N.M.KASLIWAL, J. - (1.) THIS appeal by the State is directed against the judgment and decree of learned Additional District Judge, Dholpur, dated May 31, 1969.
(2.) THE plaintiff respondent filed a suit for declaration and injunction on the allegations that the Executive Engineer PWD (B and R), Bharatpur invited tenders on April 14, 1966 for widening of Shoulders from Miles 715 to 724 Zone A and of miles 723 to 731 of Zone B of Agra -Bombay road. According to the terms mentioned in the notice inviting tenders, the tenders were to be filed on prescribed forms. Earnest money mentioned in the notice was to accompany the tender. The tenders were to be accepted by the Rajasthan Government and the rates quoted by the contractor were to remain in force up to four months from the date of tenders, i.e. from April 14, 1966 The case of the plaintiff was that he submitted two tenders, one each for the above two works to the Executive Engineer, Bharatpur on April 14, 1966, but did not deposit may amount as earnest money. The tenders were not accepted till July 25, 1976 and the date of acceptance was going to expire on August 14, 1966 as such the Excutive Engineer vide his letters No. 8039 and 8310 dated July 25, 1966 sought further extension of two months from the plaintiff. The plaintiff, however refused this request. The case of the plaintiff further is that he received a letter No. 9723, dated September 2, 1966 from the Executive Engineer, intimating the plaintiff of the acceptance of his two tenders With this letter, two work orders, dated August 12, 1966 were also received by the plaintiff as enclosures. In the said letter, dated September 2, 1966 it was mentioned that acceptance of the tenders of the plaintiff were complete under Section 4 of the Indian Contract Act, on the following grounds: (1) That a telegram dated August 13, 1966 was issued by the Assistant Engineer, B and R, Dholpur to the plaintiff accepting the tenders, but the same was returned by post office, as nobody received it at the official residence of the plaintiff. (2) The Assistant Engineer has reported vide his letter, dated August 21, 1966, that the work orders No. Spl. 1 and 5 dated August 21, 1966, were not taken by the plaintiff and they were intentionally avoided. The plaintiff then sent a reply, dated September 9, 1966 to the Executive Engineer, denying the allegations raised by him in his letter, dated September 2, 1966. Thereafter the plaintiff received a letter No. 2055, dated March 14, 1967, from the Executive Engineer PWD (B and R) intimating him that the Chief Engineer PWD (B and R), Rajasthan Jaipur had ordered the forfeiture of earnest money amounting to Rs. 26,200/ - vide his letter No. F. 5 -67 (116) Section II, dated March 7, 1967, on the ground that the plaintiff avoided to take delivery of the work orders and to commence the work allotted to him. On this basis, the Executive Engineer asked the plaintiff to deposit the aforesaid amount in his office within a fortnight, failing which action would be taken to recover the amount from the earnest money and the security deposit lying in other divisions.
(3.) THE plaintiff challenged the alleged order of the Chief Engineer being without jurisdiction and ultra vires and not binding on the plaintiff on the following grounds amongst others: (i) That there were no valid tenders nor there was any earnest money deposited and hence no forfeiture can be made. (ii) That there was no acceptance offenders within the prescribed time of four months, nor any communication of acceptance was posted within four months. (iii) That no communication of the acceptance of the tenders was put in the course of transmission addressed to plaintiff so as to be out of the power of the acceptor within the prescribed time of four months. (iv) That the alleged telegram, dated August 13, 1966, a copy of which was shown to the plaintiff by the Executive Engineer and which was copied by plaintiff (reproduced below) is not for and on behalf of She Governor or Rajasthan Government and is also not by an officer who was authorised to accept the tenders in this ease on behalf of the Governor, or Rajasthan Government. Further no tenders were given 10 the Assistant Engineer even and as such, also he had no authority to accept the tenders. Copy of alleged Telegram YOUR TENDRES MILES 715 to 724 AND 725 to 731 OF WIDENING N.H. No. 3 ARE ACCEPTED AT RATE OF 22 73 P.C. AND 19.31 P.C. ABOVE RESPECTIVELY. TREAT THIS AS WORK ORDER. ORDERS FOLLOW. ASSISTANT ENGINEER ROADS (v) That alleged work orders Spl. No. 1 and 4 dated August 12, 1966 are neither for and on behalf of the Governor of Rajasthan Government nor from a competent authority or any officer authorised. Further they were not put in the course of transmission addressed to the plaintiff so as to be out of the power of the acceptor before September 2, 1966. Hence there is no acceptance within time so as to bind the plaintiff. (vi) That tae alleged order of the Chief Engineer is without his powers and he cannot pass such order and particularly without a hearing or at least without a show cause notice. Hence order is also bad. No such order could further have been passed when there was dispute whether there were completed contracts or not? (vii) That the estimated cost of the works has been shown by Executive Engineer in his letter dated March 14,1967, as Rs. 66,000/ - and 65,000/ - and earnest money 2 p.c. has been calculated at Rs. 26,200/ -. This is absolutely wrong. Then this amount does not come out even on the contract amounts shown in alleged work -orders, dated August 12, 1966. (viii) That there were no contracts binding on the plaintiff (ix) That the alleged work orders, dated as August 12, 1966 and numbered as Spl. No. 1 and 4 are patently false and have been made up malafide by anti -dating them and under a new device of numbering them. There are no regular numbers of the office of the Executive Engineer on these work -orders, nor they have ever been despatched before September 2, 1966. ;