Madhya Pradesh High Court
Rajesh Singh Karchuli vs The State Of Madhya Pradesh on 22 July, 2015
WA-184-2015
(RAJESH SINGH KARCHULI Vs THE STATE OF MADHYA PRADESH)
22-07-2015
Challenge in this appeal filed under Section 2(1) of the
M.P. Uchch Nyayalaya (Khand Nyay Peeth Ko Appeal)
Adhiniyam, 2005 is made to an order dated 7.4.2015
passed by the writ court in W.P.No.4321/2015. A tender
process was initiated by the respondent for the purpose
of providing vehicle security arrangement in Gandhi Smarak Hospital and Sanjay Gandhi Hospital, Rewa, the same having been cancelled, the writ petition was filed.
2. The tender notice was invited by the authorities of the hospital for giving contract for the purpose as indicated herein above in the year 2014-2015. One Ms. Abhimanyu Associates gave an offer of Rs. 15,71,549/- in comparison to the petitioner who gave an offer of Rs.15,51,250/-. As the offer of Ms. Abhimanyu Associates was higher his name was recommended for grant of contract but as they did not fulfill the condition of having a registered license in their name, they were found to be disqualified. Therefore, it is the case of the petitioner that a letter was sent to him on 12.2.2015 indicating as to whether he is also willing to accept the contract for the amount as given by Ms. Abhimanyu Associates. According to the petitioner, the petitioner gave his acceptance of this offer but instead of accepting his offer and giving him the contract, fresh tendering process has been again initiated, accordingly, challenging the same, the petitioner filed a writ petition. The learned writ court found that there was no concluded contract and therefore, refused to interfere into the matter. Accordingly, this writ appeal.
3. According to Shri Parag Chaturvedi, learned counsel for the petitioner, when the petitioner was communicated the offer for accepting the contract at Rs.15,71,549/- vide communication Annexure P-10 dated 22.2.2015 and when he accepted the same vide Annexure P-11 dated 23.2.2015, there was a concluded contract between the parties and once the concluded contract came into existence, it is said that fresh tender by cancelling the earlier process was not permissible. Placing reliance on judgment of Supreme Court in the case Trimex International FZE Limited, Dubai Vs, Vendanta Aluminiym Limited, India (2010) 3 SCC 1 and referring to Section 4 of the Indian Contract Act, 1872. It is the case of the petitioner that once the offer given to him vide communication dated 20.2.2015 was accepted, a concluded contract has been established and therefore, the action of the respondent is unsustainable.
4. Shri Pushpendra Yadav, learned Government Advocate refuted the aforesaid and argued that in this case a concluded contract had not come into existence and the provisions of Section 4 of the Indian Contract Act is being misquoted by the petitioner in this particular case. Learned Government Advocate argues that when the tender notice was issued, offers were received and Ms. Abhimanyu Associates gave an offer of Rs.15,71,549. This offer being highest was to be accepted but due to disqualification of Ms. Abhimanyu Associates, a communication was made vide Annexure P-8 to the petitioner on 20.2.2015 asking him as to whether he is willing to give an offer of Rs.15,71,549/- as given by the highest bidder. It is said that in pursuance to the same, the petitioner also gave offer to the tune of Rs.15,71,549/- and this offer was given by the petitioner, is not an acceptance of the communication made by the respondent. It was only a fresh offer by the petitioner in pursuance of the query made and the tender committee before whom this offer was placed having decided to reject the same and re-tender. There is no concluded contract in the present case, learned counsel submits that the writ court while holding so has not committed any error.
5. We have considered the rival contentions and we find that there is no dispute with regard to the factual aspect of the matter. When Ms. Abhimanyu Associates were found to be disqualified, vide, Annexure P-10 on 20.2.2015, the Superintendent of the hospital wrote to the petitioner and informed the petitioner that an offer of Rs.15,71,549/- per annum had been received and petitioner was asked whether he is willing to work at this rate. After having so mentioned in paragraph 1 of Annexure P-10 dated 20.2.2015, in paragraph 2, it is specifically indicated that if the petitioner is willing to take the contract on the aforesaid rate, he should give his consent within three days so that the process of tender may proceed further in accordance with law. The Superintendent of hospital infact by the communication only wanted the petiitoner to give his consent in the form of a fresh offer in response to the tender notice for a sum of Rs.15,71,549/- and it was clearly communicated to him that if he is ready to work and give a fresh offer to that extent, the tender (offer) will be processed further as the matter was to be processed by the appropriate tendering committee and not by the Superintendent of the hospital, however, the tendering committee did not accept the same and directed for re-auction of the matter. It is a case where the communication made, which is termed as an offer by the petitioner vide Annexure P-10 according to us, is not an offer, it was a communication asking the petitioner whether he is willing to offer a particular amount as indicated therein and if he is so willing to give such an offer in which case, the matter would thereafter to be placed before the appropriate committee. Infact what was given by the petitioner vide Annexure P-11 was his fresh offer at Rs.15,71,549/-, and the tender committee has refused to accept it. We see no error in the same. If the document available on record particularly Annexure R-1 and Annexure R-2 filed by the respondents are scanned, it would be seen that acceptance of an offer given by a tenderer was within the power and jurisdiction of tender committee. The Superintendent of hospital was neither the competent authority to accept or to pass any order on the offer given. He was only the officer who communicated to the petitioner and asked for his willingness to give a fresh offer at a particular rate and having received the same, the Superintendent placed the entire matter before the tendering committee which has rejected the same. We are of the considered view that the contention of Shri Parag Chaturvedi that there was a concluded contract cannot be accepted. We are of the considered opinion that in response to Annexure P-10 dated 20.2.2015 what was communicated by the petitioner vide Annexure P-11 was his fresh offer in response to the tender, thereafter the matter was placed before the committee and the tender committee having rejected the same as held by the learned writ court, there was no concluded contract and therefore, no right accrues to the petitioner.
6. That apart, in the facts and circumstances of the case, we are of the considered view that the tender committee having decided to re-tender the entire work due to the facts that have come on record have not committed any error warranting re-consideration in these proceedings.
7. Accordingly, finding no ground, the appeal stands dismissed.
(RAJENDRA MENON) (SUSHIL KUMAR GUPTA)
JUDGE JUDGE