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1981 Supreme(Goa) 3
Goa High Court
K. M. MISHRA
Alcon Constructions, Panaji - Appellant
Versus
Board of Trustees of the Port of Mormugao - Respondent
Decided On : 03/25/1981
S.K. Kakodkar, for Petitioner.
The authority inviting tenders has the power to reconsider the recommendation of the Tender Committee before communicating its formal acceptance, and such reconsideration is not arbitrary or irrational if no final decision has been taken and the tenderer has an alternative remedy.
Headnote:
TENDER - ACCEPTANCE - RECONSIDERATION - POWER OF AUTHORITY - ARBITRARINESS - JUDICIAL REVIEW - WRIT PETITION - MAINTAINABILITY - MAJOR PORT TRUSTS ACT, 1963.
Fact of the Case:
Petitioner, a partnership firm engaged in construction works, submitted a tender for the construction of a new warehouse at Mormugao Harbour. The Tender Committee recommended the acceptance of the petitioner's tender, but the respondent, Board of Trustees of the Port of Mormugao, decided to reconsider the recommendation. The petitioner filed a writ petition challenging the respondent's decision, contending that it was arbitrary, capricious, and violative of its fundamental rights under Arts. 14 and 19(1)(g) of the Constitution.
Finding of the Court:
The court held that the respondent had the power and authority to reconsider the recommendation of the Tender Committee before communicating its formal acceptance. The court further held that the respondent's decision to reconsider the recommendation was not arbitrary or irrational, as no final decision had been taken and the petitioner had not yet acquired any vested right in the acceptance of its tender. The court also held that the petitioner had an alternative remedy by approaching the court where the controversy was already pending, and therefore, the writ petition was not maintainable.
Issues: 1. Whether the respondent had the power to reconsider the recommendation of the Tender Committee before communicating its formal acceptance? 2. Whether the respondent's decision to reconsider the recommendation was arbitrary or irrational? 3. Whether the petitioner had an alternative remedy by approaching the court where the controversy was already pending?
Ratio Decidendi: 1. The respondent had the power to reconsider the recommendation of the Tender Committee before communicating its formal acceptance, as the petitioner had not yet acquired any vested right in the acceptance of its tender. 2. The respondent's decision to reconsider the recommendation was not arbitrary or irrational, as no final decision had been taken and the petitioner had an alternative remedy by approaching the court where the controversy was already pending. 3. The petitioner had an alternative remedy by approaching the court where the controversy was already pending, and therefore, the writ petition was not maintainable.
Final Decision: The writ petition was dismissed in limine.
2. The petitioner is a partnership firm engaged in construction works. The respondent/Board of Trustees of the Port of Mormugao, a Body corporate set up under the Major Port Trusts Act, 1963, invited tenders for the construction of a new warehouse at its Mormugao Harbour at an estimated cost of Rs. 23.14 lakhs approximately by notice, Annex.P-1. Five tenders were submitted in response to the said notice, one of them, being from the petitioner. M/s. Espee Constructions Private Limited was also one of the tenderers (not made party to the petition). It appears that the Tender Committee recommended that the petitioner's tender for Rs. 25,57,979.14 be accepted in preference to the other tenders. The petitioner has however not so far received the formal order of acceptance of its tender from the respondent.
3. While so, M/s. Espee Constructions instituted a suit against the petitioner and the respondent for permanent injunction restraining the respondent from accepting the petitioner's tender and in case the same was already accepted, from issuing any work order, in the Court of the Civil Judge, Senior Division, Vasco-da-Gama. By order, dated 31-1-1981 the Court granted ad interim injunction in terms as prayed for by the said M/s. Espee Constructions. Motion for confirmation of ad interim injunction relief stands posted for disposal on 27-3-1981.
4. On 17-3-1981 Mr. M.S. Kantak, learned advocate for the respondent wrote to the petitioner that the respondent/Board intended to reconsider the recommendation of the Tender Committee and that he had lodged caveat on behalf of the respondent in the Court of Vasco, on the ground that the petitioner might seek relief in the Court against the respondent's decision to reconsider the recommendation of the Tender Committee. The aforesaid letter, Annex-P 2, was accompanied by a copy of the Caveat application under S.148(A) of the Civil Procedure Code.
5. On receipt of the aforesaid letter the petitioner sent a reply, dated 19-3-1981 through its lawyer Mr. Sinai Bhaangi to the respondent calling upon the Board not to reconsider the recommendation of the Tender Committee. In the said letter a time limit of 48 hours was put saying that if no reply was received within the stipulated time it would be taken that the petitioner's demand had been rejected.
6. Since no reply was received to the petitioner's letter/reply, dated 19-3-1981, the present writ petition was filed in this Court on 24-3-1981, substantially for the following reliefs :
(b) For a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, direction or order under Art.226 of the Constitution of India restraining the respondents from reconsidering the recommendations of the Tender Committee that the petitioners' tender for construction of a new warehouse in place of R-1 and R-2 sheds in the Port of Mormugao be accepted and/or awarding the work of the said tender to any other contractor/tenderer and/or retendering the said work;
(c) For an order and injunction restraining the respondents from reconsidering the recommendations of the Tender Committee that the petitioners' tender for the construction of a new warehouse in place of R-1 and R-2 sheds in the Port of Mormugao be accepted and/or awarding the said work to any other contractor/tenderer and/or retendering the said work pending the hearing and final disposal of the petition; and
(d) For ad interim ex parte reliefs in terms of prayer (c) above.
7. One more fact which requires to be stated here is about the contents of all affidavit in reply of the Chief Engineer of defendant No.1, i.e., the Board of Trustees of the Port of Mormugao in the suit before the Civil Judge, Senior Division, Vasco-d
