Madhya Pradesh High Court
M/S Chandra Nirman Pvt. Ldt. A Private ... vs Municipal Corporation on 19 May, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal, Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 19th OF MAY, 2022
WRIT PETITION No. 11824 of 2022
Between:-
M/S CHANDRA NIRMAN PVT. LDT. A PRIVATE
LIMITED COMPANY THROUGH ITS DIRECTOR
SAMEER AGRAWAL 507, 5TH FLOOR, EMPRESS
BESIDE MARUTI LIFE STYLE, KOTA ROAD
RAIPUR CHATTISGARH (CHHATTISGARH)
.....PETITIONER
(BY SHRI K.C.GHILDIYAL, SENIOR COUNSEL ASSISTED BY SHRI
NITIN KUMAR GUPTA, ADVOCATE)
AND
1. MUNICIPAL CORPORATION THROUGH THE
COMMISSIONER MUNICIPAL CORPORATION
DISTRICT SINGRAULI (M.P.) (MADHYA
PRADESH)
2. THE EXECUTIVE ENGINEER, MUNICIPAL
CORPORATION, SINGRAULI (MP) DISTRICT
SINGRAULI (MADHYA PRADESH)
3. M/S SINGH CONSTRUCTION AND COMPANY
RAMCHANDRA BHAWAN, THROUGH ITS
PA R T N E R GEWAL BIGHA, AYA DISTRICT
GAYA(BIHAR), (BIHAR)
.....RESPONDENTS
(BY SHRI LAL HITENDRA SINGH, ADVOCATE)
T h is petition coming on for hearing this day, JUSTICE VIVEK
AGARWAL passed the following:
Signature Not Verified
SAN
ORDER
Petitioner M/s.Chandra Nirman Private Limited has filed this writ petition Digitally signed by AMIT JAIN Date: 2022.05.25 13:38:10 IST seeking a direction against the respondent Nos.1 & 2 to not to take into 2 consideration the experience certificate issued in favour of the respondent No.3 for the purpose of award of contract for which the Municipal Corporation, Singrauli had floated a tender as contained in Annexure P/1 for the work of providing and laying of various diameter DI and HDPE Pipe for straightening and extension of main and distribution system in Navjeewan Vihar area in Municipal Corporation, Singrauli.
Learned senior counsel for the petitioner submits that the respondent No.3 has produced a certificate from the Executive Engineer, Public Health Division, Araria Bihar dated 15.12.2020 and the scope of the work for which the work order Annexure P/2, was issued to him on 16.7.2019, which demonstrates that the certificate dated 15.12.2020 is so worded so as to fulfill the requirements of the present tender thus the said certificate should not have been taken into consideration by the authorities of the Municipal Corporation, Singrauli.
The pre-qualifications criteria mentioned in Clause A(i)(b) of Annexure-C to the tender document provides for the experience for executed/completed procurement construction/Design-Build- Operate contract including design, installation, supply, construction, testing and commissioning and operation and maintenance of minimum six months' for the work of water supply scheme comprising of Intake well, Raw/Clear water pumping main, Water Treatment Plant, Electrical work such as Transformers, Pumps, OHTs, Distribution System completed and running successfully at present in last three years.
Learned senior counsel for the petitioner submits that the work for which Signature Not Verified SAN the work order was issued at Araria in favour of the respondent No.3 only Digitally signed by AMIT JAIN Date: 2022.05.25 13:38:10 IST provides for the work of removal of iron particles from the water and its supply 3 under the Mukhyamantri Peyjal Nishchay Yojna (Gunvatta Prabhavit Kshetra). He also submits that it had none of the ingredients of intake well and electrical work such as Transformers, Pumps, OHTs, Distribution System etc. Thus, it could not be used as an experience certificate for award of contract at Singrauli.
Learned counsel for the respondent No.2 submits that the petitioner's contention is incorrect. No indulgence is required in this matter. The private respondent No.3 had submitted his experience certificate, which was duly verified. Annexure P/2 clearly provides that the respondent No.3 was required to execute an electric pump operated water supply scheme after removal of iron particles and was granted the work contract for five years. The aforesaid work as per the certificate includes all necessary ingredients like raw water pumping, electrical arrangement, overhead tank, water treatment plant and pipeline distribution network and connection etc including design, construction, supply testing commissioning etc and the said certificate was issued on 15.12.2020 whereas the Municipal Corporation, Singrauli had floated the aforesaid tender in the year 2022, therefore, without there being any material on record, the contractual matters between the State or its instrumentality and successful bidders do not call for any interference. It is then submitted that any interference will be detrimental to the interest of the public and also will be against the public exchequers.
After hearing learned counsel for the parties and appreciating facts of the case in Bihar Eastern Gangetic Fishermen Cooperative Society Limited versus Sipahi Singh & Others AIR 1977 SC 2149, it is held that a writ of mandamus can be issued only in a case where there is a statutory duty imposed Signature Not Verified SAN upon the officer concerned and there is a failure on the part of that officer to Digitally signed by AMIT JAIN Date: 2022.05.25 13:38:10 IST discharge the statutory obligation. The chief function of a writ is to compel 4 performance of public duties prescribed by the statute and to keep subordinate Tribunals and Officers exercising public functions within the limit of their jurisdiction. For issuance of a writ of mandamus to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.
I n M/s.Raghunath Prasad Phoolchand Limited & Another versus General Manager, South Eastern Railway & Others AIR 1992 Calcutta 307, it is held that Article 14 of the Constitution of India seeks, amongst other things, to correct an unreasonableness in State action. This unreasonableness must be of such a level as would permit a Writ Court to pronounce that no reasonable person in such a situation could at all ever have acted in the manner the State has purported to act. It is also held by the Supreme Court that the Writ Court is also limited by other self-imposed restrictions, which have been formulated by the necessities of practical demands.
In Kamla Shanker Upadhya versus State Electricity Board U.P. & Another AIR 1977 Allahabad 185, it is held that normally a writ is not maintainable to enforce a contractual obligation. However, where an important question of law is involved and where grave allegations of contravention of statutory duties are made against a public authority, a writ can be entertained.
In State of U.P. & Others versus Bridge & Roof Company (India) Limited (1996) 6 SCC 22, it is held that any dispute relating to the interpretation of the terms & conditions of the contract cannot be agitated in a Signature Not Verified SAN writ petition. This is a matter either for arbitration if so provided in the contract Digitally signed by AMIT JAIN or for the Civil Court, as the case may be.
Date: 2022.05.25 13:38:10 IST 5 I n Whirlpool Corporation versus Registrar of Trademarks, Mumbai & Others AIR 1999 SC 22, it is held by the Supreme Court that the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution of India, inspite of the alternative statutory remedies, is not affected, especially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
I n State of Gujarat & Others versus Meghji Pethraj Shah Charitable Trust & Others (1994) 3 SCC 552, it is held by the Supreme Court that a writ petition is not maintainable in a contractual matter and no relief can be granted under Article 226 of the Constitution of India in case the contract is not statutory in nature.
In N.G.Project Limited versus Vinod Kumar Jain & Others 2022 SCC Online SC 336, it is held by the Supreme Court that the scope of judicial interference in matter of Government Contracts/Tenders should be minimal. The Court should refrain from staying the Government Tenders even in case of total arbitrariness. In Paragraph 22, the Supreme Court has held that the satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of the expectation from the tenderer while evaluating the consequence of non-performance. Unless it is demonstrated that the action of the Technical Evaluation Committee was actuated by extraneous consideration or was malafide, the decision of such Evaluation Committee does not warrant any interference in grant of contract to Signature Not Verified SAN a successful bidder.
Digitally signed by AMIT JAINIn Jagdish Mandal versus State of Orissa & Others (2007) 14 SCC Date: 2022.05.25 13:38:10 IST 517, it is held by the Supreme Court that the Writ Court should refrain itself 6 from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. It is also held that the approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision making process is after complying with the procedure contemplated by the tender condition.
When tested on all these aspects then the remedy for the petitioner lies elsewhere and not before the Writ Court and, therefore, in the light of the law laid down by the Supreme Court in State of U.P. & Others versus Bridge & Roof Company (India) Limited (supra) wherein it is held that the writ is not meant to supplant the existing remedies at law but only to supplement them in certain well recognized situation and also in view of the law laid down by the Delhi in P.N.Verma & Others versus Union of India & Others AIR 1985 Delhi 417 (DB) wherein it is held that for a claim to enforce a contract or seek damages for breach thereof, a party cannot be allowed to camouflage its grievances in the garb of fundamental rights or by attributing to the action of the authority a statutory flavour and seek redress by means of a writ petition so also in the light of the law laid down by the Allahabad High Court i n Kamla Shanker Upadhya versus State Electricity Board U.P. & Another (supra) wherein it is held that a writ is not maintainable to enforce a contractual obligation, we are of the opinion that this writ petition raising technical issues under Article 226 of the Constitution of India is not maintainable especially when the issues raised are examined in the light of the Supreme Court Judgment i n N.G.Project Limited versus Vinod Kumar Jain & Others (supra) Signature Not Verified SAN wherein scope of judicial interference is limited. It is held that unless action of Digitally signed by AMIT JAIN Date: 2022.05.25 13:38:10 IST the Technical Evaluation Committee is actuated by extraneous considerations or 7 w a s malafide, the Courts should not interfere with such decision merely because the view of the Technical Evaluation Committee was not to the liking of the petitioner.
Accordingly, this writ petition fails and is dismissed.
(VIVEK AGARWAL) (VISHAL DHAGAT)
V. JUDGE V. JUDGE
amit
Signature Not Verified
SAN
Digitally signed by AMIT JAIN
Date: 2022.05.25 13:38:10 IST