- (1.)THE petitioner in WP (C) No. 1599 of 2003 in the file of this Court is the appellant in this appeal. The appellant approached this Court with the writ petition seeking the issue of a writ of certiorari to quash the award of a contract given to respondent No. 4. The notice inviting tenders was marked as Annexure -I and it was contended by the writ petitioner that respondent No. 4 to whom the work was awarded was not qualified to be given the work since it did not fulfil the qualifications specified in the tender notification. There was also an allegation of malafides and an attempt to favour respondent No. 4 in the matter of award of the contract. The learned Single Judge did not deal with the contentions in detail, but dismissed the writ petition on the very short ground that since the writ petitioner was a defaulter in the matter of some earlier work, it was incompetent to question the validity of the award of the work to respondent No. 4. The learned Judge, therefore, held that he was not inclined to interfere with the award of work to respondent No. 4. Thus, the writ petition was dismissed.
(2.)IN this appeal, the main contention urged on behalf of the appellant was that respondent No. 4, to whom the work was allotted, was not qualified in terms of the notice inviting tenders, to be awarded the work and the entire action of the authority concerned in awarding the contract to respondent No. 4, was malafide and respondent No. 4 was unduly favoured by the concerned engineer. It was contended that respondent No. 4 had even given false registration numbers under the Bihar Finance Act and the Central Sales Tax Act and that had been overlooked while awarding it the work. But the main contention was based on the non -fulfilment of the condition in terms of Clause 8 of Annexure -I, the notice inviting renders. According to that, respondent No. 4 should have either been a contractor registered in the State of Jharkhand or respondent No. 4 should get registered as such, within one month of the opening of the tenders. Respondent No. 4, admittedly, did not have a registration in the State of Jharkhand on the day it responded to the notice inviting tenders. The date for opening of the tenders was 13.03.2003 and in terms of Clause 8, respondent No. 4 had to get the registration within one month of that date. In other words, the contractor was bound to get registered before 12.04.2003 for the purposes of this case. Here, respondent No. 4 was not registered as on the date it submitted the tender and admittedly, it did not get registered before 12.04.2004, the locus penetentiae given to it by Clause 8 of the notice inviting tenders. Therefore, according to counsel for the appellant, the award of work to respondent No. 4 was ex facie illegal and the learned Judge was not justified in dismissing the writ petition in the manner in which it was done.
On behalf of respondent No. 4, it was contended that respondent No. 4 did not have registration on the date when it responded to the notice inviting tenders, but respondent No. 4 had applied for getting registered within one month of 13.03.2004 and it was sufficient to fulfil the requirement of the condition set down in Clause 8 of the tender notification. It was also submitted that the concerned authorities in the concerned department, may take their own time in granting registration and respondent No. 4 could not be faulted or penalised for their lethargy. Counsel further submitted that, whether the tenderer to whom the work was allotted fulfilled the conditions of the tender notification, was not an ingredient of the decision making process regarding that tender, but it was only a post contract condition and that was not within the scope of a judicial review by the Court. Counsel reminded the Court that the Court was not sitting in appeal over the decision and was concerned only with the decision making process. Counsel also submitted that Clause 8 of the notice inviting tenders was not an essential condition and the failure to fulfil the condition should be overlooked. Counsel relied on the decision of the Supreme Court in G.J. Fernandez V/s. State of Karnataka and Ors., 1990(2) SCC 488, and in Tata Cellular V/s. Union of India, 1994(6) SCC 651, in support. Counsel, ultimately, submitted that the work has been done by respondent No. 4 and the Court has also to take note of the equities of the case. He relied on the decision of the Supreme Court in R.D. Shetty V/s. International Airport Authority of India and Ors., 1979(3) SCC 489.

(3.)LEARNED Government counsel produced before us the relevant file and sought to refute the contention raised on behalf of the appellant that the award of contract was vitiated by malafides. But, Government counsel did not dispute the fact that respondent No. 4 did riot have registration as a recognised contractor in the State of Jharkhand on the date it submitted its tender and that respondent No. 4 could not get itself registered within one month of the last date fixed for opening of the tenders in this case in terms of Clause 8 of the notice inviting tenders.