- (1.) L .P.A. No. 41/2004 is filed by respondent No. 6 in W.P. (C) No. 3405/03, L.P.A. No. 129/2004 is filed by respondents 1 and 2 in that writ petition, the State and its officials. Both these appeals challenge the decision of the learned single Judge quashing the award of a contract to respondent No. 6 based on a Notice Inviting Tender, N.I.T. No. 1/2003 -04. We are concerned with Package 3 of the said tender. There were four bidders for Package 3 out of whom two were the appellant in L. P.A. No. 41 of 2004 and respondent No. 1, the writ petitioner. On 31.5.2003, the technical bids were opened and all the four tenderers were found eligible. Thereafter, on 18.6.2003, the Engineer -in -Chief took a decision to open the financial bids, the next day. He thereupon allegedly informed the four bidders over the telephone after 3 p.m. on 18.6.2003 about the proposal to open the financial bids, the next day. It is stated that pursuant -to that telephonic call, the representatives of respondent No. 6 and one S.P. Singla, one other bidder appeared. The writ petitioner or the other bidder, namely, Kamla Construction were not represented. It appears that the Engineer -in -Chief took a decision to award the contract to respondent No. 6 in the writ petition on the basis that respondent No. 6 was the lowest bidder. The writ petitioner claiming that it came to know of this decision only from other sources, made a representation (Annexure -3) on 28.6.2003 complaining that a information was given to it about the opening of the financial bids and that the procedure adopted was irregular, if not illegal. It also charged the Engineer -in -Chief with manipulating things so as to favour one of the bidders. Receiving no response to its complaint, the writ petitioner approached this Court with the writ petition seeking the quashing of the award of the contract or the finalization of the tender and claiming other consequential reliefs.
(2.) THE writ petitioner reiterated its contention that the procedure was irregular, that no notice was given to it as contemplated in Clause 28.2 of Notice Inviting Tender and that the opening of the financial bid and the award of the contract was illegal, for non -compliance with the procedure contemplated in Clause 28.2 of the Notice Inviting Tender. He also contended that apparently the authorities have attempted to help respondent No. 6 in the writ petition, to give it the contract though, we may note that the allegation cannot be said to specific or pointed. On behalf of the State, it was contended that telephonic information was given to all the four bidders and a receipt, purported to be issued by a Public Call Office indicating the making of telephonic calls, was produced. It was asserted that respondent No. 6 was the lowest bidder and the writ petitioner not being the lowest bidder, even if there was any irregularity, that should not result in the Court interfering with the award of the contract at his instance. It was submitted that in the absence of any attempt to establish any mala fides, the writ petition was liable to be dismissed, especially since the writ petitioner has no right to claim the award. of the contract. On behalf of respondent No. 6 it was contended that it was the lowest bidder and its bid has been duly accepted and there was no reason for interference by this Court. It was also pleaded that telephonic information about the opening of the financial bid was given by the office of the Engineer -in -Chief and in response to that, its representative was present at the opening of the financial bid. The petitioner in its reply affidavit attempted to question the alleged telephonic information given and reiterated its contention that the award of the contract was illegal and was not in consonance with the Notice Inviting Tender. The learned single Judge found that the decision making process was vitiated in this case and there was no explanation for not giving proper notices to the parties, as contemplated in Clause 28.2 of the Notice Inviting Tender regarding opening of the financial bid and hence, this was a fit case for interference. The learned single Judge, therefore, quashed the award and allowed the writ petition. This is what is being challenged. Learned counsel for the appellant in L.P.A. No. 41/2004 and the learned Advocate General appearing in support of the appeal L.P.A. No. 129/04, reiterated that the writ petitioner not being the lowest bidder, there was no occasion for this Court to interfere in exercise of its jurisdiction under Article 226 of the Constitution of India. It was argued that the work had been awarded to the lowest tenderer and the requirement of Clause 28.2 of the Notice Inviting Tender had been complied with by telephonic information being given and the writ petitioner did not even have a specific case that he had not been informed over the telephone about the opening of the financial bid. It was reiterated that in matters of contract, the Court will interfere only when public interest would be subserved by the intervention of the Court since intervention would delay the completion of the project envisaged. It was also contended that the learned single Judge has not entered any definite on the basis of which his interference with the award of the contract could be said to be justified. The learned Advocate General also submitted that in the absence of any plea of actual malice and in absence of any legal malice, since the writ petitioner was not the lowest tenderer and the contract was awarded to the lowest tender, there was not occasion for interference by the Court.
(3.) LEARNED counsel for the first respondent the writ petitioner reiterated the contentions raised before the learned single Judge and submitted that no interference is called for with the judgment of the learned single Judge since, the process of awarding the contract was vitiated by non - compliance with the requirement of Clause 28.2 of the Notice Inviting Tender.;