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M/s. Joint Venture, M/s. ACE Infra-tech, Pvt. Ltd, Jammu & Matprop Technical Service, Cochin v/s State of J&K & Others

    OWP No. 1034 of 2017 & MP No. 01 of 2017

    Decided On, 21 December 2017

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE ALOK ARADHE

    For the Petitioner: Sunil Sethi, Sr. Advocate with Ashwani Thakur, Advocate. For the Respondents: Raman Sharma, Dy.AG.



Judgment Text

1. The petition is admitted for hearing. With consent of the learned counsel for the parties, the matter is heard finally.

2. In this petition, the petitioner, inter alia, seeks writ of certiorari for quashment of Notice dated 17.06.2017 issued by respondent No.3 by which e-NIT No.10 of 2015 dated 21.11.2015 has been cancelled. The petitioner also seeks quashment of the decision taken by the Departmental Purchase Committee dated 15.06.2017 as well communication dated 16.06.2017 issued by respondent No.2, on the ground that the same are illegal, arbitrary and unjustified. The petitioner also seeks a direction to the respondents to refer the case of petitioner’s firm before State Level Purchase Committee for financial negotiations and for allotment of the contract.

3. Facts giving rise to the filing of writ petition briefly stated are that in response to e-NIT dated 21.11.2015, petitioner’s firm alongwith four other firms submitted their tenders for allotment of contract in question. The Technical bids of all the five bidders were evaluated by the Departmental Purchase Contract Committee. The Technical bid submitted by the petitioner was found fit. Accordingly, the financial bid of the petitioner alone was opened. Thereafter, the aforesaid Committee in its meeting held on 15.06.2017 came to the conclusion that rate quoted by the single tenderer is on higher side. Accordingly, a decision was taken unanimously to cancel the e-NIT and to issue a fresh tender. In the aforesaid factual background, the petitioner has approached this Court.

4. Learned Senior Counsel for the petitioner submitted that since the contract in question was for Rs.26 crore, therefore, the State Level Purchase Contract Committee alone has the authority to take decision. Decision to rescind the same ought to have taken by the State Level Purchase Contract Committee whereas the same has been taken by Departmental Purchase Contract Committee. It is further submitted that since the period of the validity of the EMD offered by the petitioner, which was extended once by the respondents had expired, therefore, the petitioner had withdrawn the amount deposited by it by submitting an application on 26.10.2017 and the amount was refunded to the petitioner on 28.10.2017. Thus, from the aforesaid conduct of the petitioner, no inference can be drawn that the petitioner had withdrawn its claim with regard to contract in question.

5. On the other hand, learned Dy.AG submitted that the Government Order dated 07.11.2016 has no application to the obtaining factual matrix of the case as the aforesaid Government Order pertains to allotment of the contract and the decision in the instant case has been taken by the Departmental Purchase Contract Committee by which the financial bid of the petitioner has not been accepted on the ground that the same is on the higher side. It is further submitted that from his own showing by the petitioner vide his communication dated 26.10.2017, a copy of which has been placed on record by Dy.AG, it is evident that the validity of the offer submitted by the petitioner had expired, therefore, the petitioner had accepted his payment of the EMD. Thereafter, the petitioner has no right to agitate the issue involved in the petition.

6. I have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, the e-NIT was issued on 21.11.2015. The petitioner was the only bidder whose technical bid was found to be suitable and conforming to the standards prescribed in the e-NIT. Thereafter, his financial bid was opened. The Committee in this meeting held on 15.06.2017 found that the financial bid of the petitioner is on the higher side. Accordingly, a decision was taken to rescind the e-NIT and to issue a fresh tender. Thus, the decision to rescind the contract has been taken for the valid and cogent reasons by the respondents and not in an arbitrary and unfair manner. It is pertinent here to mention that the writ petition was filed by the petitioner before this Court on 04.07.2017 and during the pendency of the writ petition, the petitioner by a communication dated 26.10.2017 informed the respondents that the validity of the bid submitted by it had expired and, therefore, the amount of EMD be released in his favour. In pursuance of the request made by the petitioner himself, the EMD was released on 28.10.2017 in his favour.

7. Besides that, from close scrutiny of the Government Order No.233-F of 2016 dated 07.11.2016, it is evident that the same pertains to delegation of powers under the Book of Financial Powers for grant of contracts and the power to award the contract has been delegated to the State Level Contract Purchase Committee in case of a contract involving an amount of more than Rs.20 crore. In the instant case, the financial bid of the petitioner was yet to be accepted and the Committee had decided not to accept the financial bid of the petitioner. The respondents have taken a decision to re-tender the contract in

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question for the valid and cogent reasons. The petitioner is estopped by his conduct from contending that the decision to cancel the contract was taken by an incompetent authority. Even otherwise, the aforesaid Government Order dated 07.11.2016 has no application to the fact situation of the case, as the decision to award the contract was yet to be taken in the case of the petitioner. 8. In view of the preceding analysis, I do not find any merit in this petition. Accordingly, the same is dismissed along with connected MP(s), if any.
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