Meghalaya High Court
Shri Pyrkhatbha Shabong vs State Of Meghalaya on 6 June, 2017
Equivalent citations: AIR 2018 (NOC) 274 (MEG.)
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
CONT. CAS (C) NO. 7 OF 2017
With WP (C) NO. 303 OF 2016
Shri Pyrkhatbha Shabong V. State of Meghalaya &Ors.
THE HIGH COURT OF MEGHALAYA AT
SHILLONG
: ORDER :
WRIT PETITION (C) NO. 303 OF 2016 With CONT. CAS (C) NO. 7 OF 2017 Shri Pyrkhatbha Shabong Versus State of Meghalaya and Ors.
Date of Order :: 06.06.2017
PRESENT
HON'BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE Smti. A Sinha, for the petitioner.
Shri K Khan, for the respondents No. 1, 2, 3 and 6.
Shri R Choudhury, for respondent No. 4 and 5BY THE COURT: (ORAL) In view of the peculiar circumstances and inter-related facts, WP(C) No. 303 of 2016 and Cont. Cas (C) No. 7 of 2017 have been considered together and are taken up for disposal by this common order.
Shorn of unnecessary details, relevant background aspects of the matter are as follows: The respondents No. 1, 2 and 3 herein issued a Detailed Notice Inviting Tender („DNIT‟) under Memo No. PW/TB/BR/SPV/37 dated 18.04.2016 for the work of "Improvement and beautification including M.B.T. of an approach road to tourist Guest House at Mawlyngbna (scheme funded under SPV)". It is noticed from the DNIT that the said work had been divided into four components as under:
Sl. Nature of work Approximate value of
No. work
Construction of Retaining Wall with RCC Rs. 37,24,200.00
railing on approach road to Mawlyngbna (Rupees Thirty Seven
1 View Point and Guest Houses. Lakhs Twenty Four
Thousand Two Hundred)
only
(i) Construction of Breast walls on
approach road to Mawlyngbna View Point Rs. 15,99,800.00
2 and Guest Houses. (Rupees Fifteen Lakhs
(ii) Construction of RCC railing on stone Ninety Nine Thousand
masonry foundation along an approach Eight Hundred) only
road to Mawlyngbna View Point and
Guest Houses.
2
CONT. CAS (C) NO. 7 OF 2017
With WP (C) NO. 303 OF 2016
Shri Pyrkhatbha Shabong V. State of Meghalaya &Ors.
Sl. Nature of work Approximate value of
No. work
Metalling and blacktopping of approach Rs. 42,01,000.00
road to Mawlyngbha View Point and (Rupees Forty Two Lakhs
3 Guest Houses with 1 layer GSB grading I One Thousand) only
materials and 2 layers grading 3 stone
aggregates to be followed by 20 mm thick
PMC & SC.
Construction of Pucca drain on approach Rs. 18,85,000.00
4 road to Mawlyngbna View Point and (Rupees Eighteen Lakhs
Guest Houses. Eighty Five Thousand)
only
The petitioner, had been one of the contractors who made the offer for execution of the component of work mentioned at Item No. 1 ibid., i.e., "Construction of Retaining Wall with RCC railing on approach road to Mawlyngbna View Point and Guest Houses" at the approximate value of Rs. 37,24,200.00 (Rupees thirty seven lakhs twenty four thousand two hundred). It is noticed that though several contractors submitted their offers for the work in question but all of them quoted the rates „at par‟. However, after opening of the tenders, the Tender Committee purportedly bifurcated the said work of Item No. 1 into two parts, at the tender value of Rs. 18,62,100/- each; and allotted one part each to the respondent No. 4 and respondent No. 5 respectively. The petitioner felt aggrieved of such allocation of work to the respondents No. 4 and 5 and preferred this writ petition [WP(C) No. 303 of 201] after obtaining necessary information about the rates offered by the contractors and the decision taken by the State respondents.
With reference to the comparative statement of the offers received by the State respondents and clause 19.1 of the DNIT, the petitioner would submit that as per the DNIT requirements, the tenderer was to demonstrate his having access to or having the working capital or cash in hand and/or credit facilities of not less than 10% of the work applied for; and when he had shown having the working capital of Rs. 19.50 lakhs as against Rs. 6.54 lakhs shown by the respondent No. 4 and Rs. 3.90 lakhs shown by respondent No. 5, he was, 3 CONT. CAS (C) NO. 7 OF 2017 With WP (C) NO. 303 OF 2016 Shri Pyrkhatbha Shabong V. State of Meghalaya &Ors.
obviously, having better working capital and financial position in comparison to the said respondents. According to the petitioner, when all the tenderers had offered their rates „at par‟, there was no reason that the respondents No. 4 and 5 were picked up for allocation of the work order though they had not shown better financial position and capabilities. The petitioner has also contended that bifurcation of the work in two parts and allocation of one part each to respondents No. 4 and 5 and had been an entirely unfair exercise on the part of the State respondents.
While countering the submissions of the petitioner that bifurcation of the work was not permissible, it has been suggested on behalf of the State respondents that as per the Office Memorandum dated 05.04.2002, as issued by the Finance (Establishment) Department of the Government of Meghalaya, the Tender Committee has the powers to allot one work to different contractors or a number of contractors. The relevant clauses of the said Office Memorandum read as under:
"2. In selecting the tenders to be accepted, the financial status of the individual or firm tendering for the work should be taken into consideration, in addition to all other relevant factors such as past experience, other ongoing commitments etc.
3. The Tender Committee may, with justifications to be formally recorded by it, give out to different contractors a number of contracts relating to one Work, covered by a single Administrative Approval/Technical Sanction.
4. The reason for accepting or rejecting a tender should be clearly recorded in the minutes of the Tender Committee and these should be attached to the Comparative Statement before the case goes back to the office which is executing the Work."
It has, thus, been contended on behalf of the respondents that as per Clause 3 aforesaid, the Tender Committee could have given one work to different contractors even if the work was covered by a single administrative approval/ technical sanction; and the decision to bifurcate the work in question and to allot the same to the respondents No. 4 and 5 was taken by the Tender Committee looking to the administrative exigencies. 4
CONT. CAS (C) NO. 7 OF 2017 With WP (C) NO. 303 OF 2016 Shri Pyrkhatbha Shabong V. State of Meghalaya &Ors.
While considering this matter at the motion stage on 07.10.2016, this Court found the propositions on behalf of the Government rather unacceptable and this petition was admitted for hearing with the following observations:
"The Court finds it prima facie difficult to accept the suggestions made by the learned Government Advocate, Mr. K. Khan. Noticeable it is that the main work is of "Improvement and beautification including M.B.T of approach road to Tourist Guest Houses at Mawlyngbna". Obviously, the division of work into four different components had already been carried out while issuing the DNIT. It sounds prima facie irrational that when the work had already has been divided into four different components, the component No. 1 was further sought to be sub-divided so as to award one part of it to respondent No. 4 and another to respondent No. 5. Moreover, specific justification for only picking up respondents No. 4 and 5 from amongst the tenderers is not forthcoming in a concrete manner except some uncertain suggestions that "past experience" has been taken into consideration.
Needless to observe that the matter relates to the Government contract and in this public law field, the Government is essentially bound by the basic principles of reasonableness, fairness and transparency; and is obliged to adopt such a method which is not of irrational character. The questions relating to reasonableness, fairness, transparency and rationality being directly involved in this matter, the petition is admitted for hearing."
At the motion stage, in opposition to the prayer for interim relief, it was submitted on behalf of the State respondents that the work order in question had been issued way back on 23.06.2016; and before filing of this petition in the month of October, 2016, 70% of the work had already been executed by the respondent No. 5 and about 20% by the respondent No. 4. Taking note of these submissions and in the overall circumstances, this Court did not feel persuaded to pass an interim order so as to stop the ongoing work but made it clear that there would not be any claim of equity because of the execution of work and that all the bills drawn up would be submitted before the Court.
It is borne out that after passing of the aforesaid order dated 07.10.2016, an affidavit was filed by the Chief Engineer, PWD (Roads) Bridge Design Branch, Shillong on 20.10.2016, inter alia, with the submissions that the information regarding quantum of work already executed was supplied to the learned Government Advocate as per the information/instructions received from the Executive Engineer In-charge of the work over telephone; but while 5 CONT. CAS (C) NO. 7 OF 2017 With WP (C) NO. 303 OF 2016 Shri Pyrkhatbha Shabong V. State of Meghalaya &Ors.
examining the measurement book/s, it was noticed that the work allotted to respondent No. 5 had, in fact, not even started and the information about 70% execution of the work was given because of the fact that another contractor carrying the same surname as that of respondent No. 5 had executed such 70% of work, differently allotted to him in Group III. Thus, the respondent No. 2 has submitted that there had been a mistake in the submissions made before the Court and has also submitted his unconditional apology in that regard. Further counter affidavits have also been filed, specifying the stand of the respondents.
At the later stage in this petition, it was given out on behalf of the respondents on 03.04.2017 that the work in question had already been completed and learned counsel for the petitioner was granted time to complete all her instructions. However, before the writ petition was taken up next, the petitioner filed the contempt petition bearing No. 7 of 2017 with the submissions that the interim relief was declined to him only because of the wrong statement made before the Court about the quantum of work executed and thereafter, the contractors were asked by the State respondents to complete the work expeditiously; and the entire attempt had been to somehow frustrate the cause of this petition. Taking note of the submissions so made in the contempt matter, notices were ordered to be issued to the contemnor Chief Engineer on 08.05.2017 to show cause as to why the proceedings for contempt be not initiated against him; and having regard to the totality of the facts and circumstances, the contemnor Chief Engineer was also ordered to be joined as party respondent No. 6 in the writ petition in his personal capacity.
In his show cause to the notice issued in contempt matter, the contemnor has again expressed his unconditional apology while submitting that the mistake occurred essentially because of miscommunication from the Executive Engineer; and that there had been want of network clarity while communicating with the Executive Engineer over telephone. It is also submitted that after 6 CONT. CAS (C) NO. 7 OF 2017 With WP (C) NO. 303 OF 2016 Shri Pyrkhatbha Shabong V. State of Meghalaya &Ors.
07.10.2016, the petitioner never pressed on the prayer for interim relief and else, the respondents would have abided by the order, if any passed by this Court.
On the matter being taken up today for consideration, it has been an admitted position of all the concerned that the work in question had, in fact, been completed by the respondents No. 4 and 5. The learned Government Advocate would submit that so far the respondent No. 4 is concerned, out of the total tender value of Rs. 18,62,100/-, an amount of Rs. 9,18,696/- has already been paid and about a sum of Rs. 9,43,404/- is to be paid; whereas in relation to the respondent No. 5, out of the total tender value of Rs. 18,62,100/-, an amount of Rs. 8,00,400/- has been paid and an amount of Rs. 10,61,700/- remains to be paid but 100% of the work has been completed by both the respondents No. 4 and 5.
During the course of submissions, upon this Court expressing prima facie reservations on the process of awarding the contract in question where item No. 1 of the work was further bifurcated in two parts and then, only the respondents No. 4 and 5 were chosen for allocation, the learned counsel appearing for the respondents submitted that in the totality of circumstances, while not seeking to join the issues raised by the petitioner, they would be willing to settle the equities and to pay to the petitioner a reasonable amount of compensation for being deprived of a fair opportunity in the process in question. Having regard to the submissions made, and at the request of the learned counsel for parties, the matters were passed over, to be taken up in the second session sitting of the Court.
Now, in the second session sitting, learned counsel for the parties have submitted a joint application with a deed of settlement whereby, the respondents No. 4 and 5 have agreed to pay jointly a lump sum of Rs. 7
CONT. CAS (C) NO. 7 OF 2017 With WP (C) NO. 303 OF 2016 Shri Pyrkhatbha Shabong V. State of Meghalaya &Ors.
1,50,000/- (Rupees one lakh fifty thousand) as compensation to the petitioner within a week. The said settlement deed reads as under:
"SEETTLEMENT DEED This Joint Agreement is made on this 6th day of June 2017, between Shri Pyrkhatbha Shabong son of Shri T.L. Rampai, residing at Nongtrai Village, Mawsynram, Occupation - Contractor, East Khasi Hills District, Meghalaya hereinafter called and referred to as the "First Party".
And Shri R. Barrester Shangpliang, resident of Wahingdoh, Occupation
- Contractor, East Khasi Hills District, Meghalaya hereinafter called and referred to as the "Second Party".
And Shri Wallestar Kharchandy, resident of Mawsynram, Occupation - Contractor, East Khasi Hills District, Meghalaya hereinafter called and referred to as the "Third Party".
And Shri Bibstar Kharbuli son of (L) Shri H. Nongbri, of Shillong, Meghalaya, presently the Chief Engineer of PWD ( Roads) Meghalaya Shillong hereinafter called and referred to as the "Fourth Party". WHEREAS the parties in the writ petition No 303 of 2016 after evaluating the pros and cons of the matter involved in the petition finally decided to settle the matter out of court in the interest of future good relation and following are the terms and conditions agreed upon by all parties:-
1. That after discussion and in full appreciation, the parties mentioned above have decided that a lum sum amount of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand) only will be a just amount of compensation which is payable to the First Party within a week's time from the date of this agreement and that all the Parties has agreed and accepted the same.
2. That both the Second and Third party has also agreed to jointly pay the said amount to the First Party and all the parties have agreed the same.
IN WITNESS THEREOF WE JOINTLY set our hand on this Agreement today the 6th day of June 2017"
It is noticed that the work as a whole had been that of "Improvement and beautification including M.B.T. of an approach road to tourist Guest House at Mawlyngbna (scheme funded under SPV)". The said work had already been divided into four components in the DNIT issued by the State respondents. This Court is unable to find any reason or justification that one such component at Sl. No. 1 i.e., "Construction of Retaining Wall with RCC railing" was at all bifurcated in two parts and the contract was awarded partly to respondent No. 4 and partly to respondent No. 5. It is also noticed that all the contractors had quoted the rates at par and it is difficult to appreciate as to how only the respondents No. 4 8 CONT. CAS (C) NO. 7 OF 2017 With WP (C) NO. 303 OF 2016 Shri Pyrkhatbha Shabong V. State of Meghalaya &Ors.
and 5 were picked out of the lot? Moreover, looking to the tender value, probably the respondents No. 4 and 5 were not standing qualified if the entire work of item No. 1 of DNIT was awarded to one of the offerers with reference to the parameter of financial credibility; and on that score, the petitioner was definitely standing at better footing than the said respondents. Therefore, this Court has no hesitation in coming to the conclusion that that the petitioner was kept out in an unfair and unreasonable manner; and the process of awarding the contract in question to respondents No. 4 and 5 had been rather irrational and unfair.
The findings aforesaid would, obviously, entitle the petitioner to the appropriate relief. However, the fact of matter cannot be ignored that the work in question had been a public utility work; a part whereof had been executed before filing of petition in this Court; and now, its execution is admittedly complete. Though the statement made on 07.10.2016 regarding the quantum of work allegedly executed was also the part of the consideration of the Court while declining the interim relief but in any case, the fact of the matter cannot be lost sight of that the public utility work has in fact been completed and the contract cannot be awarded to the petitioner now. In the given set of circumstances, the petitioner could only be held entitled to a reasonable amount of compensation.
Having said thus, this Court might have taken up the process of arriving at a reasonable amount of compensation while compelling the respondents No. 4 and 5 contractors to disgorge some portion of profit out of illegally awarded contract to them but such a process does not appear necessary in this matter for the reason that during the course of submissions, the aforesaid Settlement Deed has been placed before the Court.
In an overall comprehension of the matter, this Court finds the settlement aforesaid being just and proper and the resultant amount payable to the 9 CONT. CAS (C) NO. 7 OF 2017 With WP (C) NO. 303 OF 2016 Shri Pyrkhatbha Shabong V. State of Meghalaya &Ors.
petitioner by the respondents No. 4 and 5 i.e., an amount of Rs. 1,50,000/-, to be that of the fair compensation in this case.
However, so far this litigation and the course which it had taken, the State respondents (respondents No. 1, 2 and 3) as also the respondent No. 6, the Chief Engineer concerned in his personal capacity, cannot escape their liability for the state of affairs where in the first place, the contract in question was awarded to the respondents No. 4 and 5 in an unfair and unreasonable manner and then, the facts were not correctly supplied to the learned Government Advocate for submissions before the Court at the initial stage. In this view of the matter, it appears just and proper that the responsibility for payment of costs be mulcted upon the respondents No. 1, 2, 3 and 6 jointly and severally. Having regard to the circumstances, the costs are quantified at the sum of Rs. 11,000/-.
So far the contempt matter is concerned, in the totality of circumstances, this Court is inclined to accept the apology of the contemnor and to terminate the proceedings therein, but with the observations that it is expected of the officers of the Government to remain more conscious and to attend on the particulars while giving instructions to the Government Advocates for making submissions in the Court; and any casual approach on their part remains entirely unacceptable. In the present matter, nothing further is being said for the reason that the amount of costs of the petition shall be the joint liability of the respondents No. 1, 2, 3 and 6 (respondent No. 6 to the writ petition being the contemnor).
Accordingly and in view of the above: (i) the proceedings in contempt case No. 7 of 2017 are terminated with the observations foregoing and the notices are discharged; (ii) the settlement arrived at by the parties is approved and hence, the petitioner would be entitled to receive an amount of Rs. 1,50,000/- from the respondents No. 4 and 5, who shall be making payment of the said amount within a week from today; and (iii) the petitioner would also be 10 CONT. CAS (C) NO. 7 OF 2017 With WP (C) NO. 303 OF 2016 Shri Pyrkhatbha Shabong V. State of Meghalaya &Ors.
entitled to the cost of this litigation quantified at Rs. 11,000/-, to be borne jointly and severally by the respondents No. 1, 2, 3 and 6.
CHIEF JUSTICE Sylvana Item No.2