- (1.)Heard . This is the second visit of the petitioner to this Court in a writ petition under Article 226 of the Constitution of India. Prior to filing of this petition, the petitioner had filed Writ Petition No.12150/2013. The said writ petition was disposed of by this Court vide order dated 18.10.2013 in following terms: - "The petitioner, a government contractor, engaged in the business of providing electric equipments and their maintenance and other ancillary services was awarded contract after accepting its tender for the work of external electrification in Sector B and C of Scheme No.136, Indore. A work order to that effect was issued on 28.04.2012 (Annexure P -2) in favour of the petitioner. According to the petitioner, he has successfully completed substantial part of the work. However, on 17.10.2012, the first respondent directed the MPPKVVCL that all the private institutions, colonisers and development authorities be informed that in the electrification works, which have either been sanctioned or to be sanctioned it should be made compulsory to install Star Rating Transformers (minimum Three Stars). The Chief Engineer of the MPPKVVCL in turn issued a letter dated 06.11.2012 to its Superintending Engineer, a copy of which was endorsed to the 2nd respondent -Chief Engineer of Indore Development Authority. In reply, the Chief Engineer of Indore Development Authority wrote a letter to the Chief Engineer of MPPKVVCL that the electrification work in various schemes including the present work allotted to the petitioner is already under way and there is no provision of Star Rating Transformers in the project. However, MPPKVVCL reiterated its stand that even in the work order which has already been issued Star Rating Transformer be installed. On receipt of information of such correspondence, the petitioner submitted letters of request dated 20.08.2013 and 11.02.2013 to the 2nd and 3rd respondents showing its readiness and willingness to install the Star Rated Transformers, however, the said request made by the petitioner was not paid any heed and on the other hand, vide impugned letter dated 13.09.2013 (Annexure P -1), the respondent No.3 Executive Engineer of Indore Development Authority has directed the petitioner to forgo the work of supply of transformers and to complete the other work so that its final bill will be prepared. Aggrieved by the order dated 13.09.2013, the petitioner has filed this petition.
(2.)Shri Subodh Abhyankar, learned counsel has argued that issuance of letter dated 13.09.2013 (Annexure P -1) by the Indore Development Authority is illegal, unjust and arbitrary. He argued that when the petitioner was ready and willing to install the Star Rated Transformers in place of Non -Star Rated Transformers, there is no question of calling for the tenders from other agencies as the entire work was already allotted to the petitioner. He has drawn our attention towards Clause 13 of the contract empowering the changes in the specification and only in the event, if the contractor expresses inability to carryout the changed task only then the authority may get the work executed through other agencies. He further submits that in the circumstances, when the petitioner had intimated its willingness to install Star Rating Transformers, it was not open for the Indore Development Authority to have ignored its written request. Respondents have filed reply. According to them, as there is a rate difference in the Star Rated Transformers and Non -Star Rated Transformers, it was decided by the Indore Development Authority to invite new tenders. Having considered the submissions made by the learned counsel for the parties, averments made in the writ petition and reply, we are of the view that the petition deserves to be allowed. When the petitioner had submitted its readiness and willingness to install Star Rating Transformers (minimum Three Stars) and when clause 13 of the contract entered into between the parties there is provision for such changes, it was incumbent upon the Indore Development Authority to have called the petitioner for negotiation about the rates instead of issuing a letter dated 13.09.2013 (Annexure P -1) to the petitioner to forgo the work of supply of transformers. In our considered view, issuance of such letter dated 13.09.2013 (Annexure P -1) is illegal and arbitrary and as such cannot be allowed to sustain. In the circumstances, we allow this petition by quashing letter dated 13.09.2013 and we also direct the respondent Nos.2 and 3 / Indore Development Authority to hold a meeting with the petitioner for negotiation about the rates of Star Rated Transformers to be installed in place of Non -Star Rated Transformers as per original contract. Let this exercise be completed as expeditiously as possible. With the aforesaid directions, writ petition stands allowed to the extent indicated above."
(3.)In pursuance to the aforesaid order passed by this Court on 18.10.2013, the petitioner was informed by the Indore Development Authority (IDA) vide letter dated 28.02.2014 (Annexure P/3) to attend the meeting for negotiation about the rates of Star Rates Transformers to be installed in lieu of Non -Star Rates Transformers, as per the original contract. On receipt of such intimation, the petitioner appeared on 01.03.2014 before the Committee of the IDA. On that date, a meeting was held between the Committee Members of the IDA and the petitioner. After perusal of the rates proposed by the IDA, the petitioner submitted its final rates (offer) vide letter dated 01.03.2014 (Annexure R/3). As per the minutes of the meeting (Annexure R/4), a comparative chart was prepared in which it was found that the rates submitted by the petitioner were higher than the rates assessed and proposed by the IDA to the extent of Rs.17,54,234.89/ -. Thereafter, the matter was placed before the Board of the IDA. The Board vide resolution No.79 dated 02.06.2014 (Annexure R/5) rejected the petitioner's offer being much higher than the rates offered by them in the negotiations. As a result, the Board decided to issue fresh tender. The decision, so taken, was communicated to the petitioner on 24.06.2014 (Annexure P/1). Aggrieved by the said communication, the petitioner has filed this petition. It is not disputed by the learned counsel for the petitioner that in pursuance to the aforesaid impugned decision dated 26.06.2014, a fresh NIT was issued in which the petitioner has participated.
According to the learned counsel for the petitioner, the petitioner has not been given adequate opportunity to consider the rates fixed by the IDA and in hot -haste, it has to submit its proposal on 01.03.2014 itself, which was although higher, but subsequently on 10.06.2014, it had agreed for lowering down of its rates to the extent as IDA had proposed. He submits that the said reduction was made on the basis of the oral direction by the Chief Engineer of the IDA to whom he met on 22.05.2014. In the circumstances, according to him, the fresh offer submitted by the petitioner on 10.06.2014 should have been accepted instead of calling for the fresh tender.