2022 Supreme(Gau) 432

IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MANISH CHOUDHURY, J.
Premier Energies Ltd. - Petitioner
Versus
Assam Power Distribution Company Limited [APDCL] & Ors. - Respondents
Writ Petition (Civil) Nos. 6381, 6414, 6415, 6417, 6418 of 2021
Decided On : 29-06-2022

Point of Law: It is well settled that mere existence of an alternative remedy or an alternative forum does not stand as an impediment on Court to exercise its jurisdiction under Article 226 of Constitution of India, which is discretionary.

Headnote:

Constitution of India, 1950 – Article 14 and 226 - Contract Act, 1872 - Contractual matter - Notice Inviting Tender - Bidding Procedure - Maintainability of Writ Petition - Whether action on part of respondent APDCL to forfeit Bid Security [EMD] is sustainable in law or not – Contention of petitioner, when it scrutinized LoA after its receipt it found changes in Terms and Procedures of Payment apart from truncation in Period of Completion of Project. Petitioner had contended that Terms and Procedures of Payment contained in the e-Tender Document had undergone changes in LoA to detriment of petitioner, who emerged as successful bidder [L1]. As respondent APDCL authorities by LoA had asked petitioner to convey its unconditional acceptance with such changes in Terms and Procedures of Payment contained in e-Tender Document, petitioner responded by an E-mail inter alia highlighting about such changes brought in Terms and Procedure of Payment - Action on part of respondent APDCL authorities in forfeiting Bid Securities [EMDs], deposited by petitioner, is held to be unfair and arbitrary and same is liable to be set aside. As a corollary, succeeding action of encashment of bank guarantees which were deposited by petitioner towards bid securities, is also held to be unfair and arbitrary. (Para 33)

Finding of the court :

LoA contained conditional acceptance/counter proposal which the Employer [the APDCL] insisted for its unconditional acceptance, this Court holds that it was open for successful bidder [L1], that is, petitioner to ask the Employer [the APDCL] to make good its representations by sticking to original Terms of Payment contained in Annexure – 1 [Terms and Procedures of Payment]. Such request cannot be held to be a breach on the part of the successful bidder [L1], that is, petitioner of any terms and conditions of the e-Tender Document/Bidding Document. The breach had occurred at end of Employer [the APDCL] who had changed original Terms of Payment by substituting Annexure – 1 [Terms and Procedures of Payment] with Annexure – A [Terms and Procedures of Payment] unilaterally when there was no enabling power to do so. When an obligation is cast on the instrumentality of State to act fairly and when it had committed a breach of such obligation, then that authority is not permitted to take unfair advantage of such situation - It is clear that relationship between petitioner as successful bidder [L1] and respondent APDCL [the Employer] did not crystallize into a Contract Agreement between petitioner as ‘Contractor’ and respondent APDCL as Employer. Thus, decision in Kerala State Electricity Board [supra] is found not applicable to facts and circumstances obtaining in case in hand - There was no concluded contract between petitioner as successful bidder [L1] and the Employer [APDCL], the next issue that has arisen is what can be the scope and ambit of judicial review under Article 226 of Constitution in such obtaining fact situation.

Result: Writ petitions allowed