Dismissed

Narayan Verma and Another v. State of U.P. and 3 Others

Allahabad HC17 Mar 2020WRIC/8874/2020

Case brief

AI extract

What is this about?

Challenging a government circular allowing broader contractor participation in district panchayat tenders, the Court distinguished a prior Division Bench decision. Interpreting the Works Rules, the hold that the Rules do not mandate exclusive reliance on Rule 18 registered contractors, allowing participation by others sourced from other departments.

What did the court decide?

upheld the government circular allowing contractors from other departments to participate in tenders.

Narayan Verma and Another Vs State of U.P… — Public Procurement and Tenders | Allahabad HC (2020)

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AFR

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Chief Justice's Court

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Case :- WRIT – C No. - 8874 of 2020

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Petitioner :- Narayan Verma And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi Counsel for Respondent :- C.S.C., Ram Bahadur Singh

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Hon'ble Govind Mathur,Chief Justice Hon'ble Ajit Kumar, J.

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Challenge in this petition for writ is given to the direction of the Government of Uttar Pradesh circulated under a letter dated 16^th August, 2019 to the effect that all the contractors registered with any of the government department shall entitled to participate in tender process relating to any work pertaining to the district panchayat. The decision aforesaid was taken with an object to have a better and broader choice of contractors to undertake civil works available with district panchayats.

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The argument advanced by learned counsel appearing on behalf of the petitioners is that the Uttar Pradesh Kshettra Samitis and Zila Parishads Works Rules, 1984 (hereinafter referred to as the Rules of 1984) does not permit a contractor not registered as per Rule 18 of the Rules of 1984 to participate in tender process and to have work of district panchayat on contract.

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It is stated that a Division Bench of this Court at Lucknow in Ashok Kumar Singh & others Vs. State of U.P. and others (Writ Petition (MB) No.6025 of 2020) has already adjudicated the issue and declared the decision impugned illegal. The relevant part of the judgment aforesaid reads as follows:-

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“The Government Order dated 16.08.2019 has been issued in ignorance of the Rule 18 of the Rules of 1984. For ready reference, Rule 18 is quoted hereunder:-

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18. Register of approved contractors. – A register of approved contractors shall be maintained in Form No.W-1 in the office of the Parishad or Kshettra Samiti. Contractors shall be approved by inviting applications through advertisement in the local newspapers and after verifying the anticidents of the applicants and obtaining the approval of the Sarvajanik Nirman Samiti or Karya Karini, as the case may be. Every contractor approved for execution of the works of a Parishad or a Kshettra Samiti shall be required to deposit a sum of Rs.100 as Registration fee before his name is brought on the register of approved contractors.

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As per Rule 18 of the Rules of 1984, a register of approved contractors shall be maintained in Form W-1 in the office of Panchayat or Kshettra Panchayat. The contractors shall be approved by inviting applications through advertisement. The approved contractor would be for execution of the works of Panchayats. Every contractor needs to deposit a sum of Rs.100, as registration fee.

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The Government Order dated 16.8.2019 has been passed in ignorance of the aforesaid though for the object sought to be achieved but it cannot be de hors the statutory rules. A government order can supplement statutory provisions but cannot supplant.

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The Government Order has been made applicable on Panchayat while the Irrigation Department as well as the Public Works Department have not permitted any registered contractor of Panchayat to participate in their tender, as has been seen by this Court in similar writ petitions.

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In any case, the Government Order dated 16.08.2019 cannot be allowed to stand contrary to Rule 18 of the Rules of 1984 and accordingly to that extent, it is set aside and to be specific on the issue, para no.1 to allow participation of the Contractor registered with the Irrigation Department/Public

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Works Department/Rural Engineering Department apart from others Governments Department in the tender floated by the Panchayat is set aside.

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The tenders impugned herein permit participation of those contractors not registered with the Panchayat. It cannot be accepted and accordingly to that extent, terms of tender would not be enforced.

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The participation in the impugned tenders herein would be only of those registered with the Panchayat/Kshettra Panchayat under Rule 18 of the Rules of 1984 till it is not suitably amended.”

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While meeting with the argument advanced, learned Standing Counsel states that in Ashok Kumar Singh (supra) the Division Bench did not examine complete scheme of the Rules of 1984. Hence, arrived at an erroneous conclusion. It is asserted that the Rules of 1984 no where restricts the contractors registered with other government department from participating in tender process initiated for the works relating to district panchayats, and also not makes it necessary for the district panchayats to avail services of the contractors registered as per Rule 18 of the Rules of 1984 only.

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Heard learned counsels and examined the entire scheme of the Rules of 1984.

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Exercising powers under sub-section (I) of Section 237 of the Uttar Pradesh Kshettra Samitis and Zila Parishad's Act, 1961, the Governor of Uttar Pradesh enacted the Rules to prescribe a complete process to initiate, allocate and accomplish the works related to district panchayats.

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The Rule 2 of the Rules prescribes the definition of “Abhiyanta” and “Mukhya Adhikari”. As per clause (iii) of Rule 2 other terms used but not defined in the Rules shall have the meaning assigned to them in Rule 2 of the Uttar Pradesh Zila Parishad's and Kshettra Samitis (Budget and General Accounts) Rules, 1965.

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Rule 18 of the Rules pertains to registration of approved contractors. For ready reference, Rule 18 is quoted below:-

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“18. Register of approved contractors. – A register of approved contractors shall be maintained in Form No.W-1 in the office of the Parishad or Kshettra Samiti. Contractors shall be approved by inviting applications through advertisement in the local newspapers and after verifying the anticidents of the applicants and obtaining the approval of the Sarvajanik Nirman Samiti or Karya Karini, as the case may be. Every contractor approved for execution of the works of a Parishad or a Kshettra Samiti shall be required to deposit a sum of Rs.100 as Registration fee before his name is brought on the register of approved contractors.

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Rule 19 of the Rules of 1984 provides a procedure for inviting tenders relating to execution of a work of district panchayat. The Rule 19 aforesaid reads as follows:-

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“ 19. Inviting of tenders. – No contract for the execution of a work estimated to cost more than Rs.5,000/- shall be given until sealed tenders for the tract, accompanied by earnest money to the amount fixed by proper authority, have been invited by public notice, which should be published by insertion in one or more local newspapers as the Mukhya Adhikari or Khand Vikas Adhikari, as the case may be, thinks fit and by pasting copies thereof at conspicuous places at the office of the Parishad or Kshettra Samiti, the Collector's Office, the court of the District Judge, or the court of every Additional District Judge, and Munsif whether the court of district is not situate, the headquarter of every tehsil, local offices of the Public Works Department (B and R), Irrigation Department and Local SelfGovernment Engineering Department .(Emphasis is given by us)

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Rule 21 of the Rules of 1984 pertains to public notice and

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procedure relating to tenders. For executing Rule 21, Form W-2 is provided in the Rules and recitals of that pertains to “contractors” and not to the “approved contractors”.

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It would also be appropriate to state that in entire Rules no provision is made to disclose eligibilities or ineligibilities for contractors.

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In Ashok Kumar Singh and others (supra) a Division Bench of this Court by relying upon the language of Rule 18 arrived at the conclusion that the work pertaining to district panchayats is available only to the approved contractors and not to the contractors of other departments.

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On going through Rule 18 of the Rules of 1984, it is apparent that the same prescribes a procedure for registration of contractors. It no where mentions that only the contractors registered or are termed as approved contractors shall be entitled to have work contracts for district panchayats.

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True it is, as per Rule 18 approved contractor is require to deposit a definite sum for executing the work of district panchayat but that does not mean that the other contractors registered or approved by other departments shall not be eligible to participate in the process of tender.

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At the same time, Rule 19 of the Rules of 1984 while providing procedure for inviting tenders puts an embargo upon the authority inviting tenders to affix notice inviting tenders at several places including the local office of the Public Works Department (B and R), Irrigation Department, and Local Self-Government Engineering Department. The purpose of affixing notice inviting tenders at these places indicates that the contractors registered with the departments aforesaid may also be aware of the works available on contract and may participate therein. Otherwise there would have been no need to affix the notice at the local offices of other technical and Engineering departments.

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Rule 21 pertains to public notice and procedure relating to tenders and that no where restricts the grant of work contracts of panchayat

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department only to the approved contractors referred in Rule 18.

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At this stage, it would also be relevant to state that Rule 2 of the Rules no where defines the term “approved contractors” as referred in Rule 18 of the Rules of 1984.

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By force of clause (iii), the terms used but not defined in the Rules shall have the meaning assigned to them in Rule 2 of the Rules of 1965. On going through the Rules aforesaid we noticed that the term approved contractor is not defined therein too. In absence of the definition of the term aforesaid, the amplitude of it cannot be extended to cause discrimination among the contractors placed on registered roll of government departments and further to restrict the choice of Panchayat Raj institutions to limited sphere. It is always desirable to have a broad and better choice with a view to achieve and attain better quality of work. A statute is required to be interpreted in the fashion that allows it to be workable at its optimum and also in consonance to the thrust of the complete enactment. The position would have been different, if any restriction would have been given in the Rules of 1984 or by specific assertion the “approved contractor” would have been defined in such a manner to create monopoly in grant of work on contract. In entirety, we have to interpret Rule 18 and the term “Approved Contractor” to satisfy thrust of the Rules. As such, a conjoint reading of Rules 18 and 19 of the Rules of 1984 and by taking care of other provisions we have to see the intention of the Rule framing authority. For the reasons already given, we are having no doubt that the Rule framing authority was not intending to confine the work contracts of the district panchayats only to the approved contractors or registered contractors under Rule 18.

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The Division in the case of Ashok Kumar Singh (supra) did not examined complete scheme of the Rules and just relied upon Rule 18. The finding arrived by Division Bench is apparently in ignorance of the other relevant provisions of the Rules of 1984. No doubt the court while deciding the case aforesaid was known to the statute applicable but did

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not chose to appreciate its relevance in entirety, as such the finding arrived is in-curia . Hence, we are not abide by the same.

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For the reasons given by us, the petition for writ is having no merit. Hence, dismissed.

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Order Date :- 17.3.2020 Bhaskar

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(Ajit Kumar, J.) (Govind Mathur, C.J.)

Narayan Verma and Another v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Narayan Verma and Another v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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