(1.) BY filing this writ petition the petitioner, inter alia, seeks for a writ of mandamus for quashing the work order filed as Annexure-P7 by which the respondent No.3 was awarded the construction work of Sidkeong Tulku Bird Park at Rabdentse, West Sikkim, estimated at Rs. 5,29,68,000/- (Rupees five crores twenty nine lakhs and sixty eight thousand) and for a direction for retender of the said work by giving wide and sufficient publicity. It is the case of the petitioner that he is a registered contractor of Class I(A) category under the Government of Sikkim in the West District and was, therefore, qualified to bid for the aforesaid contract work. The gravamen of the petitioner's case is that the Notice Inviting Tender (in short 'NIT') in respect of the work was not given the adequate publicity in order to enable wider participation in the tender process by all contractors possessing the requisite eligibility criteria. It is further the case of the petitioner that due to inadequacy in the extent of circulation of the NIT it was only in the last week of January, 2009 that he got to learn of the NIT having been published, the tender process being completed and the fact that the respondent No.3 as the successful tenderer was on the verge of being issued with the work order. It is his further case that when necessary enquiries made by him and his colleagues did not result in satisfactory explanation from the concerned officers and engineers they issued a legal notice to respondent No.1 on 28-1-2009 requesting him not to proceed further with the issuance of the work order to the respondent No.3 till such time the tender notice of the work in question was given wide and sufficient publicity. It is further stated that in the reply to the aforesaid legal notice on behalf of the respondent No. 1 the allegation as regards the insufficiency of and /or want of wider publicity of tender notice had been denied and that in the reply of the respondent No. 2, it had been disclosed that vide letter bearing No. 225 dated 23-12-2008, a copy of which had been enclosed with the legal notice, the respondent No.1 had requested for publication of the NIT in the "Sikkim Herald" and in two issues of any two prominent local newspapers having wide circulation in Sikkim, and the respondent No.2 had accordingly published it in "Samay Dainik" in its issue of 1- 1- 2009 and "Sikkim Express" in its issue of 2- 1-2009.
(2.) IT is alleged by the petitioner that publication of the NIT as stated by the respondent Nos.1 and 2 appeared to be doubtful as two leading newspaper vendors in Gangtok gave written certificates to him stating that those days, i.e., 1-1- 2009 and 2-1-2009, being holidays no newspapers had been received by them for sale or distribution. IT is alleged that the petitioner and his two colleagues replied to the respondent No.1 through their lawyer requesting not to proceed further with the issuance of the work order to the respondent No.3 on account of the NIT not having been given wide and sufficient publicity depriving the other eligible contractors including the petitioner from their right to participate in the tender process. IT is stated further that on 10-3-2009 the petitioner and his colleagues sought from the concerned authority of the State Government information under the Right to Information Act, 2005 as regards the procedure followed in the publication of the NIT and the award of the aforesaid work. In response thereto the respondent No.l allowed his colleague one Shri Tej Bahadur Rawat to inspect the records of the work in question and to make out copies of the documents inspected by him. The petitioner states that it was only after the inspection that he learnt of the following defects in the tender process :-
(a) Only three tenders had been received from the entire West District where there were not less than fifty class I(A) Government contractors; (b) The rates quoted by the three tenderers were much on the higher side; (c) That the tenders were opened on 20- 1-2009 by a Tender Committee which did not have a Member from the Finance Department of the Government of Sikkim or from the State Trading Corporation of Sikkim; (d) The work was awarded to the respondent No.3 on his bidding 15% above the estimated value of the work; (e) That the provisions of the Sikkim Financial Rule, 1979 and the Sikkim Public Works Code had been violated. For the aforesaid reasons and in view of the law laid down in various decisions of the Hon'ble Supreme Court and this Court, the petitioner seeks to quash the work order issued to the respondent No.3.
The allegation of the petitioner with regard to the insufficiency and inadequacy of the publication of the NIT have been denied in the counter-affidavit filed on behalf of the respondent Nos, 1 and 4. It is stated in the counter-affidavit that by a letter bearing No. 225 dated 23-12-2008 filed as part of Annexure-3 to the writ petition, the respondent No. 1 had requested the Editor, "Sikkim Herald" to publish the NIT in the "Sikkim Herald" and two prominent newspapers and that since the tender was being called on 20- 1-2009 such publication was required to be done at the earliest. It is further stated that the said letter had been forwarded to at least 8 (eight) authorities including the District Collector, West District and the DFO (Wildlife), West District which ensured transparency in the entire exercise. The fact as to the publication of the NIT in two local newspapers as set out in the writ petition have not been denied by the respondents.
These respondents, however, have raised two preliminary objections as to the maintainability of the writ petition. Firstly, it has been stated that the petitioner having not fulfilled the eligibility criteria of having performed and executed similar kind of works as required under the special conditions of the NIT, cannot make a grievance of him not being able to participate in the tender process. The petitioner lacked the necessary locus standi to bring this writ petition. Secondly, it has been urged that the petitioner is guilty of gross delay and laches in approaching this Court. It has been stated that the petitioner on its own admission had become aware of the publication of the NIT in the last week of January,2009 which prompted him to issue a legal notice to the State-respondents on 28-1-2009 demanding wider publication of the NIT and to forbear from issuing the work order to the respondent No.3. It is further contended that in the reply of the State-respondents dated 4-2-2009 to the legal notice dated 28-1-2009 received from the petitioner's counsel, all the details of the procedure followed in the publication of the NIT had been conveyed to the petitioner. It is, therefore, stated that since the petitioner had failed to approach the Court when he admittedly became aware of the facts and circumstances pertaining to the NIT in the last week of January, 2009 and later on 4-2-2009 and had chosen to wait as late as August, 2009, i.e., for almost 7 months, the petitioner was guilty of gross delay and laches and, therefore, the writ petition deserved to be dismissed as not maintainable on this ground and also on the ground of the petitioner lacking the necessary locus standi to bring the writ petition.
(3.) THE respondent No.2, Secretary, Information & Public Relations Department, Government of Sikkim, has filed a separate counter-affidavit in which he has dealt with the aspect pertaining to the publication of the NIT in two local dialies. It is stated in the counter-affidavit that the letter bearing No. 225 dated 23-12-2008 requesting for publication of NIT in the "Sikkim Herald" and two other local news dailes had been received well in time by him and, considering the urgency indicated therein it was thought expedient to get them published in two local news dailies immediately as Lossong holidays were setting in from 25-12-2008 was to continue till 4-1-2009. THE NIT accordingly was published in the issue of the "Samay Dainik" of 1-1-2009 and the "Sikkim Express" of 2- I- 2009, 10 (ten) copies of which were received by the department as proof of such publication.
The respondent No.3 in his counter- affidavit filed separately, has reiterated what the respondent No. 1 has stated in his counter- affidavit as regards the factual aspects pertaining to the publication of tender notice and the award of work to him. He also questions the locus standi of the petitioner in filing the present writ petition on the ground of him being ineligible to participate in me lender process and presses the issue with regard to the aspect of delay and laches. The respondent No. 3 contends that as a successful bidder he had been issued with the work order in March, 2009 following which he commenced with the execution of the work immediately in view of the time schedule of 12 months prescribed for completion on the work commencing from the date of the issue of the work order. He further states that he has invested huge amount of money and at the time of filing the counter-affidavit on 1- II- 2009, 30% of the work had been completed which at the time of arguments has risen to more than 90%. Therefore, if any order is passed to the detriment of the petitioner he shall be seriously prejudiced and would suffer huge monetary losses.;