Gauhati High Court
Page No.# 1/8 vs Page No.# 3/8 on 21 June, 2022
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/8
GAHC010168932020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4963/2020
RUBUL BORAH AND 9 ORS
S/O LT. PUNESWAR BORAH, R/O S. DOHUTIA ROAD, NEAR FIRE SERVICE
STATION, P.O. AND PS. TINSUKIA, DIST. TINSUKIA, PIN-786125, ASSAM
2: VIKASH SINGHANIA
R/O A.T. ROAD
NEAR PETROL PUMP
CHABUA
DIST. DIBRUGARH
PIN-786184
ASSAM
3: DHANYA KANTA MORAN
S/O LT. RABIN MORAN
R/O VILL. BATJAN
BANAGILGAON
P.O. MAKUM
DIST. TINSUKIA
PIN-786170
ASSAM
4: JITU SONOWAL
S/O LT. PREMA SONOWAL
R/O VILL. LOHARI KACHARI GAON
P.O. LOHARI
TINSUKIA
PIN-786125
ASSAM
5: BISHNU GOGOI
S/O LT. NANDESWAR GOGOI
R/O VILL. JERAL GAON
P.O. BOGDUNG PANITOLA
DIST. DIBRUGARH
Page No.# 2/8
PIN-786183
ASSAM
6: NIRUP DEKA
S/O SHRI RABIN DEKA
R/O VILL. LACHIT NAGAR
P.O. CHAPAKHOWA
P.S. SADIYA
DIST. TINSUKIA
PIN-786157
ASSAM
7: M/S BRAHMAPUTRA GROUPS
REP.BY ITS PARTNER SHRI ISHAN BORDOLOI S/O AMIYA KUMAR
BORDOLOI
AGE 30 YEARS
R/O GELLAPUKHURI ROAD
P.O. AND P.S. TINSUKIA
DIST. TINSUKIA
PIN-786125
ASSAM
8: SURESH CHAWROK
S/O LT. DIMBESWAR CHAWROK
R/O VILL. JOGYUKHAWA
P.O. BORGAON
P.S. BAREKURI
DIST. TINSUKIA
PIN-786170
ASSAM
9: BUDDHAJIT RAJKONWAR
S/O SRI SIBA RAJKONWAR R/O VILL. BORDUBI
P.O. HOOGRIJAN
DIST. TINSUKIA
PIN-786601
ASSAM
10: PRANAB HATIBARUAH
S/O LT. BHUBAN CH. HATIBARUAH
R/O JYOTI NAGAR
P.O. MAKUM JUNCTION
DIST. TINSUKIA
PIN-786170
ASSA
VERSUS
Page No.# 3/8
THE STATE OF ASSAM AND 7 ORS
REP. BY THE SECRETARY TO THE GOVT. OF ASSAM, POWER DEPTT.
DISPUR, GUWAHATI-6
2:THE ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
REP. BY ITS MANAGING DIRECTOR
4TH FLOOR
BIJULEE BHAWAN PALTAN BAZAR
GUWAHATI-781001
3:THE CHIEF GENERAL MANAGER (PP AND D)
THE ASSAM POWER DISTRIBUTION COMPANY LTD. (APDCL)
BIJULEE BHAWAN
PALTAN BAZAR
GUWAHATI-781001
4:THE GENERAL MANAGER (DIBRUGARH ZONE) UAR
APDCL
NIZ KODOMONI
PODUM NAGAR
DIBRUGARH
ASSAM
PIN-786622
5:THE CHIEF EXECUTIVE OFFICER
TINSUKIA ELECTRICAL CIRCLE UAR
APDCL
TINSUKIA THERMAL GATE
P.O. HUKANPUKHURI
TINSUKIA
ASSAM
PIN-786146
6:THE CHIEF EXECUTIVE OFFICER
DIBRUGARH ELECTRICAL CIRCLE
UAR
APDCL
THERMAL COLONY ROAD
PODUM NAGAR
DIBRUGARH
ASSAM
PIN-786622
7:M/S MRINAL DOWRAH
NEAR NAMRUP POLICE STATION
P.O. PARBATPUR
DIBRUGARH
ASSAM
Page No.# 4/8
PIN-786623
8:M/S ARUN ENTERPRISE
NILAMANI PHUKAN PATH
CHRISTIAN BASTI
GUWAHATI
KAMRUP METRO
ASSAM
PIN-78100
Advocate for the Petitioner : MR S S DEY
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
ORDER
21.06.2022 Heard Mr. D. J. Kapil, learned counsel appearing for the writ petitioners. Also heard Mr. K. P. Pathak, learned Standing Counsel, APDCL, appearing for the respondent Nos.2 to 6. Mr. P. J. Saikia, learned senior counsel assisted by Mr. R. S. Mishra, learned counsel is present on behalf of respondent Nos.7 and 8 and Mr. N. Chetia, learned Govt. Advocate, Assam is present on behalf of respondent No.1.
The facts involved in this writ petition lie in a narrow compass. The 10 writ petitioners have approached this Court assailing the 8 (eight) award letters issued by the APDCL authorities in favour of respondent Nos.7 and 8 awarding the contract for construction of new high tension lines, installation of sub- stations, design of LT ABC line and conversion of various tea garden labour quarters/household from cluster metering to individual household metering in the Tea Estates located in the districts of Tinsukia and Dibrugarh valued in total Page No.# 5/8 at approximately Rs.4 Crores. According to the writ petitioners, the award letters were issued in favour of the respondent Nos.7 and 8 without floating any tender or adhering to any transparent process as a result of which, the petitioners, who are also contractors capable of executing similar works, have been deprived of taking part in the said process.
According to Mr. Kapil, the procedure adopted by the APDCL authorities while awarding the contracts to the private respondents was completely arbitrary in as much as, public largesse have been distributed by a Governmental agency without following the norms of probity and fairness in action.
Taking note of the grievance expressed in the writ petition as well as the urgency expressed in the matter by the learned departmental counsel, this Court had passed an interim order dated 27.11.2020 in this case permitting the respondent Nos.7 and 8 to continue with the work but the departmental authorities were directed not to release any payment without the leave of the Court. Subsequently, the APDCL authorities have filed affidavit bringing on record the procedure adopted for awarding the contracts to the respondent Nos.7 and 8. According to the stand taken in the affidavit, in view of the urgency involved in the matter, Short Tender Notices, dated 19.06.2020, were issued for award of as many as 9 packages. Since those were short tender notices, the same were published in the Notice Board of the APDCL headquarters situated at Panbazar, Guwahati.
Mr. Pathak submits that pursuant to a decision taken in a high level meeting of the Government of Assam, chaired by the Chief Minister, held on 14.02.2020 the APDCL authorities were instructed to execute these works on Page No.# 6/8 high priority basis as a result of which, the department was compelled to go for Short Tender Notice. Pursuant to the tender process, the work orders were issued in favour of the successful bidders on 18.09.2020. Therefore, submits Mr. Pathak, the plea taken by the petitioners that the departmental authorities did not float any tender in this case is not correct.
Mr. P. J. Saikia, learned senior counsel appearing for the respondent Nos.7 and 8, has argued that since the basic case of the writ petitioners is that no tender was floated by the APDCL, after the affidavit filed by the departmental authorities has established that Short Tender Notices dated 19.06.2020 were actually issued in respect of all the nine packages, the writ petition instituted by the petitioners is no longer maintainable in the facts and circumstances of the case. Since the petitioners have approached this Court belatedly i.e. after nearly two months from the date of issuance of the LoI and considering the fact that this Court had permitted the respondent Nos.7 and 8 to go ahead with the work, the completion period of which was 120 days and also since the work has already been executed, Mr. Saikia submits that it would be highly unjust to deny payment of the work done by the respondent Nos.7 and 8. On such ground Mr. Saikia has prayed for dismissal of the writ petition.
I have considered the submissions made by the learned counsel for both the sides and have also gone through the materials available on record. It is no doubt correct that the case projected in the writ petition was to the effect that no tender was issued before awarding the contracts in question in favour of the respondent Nos.7 and 8. However, subsequently, it transpired that Short Tender Notices had, in fact, been issued pursuant whereto, the work orders have been issued in favour of the respondent Nos.7 and 8. It also transpires that there were Page No.# 7/8 as many as four tenderers who had participated in the process out of which, two of them i.e. respondent Nos.7 and 8 have been awarded 8 Nos. of packages. The 9th package was awarded to another contractor who is not a party in this proceeding.
Mr. Kapil, learned counsel for the writ petitioners, does not dispute the fact that Short Tender Notices were issued on 109.06.2020 but he has made an attempt to convince this Court that the entire process was a sham transaction by stating that even the Executive Engineer of APDCL of Tinsukia Circle has stated that he was not aware of floating of such Short Tenders. This Court, however, is unable to entertain such a plea of the writ petitioners raising disputed questions of fact, particularly since the Chief General Manager, APDCL, has filed an affidavit stating that the Short Tender Notices were, in fact, put up in the Notice Board. Moreover, there is cogent materials to show that instruction was issued by the Government to execute the works on top priority and therefore, there appears to be some justification for issuance of Short Tender Notices. In view of the above, it cannot be said that the contracts have been awarded without following any transparent procedure.
Therefore, having regard to the facts and circumstances of the case and more particularly the fact that execution of the works by the respondent Nos.7 and 8 have already been completed by making heavy investment, I am of the view that denial of payment to the contractors on the plea raised in the writ petition would be highly unjust and injurious to the interest of the respondent Nos.7 and 8. As such, this writ petition is hereby closed by holding that there is no good ground for this Court to proceed further in the matter. Consequently, it would now be open for the department (APDCL)to release the payments in Page No.# 8/8 favour of respondent Nos.7 and 8 by following the due process of law. To that extent, the interim order dated 27.11.2020 stands vacated.
Writ petition stands disposed of accordingly.
JUDGE Comparing Assistant