- (1.) HEARD counsel for the parties. Petitioner in the first writ petition being W.P.C. No. 2772 of 2012 has sought a direction upon the respondents to consider the bid of the petitioner who was L -2 in respect of the tender floated by the Department of Agriculture and Cane Development for supply of Dolomite/Limestone for acidic soil amendment of certain acidic agricultural areas in various districts of Jharkhand; reason being that after opening of the price bid it was found that the private respondent, who was the L -1 had submitted the tender without any earnest money, as such he was disqualified. The petitioner had also sought for a direction to allot the work of supply of the said materials to the petitioner as the private respondent being L -1 stood disqualified and petitioner being L -2 in the said tender is the next successful bidder. He has also challenged the fresh invitation of offer dated 5.5.2012 for the same work which was obviously undertaken after cancellation of the first tender.
(2.) IT is the contention of the learned counsel for the petitioner that as per the terms of the first tender, the respondents - officials had not granted any exemption to the Small Scale Industries(S.S.I) units as per the Industrial Purchase Policy Resolution, 2007 and had subsequently issued a corrigendum which permitted exemption to the S.S.I. Units on showing registration documents along with their technical bid. It is the contention of the petitioner that the private respondent admittedly had not submitted the necessary documents along with technical bid, therefore, its bid should have been considered as disqualified. But when the aforesaid anomaly was detected by the respondents - officials, in order to accommodate the private respondent the entire tender has been cancelled and a fresh tender has been floated by incorporating the aforesaid terms. Therefore, the petitioner, who was L -2 admittedly in the first tender should have been allotted the work of supply of the aforesaid materials and the invitation of fresh tender by the respondent - department should be quashed as had been done with malicious intention to accommodate the private respondent. Learned counsel for the petitioner has submitted that in the schedule of the Industrial Purchase Policy Resolution, 2007 in the list of items enumerated thereunder, the items which are subject to purchase in the instant N.I.T are not mentioned there. Therefore, the respondent - officials have unnecessarily relied upon the Resolution of 2007 for cancelling the tender and the same policy has now been withdrawn. The stand of the officials - respondents in their counter affidavit specifically at para 6 and 9 thereof is that in course of scrutiny of first notice inviting tender it was detected that the resolution of the Industrial Purchase Policy of the State of Jharkhand, which allows exemption to the Small Scale Industries( S.S.I.) as well as National Small Industries Corporation Limited(N.S.I.C.) were not incorporated. By such resolution of the department of Industries these units are exempted from deposit of earnest money. When the same was noticed, the corrigendum of the N.I.T was subsequently published. However, in the corrigendum also inadvertently there was mention of only S.S.I unit which was exempted from deposit of earnest money. There was no mention of N.S.I.C. This was against the policy of the State Government, therefore, the first tender was cancelled and the second tender notice was issued incorporating the aforesaid terms. Petitioner has also participated in the second tender and now has sought to challenge the said tender process apart from seeking direction for allotment of supply of the said materials on the basis of being L -2 in the first tender. Therefore, the writ petition should be treated as infructuous after the petitioner's participation in the second tender.
(3.) THE private respondent, on notice has appeared in the present writ application and has also filed counter affidavit. The private respondent has also filed writ petition being W.P.C. No. 3277 of 2012, which is also being heard together with the instant application. It is the contention of the private respondent no. 4 that it being S.S.I. unit was entitled for exemption from depositing the earnest money. When the same was noticed in the first tender the respondent - department cancelled the said tender and floated the second N.I.T in which both the private respondent as well as petitioner had participated. The bid documents of the second tender has been kept in sealed cover by the order of this Court, which should be opened after permission of this Court.;