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2022 Supreme(Gau) 769
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ACHINTYA MALLA BUJOR BARUA, J.
Ananta Borgohain S/o Khirud Borgohain – Appellant
Versus
The State Of Assam And 4 Ors – Respondent
WP(C) 6410 of 2022
Decided on : 27-10-2022
Advocate Appeared:
For the Appellant : MS. B CHOWDHURY
For the Respondent: GA, ASSAM
Point of Law: Governor notify following principle for award of all Civil Works contracts under Assam PWRD, whereby “variation of quoted price upto 5% (positive or negative) over approved estimated cost of a Civil Work may be ignored; and variation of quoted price up to 10% (positive or negative) may be allowed for peculiar situations and in special circumstances.
Headnote:
Tender Bid - Allot Work - Respondent No. 5 quoted a rate whereas petitioner submitted a tender bid of 10% below estimated Government rate - By order work had been allotted to respondent No. 5 - Writ petition is on ground that rate quoted by petitioner being lower, it was arbitrary on part of respondent authorities to allot work to respondent No. 5 – Principle incorporated provides that if there is a variation of quoted price up to 10% which has to be understood to be inclusive of 10% either positive or negative over approved estimated rate, such bids may also be allowed for peculiar situation and in special circumstance. Para 8
Finding of the Court:
Court have taken note of that without any such consideration as to whether quoted rate of petitioner, which was below 10% of estimated cost did satisfy any peculiar situation or any special circumstance, was not gone into by authorities meaning thereby that legal duties required as per principle incorporated in notification had not been duly complied with – Court is of view that interest of justice would be met on a direction being issued to respondent No. 4 being Chief Executive Officer, Municipal Board to give a hearing to petitioner and allow him to explain as to whether his quoted rate of 10% below estimated rate do satisfy any peculiar circumstance or any special circumstance which may justify respondents in accepting such tender bid - In other words, writ petitioner may explain to concerned authority that even at rate of 10% below estimated rate, required work can still be executed without compromising quality in any manner - Upon such hearing be given, Chief Executive Officer may pass a reasoned order - If conclusion that may be arrived in reasoned order would be against petitioner, petitioner be informed accordingly and if on other hand conclusion would be in favour of petitioner, necessary consequential action be taken by strictly following due procedure of law i.e. if respondent No.5 is to be adversely affected in any manner, due opportunity of hearing be also given to respondent No. 5.
Result: Petition allowed.
JUDGMENT :
Heard Ms. B Choudhury, learned counsel for the petitioner and Nr. N Goswami, learned Junior Government Advocate for the respondents No. 1, 2, 3 and 4 respectively being the authorities under the Town and Urban Development Department, the Director of Municipal Administration, the Deputy Commissioner, Lakhimpur and the Executive Officer, Dhakuakhana Municipal Board. Although notice was issued to the respondent No. 5 as per the office note dated 21.10.2022, but no further information is available as to whether notice has been served or not.
2. The petitioner participated in a NIT dated 24.08.2022 for the work of construction of Community Toilet at Dhakuakhana Public Bus Stand Campus under 15th Finance Commission (Tied Fund) under Dhakuakhana Municipal Board. The value of the work as per the tender notice is provided to be Rs. 17,45,000/-. As per the comparative statement, the respondent No. 5 Sri Pranabjyoti Das quoted a rate at par the estimate i.e. the Government value provided in the NIT itself, whereas the petitioner Sri Ananta Borgohain submitted a tender bid of 10% below the estimated Government rate. By the order impugned dated 08.09.2022, the work had been allotted to the respondent No. 5. Being aggrieved, this writ petition is instituted on the ground that the rate quoted by the petitioner being lower, it was arbitrary on the part of the respondent authorities to allot the work to the respondent No. 5.
3. When the matter was taken up on 29.09.2022, it was informed by the learned counsel for the State authorities that the respondent No. 5 had already commenced the work and completed nearly 13% work till date. In the circumstance, no interim order was passed.
4. The respondents in the meantime have filed their affidavit in opposition and refers to a notification dated 12.07.2018 of the Commissioner and Special Secretary to the Government of Assam in the PWRD, which inter-alia provides that it came to the notice of the authorities that in the matter of the civil works, the contractors either quoted unreasonably a lower rate in comparison with the approved estimated cost or unreasonably a higher rate. According to the authorities, both the situations were unacceptable inasmuch as quotation of an unreasonably lower rate may lead to an inferior quality of the work. At the same time, quoting of an unreasonably higher rate may have an adverse affect on the State exchequer. Consequently, the notification provides for a principle for award of civil work contracts under the Assam PWRD. The principle provided in the notification is extracted as below:-
“No. RBPC.85/2017/25.-It has been observed that unreasonably lower rates quoted by some of the civil works contractor vis-a-vis the approved estimated cost, has been adversely affecting the quality of works as well as timely completion of the works and on the other hand, unreasonable higher rates quoted by some of the civil works contractors’ puts undue pressure on the State’s exchequer and therefore in the interests of public service, the Governor of Assam is pleased to notify the following principle for award of all the Civil Works contracts under the Assam PWRD, whereby “variation of the quoted price upto 5% (positive or negative) over the approved estimated cost of a Civil Work may be ignored; and variation of the quoted price up to 10% (positive or negative) may be allowed for peculiar situations and in special circumstances, and the reasons for allowing to do so shall be placed on record by the officer(s) responsible for accepting the tenders/bids; tenders/bids beyond this limit shall not be accepted”. The above principle shall come into force with effect from 15th July 2018 and shall prevail until further orders.”
5. The respondents by referring to the said principle incorporated in the notification dated 12.07.2018 seeks to justify that as the rate quoted by the petitioner was 10% below the estimated rate, therefore it stood rejected and on the other hand the rate quoted
