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1999 Supreme(J&K) 260
JAMMU & KASHMIR HIGH COURT
Guru Sharan Sharma, J.
STATE OF J. & K - PETITIONER
v.
QUZI NAZIR AHMAD - RESPONDENT
Civil Revision Petition No. 76 of 1999,
Decided on : October 6, 1999.
M. H. Attar, Additional Advocate General, for the Petitioner.
Altaf Haqanee, for the Respondent.
The Government has the authority to reject the highest tender if there are cogent reasons to do so, such as inadequacy of the price offered or a change in policy.
Headnote:
TENDER - REJECTION - POWER OF GOVERNMENT - JUDICIAL REVIEW - ARBITRARINESS - PUBLIC INTEREST - CAUSE OF ACTION - INJUNCTION - JURISDICTION - REVISION - INHERENT POWERS - MISCONDUCT OF PUBLIC SERVANT - ADMINISTRATIVE ACTION.
Fact of the Case:
Petitioner No. 2 (predecessor) opened the tenders before the prescribed time and in the absence of Dy. Director (Adm.) of Food and Supplies Deptt. who was one of the members of the committee. The tenders were opened only in the presence of two tenders namely, M/s. Labrika Enterprises and qazi Nazi Ahmad (respondent herein) to the exclusion of other tenders. This misconduct on the part of petitioner No. 2 (predecessor) awakened his superiors and the Government took a decision of re-tendering the sale with added quantity of empty bags.
Finding of the Court:
The Government had the authority to reject the respondent's offer. Being the guardian of the finances, the Government was expected to protect them when petitioner No. 2 (predecessor) was found to have acted not fairly as he opened the tenders prior to the appointed time and in the absence of one of the members of the Committee and to the exclusion of other lawful tenderers. The act of the Government for re-tenderers. The act of the Government for re-tendering the sale cannot be said as arbitrary but judicious and directed to increase the financial interests of the State.
Issues: 1. Whether the Government can reject the highest tender? 2. Whether the Government's decision to re-tender the sale was arbitrary? 3. Whether the respondent had a cause of action to seek the relief? 4. Whether the Courts below had jurisdiction to entertain the suit? 5. Whether the revision petition is maintainable? 6. Whether the petitioner No. 2 (predecessor) is guilty of misconduct?
Ratio Decidendi: 1. The Government can reject the highest tender if there are cogent reasons to do so, such as inadequacy of the price offered or a change in policy. 2. The Government's decision to re-tender the sale was not arbitrary as it was taken to protect the financial interests of the State. 3. The respondent did not have a cause of action to seek the relief as he had no vested right to have his tender accepted. 4. The Courts below did not have jurisdiction to entertain the suit as the respondent had no legal right or interest to put a claim on the abbreviated tender notice. 5. The revision petition is maintainable as the State has the competency to file the revision petition even though if had no itself filed the appeal. 6. The petitioner No. 2 (predecessor) is guilty of misconduct as he deviated from the time bound schedule in opening the tenders and not associating the trial member of the Committee and excluding the other tenderers.
Final Decision: The revision petition is allowed. The impugned order dated 8.4.1998 passed by the appellate Court as well as the order dated 9.10.1998 passed by the trial Court are set aside. The plaint is found not disclosing any cause of action, therefore, under Order 7, Rule 11, CPC, it stands rejected. Petitioners are directed to proceed ahead with re-tendering of the empty gunny bags in terms of Annexure P-7 with utmost despatch and promptitude. Respondent to bear the costs quantified at rupees three thousand to be paid in the Advocate Welfare Found.
G. D. SHARMA, J. - Through the medium of this revision petition, order dated 8-4-1999 passed by the learned IVth Addl. District Judge, Srinagar (in Civil Misc. appeal title "Director Food and Supplies Deptt. v. Qazi Nazir Ahmad, against the order dated 9.10.1998 passed by Sub-Judge (CJM) Srinagar) is prayed to be set aside. The appeal was dismissed by the learned Judge.
2. The factual matrix of the case is that on 25-5-1998, petition No. 2 (predecessor) invited the tenders for the supply of empty gunny bags of the year 1998-99. In terms of the notice of tender, only the registered firms/contractors could take part of in the sale of empty bags which numbered 43,43,001. They were of different categories and lying in various godowns of the Food and Suppliers Department. An approved tenders had to lift the bags from respective places. Earnest money of Rs. 10,00,000/- (rupees ten lakhs) in the shape of FDR, CDR drawn on any scheduled bank pledged to petitioner No. 2 had to accompany the tender documents. Every tender was required to reach the officer of petitioner No. 2 on or before 9.7.1998 upto 2 p.m. either by registered post or by personal delivery accompanied by above stated earnest money. Vide order No. DESK/Adm./GS/50/98-99 dated 8-7-1998, petitioner No. 2 extended the time for the acceptance of the tender notice upto July 20, 1999 at 3 p.m. It is alleged that the tenders were opened on July 20, 1998 at 2.10 p.m. instead of stipulated time of 3 pm when all the members of the Purchase Committee were not present. Tender Documents of M/s. Friends Traders, Shuthrashi, Srinagar and M/s. Jammu Cantonment, wholesale and General Store Ltd., Jammu were rejected being incomplete. Only four tenders were found eligible. The particulars whereof along with quoted rates by them are given below :
(1) Quzi Nazir Ahmad Rs. 1,064/- per 100 bags.
(2) M/s. Punjab Land Private Ltd. Chabal Road, Tarantaran, Amritsar, Punjab Rs. 1,057/- per 100 bags.
(3) M/s. G.S. Traders, Mandir Road, Kapoorthala, Punjab Rs. 1,046/- per 100 bags.
(4) M/s. Lariba Enterprises Goal Market, Karannagar, Srinagar Rs. 1,046/- per 100 bags.
On 20.7.1998, one of the tenderers firm namely, Punjab Rice Land Private Limited made a complaint (vide Annexure P4) to the Secretary-cum-commissioner to the Government of J. & K. Food Supplies and Transport Deptt. making allegation of fraud as tenders had been opened before schedule time. Similar complaint was made on 21.7.1998 (vide Annexure P4) by tenderer G.S. Traders to the Chief Secretary, J. and K. Government in both these complaints it was alleged that by this fraudulent conduct, loss to the tune of crores of rupees was caused to the state exchequer. Both of them had made the offers to increase the rates of quotations. Specific allegation was made that respondent was the beneficiary of such fraudulent conduct as tender was accepted in his favour by filing the quotations clandestinely at the back of other tenders.
3. The Government took a fresh decision to sell increased number of bags numbering 56,14,329 of different categories. The Financial Advisor and CAO, Food, Supplies and Transport Department wrote to petitioner No. 2. Vide N. FS/Accounts/E-Bags/96-97 dated 25-8-1998. In response to above communication petitioner No. 2 issued an abbreviated tender notice (Annexure P7) wherein the sale of empty gunny bags numbering 56,14,329 of different categories was shown and they were to be lifted by the approved tenderer from the places where they were lying. The tenders complete in all respects were require to reach the office of petitioner No. 2 on or before 15.10.1998 upto 2 p.m. by registered post or to be delivered personally and every tender was required to accompany earnest money of rupees fourteen lakhs in the shape of CDR, FDR drawn on any schedule bank pledged to Director, Food and supplies, Kashmir. The tender notice was issued on 29.8.1998.
4. Aggrieved by the issuance of this abbreviated tender notice (Annexure
