RESHI CONSTRUCTION CO Vs. STATE OF J&K

JUDGEMENT

(1.) RESPONDENTS through Executive Engineer Muffasil (R&B) Division Badgam/B, Respondent No. 3, invited tenders from the approved AAY Class P. W.D. Contractors/Firms for construction of Block 1st on existing RCC Pile foundation of three storeyed Examination building for Board of School Education at Bemina, Srinagar on terms and conditions given in NIT (Annexure PI). The writ petitioner Construction Company through its proprietor alongwith others has put in tender for the work. The estimated cost for the proposed building is Rs. 140.00 lacs. The petitioner and respondents 2 and 3 entered in correspondence with regard to rebate, mobilisation advance, use of material out of PWD stock or from market, extension of spells of validity period of the contract etc. (Annexure P2 to P1). The petitioner in reply to demand for withdrawal of pre -condition for mobilisation advance conveyed to Chief Engineer PWD (R&B) (Respondent No. 2) that in case there is commitment by the respondents for execution of the balance work outside the tender with the petitioner, the petitioner is willing to withdraw the advance bar and to give quoted rebate on the cost (Annexure P12). However, the Chief Engineer responded by advising petitioner to reconsider and withdraw condition of demanded commitment of giving the balance work to the Coy. and to convey the reply thereto since matter is to be placed before contract committee for final decision (Annexure PI3). The petitioner conveyed his willingness to waive -off/withdraw the condition of commitment by respondents for execution of balance work by petitioner, but at the same time re -inforced/substituted it by conveying "...that when the execution stage of Phase III work will come, it should be offered first for execution before assigned other agency". (Annexure P14). The petitioner Coy. was called to attend the contract Committee meeting for negotiations. The petitioner Coy. finally agreed to withdraw the condition regarding commitment from respondents for execution of balance work by him, though insisted for offering of the work not covered by the tender in question first to him before it is assigned to other agency. He also agreed to given reduced rebate of 2.75%instead of earlier rebate of 3.5%. The Chief Engineer, respondent No. 2, recommended approval of fixation of contract with Reshi Construction Coy at final negotiated rebate of 2.75% for total cost of 99,91,188/ -(Annexure P 5).

(2.) THE Chief Engineer, Respondent No. 2, addressed communication Annexure PI5 to the Executive Engineer, respondent No. 3 conveying him that the Government pursuant to decision taken by the tender Committee "... intends to allot the aforesaid work to M/s Reshi Construction Co. Prop. Mohammad Yasin Reshi..." tenderer for the work. Besides, the Executive Engineer was asked to get the work started by the contractor within three days as per approved decision and proposals after fulfilment of all prerequisite codal requirements. A copy was endorsed to the petitioner Coy. and it was directed to start the work immediately within three days. The petitioner Reshi Construction Coy. did not start the construction work as directed. However, he awoke to respond on 04 -07 -2001 and addressed a communication to Chief Engineer (Respondent No. 2) to say, "...it is, therefore, requested to confirm that whether my request for execution of balance work has been accepted, if not then I am not ready to execute the work on the rates quoted by me before 9 months back and the rebate of 2.75% is not applicable" (Annexure P16).

(3.) AFTER the receipt of the above communication, showing petitioners disinterest ness to undertake the work unless execution of balance work (beyond tender) by him is accepted and that petitioner Coy. is not willing and ready to execute the work on rates quoted by it nine months back and that the offered rebate of 2.75% too stood withdrawn, respondents appear to have made up their mind not to get the work executed through the petitioner -Coy. The Board of School Education, Respondent No. 4, which employed PWD (R&B) for execution of the work decided to call it off with PWD Agency for the inordinate delay caused in putting work in place and in failing to execute the work promptly. But expecting petitioner who it believed backed out from the tender offer and failed to execute the work, to stall the progress of the construction work by launching a legal process, filed a Caveat through counsel in the court of District Judge at Srinagar. On receipt of Caveat dated: 20 -07 -2001, petitioner came forward and filed this writ petition on grounds that petitioners right of execution of the work on afforded terms and conditions of the NIT have been violated. The correspondence on record coupled with the deposit in the form of CDR, with the respondents has given petitioner right to execute the work. Petitioner claims that he could not execute work for the respondentsâ„¢ failed to provide the blue print/ plans to the petitioner. Notwithstanding, all this the petitioner has spent sizeable sum in taking steps to start and execute work. The petitioner has legitimate expectations and cannot be denied the contract. The contract cannot be snatched away from the petitioner and given to some other agency. There is underhand dealing in allotting the contract afresh and delaying the formal allotment of this work. The petitioner accordingly prays for restraining the re -tendering/ re -allotting, of the work and for taking steps required for execution of work by the petitioner -Coy, in addition to evoking a commitment from the respondents of allotment of the balanced work to petitioner. However, during pendency of the writ, respondent No. 4 (Chairman State Board of School Education) decided to take away the work in question form PWD (R&B) department the executing agency employed by it for construction of the work and instead employed Srinagar Development Authority (Respondent No. 5) for carrying forward and completing the execution of the work. For the purpose Srinagar Development Authority issued fresh NIT 19 of 2001 inviting tenders for construction of the work Block I on existing RCC Pile foundation, on terms and conditions provided therein. The petitioner on amending his writ petition also challenged this NIT and has prayed for quashment on ground as stated above, besides that the respondent No. 5 has no powers to issue the fresh NIT to the prejudice of the petitioner -Coy, and at the cost of the public exchequer.