Punjab-Haryana High Court
Hakam Singh vs Food Corporation Of India And Ors on 10 December, 2014
Author: Anupinder Singh Grewal
Bench: Ashutosh Mohunta, Anupinder Singh Grewal
CWP No.11821 of 2014 (O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No.11821 of 2014 (O&M)
Hakam Singh ......Petitioner
Versus
Food Corporation of India and Ors. ......Respondents
COCP No.1954 of 2014 (O&M)
Hakam Singh ......Petitioner
Versus
Sudhir Garg and Ors. ......Respondents.
CWP No.11905 of 2014 (O&M)
M/s Maharaja Ranjit Singh Transport Co. .....Petitioner
Versus
Food Corporation of India and Ors. .....Respondents.
Date of Decision:- 10.12.2014
CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA,
ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL
Present:- Mr. K.K. Goel, Advocate for the petitioner.
(in CWP No.11821 of 2014 and COCP 1954/2014.
Mr. Gurminder Singh, Sr. Advocate with
Mr. R.P.S Bara,Advocate for the petitioner.
(in CWP No.11905 of 2014).
Mr. Rajesh Garg, Senior Advocate with
Ms. Nimrata Shergill, Advocate for respondent Nos.1 & 2-FCI
(in CWP Nos.11821-11905 of 2014).
Mr. Ravi Kant Sharma, Advocate for respondent No.3
(in CWP Nos.11821-11905 of 2014).
Mr. K.K. Garg, Advocate for respondent No.4.
(in CWP No.11821 of 2014).
***
1. Whether Reporters of Local papers may be allowed to see the
ANJU
2014.12.12 00:45
I attest to the accuracy and
authenticity of this document
CWP No.11821 of 2014 (O&M) #2#
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
ANUPINDER SINGH GREWAL, J.
This order shall dispose of two writ petitions bearing CWP No.11821 and 11905 of 2014 and also a contempt petition No.1954 of 2014 since identical questions of facts and law are involved in the same. For the sake of convenience, the facts are being taken from CWP No.11821 of 2014.
By filing this writ petition under Article 226 of the Constitution, the petitioner has prayed for issuance of a writ in the nature of Certiorari for quashing the order dated 29.5.2014 (P.1) whereby directions have been issued to all the Managers to ask the Contractors, who have submitted the power of attorney executed on the stamp paper having monetary value less than Rs.1000/-, for additional stamp papers of balance amount/monetary value for the tender inquiries not yet concluded i.e 22.04.2014, 05.04.2014 and 04.06.2014 and that for the upcoming new Tender inquiries, the bidders (for whom applicable) have been asked for registered power of attorneys so that the same may be incorporated in the NIT for future tender inquiries. Further prayer is for issuance of a writ in the nature of Mandamus, directing respondent No.2 to reject the tender submitted by respondent No.3. Lastly, it is prayed that during the pendency of the present writ petition, the awarding of contract to respondent No.3, as well as the operation of the impugned order dated 29.5.2014 be stayed.
It is the case of the petitioner that in pursuance to the Advertisement/tender inquiry dated 22.04.2014 inviting tenders for Transport Contract, Zira, the petitioner along with respondent No.3 ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #3# submitted his tender. The petitioner raised objections on the opening of technical bid on 23.5.2013 that the general power of attorney, which was submitted by respondent No.3 as stipulated in NIT/MTF is not a valid document since it has not been executed on the denomination of Rs.1000/- as per the Notification dated 03.08.2009 issued by the Punjab Government and the same is against the policy decision taken in the year 2010 as per Indian Stamp Act, 1899 (for short "1899 Act"). It is further the case of the petitioner that instead of rejecting the tender of respondent No.3 outrightly, respondent No.2 changed the earlier policy and violated the Punjab Government notification as well as provisions of 1899 Act.
The petitioner served a legal notice dated 26.5.2014 wherein it was stated that the tender of respondent No.3 should not be considered being an incomplete and invalid document. However, instead of considering the averments made in the legal notice, the impugned order has been passed thereby directing all the Managers to ask the Contractors who have submitted the power of attorney executed on the stamp paper having monetary value less than Rs.1000/-, for additional stamp papers of balance amount/monetary value for the tender inquiries.
Petitioner is stated to have served another legal notice upon respondent No.1 stating therein that the decision taken against the earlier policy is in violation of the practice adopted for the opening of the tenders. It is stated that the 1899 Act is a Parliament Act and respondent No.2, in order to outrightly help respondent No.3 has acted in a whimsical manner and is bent upon awarding contract of T.C Zira in favour of respondent No.3. Therefore the action of respondent No.2 in passing the order dated 29.5.2014 and considering the tenders of respondent No.3, are illegal, ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #4# arbitrary, malafide and against the principles of natural justice.
In the written statement filed on behalf of respondent Nos.1 & 2, it is stated that the acceptance of tender of respondent No.3 by the answering respondents is in the larger economic interest of the public exchequer. The successful tenderer, (respondent No.3) had quoted a rate of 795% ASOR, while the petitioner had quoted the rate of 846% ASOR and between both of them, there was another 2nd lowest tender (petitioner in CWP No.11905 of 2014) who had quoted 816% ASOR for the contract. It is alleged that the present writ petition has been filed only to settle personal scores with respondent No.3 and FCI has been dragged into unwarranted litigation and that the writ petition is liable to be dismissed on the ground of alternative remedy as provided under Clause XVIII Sub clause (b) of the Model Tender Form (hereinafter to referred as 'MTF'). It is stated that the general power of attorney submitted by respondent No.3 was a valid document and the Power of attorney relating to a contract of the year 2010 was rejected not merely for deficiency in stamp but for the fact that the same was not duly notarized by Notary Public.
It is further stated in the reply that even if it is assumed that in the past the Corporation has been rejecting the Power of Attorney for lack of proper denomination of stamp, the same cannot be construed as an estoppel against the Corporation to change the policy and make it more friendly for the tenderers in future. The Corporation has made a change in the policy that in case a Power of Attorney is found to be lacking in requisite denomination of stamp, the deficiency can be made up by the tenderer and the tender form will not be rejected on this mere irregularity. It is stated that the Corporation is not estopped under any law to change a ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #5# policy which was earlier being followed. Making procedures simpler and more friendly for the tenderers is a continuous process of systemic evolution and the issuance of fresh instructions by the Corporation to make the deficiency of stamp is one such step in that direction. The Instructions are being followed uniformly for all tenderers and the Policy has been adopted for seven bids received in tender enquiry dated 22.4.2014, 25.4.2014 and 4.6.2014 without favour to any bidder. In any case, the petitioner would still not be the successful tenderer, as there are tenderers who have quoted lower rates than the petitioner, respondent No.3 being the lowest. Even otherwise, the Corporation in order to accept the lowest tender to save public money, had asked respondent No.3 to make up the deficiency in stamp, the same being in the public and economic interest of a public organization. It has specifically been denied that the answering respondent has in any manner violated any legislation/subordinate legislation of the Punjab Government. It is alleged that the answering respondents have only sought additional stamp from respondent No.3 to be attached with the Power of Attorney, which is otherwise validly executed and the fresh instructions issued by the answering respondents are as per Policy/Instructions of the State and the Corporation.
It has been averred in the reply filed on behalf of respondent No.3-M/s Ambey Transport Company, that no prejudice has been caused to the petitioner by issuing the aforesaid letter dated 29.5.2014. It is further averred that all the concerned parties were informed to make good the deficiency in stamp duty on the power of attorney if required and thereafter the tender bids were opened. It cannot be said that the decision taken by the FCI was only with a view to oust the petitioner whose bid was not the ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #6# lowest but at No.3.
It is averred that however the petitioner has alleged malafide against the officials of the FCI in para 18(Q) (page 33 & 34) but no official has been impleaded as a party. It has been clarified that as per policy (P.1), the deficient stamp duty has been made good before the opening of price bid by the answering respondent as well as by other parties by submitting additional stamp papers to be attached with the power of attorney. Moreover duly attested power of attorney has been executed to submit and participate in the tender process and the objection cannot now be raised by a third party regarding short stamp-duty. The objection by a contesting party can be taken only if a document has been tendered in the legal proceedings in a court of law in evidence and even that can be overruled, subject to making good the deficiency in stamp duty. It is alleged that at the most if the petitioner considers appropriate, he may file a suit for liquidated damages and if he succeeds in proving the loss caused due to inaction of the respondents, he will be granted the damages. Even otherwise, the petitioner has a remedy to approach Grievance Redressal Committee, Food Corporation of India, Zonal Office (North) at Noida (UP) under clause XVIII(b) of the Model Tender Form (MTF).
We have heard the contentions of learned counsel for the parties and perused the file with their able assistance.
The counsel for the petitioner has submitted that as per conditions mentioned in the MTF all the documents had to be uploaded in PDF format and the tender had to be submitted by the authorised signatory through duly executed power of attorney. Appendix-II of Annexure P-1 prescribes the list of documents, including the duly executed power of ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #7# attorney as per the notification/instructions of the Government of Punjab. He has referred to condition 8(g) of MTF which clearly stipulates that the tender which is not accompanied by all schedules and annexures may be ignored. Respondent No.3, having submitted its tender with power of attorney of less denomination was not eligible to participate in violation of tender bid. The action of respondent in taking additional stamp papers from respondent No.3 on 29.05.2014 i.e. just three days prior to the opening of price bid is contrary to law. He has further submitted that earlier it was the consistent stand of the respondent Food Corporation of India that power of attorney of lesser denomination was not to be accepted.
Learned counsel for the petitioner has further relied upon the judgments of the Hon'ble Supreme Court of India in 1979(3) SCC 489 as Ramana Dayaram Shetty Vs International Airport Authority of India, 2000(5) SCC 287 titled as Monarch Infrastructure (P) Ltd. Vs. Ulhasnagar Municipal Corporation and 2012 (1) SCC 177 titled as Parmender Kumar and others Vs. State of Haryana and Others in support of his submission that the rules of the game cannot be changed midstream. The changing of rules and relaxation in conditions midstream, would amount to violation of Article 14 of the Constitution of India and would be prejudicial to the interest of the persons who could not apply for the tender being ineligible as per those conditions. He has further argued that the stand of FCI that the tender has been awarded to respondent No.3 as he was the lowest bidder cannot be accepted as it is contrary to the terms and conditions of the tender. He has also relied upon the judgment of the Hon'ble Supreme Court of India in the case of West Bengal State Electricity Board Vs. Patel Engg. Co. Ltd., 2001 (2) SCC 451. ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document
CWP No.11821 of 2014 (O&M) #8# The counsel for the respondent has argued that merely allowing the respondent No.3 to make up the deficiency of stamp papers does not amount to altering the essential eligibility conditions, as the primary object was that the tender should be awarded to the lowest bidder.
We are of the considered view that the contention of the petitioner that the conditions of tender were changed to suit the eligibility of respondent No.3 cannot be accepted. Clause 8 of the tender conditions, which has direct bearing on the instant case is reproduced hereunder:-
"8 Submission of tender
(a) The tender shall be submitted online in two parts, viz., technical bid and price bid.
(b) All supporting documents except tender document have to be scanned and uploaded in Technical Bid. Price Bid as per Appendix VII provided in Part-B, has to be scanned, encrypted and uploaded at the requisite places in the e-Procurement system.
(c) The envelop/packet in online containing the Technical Bid shall include the following:
(i) All the Annexures & Appendices of MTF duly signed on each page by the Tenderer should be scanned and uploaded in e- Procurement portal.
(ii) Earnest Money Deposit details alongwith receipt if any.
(iii) List of Scanned copy of documents attached as per the format in Appendix II, duly signed by the Tenderer.
*The tenderer shall quote one uniform percentage below or above the schedule of rates as per Appendix VII (Price Bid). In case separate rates are quoted for handling and transport operation, total estimated cost of both the operations for the contractual period taking into account the volume of operation is to be worked out on the basis of the tendered rates to arrive at the lowest rate.
(d) Tender which do not comply with these instructions shall be summarily rejected.
(e) Tenders should be uploaded/submitted through e- procurement at https://eprocure.gov.in/eprocure/app. Manual bids/Hard copy of the tender documents will not be accepted. However the successful tenderer will have to submit the original hard copy of MTF duly signed on each page of MTF alongwith ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #9# annexures/appendices duly attested on or before the date and time stipulated by FCI, failing which the EMD furnished by the Bidder is liable to be forfeited and further that the award of contract through the letter of acceptance will be issued to the successful tenderer only after he fulfills this requirement.
(f) The supporting documents shall be scanned and uploaded by Tenderer clearly, neatly and accurately in readable format. Any alteration, erasures or overwriting on the supporting documents should be duly initiated by the authorised signatory.
(g) Tenders not accompanied by all the schedules/Annexures intact and duly filled in and signed may be ignored.
(h) It should be clearly understood by the Tenderer that no opportunity shall be given to them to alter, modify or withdraw any offer at any stage after submission of the tender.
(i) Any attempt by tenderer to change the format of any of the supporting documents of the MTF while uploading or any attempt to tinker with the software of the portal will render his tender liable for cancellation and his subsequent blacklisting."
A perusal of condition 8 reveals that clause 8(b) of tender condition stipulates that all the supporting documents except tender document had to be scanned and uploaded in Technical Bid. Clause 8(c)(i) provides that all the Annexures and Appendices of MTF duly signed on each page by the Tenderer should be scanned and uploaded in e- Procurement portal. Clause 8(g) provides that the tenders which are not accompanied by all the Schedules/Annexures, duly filled in and signed may be ignored. The object behind these conditions is that the tender should be complete and all necessary documents in support thereof should be annexed therewith. It is inherent in Clause (g) that the authorities shall have discretion to ignore the tenders which are not accompanied by all the Schedules/Annexures intact and duly filled and signed. This appears to have been stipulated to ensure that there is level playing field and there should not be any material changes in the tenders or the supporting ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #10# documents. The words "may be ignored" clearly implies that it is not necessary to ignore the tender if these conditions are not fulfilled. Had the intention been to have this provision to be mandatory then there would have been no question of using the word "may" and "shall" would have been used instead. In the instant case only the deficiency of stamp duty has been made up, as earlier the power of attorney was stamped at Rs.30/- and later on respondent No.3 has made up the deficiency of Rs.1,000/-. It is not a case where the character of power of attorney has been materially changed inasmuch as it continues to be in the name of respondent No.3. Had the name of the power of attorney holder been changed it would have been a material change inasmuch as another person is trying to step into the shoes of respondent No.3. Hence, it cannot be accepted that the rules have been changed midstream as only deficiency of stamp duty has been made. As per provisions of Section 33 and 35 of the Indian Stamp Act, the deficiency of the stamp duty can be made up before the instrument is admitted in evidence.
Further, there is no dispute with regard to the proposition that the tender conditions cannot be changed midstream, particularly to suit an individual and that authorities are bound by the mandate of law to ensure that there is no arbitrariness and its action confirms to the guidelines/instructions which govern the award of tender. Therefore, the judgments relied upon by the counsel for the petitioner for this proposition cannot be disputed. They are clearly distinguishable on facts from the instant case. The judgment in West Bengal State Electricity Board Vs. Patel Engg. Co. Ltd., 2001 (2) SCC 451 is distinguishable on facts inasmuch as in that case, the bidder was permitted to make corrections ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #11# which were not permissible under the rules governing the contract. In that case there was inherent inconsistency between the bid documents which were submitted before and after correction, regarding the particulars given in the annexures and the total bid amount. It was a case involving international competitive bidding and in such factual backdrop it was held that it was improper to allow respondent to correct errors of such nature and magnitude.
However, in the instant case there is no alteration of bid in any manner. The respondent FCI, while acting in furtherance of the objective of awarding the tender to the lowest bidder has exercised the discretion in terms of clause 8(g) and rightly permitted respondent No.3 to correct the deficiency of the stamp duty, which cannot by any stretch of imagination be construed as an alteration or modification of bid. There is no deviation from the tender conditions as such and only deficiency of stamp paper has been allowed to be made. Ignoring the tender just because the power of attorney is insufficiently stamped would be rather harsh and too hyper technical a ground.
It is also apposite to mention that tender has been awarded to respondent No.3 who had furnished the lowest bid of Rs.795 while the petitioners in CWP No. 11905 of 2014 and 11821 of 2014 had quoted Rs.816 and 864 respectively. The respondent corporation was well within its rights to modify any hyper technical condition within the mandate of law to get the best possible and lowest rate. It was not mandatory for the corporation to ignore the tender as it was for only making up of the deficiency in the power of attorney. Reference can be made to the judgment of Hon'ble Supreme Court of India in 2006 (11) SCC 548 titled as BSN ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #12# Joshi & Sons Ltd. Vs. Nair Coal Services Ltd. wherein it has been held that in case of award of contract through tenders, there are two kinds of conditions namely essential and non essential conditions. The essential conditions have to be adhered to while there can be deviation from the non essential conditions with the object of awarding contract to the lowest tender in public interest. It has also been held that where the decision has been taken purely on public interest the courts should exercise judicial restraint. The relevant para 66 of the judgment is reproduced as under :-
"We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarised as under:
(i) if there are essential conditions, the same must be adhered to;
(ii)if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;
(iii)if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing;
(iv)the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction;
(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;
(vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #13# priority;
(vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint."
It is settled law that judicial restraint should be exercised while interfering in contractual matters. In dealing into such matters the Courts have to see whether the decision making process is reasonable, rational, not arbitrary or in violation of Article 14 of the Constitution.
Reference may also be made to the judgment of Hon'ble Supreme Court of India in Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. 2005 (6) SCC 138 wherein it has been held as under:
"11. The principles which have to be applied in judicial review of administrative decisions, especially those relating to acceptance of tender and award of contract, have been considered in great detail by a three-Judge Bench in Tata Cellular v. Union of India. It was observed that the principles of judicial review would apply to the exercise of contractual powers by government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.
12. After an exhaustive consideration of a large number of decisions and standard books on administrative law, the Court enunciated the principle that the modern trend points to judicial restraint in administrative action. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #14# expertise, which itself may be fallible. The Government must have freedom of contract. In other words, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. It was also pointed out that quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
13. In Sterling Computers Ltd. v. M & N Publications Ltd. it was held as under:
"18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the court is concerned primarily as to whether there has been any infirmity in the 'decision-making process'. ... By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. But at the same time ... the courts can certainly examine whether 'decision-making process' was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.
19. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract."
14. In Raunaq International Ltd. v. I.V.R. Construction Ltd. it was observed that the award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations, which would include, inter alia, the price at which the party is willing to work, whether the goods or services offered are of the requisite specifications and whether the person tendering is of ability to deliver the goods or services as per specifications.
15. The law relating to award of contract by State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd. and it was held that the award of a contract, ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #15# whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere." Therefore, tested in the light of the aforementioned principles, the action of the respondent corporation in awarding the contract to respondent No.3 cannot be said to be arbitrary or illegal warranting interference by us under Article 226 of the Constitution of India. The petitions are accordingly dismissed with no order as to costs. COCP No.1954 of 2014
The petitioners have also filed the contempt petition COCP No.1954 of 2014 under Section 121 of the Contempt of Courts Act read with Section 340 Cr.P.C. and Section 215 of the Constitution for making wrong statement and alleging disobedience of the orders of this Court dated 05.06.2014, 09.06.2014 and 10.06.2014. Vide order dated 05.06.2014, this Court had issued notice of motion in CWP No.11821 of 2014 to the respondents for 10.06.2014 and notice regarding stay was issued as well. On 09.10.2014, the division bench of this Court in CWP No.11905 of 2014 while issuing notice of motion for 07.07.2014 had directed that in the meantime process may not be finalized till the next date of hearing. On 10.06.2014, the counsel for the respondents No.1 and 2 had submitted that ANJU the contract had already been awarded and the work had also commenced. 2014.12.12 00:45 I attest to the accuracy and authenticity of this document
CWP No.11821 of 2014 (O&M) #16# This fact was disputed by learned counsel for the petitioner and the matter was to be taken up on date fixed i.e. 07.07.2014 in the connected matter.
Vide order dated 31.07.2014, learned single Bench of this Court directed the contempt petition COCP No. 1959 of 2014 to be listed along with CWP No.11821 of 2014.
In the reply to the contempt petition the respondents have submitted that the tender had already been allotted to respondent No.3 on 04.06.2014 and in fact the petitioner did not inform this Court on 09.06.2014 that the tender process had already been completed. It is put forth that passing of orders dated 10th of June 2014 implies that interim orders dated 09.06.2014 only related to "finalisation of the process", which were passed because the petitioner failed to disclose before this Court on 9th of June, 2014 that process for award of tender had already been finalised, inasmuch as the price bid was opened on 2nd of June and respondent No.3 was informed on 4th of June, 2014 itself regarding his appointment as transport contractor at Zira. He was asked to deposit the requisite security as well as the bank guarantee with the area manager at Ferozepur. These documents are appended as Annexures R/1 to R/3.
We are satisfied with the explanation put forth by the respondent that the tender had already been awarded to respondent No.3 on 4th of June. Documents appended as Annexures R/1 to R/3 into reply to writ petition also support the averments of the respondents about completion of process of awarding tender on 4th of June, 2014.
It is settled law that the contempt proceedings have to be proved beyond reasonable doubt. Not only there has to be disobedience it should also be intentional and willful. These proceedings are quasi criminal ANJU 2014.12.12 00:45 I attest to the accuracy and authenticity of this document CWP No.11821 of 2014 (O&M) #17# in nature and to establish the guilt of the accused the allegations have to be proved beyond reasonable doubt.
Even otherwise it is not necessary to deal with the instant case and to pass any further order in the contempt petition, as the writ petitions are being dismissed on merits. If ultimately the writ petitions are dismissed, the question of violation of the interim order would not require any adjudication. Therefore, no further action is called for in the contempt petition and the respondents stand discharged.
(ASHUTOSH MOHUNTA) (ANUPINDER SINGH GREWAL)
ACTING CHIEF JUSTICE JUDGE
10.12.2014
anju
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authenticity of this document