- (1.) THE respondent-B.C.C.L issued a notice inviting tender on 1.3.2011 for execution of the work of removal of over burden, extraction and transportation of coal from some patches mentioned therein of Gundudhi colliery of Kasunda area. In the said notice minimum number of different equipments were mentioned for its deployment at the work site. THErefore, as per the terms of the NIT, bidder was required to give an undertaking in the form of an affidavit in prescribed format to deploy matching equipments/tippers/pay loaders etc. either owned or hired which was part of the tender document as Annexure F. Pursuant to the said notice, the petitioner as well as several other including the respondent no.3 submitted their tender documents. THE documents submitted by the respondent no.3 were found to be defective as the tenderers were required to have 77 number of equipments specified in clause 3(e) of the tender document either on ownership basis or on hire but the respondent no.3 did inform that he possesses/owns 75 equipments and only two equipments, i.e. Volvo EC 460 and pay loaders with bucket capacity, he was informed that it would be purchased. On opening of the technical bid on 19.4.201, tender documents submitted by the respondent no.3 were found to be defective for the reason as aforesaid and, hence, respondent no.3 was declared ineligible and was not allowed to participate in the financial bid. Only 8 tenderers qualified in the technical bid and they were called, vide letter dated 11.7.2011 to be present for opening of the financial bid on 14.7.2011. On opening the financial bid, according to the petitioner, he was declared as L-1. Meanwhile, respondent no.3 when was declared disqualified, he filed a writ application, bearing W.P.(C) No.4303 of 2011 on 27.7.2011. While the matter was pending for consideration, respondent no.2 issued a letter dated 23.8.2011 to the petitioner and other participants informing therein that on consideration of the representation filed by the respondent no.3, they have decided to open price bid submitted by him on 26.8.2011. THE said decision of the respondent whereby they decided to open the tender price bid of the respondent no.3 has been challenged in this writ application.
(2.) LEARNED counsel appearing for the petitioner submitted that once a tender committee after declaring ineligible tenderers as disqualified and proceeded to open the price bid of other tenderers and found the petitioner as L-1, the respondent is not at all justified in taking decision to open the price bid submitted by the respondent no.3 when he had already been disqualified in technical bid and as such, the said decision is not only illegal but tainted with arbitrariness and bias. It was also submitted that once the petitioner was found to be L-1, the authority in terms of clause 29(1) of the tender notice should have awarded work to the petitioner by notifying it but the authority contrary to it took a decision to open the price bid of the respondent no.3 who had earlier been disqualified and finally he was declared as L-1 and has been awarded work, though his tender document itself was defective as respondent no.3 instead of giving information about the two implements being owned or hired, it was stated that it would be purchased. Thus, the authority in view of the decision rendered in a case of M/s. G.J.Fernandez vs. State of Karnataka and others (AIR 1990 SC 958) submitted that in awarding work to the respondent not only acted arbitrarily but also illegally and hence, entire tender process is fit to be set aside. As against this, learned counsel appearing for the respondent-B.C.C.L submitted that it is true that when the technical bid was open, respondent no.3 was declared disqualified but when he made representation, the authority in terms of clause 24.1. of the tender document reconsidered and found that eligibility is substantially responsive to the requirement of the bidding document and then informed all the other bidders to be present for opening of the financial bid of the respondent no.3. When the financial bid was open, price quoted was found substantially low to the extent of 15 crores and hence, work was awarded to the respondent no.3 which order has never been challenged and hence, this writ application is infructuous. Thus, it was submitted that decision taken by the authority relating to work being awarded to respondent no.3 is bona fide and at the same time, is in public interest and hence, decision taken never warrants to be interfered by this Court. Learned counsel in support of his submission has referred to a decision rendered in a case of Jagdish Mandal vs. State of Orissa and others [(2007) 14 SCC 517].
(3.) MR.P.K.Prasad, learned counsel appearing for the respondent no.3 submitted that the petitioner has only challenged the decision of the authority wherein it had been decided by the authority to open the price bid of respondent no.3 in presence of all the participants. On opening of the price bid, price quoted by the respondent no.3 was found substantially low and hence, respondent no.3 was awarded with the work but that order has never been challenged and hence, this application has become infructuous. It was also submitted that the petitioner has never come up to this Court in the clean hand that he had suppressed in the writ petition about the filing of the suit first before the court of Munsif and then after it is withdrawal in the court of Sub-Judge and hence, he does not deserve to be invoked under extraordinary jurisdiction of Article 226 of the Constitution of India. Learned counsel further submitted that the authority by misrepresenting the clause of owning or hiring disqualified the petitioner at the time of opening of the technical bid but on representation, the matter was reconsidered and nothing was found wrong and hence, he was awarded contract as his price bid was less than 15 crores from the petitioner and hence, work was awarded which is always in public interest and therefore, this application is fit to be dismissed.;