Gauhati High Court
Md. Baharul Islam vs The State Of Assam And 5 Ors on 26 March, 2015
1
WP(C) 2344/2013
BEFORE
HON'BLE MR.JUSTICE MANOJIT BHUYAN
26.3.2015
Heard Mr. PC Dey, learned counsel appearing for the petitioner. Also
heard Mr. M Bhagabati, learned State counsel appearing for respondent Nos.1, 2,
3 and 6, Mr. I Choudhury, learned counsel appearing for respondent No.4 and Mr. MU Ahmed, learned counsel appearing for respondent No.5.
2. The Chief Executive Officer, Darrang Zila Parishad, Mangaldoi had invited a short tender notice on 29.11.2012 in respect of construction of office building of Paschim Mangaldoi Anchalik Panchayat from Class-II registered contractors having experience of work done of similar nature amounting to Rs.8 lakhs during the last three years. The requirement, amongst others, was that there has to be a certificate to that effect and the registration of the tenderer as a Class-II must be valid up to 31.3.2012. The tender process had the participation of seven bidders out of which the petitioner as well as respondent No.5 were party to it. The comparative statement was prepared and thereafter, the work in question was awarded to the respondent No.5 vide work order dated 19.2.2013.
3. The petitioner has put to challenge the said work order dated 19.2.2013 primarily on the ground that the same could have been done in view of the condition Nos.16, 17 and 18 of the terms and conditions applicable to the contract in hand. Clause 16 pertains to furnishing of Court fee stamp, clause 17 pertains to furnishing of income tax and sales tax clearance certificate and clause 18 pertains to expressing the rates in the tender both in words and figures. The petitioner submits that besides clause 16, 17 and 18 above, clause 9 of the tender notice pertaining to experience certificate is also an essential condition which is to be given due weightage. In this connection, the petitioner submits that the work experience certificate produced by the respondent No.5 and enclosed to the writ petition, is a certificate given by the Chief Executive Officer, Darrang Zila Parishad, Mangaldoi, who is an integral part of the tender process.
2Learned counsel for the petitioner while maintaining his stand that the experience certificate as required of him is an essential condition and cannot be ignored, relied upon the decisions as follows;
1. 2011 (5) GLR 186, Starline Agency -vs- Nabajit Das and Ors.
2. AIR 1991 SC 1579, M/s Poddar Steel Corporation -vs- M/s.
Ganesh Engineering Works and Ors.
3. (2006) 11 SCC 548, BSN Joshi & Sons Ltd. -vs- Nair Coal Services Ltd. & Ors.
4. Mr. Dey, learned counsel appearing for the petitioner relied upon the aforesaid decisions to drive home the point that in so far as the essential conditions are concerned, the same have to be rigidly construed.
5. Mr. Ahmed, learned counsel appearing for the respondent No.5 submits that the experience certificate has been duly furnished in terms of the requirement. In so far as the question whether the Chief Executive Officer of Zila Parishad could furnish a certificate in his favour enabling him to participate in the tender process, Mr. Ahmed submits that the same was done as there was no other option since his construction business is concentrated only upon the same organization and therefore, by the doctrine of necessity, the experience certificate had to be obtained from the Chief Executive Officer and as such cannot be faulted. Mr. Ahmed also submits that the writ petitioner is without locus to challenge the award of contract in his favour, inasmuch as, the experience certificates furnished by him do not pertain to work similar to the work in question. Reference was made to the documents enclosed to the writ petition to buttress his contention that the experience certificates furnished by the petitioner is only with regard to work relating to furniture etc. The final submission of Mr. Ahmed is that the terms and conditions as annexed to the tender notice are general conditions applicable to all nature of work and the requirement of income tax or sales tax clearance certificate is not a mandatory requirement.
36. Mr. Bhagabati, learned State counsel while maintaining the stand that the writ petition is devoid of merit and the writ petitioner without locus, relied upon the statements and averments made in the affidavit-in-opposition filed by the respondent No.3.
7. Mr. I Choudhury, learned counsel appearing for the respondent No.4 also maintains that the writ petitioner is without locus and therefore, his is not entitled to any relief as prayed for.
8. I have given my anxious consideration to the facts and issue. There is no manner of doubt that the experience certificate in the manner indicated in the tender notice as well as the requirement of income tax clearance certificate are essential ingredients for award of the contract. In the instant case and, as alluded to above, the experience certificate furnished by the respondent No.5 is not in terms of the requirement. Besides, the same has been certified by the Chief Executive Officer, Darrang Zila Parishad, Mangaldoi, who is a party to the tender process. Mention also be made that the said certificate was issued on 15.12.2012 and it does not indicate in any manner that the respondent No.5 had carried out similar nature of work amounting to Rs.8 lakhs during the last three years. In this context, experience certificate furnished by the writ petitioner is also referred to and it appears that the same is in compliance of the requirement save and except the document issued under the hand of the Executive Engineer, PWD, Tezpur Building Division which pertains to supply order of furniture.
9. The condition stipulating requirement of income tax clearance certificate also cannot be ignored and in fact going by clause 17 of the terms and conditions, failure to furnish income tax clearance certificate operates as an ouster clause. The requirement of income tax clearance certificate is an essential condition in so far as the ascertainment of financial viability of the bidder is concerned.
10. This Court is not oblivious of the fact that allowing this writ petition may be construed as granting the work in question to the petitioner. In this case only the legality and validity of the work order dated 19.2.2013 is put to question on 4 the ground that the decision making process in arriving at the final conclusion is marred.
11. From the facts aforestated, there is no gain-saying that the requirement of experience certificate as well as income tax clearance certificate are essential conditions and the same are to be rigidly construed and strictly adhered to. In the instant case, the decision arrived at by the respondents, culminating in the award of contract to the respondent No.5 cannot stand scrutiny of law. It is also difficult to overlook the fact that the Chief Executive Officer, Darrang Zila Parishad, who is a party to the tender process had not only issued the experience certificate in favour of the respondent No.5 but is also a signatory to the impugned work-order in question. This is not a case where a free play in the joints can at all be permitted. Respondent No.5 in the course of argument had also relied upon the decision in Security Printing and M inting Corporation of India Lim ited and another -vs- Gandhi Industrial Corporation reported in (2007) 13 SCC 236 to drive home the point that since he has acted on the work order and has made investment, it is a concluded contract and therefore, the same does not warrant interference of this Court. In the facts of this case, the reported judgment do not come to the aid of the respondent No.5.
12. On the findings aforementioned, this Court is of the opinion that the impugned order dated 19.2.2013 is a product of a flawed decision making process and the same cannot stand scrutiny of law and is liable to be interfered with. Accordingly, the impugned work order dated 19.2.2013 is set aside.
13. Before parting with the case, it is also made clear that allowing this writ petition may not be construed as entitling the petitioner to be awarded with the work order in question.
14. The writ petition stands allowed in terms of the above, however, without any order as to costs.
JUDGE gunajit