 Crores, the Rules cannot be made applicable to cost of works above Rs.10 Crores – The Rules have to be confined in its application to works in respect of which preference is contemplated under the Act. Therefore, the stipulation that a contractor shall be allowed to have only 3(three) works in hand at a time in Rule 4(ii)(e) would be in respect of serial Nos.1 to 5 of the Schedule to the Act and not to serial No.6 of the Act – In view of the above discussion, Court is of the considered opinion that the judgment & order of the learned Single Judge cannot be sustained in law – Accordingly, the impugned judgment & order is set aside and quashed – The appeals are allowed – Appeals Allowed
JUDGMENT :
A.K. Goswami, J.
These 2(two) intra-Court appeals are preferred against the judgment & order dated 12.06.2019 passed by the learned Single Judge in a writ petition instituted by M/s N.T. Agency as petitioner No.1 and its Power of Attorney Holder as petitioner No.2, who are arrayed as respondent Nos.6 & 7 in Writ Appeal No.174/2019 and respondent Nos.1 & 2 in Writ Appeal No.191/2019. For the sake of convenience, they will be referred to as petitioner during the course of this judgment. The appellant in Writ Appeal No.174/2019, M/s Tama Fabrication, was arrayed as respondent No.6 and will be referred to as the appellant in the course of this judgment in both the appeals, while the appellants in Writ Appeal No.191/2019 shall be referred to as the State respondents.
2. Notice Inviting e-tender (for short, NIT), on National Competitive Bidding was issued on 12.09.2018 in respect of the work of road from Yoglu to Yapap Geko (Phase-II), Pistana Circle, Lower Subansiri District. The estimated cost as indicated in the Notice Inviting e-tender was projected as Rs.28,43,32,448/-. Though the technical bid was supposed to be opened on 26.09.2018, due to problem of internet connectivity, by Corrigendum dated 28.09.2018, date of opening of tender was postponed to 03.10.2018 and the venue was also shifted to the Office of the Superintending Engineer, Yachuli Circle. By the order dated 01.11.2018, the technical bid of the appellant and the petitioner was found to be responsive and it was indicated that the financial bids will be opened on 05.11.2018. The financial bid was finally opened on 08.11.2018 after a postponement on 05.11.2018. The bid of the appellant having been found to be financially responsive, letter dated 21.11.2018 conveying approval for acceptance of the work in question was issued.
3. By the impugned judgment, the learned Single Judge had set aside the order dated 01.11.2018 issued by the Executive Engineer, Yajali, PWD Division as well as the order dated 21.11.2018 issued by the Chief Engineer (CZ-A), PWD, Government of Arunachal Pradesh.
4. The pleaded case of the petitioner in the writ petition is that the petitioner had submitted a representation on 20.11.2018 for rejection of the bid of the appellant on the ground that the appellant had more than 3(three) works at the time of submission of the tender, which is in violation of the Arunachal Pradesh District Based Entrepreneurs and Professionals (Incentives, Development & Promotional) Act, 2015 (for short, "Act") and Rule 2(e) of the Arunachal Pradesh District Based Entrepreneurs and Professionals (Incentives, Development & Promotional) Rules, 2015 (for short, "Rules"). The petitioner had also listed 4(four) numbers of works which it claimed that the appellant was executing. On the aforesaid foundation, prayer was made to set aside and quash the letter dated 01.11.2018 and the letter dated 21.11.2018 and the challenge was accepted by the learned Single Judge, as noticed hereinabove.
5. The respondent Nos.4 & 5, through the Executive Engineer, Yajali Division, had filed an affidavit. In the said affidavit, it is pleaded that the petitioner had quoted an amount of Rs.23,97,77,553.50, which is 15.67% below the estimated cost and, therefore, the same was beyond the allowable limit of 5% in terms of Clause 20.4.3.2 of the CPWD Manual, 2014 and hence, the petitioner was disqualified. It is pleaded that the bid was considered to be offered by a non-serious bidder, who, if allotted the work, could never have been able to achieve quality work. It is further pleaded that the Act and the Rules are not relevant since the project is worth more than Rs.10 Crores and besides, applicability of the Act was also not laid down in the terms and conditions of Standard Bidding Document (SBD). It is stated that the 4(four) works being executed by the appellant are of less than Rs.10 Cro
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