1. It is submitted that the rejoinder has been filed by the petitioner but the same is not forthcoming on record. The copy of the rejoinder is handed over by Mr. Ajay Kumar, learned Counsel for the petitioner in the Court.
2. The Counsel for the parties have been orally heard on this appeal.
3. By way of present appeal, challenge has laid to order dated 12th of October, 2018 passed by learned Single Judge, rejecting OWP No. 2100/2018. The petitioner had challenged the issuance of e-NIT No. 397/2018-19 dated 11.9.2018 contending that this advertisement was issued by the respondents during the currency of execution of the same project by him.
4. The writ petition was filed on the averments that the petitioner, a registered Government contractor with the Government of Jammu and Kashmir had, pursuant to e-NIT No. 36 of 2017-18 dated 16.10.2017 for the construction of “Tourist Sarai Punara” Tehsil Basantgarh, District Udhampur, submitted a tender. Being eligible in all respects, it was the submission of appellant that he was found to be lowest bidder of the bid of Rs. 21,83,511.00 and the letter of the intent dated 25.11.2017 was issued by respondent No. 3, thereby allotting the work for which the tenders have been invited. The petitioner made a categorical averment that the formal contract was allotted to him for the execution of work which he commenced to execute.
5. The appellant further contended that he had undertaken extensive steps including carriage of construction material to Basantgarh, collected construction material and as also dug the plinth of the building and incurred cost to the tune of Rs. 3.25 lacs for execution of the work.
According to the appellant, the writ petition was necessitated as he learnt that respondent No. 3 has issued another e-NIT for the same work vide advertisement notice No. e-397/2018-19 dated 11.9.2018. Issuance of this e-NIT was challenged by way of OWP No. 2100/2018.
6. The learned Single Judge followed the principles laid down by the Supreme Court of India in 1977 (SLT SOFT) 122=(1977) 3 SCC 457, M/s Radhakrishna Agarwal and Ors. v. State of Bihar and Ors., as well as in VI (2001) SLT 624=(2001) 8 SCC 344, Verigamto Naveen v. Govt. of A.P. and Ors., and was of the opinion that in the matters of concluded contracts, the writ jurisdiction under Article 226 of the Constitution of India cannot be invoked. In this background, the learned Single Judge has held that in case the petitioner had any grievance on account of re-tendering of the contract, it was open to him to avail the arbitration remedy or any other remedy as available under law. The writ petition, therefore, was dismissed by learned Single Judge in limine.
7. Aggrieved thereby, the present appeal has been filed pressing the very same averments which were pressed before the Writ Court.
8. In response to notice to show cause issued by this Court, respondent No. 3 has filed objections, vehemently challenging the assertions of the appellant, especially those relating to the averments of the petitioner that there was a concluded contract between the parties. In this regard, in its preliminary objections, the respondent No. 3 has stated as follow:
“(a) That the appellant is guilty of concealment of material facts and suppression of the facts. The appellant is thus guilty of suppression veri, sugestio falsi. A letter of intent dated 25.11.2017 came to be issued to the appellant for the execution of the work in pursuance to e-NIT No. 36/2017-18 dated 16.10.2017. Thereafter, the negotiations were taking place between the appellant and the department with regard to Item No. 9 of the BOQ (Bill of Quantity), which did not materialize and the appellant sought withdrawal of the Cash Deposit Receipt (CDR) vide application dated 16.8.2018. It was further expressed by the appellant that the appellant is not ready to execute the work. Consequently, the CDR No. 689950 dated 7.11.2017 amounting to Rs. 50,000/- has also been released in favour of the appellant vide letter No. DDT/MW/10 dated 15.9.2018 drawn on J&K Bank, Cama Housing Colony, Udhampur. This material fact has been concealed/withheld by the appellant in the writ petition as well as in the present Appeal and on account of this material concealment, the appellant is not entitled to any discretionary relief. The appeal is liable to be dismissed on this account alone. Copy of the Application dated 16.8.2018 of the appellant for release of the CDR and copy of the letter dated 15.9.2018 by virtue of which CDR has been released are annexed herewith and is marked as Annexure A&B respectively.
(b) That no formal agreement/contract has been executed between the appellant and the answering respondent. In absence of any formal agreement between the parties, there is no enforceable right in favour of the appellant. Even otherwise also, the Writ Court under Article 226 of Constitution of India does not decide the disputes relating to the terms and conditions of the contract.
(c) The appellant is guilty of unjust enrichment, and the relief claimed is impressible in the eyes of law. It is submitted that total quantity of the item required to be executed was 9.12 cubic metres”.
The departmental estimated rate for the item 9 was Rs. 9,000/- per cubic metre. Against this estimate rate, the appellant quoted exorbitantly high & impractical rate of Rs. 80,000/- (Rupees eighty thousand only) per cubic metre, which comes to total amounting to Rs.7,29,600/- (Rupees seven lacs twenty nine thousand six hundred only). Therefore, against the overall estimated cost of item No. 9, i.e. Rs.82,080/- (Rupees eighty two thousand eighty only), the rate quoted by the appellant was 788.88% above than the estimated rates of the Department which was exorbitant and impractical. In ordinary circumstances, the appreciation of rates quoted by any bidder varies from 5-10% of the Departmental Estimate, whereas, the rates quoted for Item No. 9 was higher by about 800%. It is on account of this reason that the negotiations were imperative before the formal allotment of the work to the appellant. It is not in dispute that appellant emerged as lowest bidder, however, the evaluation was based upon the overall rates quoted by the appellant. Since the rate pertaining to item No. 9 of the BOQ was too exorbitant, which required further negotiations. The answering respondent has also prepared the comparative rates quoted by all the bidders and their variations from the estimated rates. This would show that the rates for item No. 9 quoted by the appellant is 788% higher than the estimate rate of the department. Copy of the Comparative Chart is annexed herewith as Annexure-C.
9. A perusal of rejoinder filed by the petitioner would show that there is no dispute to the afore-stated facts regarding its request to respondent No. 3 or the return of the Cash Deposit Receipt amount of Rs. 50,000.00 to the appellant. The appellant has admittedly withdrawn this cash deposit receipt as back as in September, 2018. The only dispute which has been pressed with regard to the quantum of the value of the material which has been mobilized and the work has been executed.
10. The appellant is also unable to contest the categorical assertion of respondent No. 3 that there was no concluded contract between the parties.
11. In our view, the appellant has made a mis-representation of material facts in the writ petition with regard to the formal contract having been executed between the parties. The appellant at the same time, has suppressed the material facts that it had withdrawn the cash withdrawl receipt which he had deposited towards execution of the contract.
12. Given the above narration, we would be justified in initiating appropriate proceeding under the Contempt of Court Act. On request of Mr. Ajay Kumar, learned Counsel for the appellant, we are desisting from doing so, however the appellant must be penalized by burdening him costs.
13. Our attention is drawn by Mr. Pranav Kohli, learned Counsel for the respondents to the report filed by respondent No. 3 of the measurement which have been undertaken by the appellant. As per this report, only a sum of Rs. 22,607/- would be payable to the appellant. Learned Counsel for the appellant submits that this report stands wrongly prepared behind the back of the appellant. Mr. Kohli has submitted that respondent No. 3 would have no objection if drawing of fresh measurement of the work is undertaken by the appellant, estimated to be prepared.
14. In view of the
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facts brought on record by respondent No. 3, even otherwise, the appellant is not entitled to exercise of discretionary writ jurisdiction in its favour as no right of the appellant has been infringed by the respondents. The above mis-representation and suppression by itself would require that the appellant be a non-suited. 15. This appeal is, therefore, dismissed with costs which are quantified at Rs. 10,000/- (Ten Thousand only), which shall be deposited by the appellant in Advocate Welfare Fund within two weeks from today. 16. In view of the submission of learned Counsel for the parties, let fresh measurement of the work undertaken by the appellant be prepared by respondent No. 3 after giving notice in writing to the appellant of the date and time thereof enabling the appellant for participation. It shall be open for the parties to take action with regard to these measurements, in accordance with law. Ordered accordingly.