Gauhati High Court
M/S Bksons Infrastructure Pvt Ltd vs The Union Of India And 6 Ors on 10 September, 2021
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/5
GAHC010141142021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4494/2021
M/S BKSONS INFRASTRUCTURE PVT LTD
REP. BY ITS DIRECTOR, SRI BHAGYA KALITA HAVING ITS REGISTERED
OFFICE AT 5TH FLOOR, BEE KAY TOWER, GANESHGURI CHARIALI,
DISPUR, GUWAHATI, ASSAM, PIN- 781006.
VERSUS
THE UNION OF INDIA AND 6 ORS
MINISTRY OF ROADS AND TRANSPORT, REP. BY THE MANAGING
DIRECTOR, NATIONAL HIGHWAYS AND INFRASTRUCTURE
DEVELOPMENT CORPORATION LIMITED (NHIDCL) 3RD FLOOR, PTI
BUILDING, 4 PARLIAMENT STREET, NEW DELHI- 110001.
2:NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT
CORPORATION LIMITED (NHIDCL)
REP BY THE ITS MANAGING DIRECTOR
3RD FLOOR
PTI BUILDING
4 PARLIAMENT STREET
NEW DELHI- 110001.
3:THE EXECUTIVE DIRECTOR (P)
GUWAHATI NATIONAL HIGHWAYS AND INFRASTRUCTURE
DEVELOPMENT CORPORATION LIMITED (NHIDCL) 2ND FLOOR
AGNISHANTI BUSINESS PARK
GNB ROAD
AMBARI
GUWAHATI- 781001
ASSAM
4:THE DEPUTY MANAGER (P)
FOR ED(P)-RO GUWAHATI NATIONAL HIGHWAYS AND INFRASTRUCTURE
Page No.# 2/5
DEVELOPMENT CORPORATION LIMITED (NHIDCL) 2ND FLOOR
AGNISHANTI BUSINESS PARK
GNB ROAD
GUWAHATI- 781001
ASSAM
5:THE GENERAL MANAGER (PROJECT)
PMU- BONGAIGAON
NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT
CORPORATION LIMITED (NHIDCL)
BONGAIGAON- 783381
ASSAM
6:THE DEPUTY GENERAL MANAGER (P)
NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT
CORPORATION LIMITED (NHIDCL)
SITE OFFICE
JOGIGHOPA- 783382
ASSAM
7:MARC TECHNOCRATS PRIVATE LIMITED
REP. BY ITS TEAM LEADER HAVING ITS PROJECT OFFICE AT ICICI BANK
KABAITARY
P.O. JOGIGHOPA
DIST.- BONGAIGAON
ASSAM
PIN- 783388
Advocate for the Petitioner : MR. K GOSWAMI
Advocate for the Respondent : ASSTT.S.G.I.
BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK 10.09.2021 Heard Mr. D. K. Mishra, learned senior counsel assisted by Mr. K. Goswami, learned counsel for the petitioner. Also heard Mr. R. K. Talukdar, learned Standing Counsel, National Highways and Infrastructure Development Corporation Limited (NHIDCL, in short) for the respondent Nos.1 to 6.
Page No.# 3/5 The petitioner company is aggrieved with the e-Tender issued by the respondent NHIDCL dated 14.08.2021 for construction and upgradation of 4- lane of existing 2-lane with paved shoulder from Hapachara to Tulungia road at NH No.117 of existing Km 0.00 to Km 14.050 and (Design Km 0.000 to 14.660) on EPC (Engineering Procurement Construction) basis in the State of Assam. Such grievance of the petitioner is on the ground that for construction of the same portion of the road of the NH No.117, the respondent NHIDCL on 27.12.2019 issued NIT in which the petitioner submitted his bid and finding his bid responsive, the respondent NHIDCL allotted the said work to the petitioner by Letter of Acceptance (LoA) dated 26.03.2020. The said construction work of the NH No.117 was divided into 3 portions viz. Project Milestone-I, Project Milestone-II and Project Milestone-III. The petitioner has already completed the Project Milestone-I on 30.04.2021 itself though the schedule date for completion of the said project was 11.05.2021. The petitioner at present is constructing the said road under the Project Milestone-II and as per the letter of the NHIDCL dated 13.08.2021, the petitioner is required to complete the said Project Milestone-II by 26.12.2021. Because of the slow progress of the work, the respondent NHIDCL on 22.07.2021 issued 60 days Cure Period Notice under EPC CA Clause 23.1 (iii)-Reg in terms of the agreement between the respondent NHIDCL and the petitioner to which the petitioner submitted its reply on 03.09.2021.
Mr. D. K. Mishra, learned senior counsel placed before the Court that even the said cure period of notice of 60 days has not yet over. Mr. Mishra, learned senior counsel relying on a decision of the Hon'ble Apex Court in the case State of Himachal Pradesh Vs. Rabinder Kumar Sankhayan and Others, reported in (2018) 5 SCC 584 submitted that during subsistence of a contract, if any, tender Page No.# 4/5 is issued for the same work under contract, said action of the authority is illegal and arbitrary.
Mr. Mishra, learned senior counsel further submits that if the respondent NHIDCL is allowed to proceed with the impugned e-Tender dated 14.08.2021, petitioner's rights will be affected which will cause hindrance to the present work of the petitioner as third party right will be created.
Mr. R. K. Talukdar, learned Standing Counsel for NHIDCL submits that the impugned e-Tender for the said work has been issued with an abundant caution so that the progress of construction of the relevant portions of the National Highway involved in the case does not get delayed.
From the perusal of impugned e-Tender of the respondent NHIDCL dated 14.08.2021, it is seen that the end date of the said tender is at 3.00 PM on 13.09.2021 and the bid opening date is 14.09.2021.
While considering the submissions of the learned counsels for the parties and on perusal of the judgment of the Hon'ble Apex Court in the case of State of Himachal Pradesh Vs. Rabinder Kumar Sankhayan (supra), this Court found force with the submissions of Mr. D.K. Mishra, learned senior counsel.
Issue notice, returnable by 05.10.2021.
As Mr. R. K. Talukdar, learned Standing Counsel for the NHIDCL accepts notice, no formal notice need be issued to respondent Nos.1 to 6.
The petitioner shall take steps for service of notice on the respondent No.7 by registered post with A/D on or before 14.09.2021 providing its proper and correct address with requisite postal stamps.
In the interim, the impugned e-Tender of the respondent NHIDCL dated Page No.# 5/5 14.08.2021 under Reference No.NHIDCAssam/NH-117/H-T/Re/2021/2021 with tender ID 2021_NHIDC_643487_1 shall remain suspended till the returnable date (i.e. 05.10.2021).
However, it is made clear that the petitioner company shall keep it in mind the commitment made by it in the paragraph No. 12 and in other paragraphs of this petition in completing the Project Milestone-II by 26.12.2021.
JUDGE Comparing Assistant