BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/12/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA W.P(MD)No.9823 of 2008 and M.P(MD)No.1 of 2008 A.Asan Jaffer Ali . . . Petitioner Vs. 1.The Assistant Engineer, Public Works Department, Buildings Construction Section, Cheranmahadevi - 627 414, Tirunelveli District. 2.The Executive Engineer, Public Works Department, Building Construction Division, Palayamkottai, Tirunelveli District. . . . Respondents PRAYER Writ petition filed under Article 226 of the Constitution of India, praying to issue a writ of certiorarified mandamus, to call for the records pertaining to the impugned cancellation order of tender of the first respondent in Ka.No.2/Po.Ma/Ambai/dated 29.10.2008 issued to the petitioner and quash the same as illegal and arbitrary and consequently direct the first respondent to issue work order of dismantling the Old Maternity Block and O.P. Block at Ambasamudram Government Hospital to the petitioner. !For Petitioner ... Mr.R.R.Kannan ^For Respondents... Mr.R.Janakiramulu Special Government Pleader * * * * :ORDER
This writ petition has been filed to to call for the records pertaining to
the impugned cancellation order of tender of the first respondent in
Ka.No.2/Po.Ma/Ambai/dated 29.10.2008 issued to the petitioner and quash the same
as illegal and arbitrary and consequently direct the first respondent to issue
work order of dismantling the Old Maternity Block and O.P. Block at Ambasamudram
Government Hospital to the petitioner.
2. Heard the learned counsel appearing for the petitioner and also
Mr.R.Janakiramulu, learned Special Government Pleader, appearing for the
respondents.
3. The facts giving rise to the filing of this writ petition as stood
exposited from the averments in the affidavit accompanying the writ petition as
well as from the submissions made by the learned counsel for the petitioner
could succinctly and precisely, tersely and briefly be set out thus:
The petitioner in response to the publication relating to invitation to
tender, filed tender offering a sum of Rs.4,74,000/- (Rupees four lakhs and
seventy four thousand only). In fact out of nine bidders, he was the highest
bidder. He also deposited the entire amount as per the terms and conditions of
the auction. However, instead of confirming the bid, all in a sudden, the
auction proceedings were cancelled by the first respondent viz., the Assistant
Engineer, Public Works Department, Buildings Works Department, Buildings
Construction Section, Cheranmahadevi – 627 414, Tirunelveli District and made
publication calling for fresh tenders relating to the same matter.
4. Being aggrieved by and dissatisfied with such act of the first
respondent, this writ petition is focused on various grounds inter-alia thus:
Even though there was nothing wrong in the entire auction proceedings
conducted earlier, without any sound reason, the first respondent cancelled it
on some imaginary and flimsy grounds.
5. Whereas the learned Special Government Pleader at the time of hearing,
came forward with the case that the first respondent was in receipt of lot
complaints, as though the work viz., the demolition of the building would have
fetched high bit of Rs.7,50,000/- (Rupees seven lakhs and fifty thousand only)
and that it was knocked only for a smaller amount of Rs.4,74,000/- (Rupees four
lakhs and seventy four thousand only).
6. Thereupon this Court wanted to see the reality and pass the earlier
order dated 20.11.2008 and it is extracted here under:
“6. Now then, what I could understand at this juncture, is that the
authorities, it appears, felt from the representations received from various
persons as though fresh auction if conducted, it would fetch more auction
amount, over and above Rs.4,74,000/- (Rupees four lakhs and seventy four
thousand only), which was offered by the petitioner and deposited by him.
Hence, this Court in this singularly singular circumstance, wants to verify as
to what is the reality. In the intended fresh auction by tender, if some
persons come forward with much higher amount, then certainly the Government
would be vindicating its stand. But on the other hand, if they would only be a
marginal difference, the petitioner’s cause would get vindicated. Hence, in
these circumstances, the petitioner’s tender and the deposited amount, shall be
kept in tact. Meanwhile, the fresh tenders shall be called by fixing up a cut
off date, so to say ten days from this date and after collecting tenders in
sealed covers, the same shall be opened in the presence of the petitioner and
thereupon the respondents shall prepare a list of those new tenders and present
the same along with the earlier tender i.e., the tender already submitted by the
petitioner, thereupon the Court could see the realities and pass suitable
orders.
7. The learned counsel for the petitioner would make an extempore
submission to the effect that the petitioner also might be given the opportunity
to participate in the said fresh auction by tender and he is permitted to do
so”.
7. In response to the said order, keeping the earlier proceedings in tact,
the second auction proceedings were conducted so as to see as to what was the
response from the bidders. The second auction was conducted on 04.12.2008 and
today the learned Special Government Pleader presented the Executive Engineer’s
Report and it is extracted here under for ready reference:
The details of the reauction in sealed covers, as ordered by High Court,
conducted on 04.12.2008 is detailed as below.
11 persons have come forward to buy tender schedule forms and the forms
had been issued to all the eleven persons. Out of these, 3 sealed covers were
received in this office upto 3.00 p.m. on 04.12.2008. The three tenders have
been opened in the presence of Thiru.A.Asan jaffer Ali as instructed by the High
Court and other tenderers who wish to be present.
The bid amount quoted by them are as follows:
1)Thiru.N.Durai, Madurai – Rs.4,78,000/-
2)Thiru.K.Rajendran, Madurai – Rs.5,10,000/-
3)Thiru.M.Arunkumar, Palayamkottai
– Rs.5,11,000/-
Among the tenderers, Thiru.M.Arunkumar, Palayamkottai is the highest
bidder with bid amoutn of Rs.5,11,000/- (Rupees Five Lakhs Eleven Thousand
Only).
A statement of the reauction conducted and the statement of the earlier
auction conducted on 16.10.2008 is submitted for getting the orders of the High
Court”
8. Both sides advanced arguments on the report submitted by the Executive
Engineer. The learned counsel for the petitioner would appositely and
appropriately and convincingly too argue that now it has been made very clear
that the first respondent on flimsy grounds went for second auction as the
second auction attracted only a marginal higher amount so to say Rs.5,11,000/-
(Rupees five lakhs and eleven thousand only).
9. The learned Special Government Pleader could not substantiate as to why
the first respondent failed to get a bid of Rs.7,50,000/- (Rupees seven lakhs
and fifty thousand only) as earlier put forth on the side of the officials.
10. Hence, in these circumstances, it is crystal clear that based on some
allegations made as against the first auction proceedings, the first respondent
without objectively assessing the situation, simply went for second auction,
which actually exposed the error in the act of the first respondent in
cancelling the first auction. Simply because in the second auction, one person
viz., M.Arunkumar bid for Rs.5,11,000/- (Rupees five lakhs and eleven thousand
only) and as such there is only marginal difference between the petitioner’s bid
in the first auction and the other one, I would like to hold that the first
auction is a valid one and the first respondent was not justified in cancelling
the same. Accordingly, justice warrants interference and the work should be
allotted to the petitioner by the first respondent accepting the bid for
Rs.4,74,000/- (Rupees four lakhs and seventy four thousand only) and accordingly
the impugned cancellation order of the first respondent is quashed.
6. With the above said observations and direction, this Writ Petition is
allowed. No costs. Consequently, connected Miscellaneous Petition is closed.
smn
To
1.The Assistant Engineer,
Public Works Department,
Buildings Construction Section,
Cheranmahadevi – 627 414,
Tirunelveli District.
2.The Executive Engineer,
Public Works Department,
Building Construction Division,
Palayamkottai,
Tirunelveli District.