The unilateral reduction of transportation distance by the appellants was arbitrary, violating contractual obligations as per the tender notice.

JUDGMENT :

Vijay Bishnoi, CJ.

Heard Mr. P.K. Roy, learned Senior Counsel appearing for the appellants. Also heard Mr. C. Choudhury, learned Senior Counsel assisted by Dr. H. Sarma and Ms. J.S. Das, learned counsel for the sole respondent.

2. The instant writ appeal is filed on behalf of the appellants being aggrieved with the order dated 26.09.2019 passed in WP(C) No.4882/2019.

Vide impugned order dated 26.09.2019, the learned Single Judge has allowed the writ petition filed on behalf of the writ petitioner/sole respondent herein and directed the appellants to process the bills of the sole respondent/writ petitioner by following the recommendation of the four members committee and clear the outstanding dues within a period of 60(sixty) days from the date of receipt of a certified copy of the order.

3. The facts necessary for adjudication of the present case are that the appellants published a Notice Inviting E-Tender (NIET) dated 30.10.2017 for awarding the contract of Handling and Transport Contract, Ex-Rly Siding, Tinsukia to FSD Laipuli via weighbridge including Handling works at FSD Laipuli (distance 7 K.M.) under the two-bid tendering system.

4. The sole respondent/writ petitioner along with other bidders participated by submitting its bid. Being a successful bidder, the aforementioned contract was awarded to the sole respondent/writ petitioner. However, a dispute arose when the appellants unilaterally reduced the distance of transportation from 7 km to 5.2 km.

5. The respondent/writ petitioner challenged the said action of the appellants by preferring the captioned writ petition, WP(C) No.4882/2019, mainly, contending that the actual distance covered by the trucks included two trips to the private weighbridge, viz. Ramudyog Weigh-bridge. It is claimed that since there was no state run weighbridge in the vicinity of New Tinsukia station, the empty trucks had to be sent to the weighbridge for measuring the tare weight (un-laden weight) and thereafter, the loaded trucks had to be sent for measuring the weight so as to work out the actual load carried by the trucks. Since the un-laden and laden weight of the trucks were recorded in the said weighbridge as per the instruction and with the knowledge of the appellants, the actual distance traversed by the trucks was as per the reflection made in the NIET and in such circumstances, the appellants cannot exclude the said distance while calculating the amount payable by altering the conditions of the contract agreement.

6. The said claim of the sole respondent/writ petitioner was disputed by the appellants.

However, the learned Single Judge, after considering the Report of the Committee which was constituted to verify the actual distance traversed by the trucks of the sole respondent/writ petitioner as well as after considering Note-3 of the Model Tender Form, has rejected the opposition of the appellants and passed the impugned order dated 26.09.2019 allowing the claim of the sole respondent/writ petitioner.

The operative portion of the impugned order dated 26.09.2019 is reproduced hereunder:

“I have considered the argument advanced by the learned counsel for both the parties and have also meticulously gone through the materials available on record. The basic facts of the case are not in dispute. Therefore, this Court does not deem necessary to enter into a detail discussion on the facts of the case brought on record by both the parties. Suffice it to mention herein that the e-tender notice had clearly indicated that the estimated distance to be covered between the relevant points is 7 kms and the trucks were to cover a distance between fixed point. Therefore, it is apparent on the face of the record that the respondents were aware of the actual distance the lorries deployed by the writ petitioner would have to cover in each trip. The letter of appointment dated 17.01.2018 also establishes the said fact.

It further transpires from the record that in view of the objection raised by the accoun