(1.) THIS writ petition has been filed by petitioner -firm namely, M/s HURRYSONS ENTERPRISES, registered under the Indian Partnership Act
through Sh. G. S. Walia, having its registered office at 154, Golf Links,
New Delhi, engaged in the business of construction of over -bridges for
more than last two decades.
(2.) THE petitioner has invoked the power of this court under Art. 226 of Constitution of India, praying for a writ of certiorari quashing the order of allotment No. RM.335/Contract -l/1344 -50 dt 15.4.85 of a
contract by Respondent No. 2 for construction of 4 -lane Bridge over
Doodganga Nallah in KM Illrd at Barzulla on Srinagar -Airport Road, in
favour of Respondent No. 3 and for a writ of mandamus to command the
respondents to allot the said contract in favour of the petitioner. It is
further prayed that by a writ of certiorari, circular, Govt. Order No.
119 -PW of 1982 dt 5.3.82 be quashed.
(3.) THE facts and circumstances which gave rise to the present petition need to be narrated hereunder: -
On a Govt. decision, Executive Engineer, Construction Division No. Ill, PWD Kashmir, Srinagar vide his order NIT No. 7326 -63 dt 2.1.84 invited tenders under two envelop system for construction of 165" Span RCC Four Lane Bridge, over Doodganga Nallah at Barzulla KM 3rd on Srinagar Airport Road at an estimated cost of Rs. 75 lacs, The date of receipt of tenders by Chief Engineer, PWD was fixed for 15.4.1984. In response to the tender Notice, in all, ten firms including the petitioner -firm obtained the tender documents from the Department and only six firm namely: -
1. M/s Tirath Ram Ahuja
2. M/s Bildrite Construction Co.
3. M/s Hurryson Enterprises
4. M/s J&K Project Construction Corporation
5. M/s Rash Rash Builders.
6. M/s Nathmal Gopal Lal.
submitted the tenders within time and the first envelop containing
the bio -data in the shape of technical experience, equipment, financial
strength etc., were opened on the due date of receipt in presence of the
respective tenderers and the papers were passed on to Supdt. Engineer by
the Executive Engineer for evaluating the same. The S. E. during the
course of evaluation, sought clarifications, modifications etc. from the
tenderers on several accounts and after this process was completed the S.
E. was in a position to evaluate only four tenderers namely; (1) M/s
Tirath Ram Ahuja, (2), M/s Bildrite Const. Co., (3) M/s Hurryson
Enterprises and (4) M/s J&K Project Const. Corporation and these four
tenderers came to the stage of 2nd cover (envelop) which contained the
rates only. On opening the second envelop, the petitioners tender, as per
rates quoted, was found lowest of all tenderers i.e. Rs. 61.992 lacs
against Rs. 73. 00 lacs tendered by J&K Projects Construction
Corporation, respondent No. 3 herein. The Supdt. Engineer forwarded the
case to the Chief Engineer who prepared an Agenda for Contract Committee,
(Authority competent to allot the contract) to allot the work to the
petitioner who had agreed to comply with the conditions laid in the NIT
at a lump -sum cost of Rs. 62, 53, 200/ -.
The contract committee met on 16.2.1985 and rejected the petitioners tender despite being lowest and directed the Respondent No. 2
to approach the second -lowest tenders M/s Bildrite Const. Co. in case the
firm agrees to execute the work on the lowest rate offered for the
construction of the bridge. Despite respondents approach to the Bildrite
Const. Co., 2nd lowest tenderer, the matter did not mature as no
willingness was shown by the firm and the construction of bridge work was
allotted to Jammu and Kashmir Projects Construction Corporation, third
lowest tenderer. It is this decision of the respondent to allot work to
respondent No. 3 the petitioner was invoked extraordinary powers of this
court in writ jurisdiction to quash the allotment order No.
RM -335/Contract -I/1044 -50 dt 15.4.85 in favour of respondent No. 3 and
for a command to the respondents to allot the work in favour of the
petitioner. The petitioner bases his claim on number of points. That
after evaluation of eligible tenderers, the Chief Engineer, Respondent
No. 2, made a recommendation to the contract committee for allotment of
the contract in favour of the petitioner. That by two systems -envelop,
the petitioner had qualified - for allotment of contract after evaluation,
when the second envelop which quoted rates only, was opened, which was
lowest of all. The action of the respondent in allotting contract to
Respondent No. 3 is arbitrary, unfair and without any reason, offending
the provisions of Articles 14 and 19(l)g of the Constitution of India, as
the respondents have denied equal opportunity to the petitioner in the
matter of business and obstructed his right of business. That the
respondent has not kept public interest in view while allotting contract
on higher rate to Respondent No, 3, than lowest quoted by the petitioner.
The petitioner has challenged the validity of circular, being Government
Order No. 119 -PW/82 dated 6.3.82 Annexure p6 in the writ petition, which
according to the petitioner, is the basis for allotment of the contract
to the Respondent No. 3 and offends the constitutional rights of the
petitioner in respect of award of contracts, as the circular
discriminates between equals, the Govt, having given the power to Engg:
Departments -Respondent to allot work costing more than Rs. 10 lakhs,
without tender to Jammu and Kashmir Projects Construction Corporation.;