Chattisgarh High Court
Khedu Ram Sahu vs State Of Chhattisgarh & 3 Others on 5 August, 2010
Author: I.M. Quddusi
Bench: I.M. Quddusi
HIGH COURT OF CHATTISGARH BILASPUR
WPC No 2546 of 2010
Khedu Ram Sahu
...Petitioners
VERSUS
State of Chhattisgarh & 3 others
...Respondents
! Mr Rajeev Shrivastava counsel for the Petitioner
^ Mr Yashwant Singh Thakur Deputy Advocate General with Miss Deepali Pandey Panel Lawyer for the State respond
CORAM: HONBLE IM QUDDUSI & HONBLE NK AGRAWAL JJ
Dated: 05/08/2010
: Judgement
ORAL ORDER
(05.08.2010)
WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
Per I.M. QUDDUSI, J
1. No one appears on behalf of respondent no.4 in the first round despite service of notice, therefore, the list is revised. Even in the second round, no one appears on his behalf. Hence, we proceeded to hear the arguments of the learned counsel appearing on behalf of the petitioner as also learned State Counsel.
2. By this writ petition filed under Article 226 of the Constitution of India, petitioner mainly prays for the following relief(s):
10.1 That this Hon'ble Court may kindly be pleased to quash the impugned order dated 20.05.2010 passed by respondent no.3.
10.2 That this Hon'ble Court may kindly be pleased to restrain the respondent no.1 from issuing fresh tender notice.
10.3 That this Hon'ble Court may kindly be pleased to direct the respondent no.1 to proceed with the tender forms submitted in pursuance of tender notice dated 28.04.2010.
3. Brief facts of the case are that Notice Inviting Tenders (NIT) was issued by Respondent no.1/Executive Engineer, Rural Engineering Service, Balod, Distt. Durg, on 28.04.2010 inviting applications second time for the construction of High School Building at village Arkar, Commercial Complex (Atal Bazar) at village Palari, C.C. Road, Drainage & Shed in the Commercial Complex at village Palari, Platform and Shed of Bazar at village Mirritola. The last date of issuing tender forms was 10.05.2010 and the last date of receiving the forms was on or before 17.05.2010 upto 5.30 p.m. The tenders duly filled by the tenderers were to open on 18.05.2010. The petitioner and other participants submitted their tender forms alongwith the Security Amount/FDR within time. However, on 17.05.2010, respondent no.4 made a complaint before respondent no.3/Executive Engineer which reads as under:
izfr] Jheku dk;Zikyu vHkh;ark Xzkkeh.k ;kaf=dh lsok laHkkx ckyksn ftyk nzxZ N]x] fo"k;& VasMj qQkeZ u Hkjus nsus ckcr` A egksn; th] vkils luez fuosnu gS eS ukxsUnz pkS/kjh v oxZ Bsdsnkj gqa xq:j Oykd dk VzsMj QkeZ fy;k Fkk A vkSj fnukad 17]5]2010 dks tek djuk Fkk ftls esjs }kjk ckyksn iks"V vkfQl us tek djokus ds fy, vk;k Fkk A ftls nqljs Bsdsnkj [kasnqjke lkgq vkSj lkFkh v'kksd lkgq xzke dhHkkj fuoklh gS tks eq++> ls VsaMj QkeZ Nhu dj ys x, vkSj eq>s VsMj QkeZ ugh djus fn;k x;k A vr% vki ls fuosnu gS fd esjk VsMj QkeZ fn;k tkosa A ;k VsMj fujLr fd;k tk, A VsMj QkeZ ds F.D.R. lkFk Hkh Fkk A /kU;okn izkFkhZ ukxsUnz pkS/kjh v Bsdsnkj izfrfyfi 1]dysDVj nzxZ 2]izHkkjh ea=h nzxZ a The gist of the same is that respondent no.4 had obtained tender forms of Gurur Block which are to be submitted on 17.5.2010. He had gone to Balod Post Office to deposit the same. The petitioner and his companion namely Ashok Sahu of village Kibhar did not allow him to fill the tender form and as such he requested the Executive Engineer either to give him tender form or cancel the tender proceedings. He had also informed that FDR was also with the tender form. Copy of the said complaint was sent to Collector, Durg and Incharge Minister, Durg. In view of the said complaint, respondent no.3 Executive Engineer did not open the tenders on the scheduled date and passed the order dated 20.05.2010, canceling the tender notice dated 28.4.2010.
4. Learned counsel for the petitioner submits that the action of respondent no.3 in cancelling the tender proceedings is arbitrary and malafide.
5. A perusal of the complaint dated 17.05.2010 shows that respondent no.4 has not mentioned the time, number and date of the FDR when the tender form was allegedly snatched. However, he lodged the Non-cognizable Report (NCR) in the police station.
Though snatching of tender form and FDR is a cognizable offence, but he did not mention that in the police station and only lodged the FIR non- cognizable u/s 155 of the Code of Criminal Procedure to the extent that the petitioner and his companion Ashok Sahu had taken the tender form & FDR from him to deposit at the post office Balod but they had not deposited and they had also not returned the form to him. The contents of the report lodged are reproduced as under:
~ NRrhlx< `kklu iqfyl foHkkx iqfyl gLr{ksi & v;ksX; vijk?k dh lqpuk ,/kkjk 155 n]iz]l]+ fnukad 17]5]2010 ftyk nqxZ dzekad &29@2010 iqfyl LVs'ku & ckkyksn 1 ]lqpuk nsus dk fnukad rFkk le; &17]5]2010 ds 10%40 cts 2] vfHk;ksxh ;k lqpuk nsus okys dk uke irk @o fuoklh LFkku &ukxsUnz pkS/kjh vk]Lo]Jh jk/ksfd'ku pkS/kjh mez 28 o"kZ lk]xqIrk pkSd nYyhjktgjk 3] vfHk;qDr dk uke irk o fuoklh LFkku &[ksnqjke lkgq v'kksd lkgq Bsdsnkj nYyhjktgjk 4] /kVuk dk fnukad ]LFkku rFkk le; &17]5]2010 ds 10%30 cts iksLV vkfQl ds ikl lwpuk dk laf{kIr fooj.k mijksDr lwpuk ds vijk/k /kkjk 155 crpl dk gksrk gS A ekeys dk laf{kIr fooj.k bl izdkj gS fd izkFkhZ lnj bl vk'k; ls ,d fjikVZ ntZ djk;k dh fnukad /kVuk dks /kVuk LFky ij vU; osnd Bsdsnkj }kjk izkFkhZ ls VsMj QkeZ vkSj ,Q Mh vkj QkeZ tek dj xzkeh.k ;kaf=dh lsok laHkkx ckyksn dks tek djkds ek/;e ls iksLV vkfQl tek djus ys x;s ysfdu esjk QkeZ tek ugh fd;k vkSj u gh eq>s dksbZ QkeZ fn;k A fd ekeyk vkil Bsdsnkjksa dk gksus ls ekeyk iqfyl vne nLrku iath vijk/k dk ik;s tkus ls ekeys dks QSekbZl ufLr ljy dzekad 29@2010 dh izfr nsdj U;k;y; dh `kj.k tkus dh jk; nh xbZ A
6. The time of incident has been mentioned as 10.30 a.m. near the Post office on 17.05.2010 but the time of lodging of report in the police station is 10.40 a.m., of the same date. On receipt of complaint along-with copy of NCR of respondent no.4, the Executive Engineer vide order dated
18.05.2010 extended the time of depositing the tender forms upto 3 p.m. of 21.5.2010. It is no ones case that any one had raised objection to the extended time of submitting the tenders.
7. Besides the above, there is contradiction between the complaint made by respondent no.4 before the Executive Engineer and the Non-Cognizable Report (NCR) lodged at the police station. At the police station he did not mention that the tender forms and FDRs were snatched by the petitioner and his companion. He had only mentioned that the form was taken to deposit but the same was not deposited. Even this has not been mentioned that the form was not allowed to be filled by the petitioner. The time of incident has been shown as 10.30 a.m. when the form was allegedly taken by the petitioner to deposit at the post office but within 10 minutes the FIR (NCR) was lodged with an allegation that he has not deposited the tender form of respondent no.4 in the post office. It is not known as to how much is the distance from the place of incident to the place of police station and how much time was taken to lodge the NCR, but the fact remains that within 10 minutes the FIR was lodged. It is apparent that lodging of the F.I.R. by respondent No.4, mentioning that the form was not deposited, was tainted with ill- motive. Respondent no.4 has not turned up to advance his arguments despite service of notice and this court has taken the case in the revised list. It appears that he intentionally did not prefer to lodge FIR of cognizable offence as he might have been afraid of police investigation.
8. The grievance started only when the Executive Engineer, all of a sudden, rejected the tenders on 20.05.2010 mentioning the reason that the tender form of the contractor was not allowed to be filled by the other contractors, therefore, there was no healthy competition in the tender process. It is to be noticed that the NIT in question was issued second time and the first NIT was also cancelled. In the return filed on behalf of respondents 1 to 3 it has not been mentioned that any enquiry was conducted at any point of time by the Executive Engineer or any officer before arriving at the conclusion that the tenders should be cancelled.
9. In the above circumstances, we are to see the conduct of the officers also. The first NIT was cancelled. The second NIT which was published in the newspaper has also been cancelled by the impugned order dt. 20.05.2010 without considering as to how much expenditure incurred from the State exchequer wasting the public money. It is also a matter of consideration that in case a 3rd notice is invited and any of the contractor files another NCR, the Executive Engineer or other officers will have no option to repeat the same thing as they cannot go contrary to their decisions made in past. In such circumstances when it appears before us that it is a preplanned action of respondent no.4 for getting the NIT postponed, we cannot say at this stage whether it was at the connivance of the officers or not, but looking to their action it cannot be totally ruled out. Therefore, the action of respondent no.3/ Executive Engineer appears to be arbitrary and malafide.
10. Considering the facts and circumstances of the case, we do not see any justification in canceling the tenders on the ground of not allowing respondent no.4 to fill the forms whereas, in fact, filling of the form was not required to be made at any particular place and the contractor/ respondent no.4 was free to fill up the form at his residence or at any place of privacy and there is contradiction between the complaint made before the Executive Engineer and the report lodged at the police station. Therefore, we allow this petition and quash the impugned order dated 20.05.2010 contained in Annexure P-1 and direct respondents 1 to 3 to proceed further. However, this will not preclude them to take any independent decision to accept any tender or reject the total tenders on any other ground if existing in their opinion.
11. This petition stands finally disposed of with the above direction/observations.
JUDGE