PERMOD KOHLI, J. - (1.) PETITIONER , a Ltd. Company, has called in question the action of respondent Nos. 1 to 3, denying the consideration to the petitioner for allotment of works of extraction and transfer of coal from Quary face of ashoka and Piperwar project by deploying surface miners, pay loaders and other allied equipments and transportation of transferred coal by contractor's tipping trucks to R M C/ Bachra/ K D H siding and Piperwar C P P/C H P siding, by not opening the Part -II tender of the petitioner. A further direction in the nature of mandamus is sought for, according consideration to the petitioner's tender for allotment of aforesaid works. Another prayer is made seeking restraint order for not allotting the works of contract, in question, in favour of respondents 4, 5 and 6, without considering the tender of the petitioner.
(2.) IT is relevant to briefly notice the factual background, as emerged from the pleadings of the parties. Respondent No. 3 issued Notice Inviting Tender (NIT) vide its Tender Notice No. CCL/CGM (T)/2005/139 to 144 dated 23rd December, 2005, inviting sealed tenders from reputed and experienced contractors for execution of the works, mentioned hereinabove. The tender was required to be submitted in two parts i.e. (i) Credential Part and (2) Rate Part. The NIT contained all other usual stipulations relating to the period of completion, the amount of earnest money and other instructions for submission of tender etc. Claiming to be qualified, petitioner filed his tender for all the three contract works, mentioned in the tender notice, and submitted his tender in two parts, Containing credential an rate. It is alleged that the petitioner complied all the conditions of NIT and submitted necessary documents, besides furnishing the bank guarantee to the tune of Rs. 50,00,000/ -(rupees fifty lacs) for each tender i.e. total Rs. 1.50 Crore. Respondents 4 to 6 are also the tenderers, who have submitted their tenders in response to the aforesaid NIT. As averred by the petitioner, the credential part of the tender was opened on 28thJanuary, 2006, wherein, all the tenderers, including the petitioner, were found to be eligible. The rate part was to be opened on a later date. It is stated that respondent No. 3 issued notices to some other tenderers, except the petitioner, inviting them to participate in the tender opening programme, scheduled to be held on 16thMay, 2006 at 1.00 p.m. in his office. Petitioner submits that he was expecting a similar call to him for participation in the tender opening programme in respect to the 2ndpart relating to rate. However, he was not invited for the purpose. Petitioner, accordingly, claims to have served a notice to respondent No. 3 on 16th May, 2006 itself i.e. the date fixed for opening of the 2nd part of the tender. Petitioner also claims to have met respondent No. 3 when allegedly he was assured of considering its tender. The opening of 2nd part of the tender was, however, postponed and it was finally opened on 28th June, 2006. Respondents 4 to 6 were invited to participate in the tender opening programme on the said date but the petitioner was again excluded from the participation. Petitioner has also stated that earlier it was awarded two contract works, which are being executed under Agreement No. CT/04/299 dated 16th August, 2004 and under Agreement No. PPR/CT/CTV 2005/81 dated 1st September, 2005. According to the petitioner, these works are being done by the petitioner to the full satisfaction of the respondents. Petitioner has also placed on record a certificate dated 17th December, 2005 (Annexure -3), wherein, its performance is stated to be satisfactory. It is also relevant to notice that this certificate has been issued at the request of the contractor for tendering purposes. Reference is also made to an earlier dispute between the parties in respect to an earlier contract, awarded -to the petitioner in the year, 2003, for which W.P.(C) No. 139 of 2004 is stated to be pending. However, in the rejoinder file, it is mentioned that this writ application has been withdrawn with a view to seek other available appropriate remedy. Petitioner has also mentioned that respondents 4 and 5 are not eligible for award of the contract, as they have abandoned an earlier awarded contract and, thus, they are not entitled to be considered in terms of Clause 5.4.3(b) of the NIT. Respondents 1 to 3 have filed their disclaimer to the writ application, resisting the writ petition and the reliefs, claimed therein, primarily on the ground that the petitioner has earned disqualification in terms of Clause 5.4.3 of the NIT dated 23rdDecember, 2005. It is alleged that earlier petitioner was awarded the work of extraction of coal by Surface Miner in Piparwar Mines against Tender Notice No. CCL/GM(T)/S.Miner -2/2003/83 dated 25th. January, 2003 but he even failed to commence the work. This led to loss of production and further action plan of Piparwar. The contract allotted to the petitioner had to be terminated and his earnest money was also forfeited, as communicated to the petitioner vide letter dated 8th December, 2003 (Annexure -A with the counter filed by respondents 1 to 3). Thus, the case of the respondents is that the petitioner is not entitled to be allotted the works, in question. Respondents have further stated that after receipt of tenders, submitted up to 25th January, 2006, the last date for submission of tenders, 28th January, 2006 was fixed for opening Part -I i.e. the credential part. However, for the 2nd part of the tender i.e. the rate part various formalities were to be completed by making scrutiny of more than 500 papers of each tenderer. On completion of formalities, on 15th May, 2006 notices were issued to the successful tenderers of technical part for opening of the rate part on 16th May, 2006 in terms of Clause 21.2 of general terms and conditions. Respondents have stated that only the qualified tenderers were issued such notices and petitioner, being not eligible, was not issued any such notice. It is further stated that the petitioner was aware of the fact that his tender was not opened in view of Clause 5.4.3. Respondents have further admitted the receipt of representation of the petitioner, filed on 16th May, 2006, but denied that any assurance was extended to the petitioner for consideration of its bid, relating to 2nd part. It is further mentioned that the representation of the petitioner was examined by respondent No. 3 and a report was submitted on 23rdJune, 2006, wherein, it is reported that the representation dated 16th May, 2006 has no merit. A copy of the report has been placed on record as Annexure -C with the counter affidavit. Respondents have mentioned that the 2nd part of the tender i.e. the rate part was finally opened on 28th June, 2006. These respondents as also respondents 4 and 5, who have also filed their counter affidavits, have denied the allegations of the petitioner that they were ineligible, having abandoned any earlier work, so allotted. -
(3.) WHEN this writ petition came up for consideration on 7thAugust, 2006 before Hon'ble the then Acting Chief Justice, following observations were recorded: One of the questions requires for determination in this case is whether before alleging poor performance such as abandoning the work and thereby before disqualifying a tenderer on that ground under Clause (b) of Sub -clause 5.4.3 of Clause 5 of the terms and conditions of Notice Inviting Tender whether the tenderer should have been given an opportunity of hearing by the authorities.;