M/S Chhattisgarh Engineering vs Executive Engineer on 18 July, 2024

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Chattisgarh High Court

M/S Chhattisgarh Engineering vs Executive Engineer on 18 July, 2024

M/s Chhattisgarh Engineering Having Its Registered Office At Vishnu Bagan, Ward No. 13, Jashpur Nagar, District Jashpur Chhattisgarh, Through Its Proprietor, Namely Shri Rohit Kumar Jaiswal S/o Shri Ramswarup Jaiswal, Aged About 44 Years, R/o Vishnu Bagan, Ward No. 13, Jashpur Nagar, District Jashpur, Chhattisgarh

---- Petitioner Versus

1. Executive Engineer, Rural Engineering Service, Jashpur, District Jashpur, Chhattisgarh

2. Superintendent Engineer, Rural Engineering Service, Ambikapur, District Surguja, Chhattisgarh

3. M/s. Paramhans Agraj, Contractor, Khajanchi Tolli, Jashpur, District Jashpur, Chhattisgarh

---- Respondents (Cause-title taken from Case Information System) For Petitioner : Mr. Anshul Tiwari, Advocate For Respondents No.1 & 2 : Mr. Shashank Thakur, Dy. Advocate General Neutral Citation 2024:CGHC:25764-DB 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 18.07.2024

1. Heard Mr. Anshul Tiwari learned counsel for the petitioner. Also heard Mr. Shashank Thakur, Deputy Advocate General for respondents No. 1 & 2/State.

2. Since the common question is involved in both the writ petitions, they are being disposed of by this common order.

3. The present writ petitions have been filed by the petitioner with the following prayers:

Writ Petition (C) No.3290 of 2021 "i) That the Hon'ble Court may kindly be pleased to quash the work order dated 05.08.2021 (Annexure P/1) issued in favour of respondent No.03 as illegal and arbitrary.

ii) That the Hon'ble Court may kindly be pleased to direct respondent No.01 to issue work order for construction of Sadbhaw Mandap Bhawan, Electrification Development Block, Manora in the name of the petitioner as the petitioner was declared as L1 in the financial bidding.

iii) Any other relief, which this Hon'ble Court deems, fit in the facts and circumstances may also be granted in favour of the petitioner."

Neutral Citation 2024:CGHC:25764-DB 3 Writ Petition (C) No.3342 of 2021 "i) That the Hon'ble Court may kindly be pleased to quash the work order dated 05.08.2021 (Annexure P/1) issued in favour of respondent No.03 as illegal and arbitrary.

ii) That the Hon'ble Court may kindly be pleased to direct respondent No.01 to issue work order for construction of Sadbhaw Mandap Bhawan, Electrification Development Block, Kunkuri in the name of the petitioner as the petitioner was declared as L1 in the financial bidding.

iii) Any other relief, which this Hon'ble Court deems, fit in the facts and circumstances may also be granted in favour of the petitioner."

4. Brief facts necessary for disposal of the cases, are that, petitioner M/s.

Chhattisgarh Engineering, proprietorship firm, has been registered in Class-B Contractor and eligible for Electrical Work Class-B by the Divisional Licensing Committee (Electric), Jashpur vide registration No.B/05/43 valid upto 31/12/2022. Respondent No.1 had floated the tender for the Proprietary Article Certificate (for short, "PAC") value of Rs.40,00,000/- for the construction of Sadbhaw Mandap Bhawan, Electrification Development Block in Janpad Panchayat Manora and Kunkuri and invited contractors who are registered in Class- "B" and above with active certificate in the Notice Inviting Tender dated 09/03/2021. The petitioner being eligible for the same, by way of online bidding, had participated in the tender process and quoted a Neutral Citation 2024:CGHC:25764-DB 4 total sum of Rs.29,28,400/- and Rs.29,08,800/-, respectively. Upon opening of the Financial bid, the petitioner was declared as L1 and Arun Soni was declared as L2. The petitioner was very hopeful that the tender will be awarded to it being in L1 category and work order will be issued in the name of the petitioner, but the work order was issued in favour of respondent No.3, who was not even eligible for the same and had not participated in the bidding process.

5. Thereafter, petitioner had asked the respondent authorities to provide a certified copy of the work order and later, rushed to the respondent authorities and had made representation, in which, it was specifically averred that the award of work for the construction of Sadbhaw Mandap Bhawan, Electrification Development Block, in Janpad Panchayat Manora and Kunkuri had been done in an inappropriate manner as respondent No.3 had not even participated in the bidding process, but the work has been awarded in his favour, which is nothing but illegal and abuse of process.

6. The State/respondents No.1 and 2 has filed return, in which, it has been averred that the aforesaid tender was issued for award of zonal work as and when the same would arise. The petitioner had utterly placed misconceived facts before this Hon'ble Court by placing incorrect narration of events. Under the extant instructions, as have been issued by the State Government, vide order dated 24/01/2009, for electrification work for less than Rupees One Crore value, separate tenders have to be invited. However, for the electrification of any work, which is more than the value of Rupees One Crore, the same is to be included and awarded alongwith the civil work. The work for Neutral Citation 2024:CGHC:25764-DB 5 construction of Sadbhaw Mandap Building Kunkuri and Manora included multiple aspects within its scope. It included the entire work of civil construction, water supply, sanitary work, rain water harvesting, tubewell, boundary wall, furnitures, motorcycle stand, 12% internal and external electrification etc. The total work was approximately costing Rs.146 lakhs. The technical sanction for the said work was sought from the Superintending Engineer vide Technical Sanction No.167 dated 08/05/2020 and Superintending Engineer granted technical sanction for Rs.146 lakhs. In terms of the said instructions, respondent authorities issued Notice Inviting Tender dated 29/08/2020 for civil work and electrification etc. vide System Tender No.67461 and 67462 respectively with the name of work as 'Sadbhaw Mandap' at Kunkuri and Manora.

7. The petitioner did not participate in the said tender, whereas respondent No.3 was the successful bidder in the said tender. Thereafter, vide order dated 14/10/2020, respondent No.3 was directed to appear alongwith all requisite documents in the office of Executive Engineer for execution of agreement and later, the work order was issued on 19/10/2020. Since the work of electrification of the said building was also required to be done, for which the estimate was submitted, the Superintending Engineer, vide order dated 31/07/2021 directed that the additional work order for electrification of the said building (Sadbhaw Mandap) be issued to the same contractor.

8. In the light of said order dated 31/07/2021, a separate work order dated 05/08/2021 for electrification of Sadbhaw Mandap Building, Kunkuri and Manora was issued in favour of respondent No.3. The Neutral Citation 2024:CGHC:25764-DB 6 said work order is directly related to the work, for which, System Tender No.67461 and 67462 respectively, were issued and technical sanctions were accorded. Thus, there is no illegality in issuance of the work order dated 05/08/2021 to respondent No.3.

9. It has been averred by the State that petitioner had participated in the Notice Inviting Tender issued on 09/03/2021 and was found to be L1. The petitioner, after having been declared as L1, was directed vide letter dated 05/08/2021 to appear in the office of the Executive Engineer for execution of agreement and thereafter, the work order dated 12/08/2021 was issued in favour of the petitioner. The said facts have not been placed before this Hon'ble Court by the petitioner and as such, it has suppressed the said material facts. The petitioner has even suppressed the fact that on 05/08/2021, the petitioner was already directed to appear with the relevant documents for execution of the agreement and further that the work order dated 12/08/2021 had already been issued in favour of the petitioner. The petitioner has failed to the assail order dated 31/07/2021 issued by Superintending Engineer directing that since the technical sanction was for "Sadbhaw Mandap Building" already granted including electrification work of the said building, work of electrification had to be executed by the same contractor. Hence, there is no illegality or irregularity on the part of respondents in issuing work order dated 05/08/2021 in favour of respondent No.3.

10. Learned counsel for the petitioner submits that issuance of work order by respondents No.1 in favour of respondent No.3 is bad in law and is liable to be set-aside. He further submits that present petitioner had Neutral Citation 2024:CGHC:25764-DB 7 participated in the tender process and after opening of the financial bid, it was found L1, then also work order has been awarded in favor of respondent No.3 who was not the part of the bidding process and not found to be eligible contractor in terms of the tender inviting document. It has been contended that in order to accommodate respondent No.3, work order has been issued in its favour. It has been further contended that when the contractor i.e. respondent No.3 was not the part of the tender process and not placed its bid for the work, it cannot be awarded work order in disobeyance of rules and law. Hence, prays for quashment of work order dated 05/08/2021 issued in favour of respondent No.3.

11. On the other hand, Mr. Shashank Thakur, learned Deputy Advocate General appearing for respondents No.1 & 2/State submits that petitioner being a Class-B contractor awarded zonal tender for petty works. He further submits that the Executive Engineer will calculate the cost of possible works to be done in the next financial year for each Janpad Panchayat area or group of more than one Janpad Panchayat in his jurisdiction based on the cost of the works done in the said areas in the previous year and Zonal Tender Form-'A' for the appointment of a contractor for the implementation of the group's works prepared on the basis of twice the cost received (maximum Rs. 50 lakhs). It has been contended that petitioner was not awarded the present tender and respondent No.3 has been declared L1 and work order has been issued in his favour. As such, the writ petition deserves to be dismissed.

12. We have heard learned counsel for the parties and perused the Neutral Citation 2024:CGHC:25764-DB 8 impugned order and the material available on record.

13. From the record, it would reveal that petitioner has not participated in the tender process in question, which was issued for the construction of Sadbhaw Mandap Bhawan, Electrification Development Block in Janpad Panchayat, Manora and Kunkuri. The petitioner being Class-B contractor has awarded a contract for petty works under zonal tender, which is not the subject matter of present petitions. It would further reveal that respondent No.3 had participated in the tender in question and declared as L1, hence, the work order has been issued in its favour.

14. The Hon'ble Supreme Court in the matter of Tata Motors Limited v The Brihan Mumbai Electric Supply & Transport Undertaking (Best) and Others passed in Civil Appeal No. 3897 of 2023 vide judgment dated 19.05.2023 held that while invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.

15. Considering the matters in its entirety, the submissions advanced by Neutral Citation 2024:CGHC:25764-DB 9 the learned counsel appearing for the parties as well as considering the dictum rendered by the Hon'ble Supreme Court in Tata Motors Ltd. (supra) and also considering the fact that respondent No.3 had participated in the tender in question for construction of Sadbhaw Mandap Bhawan, Electrification Development Block in Janpad Panchayat Manora and Kunkuri, has been declared as L1 and work order has been issued in his favour, we do not find any good ground to entertain these writ petitions.

16. Accordingly, the writ petitions being sans substratum, deserve to be and are hereby dismissed, leaving the parties to bear their own cost(s).

17. As a consequence, interim relief, if any, granted in favour of the petitioner in both the petitions, stand vacated.

                              Sd/-                                   Sd/-

                 (Ravindra Kumar Agrawal)                        (Ramesh Sinha)
                           Judge                                  Chief Justice


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