Validity of power of attorney and interpretation of tender conditions for disqualification based on history of litigation.

Laxmi Kanta Mohapatra, CJ.

1. The petitioner, in this writ application, prays for quashing the work order dated 11.6.2013 for Package No. MNO 685 issued in favour of respondent No. 3 in Annexure-A/10 and also prays for issuing work order in his favour.

2. It is stated in the writ petition that the petitioner is a Sub-Contractor working under one, Nehkhothang Haokip and the said Nehkhothang Haokip is a Special Class Contractor executing works under the PWD Manipur. The respondent No. 2 published a notice inviting tender for execution of certain works under Phase - VIII of Pradhan Mantri Gram Sarak Yozna (for short 'PMGSY') spread into 50 packages. The said Nehkhothang Haokip had submitted tender in respect of MNO 685 apart from other contractors. After evaluation, the respondent No. 3 was found to be the lowest bidder and Shri Nehkhothang Haokip was found to be the second lowest bidder. Accordingly, work order has been issued in favour of the respondent No. 3. Challenging the said work order issued in favour of the respondent No. 3 in Annexure-A/10 dt. 11.6.2013, this writ application has been filed by the petitioner who claims to be the power of attorney holder of Nehkhothang Haokip.

3. From the grounds taken in the writ petition, it appears that the respondent No. 3 had submitted a bank guarantee for an amount of Rs. 19,18,500/- in respect of a work in 2006-07 under Phase-V. The respondent No. 3 under Phase-V of PMGSY for the year, 2006-07 was awarded with the work in respect of package No. MNO 904, i.e. construction of a road from Kamjong to Chatri Khullen. The above bank guarantee is said to have been submitted in connection with the above work. Later on, the bank guarantee furnished by the respondent No. 3 was found to be a forged one and vigilance enquiry was conducted. Suppressing the above fact, the respondent No. 3 submitted tender for the work covered under package No. MNO-685 under phase-VIII and being the lowest bidder, his tender was accepted. The further case of the petitioner is that under clause 4.7 of tender conditions, if a contractor has got a history of litigation, he has to be declared as disqualified and therefore the respondent No. 3, who was facing vigilance enquiry, was disqualified to submit his tender for package No. MNO-685 and accordingly his tender could not have been considered. Therefore, Nehkhothang Haokip, on whose behalf the writ petition has been filed by the petitioner as his power of attorney holder being the second lowest bidder, should have got the work.

4. Shri M. Devananda, learned counsel appearing for the petitioner placed reliance on clause 4.7 of the tender condition and submitted that admittedly the date on which the respondent No. 3 submitted his tender for the package No. MNO-685 a vigilance enquiry was in process against him and he had a litigation history. According to the learned counsel under clause 4.7 of the tender condition, the respondent No. 3 was disqualified to submit any tender and accordingly tender submitted by him could not have been entertained by the respondent No. 2. It was further submitted by the learned counsel that the vigilance enquiry was closed in favour of the respondent No. 3 only after filing of the writ petition and therefore the said respondent No. 3 cannot take advantage of closer of the enquiry, as on the date of submission of tender, the vigilance enquiry was continuing against him.

5. Shri M. Hemchandra, learned counsel for the respondent No. 2 as well as Mr. H. Iswarlal, learned counsel for the respondent No. 3 questioned the maintainability of the writ petition at the instance of the petitioner who has filed the writ petition as a power attorney holder of tenderer/bidder, Nehkhothang Haokip. It was submitted that the power of attorney annexed to the writ petition as Annexure-A/1 is neither registered nor authenticated and is hit by section 85 of the Evidence Act. Therefore, on the basis of such a power of attorney, writ petition could not ha