Seth, J. - (1.) After having heard the learned Counsel for the respective parties, it appears that while addressing the Court on the question of grant of interim order the respective learned Counsel had addressed the Court on merit of the appeal itself. At the same time, any interim order that may be passed would affect the merit of the appeal. It is also undisputed that the project involves certain urgency for which the appeal is also required to be expedited. In the circumstances, by consent of the parties the appeal is treated as on day's list 'for hearing' along with the application for interim order and are disposed of in the manner following. Submission on behalf of the Appellant :
(2.) This appeal has been preferred against the order of the learned Single Judge passed in Writ Petition No. 1555 of 2004 on 11th October, 2004 dismissing the writ petition. In the said writ petition, the issue of the work- order accepting the bid of the respondent No. 5 herein was challenged on the ground of certain infirmities in and infractions of the rules of tender. Mr. Bachawat, learned Senior Counsel for the appellants, referred to Rules 217 and 220 of the Public Works Department Code (Vol. 1) [Rule 131 of West Bengal Works Departmental Manual] since alleged to have been infarcted. Rule 217 prescribes that the lowest tender for the work is to be accepted as a rule, if for any reason, economical or otherwise, the lowest tender is not accepted, reference shall be made to the Government for orders as to which of the contractors the work should be given. Whereas Rule 220 prescribes the provision for re-tendering which directs that if there is no time for re- tendering, a bid on the spot of all the tenders would be the best method to distribute the work without loss of time and on a really competitive basis. "It will be within the competence of the competent Engineer Officer of the Directorate to accept the lowest bid in such cases without any further reference to the Government, provided that the lowest bid remains within the estimated amount of the work or within in excess of 5 per cent of the estimated amount." According to Mr. Bachawat, having regard to the facts, which are more or less admitted, no such step was taken and these rules were overlooked, ignored and violated. This was, in fact, done in violation of the accepted norms and principles of accepting tenders. 2.1. In support his contention Mr. Bachawat relied upon the decisions in K. N, Guruswamy v. The State of Mysore & Ors., AIR 1954 SC 592; Dutta Associates Pvt. Ltd. v. Indo Merchantiles Pvt. Ltd. & Ors., (1997)1 SCC 53 and contended that the procedure of tender and the method adopted for settling the matter in this case being behind the back of those interested and anxious to compete was unjustified and that in itself would affect the interest of the writ petitioner/appellant. The action of the Government showed that this was done in dipper consideration. Such a step could not have been taken. In order to eliminate favouritism, nepotism and corruption, all those rules were formulated for the purpose of rooting out those evils and those guidelines have, been laid down for avoiding all such ills, as was held in K. N. Guruswamy (supra). 2.2. He further contended relying on Dutta Associates Pvt. Ltd. v. Indp Merchantiles Pvt Ltd. & Ors. (supra), that the procedure followed in this case was unfair and opposed to norms which the Government should follow in such matters and that in offering the tender only to one person excluding the others obtaining a lower rate without offering the same to the writ petitioner/ appellant and other competitors appeared to be contrary to the rules and law, unfair and arbitrary and it was hit by more than one illegality by reason whereof the. awarding of the contract should be set aside and equal opportunity should be given to all the tenderers. In case of urgency, it could be done by inviting all the tenderers and asking for offer on the spot. Submission on behalf of the Respondent No. 5 :
(3.) Mr. Bikash Ranjan Bhattacharya, learned Counsel for respondent No. 5, ably assisted by Mr. Chakraborty, on the other hand, contended that the respondent No. 5 was found to be the second lowest bidder. The first lowest bidder having been found to be ineligible, the second lowest bidder became the lowest bidder and as such in terms of Rule 217, though respondent No. 5 was the second lowest bidder, but, by reason of ineligibility of the lowest bidder, he became the lowest bidder. Therefore, his offer was eligible for being accepted in view of Rule 217 even without the application of sub-rule (2). He pointed out to the urgency of the project as well as the fact that the work order having been issued 50 per cent of the work is complete which is apparent from the record itself viz : a report by the competent authority submitted pursuant to an order passed by this Court. He submitted that the project is to be completed by 31st of March 2005. At the same time, he also pointed out to the consequence of cancellation of the work order at this stage when his client had invested huge amount and had completed almost 50 per cent of the work. He had pointed out various other difficulties, which should be weighed with the Court on the question of intervention in such a matter, particularly, in relation to granting of interim order. He further contended that the question of considering grant of fresh tender would upset the entire situation. According to him, the tender was rightly accepted. There were earlier unsuccessful attempts to frustrate the grant of work-order in favour of the respondent No. 5 in two writ petitions. This writ petition is the third one in succession. He alleged collusion in between the respective writ petitioners in the three writ petitions. However, we do not want to go into those questions and altogether ignore the same and propose to consider the case on the merit of the case itself independent of the earlier attempt. 3.1. Mr. Chakraborty assisting Mr. Bhattacharya had referred to the decision in Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd. & Ors., (1997)1 SCC 738 He also relied on the decision in Raunaq International Ltd. v. I.V.R. Construction Ltd. & Ors., AIR 1999 SC 393 : (1999)1 SCC 492 and Directorate of Education v. Educomp Datamatics Ltd., (2004)4 SCC 19 in support of his contention that where high cost projects and time bound programmes are involved, the Court should take into consideration the prospect of re-bidding and consequence arising thereout. He contended further that the Court must weigh the consequences before granting interim orders. Relying on the decision in Directorate of Education (supra), wherein Tata Cellular v. Union of India, (1994)6 SCC 651 was referred to and followed, he contended that the principles crystallized in Tata Cellular (supra) are required to be followed. The learned Single Judge, after following the said provisions, had passed the order appealed against, and rightly. Therefore, this Court should not interfere with the same. Submission on behalf of the National Highway Authority :;