Dismissed

Harajyoti Das v. Guwahati Metropolitan Development Authority and Anr.

Gauhati HC10 Mar 2021WP(C)/482/2021

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a writ petition challenging the Guwahati Metropolitan Development Authority's decision to issue fresh tenders after cancelling the initial ones due to absurdly low rates. The court held the re-tender was justified by public interest and Government directives, applying the principle that supervening public equity overrides individual equity.

What did the court decide?

Writ petition dismissed; interim order if any vacated.

Harajyoti Das Vs Guwahati Metropolitan… — Public Procurement and Tenders | Gauhati HC (2021)

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GAHC010012632021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/482/2021

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HARAJYOTI DAS S/O- LATE AJIT DAS, R/O- H/NO. 51, UJJAL NAGAR, P.O. AND P.S. KAHILIPARA, DISPUR, GUWAHATI- 781019, DIST.- KAMRUP(M), ASSAM.

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VERSUS

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GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY AND ANR REP. BY THE CHIEF EXECUTIVE OFFICER, STATFED BUILDING, BHANGAGARH, GUWAHATI-5, KAMRUP(M), ASSAM.

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2:THE CHIEF EXECUTIVE OFFICER

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GUWAHATI METROPOLITAN DEVELOPMENT AUTHORITY STATFED BUILDING BHANGAGARH GUWAHATI- 781005 DIST.- KAMRUP(M) ASSAM

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Advocate for the Petitioner : MR. S KATAKI

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Advocate for the Respondent : SC, G M D A

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BEFORE

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THE HON’BLE MR. JUSTICE PRASANTA KUMAR DEKA

order

10.03.2021

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Heard Mr. S Kataky, learned counsel for the petitioner. Ms. M Bhattacharjee, learned standing counsel for the GMDA is present.

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The petitioner is aggrieved due to issuance of notice inviting re-tender bearing No. GMDA/DEV/113/2017/94 dated 04.01.2021 and No. GMDA/DEV/24/2018/140 dated 04.01.2021 in respect of the works regarding development of Odalbakra Rajohuwa Smashan and construction of Sudarshan Path near Kalapani. The respondent No. 2 issued tender notice vide No. GMDA/DEV/60/2020/04 dated 15.07.2020 by which the respondent No. 2 invited tender from the intending tenderers for settlement of four numbers of works. The last date for submission of tender was fixed on 06.08.2020 till 2.30 pm. Similarly vide tender notice No. GMDA/DEV/24/2018/84 dated 31.07.2020 the respondent No. 2 invited tender from the intending tenderers for 14 number of works. The last date for submission of tender was fixed on 25.08.2020 till 2.30 pm. The petitioner participated in the tender process initiated vide tender notice dated 15.07.2020 and 31.07.2020 and submitted his tender for development of Odalbakra Rajohuwa Smashan and construction of the Sudarshan Path near Kalapani. The tenders were opened after which the tender papers were examined by the respondents. The tenders of the petitioner were found valid and the petitioner stood lowest in respect of the both works. The petitioner quoted 15.35 % and 12.90 % below the APWD schedule of rate. The petitioner came to learn that the respondent No. 2 had issued the impugned notice inviting re-tender bearing Nos. GMDA/DEV/113/2017/94 and GMDA/DEV/24/2018/140 dated 04.01.2021 and published in the news papers dated 05.01.2021 in respect of both the works in which the petitioner stood as the lowest bidder in the earlier tender process. Submitting that the impugned notice inviting the re-tender is violative of Article 14, 19 (1) (g) and 21 of the Constitution of India, Mr. Kataki sought for setting aside the subsequent re-tenders impugned in this writ petition.

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The respondent No. 2 filed affidavit-in-opposition. In the affidavit it is the stand taken by the respondent No. 2 that during tender evaluation process it was found that out of 22 number of schemes, in 20 numbers L1 bidders quoted rates below ranging from 12.9 % to 23.17777% on the estimated value of the work leaving aside two number of schemes wherein the L1 bidder quoted 10% below as per estimated work value. The estimates were

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issued as per APWD schedule of rates 2013-14 for building works and APWD schedule of rates 2018-19 for road works. The respondents were apprehensive that the the lower rates quoted by the bidders might adversely affect the quality of the work as well as the completion of the work. Thereafter a clarification was sought for from the Government for taking necessary action keeping in view the abnormal rates quoted by L1 bidders. The Government instructed to follow PWD notification No. RBPC 85/2017/25 dated 12.07.2018 wherein it is specifically stated:

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“Variation of the quoted price upto 5% (Positive or negative) over the approved estimated cost of a civil work may be ignored; and variation of the quoted price upto 10% (positive or negative) may be allowed for peculiar situations and in special circumstances and the reason for allowing to do so shall be placed or recorded by the officer(s) responsible for accepting the tenders/ bids. Tenders/ bids beyond this limit shall not be accepted.”

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Thereafter, in the review meeting held on 30.12.2020 in the office of the GMDA, it was decided that any tenders for GMDA’s project/ scheme already published and subsequently found that if the L1 bidder had quoted absurd rate, then tender evaluation committee should go for re-tendering and on the basis of the said resolution of the review meeting re-tenders were floated.

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Ms. Bhattacharjee on the basis of the stand taken by the respondent No. 2 submits that as the rates quoted were much below the work value estimated under such circumstances no prudent person would go for distribution of the works for its execution. Accordingly, the decision for re-tender was taken rightly.

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Mr. Kataki submits that if such decision was taken by the respondent No. 2 a duty was cast on it to notify and in support of the said submission he relies State of W.B vs. M.R. Mondal and Another reported in (2001) 8 SCC 443 and submits that an order passed but retained in file without being communicated to the affected person can have no force or authority whatsoever and the same has no valid existence in the eye of the law or claim to have come into operation and effect. Further he relied State of Bihar and Others Vs. Kripalu Shankar and Others reported in (1987) 3 SCC 34 and submits that an opinion becomes a decision of the Government only when it is communicated to the person concerned and noting in a notes file not only of officers but even that of a Minister shall not constitute an order to affect others unless it is done in accordance with Article 166 (1) and

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(2) and communicated to the person concerned. Relying the said ratio it is submitted by Mr. Kataky that whether the respondent GMDA had issued any notification or order thereby informing the bidders of the earlier tender about the decision for re-tender wherein the petitioner also participated. If not then there is specific violation of Article 14 and 19(1)(g) of the Constitution of India requiring interference in the subsequent NIT published on 04.01.2021.

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Ms. Bhattacharjee relying Managing Director, West Benal Diary and Poultry Development Corporation Vs. Smt. Jayanti Bose down loaded from Indiakanoon submits that the GMDA has every right to cancel the tender or retender in the event there are reasons to believe that the bidders are not acting bonafide or that there is cartelling.

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In my considered opinion, the issue before this court is not in respect of the authority/ power of the respondent GMDA to go for re-tendering after cancelling the earlier NIT but it is the process adopted for cancellation of the earlier tender which is under challenge and that too without there being any notification published to that effect.

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On query by this court as to whether the decision taken for re-tender was published in any form of notification notifying the petitioner and other similarly situated participants in the NIT, Ms. Bhattacharjee fairly submits that no such notification was issued in respect of the cancellation of the earlier tender and the decision for issuance of the subsequent NIT. In view of the specific submission of Ms. Bhattacharjee, I am constrained to hold that the process of cancellation of the earlier NIT adopted by the respondent GMDA is not proper as there was no notification issued to that effect. Let me examine whether such lacuna requires interference in the tender process initiated by the subsequent re-tenders impugned in the writ petition.

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The reasons cited for re-tender was due to absurd low rates quoted by the L1 bidders in majority of the schemes and the respondent GMDA considered the factor of the quality of the work and also the completion of the schemes under the NIT on the basis of such low rates. The element of public interest is inherent in the said reasons cited by the GMDA. Moreover there was no concluded contract entered into by the petitioner and the GMDA for which the principles of promissory estoppel also does not apply. From the reasons as referred hereinabove cited by the GMDA it can be inferred and accepted the public interest as the

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superior equity which overrides the individual equity. In Rishi Kiran Logistics (P) Ltd. vs. Kandla Port Trust reported in (2015) 13 SCC 233 it was held in a similar situation that if there is a supervening public equity, the Government would be allowed to change its stand and has the power to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal.

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In the present factual matrix it is an admitted position that upon the instruction of the Government to follow the PWD notification dated 12.07.2018 which stipulates the allowable variation of the price bid quoted by the bidder on the estimated cost of a civil work coupled with the public interest involved in the tender works, the earlier tender notifications were cancelled and a fresh NIT was issued dated 04.01.2021. Under such circumstance applying the ratio held in Rishi Kiran Logistics (P) Ltd. vs. Kandla Port Trust (supra) I am of the considered opinion that it would not be proper to interfere with the retender process already initiated by the respondent GMDA.

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Accordingly, this writ petition stands dismissed. Interim order, if any stands vacated.

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JUDGE

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Comparing Assistant

Harajyoti Das v. Guwahati Metropolitan Development Authority and Anr.

Case brief

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Harajyoti Das v. Guwahati Metropolitan Development Authority and Anr.

Case brief

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