Gauhati High Court
M/S. Royal-Cpl (Jv) vs The Union Of India And 2 Ors on 11 January, 2021
Author: Sanjay Kumar Medhi
Bench: Sanjay Kumar Medhi
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GAHC010115542020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/627/2020
M/S. ROYAL-CPL (JV)
GODREJ WATERSIDE BUILDING
TOWER NO. 1
4TH FLOOR
NO. 401
PLOT NO. 5
D.P. BLOCK
SALT LAKE
SECTOR V
KOLKATA
REP. BY SRI AJAY KUMAR PODDAR
S/O MAHAVIR PRASAD PODDAR
VERSUS
THE UNION OF INDIA AND 2 ORS.
REP. BY THE SECRETARY DEPTT. OF RAILWAY
GOVT. OF INDIA
NEW DELHI
2:THE NORTH EAST FRONTIER RAILWAY
REP. BY THE GENERAL MANAGER/CON MALIGAON
GUWAHATI-781011
3:THE CHIEF ENGINEER/CON
N.F. RAILWAY
MALIGAON
GUWAHATI-781011
------------
Advocate for : MR. Y S MANNAN
Advocate for : SC
RAILWAY appearing for THE UNION OF INDIA AND 2 ORS.
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:: BEFORE ::
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
ORDER
11.01.2021 Heard Shri Y.S. Mannan, learned counsel for the petitioner. Also heard Shri. A. Dasgupta, learned Senior Counsel appearing for the Railways.
2. The Railways have also filed I.A. (Civil) No. 1390/2020 for modification/vacation of an interim order dated 03.02.2020. The interim order was however, an inter-parte one which was passed after hearing the learned counsel for the Railways.
3. A communication dated 16.12.2019 is the subject matter of challenge in this writ petition which has been said to be issued under Clause 61(1) of the GCC. It is the case of the petitioner that in the present tender, the petitioner was found to be lowest L1. However, some part of the work was given to another party which was the subject matter of the writ petition in WP(C) 7657/2016. The learned Single Judge had allowed the writ petition by setting aside the aforesaid decision to allow the same parts of the work to the L2 bidder.
4. The said decision was however the subject matter of challenge before the Hon'ble Division Bench in W.A. 111/2017 preferred by the L2 party and the Hon'ble Division Bench vide order dated 08.02.2018 had reversed the finding of the learned Single Judge. The petitioner thereafter, preferred an SLP before the Hon'ble Supreme Court. The Apex Court passed an order dated 10.05.2018, in the Civil Appeal No. 4991/2018, by which the findings of the Hon'ble Division Bench was interfered with and the findings of the learned Single Judge Page No.# 3/5 was upheld. It is the case of the petitioner that thereafter the Railways had issued the work order dated 20.08.2018 in favour of the petitioner by which it was the stipulated that the work should be completed within 7(seven) months. On 11.10.2018, the performance Bank guarantee of an amount of Rs. 2,89,39,662/- was submitted as a pre-condition by the petitioner. However, on 16.12.2019, the impugned termination letter was issued in exercise of powers under Clause 61(1) of the G.C.C by which the letter of acceptance dated 09.11.2018 has been cancelled.
5. Shri Mannan, learned counsel for the petitioner submits that the impugned action is bad in law for more than one count. No opportunity, whatsoever was afforded to the petitioner before taking the extreme step of termination of the work which has adverse civil consequences and therefore, there has been gross violation of the principles of natural justice. A further allegation was that the entire action was vindictive in nature with the sole object to allot the work the L2 bidder in spite of intervention with such attempt by the Apex Court.
6. This Court while issuing notice vide order dated 03.02.2020 had passed an interim order of status-quo in respect of the consequences flowing out of the impugned termination order dated 16.12.2019. Shri Y.S. Mannan, learned counsel for the petitioner further submits that the Railways are duty bound to act fairly and in a transparent manner in matters concerning distributing State largesse and in the instant case, the action of the Railways was not at all transparent whereby the petitioner has been sought to be deprived of its dues entitle. He accordingly, submits that the writ petition be allowed and even in case of initiation of a fresh tender, the provisions of Clause 61(1) of the GCC should be followed in letter and spirit.
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7. Shri Dasgupta, learned Senior Counsel for the Railways, on the other hand submits that the present communication dated 16.12.2019 has got nothing to do with the earlier action of the railways in allotting the work to the L2 which was the subject matter of dispute in the earlier round of litigation which went up to the Hon'ble Supreme Court. By referring to the impugned order dated 16.12.2019, Shri Dasgupta, learned Senior Counsel submits that the said letter has a reference to a Technical Committee report dated 03.08.2019. As per the said report, a change in policy in the manner of construction has been recommended by the committee. The minutes of the same which has been annexed to the reply affidavit filed in the I.A., the recommendation has been made on the consideration that there would be huge reduction in the cost factor by which approximately an amount of Rs. 226 crores would be saved. It is further contended that the aforesaid recommendation has been duly approved by the Railway Board. The learned Senior Counsel further submits that affording an opportunity to the petitioner under Clause 61(1) would only be academic exercise inasmuch as the change over in the mode of construction has been done in the interest of public and by following due process of law. He accordingly, prays for dismissal of the writ petition as well as vacating the interim order.
8. At this stage, Shri Mannan, learned counsel for the petitioner fairly submits that his principal object is to ensure that in the ensuing tender process, the petitioner should be given a fair opportunity to participate alongwith other bidders and the process may be conducted in a transparent and fair manner. The learned counsel further submits that if such a direction is issued, he would not insist upon reopening the matters of compliance of Section 61(1) save and except the issue of payment of cost incurred by the petitioner for that much of work done in pursuance to the allotment of the work by the Railways.
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9. The rival contentions of the learned counsel for the parties have duly considered.
10. The decision to make a change in the mode of undertaking the construction of the present work which has been done as per the recommendation of the committee cannot be flouted with inasmuch as the Railway Board while approving the report had taking into consideration the public interest involved and the reduction of cost by more than Rs. 226 crores. Though, prima facie, the impugned order dated 16.12.2019 does not appear to be in conformity with the law, both on the count violation of the principles of natural justice as well as not adhering to the Clause 60(1), in view of the direction proposed to be passed in the writ petition, this Court will not express any opinion of merits on the challenge to the said order dated 16.12.2019. However, a direction is given that the cost incurred by the petitioner in undertaking the work as per the allotment of the order dated 09.11.2018 shall be determined and paid to the petitioner within a period of 2(two) months from today. The further direction is that while implementing the recommendation of the Technical Committee as approved by the Railway Board to go for Ballast Track instead of Ballast less Track, the same has to be done by strictly adhering to the law relating to distribution of State largesse. It is needless to mention that process has been transparent and fair and the petitioner, he found eligible should be treated at par with all other bidders. The authority while considering the bid of the petitioner, if the petitioner participates shall not be influenced by any observation made by the litigations in this Court and by the Hon'ble Supreme Court.
The writ petition is accordingly disposed of.
JUDGE Comparing Assistant