Writ appeal dismissed. Court held absent specific contract formation, non-declined bids cannot enforce selection.
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GAHC010039502022
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/83/2022
PARASH KUMAR BHATTACHARJEE
S/O- LATE SATYENDRA NATH BHATTACHARJEE, ASHOKA APARTMENT, BAKUL PATH, BHAGADUTTAPUR, BELTOLA, GUWAHATI-28.
VERSUS
THE STATE OF ASSAM AND 10 ORS.
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, IRRIGATION DEPARTEMNT, DISPUR, GUWAHATI-781006.
2:THE CHIEF ENGINEER MINOR IRRIGATION ASSAM CHANDMARI GUWAHATI-781003.
3:THE SUPERINTENDING ENGINEER NAGAON CIRCLE (IRRIGATION) NAGAON.
4:THE EXECUTIVE ENGINEER
KALIABOR AND INTD. KOLLONG DIVISION (IRRIGATION) NAGAON.
5:THE EXECUTIVE ENGINEER NAGAON DIVISION (IRRIGATION) NAGAON.
6:THE CONSTITUTED COMMITTEE
IN CONNECTION WITH NOTICE INVITING TENDER BEARING NO. NIT NO. SEI/T-27/ET-I/2021-22/1 DTD. 10.07.2021 ISSUED BY THE SUPERINTENDING ENGINEER
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NAGAON CIRCLE (IRRIGATION) NAGAON ASSAM 7:RABIN KUMAR SARMAH S/O- LATE HARI PRASAD SARMAH R/O- AMOLAPATTY NAGAON ASSAM PIN- 782001. 8:PAPAN KR. MAHANTA S/O- LATE RUPENDRA NATH MAHANTA R/O- BIREN MAHANTA ROAD NAGAON ASSAM PIN- 782001. 9:SHORIFUL HOQUE S/O- SIRAJUL HOQUE R/O- VILL.- CHAMDHARA P.O. DAGAON P.S. JURIA NAGAON ASSAM PIN- 782124. 10:SUSHIL KR. KHOUND S/O- LATE BIREN KHOUND R/O- PANIGAON P.O. ITACHALI NAGAON ASSAM PIN- 78200
Advocate for the Petitioner : PETITIONER IN PERSON
Advocate for the Respondent : GA, ASSAM
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BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
03.08.2022
(Soumitra Saikia, J)
Heard Mr. P.K. Bhattacharjee, appellant-in-person and Mr. N. Upadhayay, leanred Standing Counsel, Irrigation Department.
2. This appeal is directed against the order dated 31.01.2022 passed in W.P(C) No. 4609/2021.
3. The petitioner-in-person is a Class-A Contractor under the Irrigation Department. An online bid was invited by the Superintending Engineer, Nagaon Circle (Irrigation) by a NIT No. SEI/T-27/ET-I/2021-22/1 dated 10.10.2021. In response to the said invitation of bid, several bidders including the appellant and the respondents No. 7, 8, 9 and 10 participated in the said bid by submission of their bids supported by required documents and by depositing required earnest money against the respective packages. In the Technical Bid Evaluation, the private respondents No. 7 and 8 were declared non-responsive. In the Financial Bid Evaluation, the private respondents No. 9 & 10 were declared nonresponsive. They were declared as non-responsive as the bid criteria could not be fulfilled as per the tender clauses. It is submitted that the appellants bid was found to be responsive and he had legitimate expectation to be the selected bidder.
4. It is projected by the appellant that immediately after their disqualification, the private respondents approached the Chief Engineer (Minor Irrigation), Assam, Guwahati, i.e. respondent No. 2 with a request for cancellation of the bid process. Pursuant thereto, the respondent No. 2 i.e. Chief Engineer (Minor
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Irrigation), Assam, Guwahati issued a letter dated 12.08.2021 (Annexure-D) to the respondent No. 3, i.e. Superintending Engineer, Nagaon to cancel the bid process on the ground that it is not a working season. The said cancellation letter dated 12.08.2021 was not entertained by the Superintending Engineer, Nagaon, namely respondent No. 3 as the Bid Evaluation process was over and the Minutes have also been uploaded online. Further, since the bidders, who approached the Chief Engineer, Irrigation, Assam, were declared to be nonresponsive bidders and therefore rejected, the cancellation of the bid was not proceeded with by the respondent No. 3. Thereafter, the private respondents preferred the writ petition being W.P(C) No. 4609/2021 praying for cancellation of the bid invited by the respondent No. 3 on the strength of the letter of the Chief Engineer, Irrigation, Assam. Before the learned Single Judge, it was submitted by the learned Standing Counsel for the Department that the NIT bearing NIT No. SEI/T-27/ET-I/2021-22/1 dated 10.07.2021 issued by the Superintending Engineer, Nagaon Circle (Irrigation), Nagaon has already been abandoned and all further actions taken by the respondent No. 3 pursuant to the NIT are also abandoned. It was submitted further that the work in respect of Solar Power MDTWS at Pakhimoria and Khagarijan area under Nagaon Division (Irrigation) and Solar Power MDTWS at Juria under Kaliabor & INTD, Kolong Division (Irrigation) under RIDF-XXVI (NABARD) for the year 2020-2021 shall be awarded by inviting fresh tender. On recording such submissions, the learned Single Judge disposed of the writ petition on the ground that nothing remains to be decided in the said writ petition as the NIT in question has already abandoned. The writ petition was disposed of and the interim order passed earlier stood vacated. Being aggrieved, the present writ appeal has been filed by the appellant.
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5. At the outset, it is seen that the appellant was not arrayed as a party in the writ petition being W.P(C) No. 4609/2021 in which the order dated 31.01.2022 was passed by the learned Single Judge and which has been assailed in the present proceedings. This Court by order dated 07.03.2022 permitted the appellant to file an application seeking leave to file an appeal. In deference to the said order, the applicant/appellant filed an application seeking leave to appeal. By order dated 20.05.2022 passed by this Court in the application seeking leave to appeal i.e. I.A.(C) No. 850/2022 in W.A. No. 83/2022, this Court granted leave to the applicant to file an appeal and the said Interlocutory Application was allowed. Thereafter, the matter came up before this Court for hearing.
6. The appellant-in-person and the learned counsels have been heard and the pleadings on record have been carefully perused.
7. We find that the NIT which was published by the respondent Irrigation Department was never concluded and the same was abandoned. The NIT in essence is an invitation for the bids to be offered by intending tenderers including the appellant and the private respondent Nos 7 to 10 for execution of the said work. However, the offers which were made by the appellant and the private respondent Nos. 7 to 10 never came to be accepted by the department in order to make it a concluded contract. Under the law of contract, unless the offer is accepted and the same is communicated to the bidder, no legal right flows in favour of the bidders.
8. In the facts of the present case, it is not the pleaded case of the appellant that the appellant’s offer was accepted by the Department and that any order to proceed with the execution of work was issued prior to the cancellation or abandonment of the NIT by the Department. It is also not pleaded that
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pursuant to the Tender Evaluation process, the appellant was shortlisted as the most suitable or the lowest bidder in respect of the said bid. No reference of such tender conditions have been made by the appellant. The private respondent Nos. 7 to 10 who are the petitioners in W.P.(C) No. 4609/2021 in which the impugned order was rendered, are not aggrieved and are not before this Court as appellants.
9. What is noticed is that the private respondent Nos. 7 to 10 were the original writ petitioners are therefore the ‘dominus litus’. The present appellant was not the writ petitioner. If the original writ petitioners are not aggrieved by the order of the learned Single Judge or they choose not assail the said order, the appellant who has been permitted to assail the order as an intervener, cannot be allowed to claim relief in a writ petition filed by the private respondents No. 7, 8, 9 and 10 as the writ petitioners.
10. It was open to the appellant to challenge the order of cancellation or abandonment independently before a writ Court but the same was not done. The appellant has legal remedies available to him in the event, the appellant is aggrieved by any action or inaction on the part of the official respondents.
11. Under the circumstances, we find no merit in the present appeal as no relief can be granted to the appellant. The appeal is devoid of any merit and the same is hereby dismissed. However, there shall be no order as to costs.
JUDGE CHIEF JUSTICE
Comparing Assistant
Parash Kumar Bhattacharjee
The State of Assam
Soumitra Saikia
As recorded by the court registry
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