Hanumanbux Umadutt vs Union of India & Ors

Heard Mr. B.K.Sharma, learned Sr. counsel assisted by Mr. R.Mazumdar, learned counsel on behalf of the petitioner as well as Mr. R.Debnath, learned CGC on behalf of the respondents.

The brief facts of the petitioner's case in a nutshell is that:

"The petitioner has preferred the present Writ Petition under Article 226 of the Constitution of India and the Laws framed thereunder being aggrieved by impugned actions of the respondent authorities in cancelling the tender process by issuing a corrigendum dated 04/09/2018 (Annexure 8) despite the tender having been awarded to the Writ Petitioner. The Writ Petitioner is also aggrieved for impugned arbitrary and illegal action of the respondent authorities in not issuing Work/Supply order pursuant to the work offer letter dated 02/07/2018 (Annexure 3).

In terms of Notice inviting tender dated 13/03/2018 (Annexure 1) published by the Director General, Assam Rifles calling for online tenders for procurement of Coat Combat Disruptive for Assam Rifles, the Writ Petitioner had furnished tender papers along with all requisites. The Petitioner was declared successful bidder and issued offer letter/letter of acceptance dated 02/07/2018 (Annexure 3) for supply of Coat Combat Disruptive. The petitioner thereafter deposited sample, security deposit and also placed order with the manufacturer for procurement.

However, the writ petitioner was not issued work order in spite of repeated request. On 05/09/2018, the respondent authority uploaded information regarding cancelation of tender process in terms of order dated 04/09/2018.

Hence this writ petition praying for appropriate relief."

Learned Sr. counsel for the petitioner had submitted that the petitioner was a successful bidder and for the reasons best known to the respondents all of a sudden all the tenders were cancelled on the ground of administrative difficulties. Hence, this instant petition.

Learned Sr. counsel also argued that the respondents has now brought on affidavit that the petitioner had submitted advance sample and final sample which does not tally, so learned Sr. counsel also raised the question that in such a case respondents should have given the petitioner an opportunity of being heard and then take necessary decision.

Learned Sr. counsel for the petitioner in support of his submission also relied on the following judgments of the Hon'ble Supreme Court:

(i) National Building Constructions Corporation Vs. S.Raghunathan and Ors. (1998) 7 SCC 66 para 18, 19, 24 & 26.

(ii) Union of India Vs. Hindustan Development Corporation Limited (1993) 3 SCC 499.

(iii) Tata Cellular Vs. Union of India and Ors. (1994) 6 SCC 651 para 77, 80, 82, 147, 148 & 151.

(iv) Union of India Vs. Anglo Afghan Agencies: Om Prakash AIR 1968 SC 718 para 7, 8, 16, 17, 19, 20 & 23.

(v) Mohinder Singh Gill & Anr. Vs. Chief Election Commissioner, New Delhi & Ors. (1978) 1 SCC 405 para 8.

On the other hand, learned CGC submitted that though it is a fact that the petitioner was a successful bidder but they tried to mislead the Assam Rifles (respondents) by submitting 2(two) samples; one is called advanced sample and the other is called the final sample. The advanced sample was acceptable but when the final sample was furnished, it was found that it was totally different from the advanced sample and as a result the entire bidding was cancelled and the authority decided to call for re-tender.

In support of his submission, learned CGC also relied on the following judgments of the Hon'ble Supreme Court.

(i) Rajasthan Cooperative Dairy Federation Ltd Vs. Maha Laxmi Mingrate Marketing Service Pvt. Ltd. & Ors. (1996) 10 SCC 405 para 7.

(ii) State of Punjab & Ors. Vs. Dhanjit Singh Sandhu (2014) 15 SCC 144 para 15.

After hearing the submission advanced by the learned counsels for the parties and the record available before me, I reiterate para 7, 8 & 9 of the judgment dated 26-09-2018 passed in WP(C). No. 121/2018 and further make it clear what are the criteria generally to be fulfilled by both the invitee of the tender as well as the supplier as discussed in para 7, 8 & 9 of the above said judgment which is reproduced herein below:

"7. After perusal of the case records of WP(C). No. 121/2018 and WP(C). No. 122/2018 and the submissions advanced by the learned counsels, I am of the considered view that NIT is the ground for tender and both the parties are bound by the terms and conditions of the NIT. Secondly, on principle, though the lowest bidder should get the tender, but it does not mean that the lowest bidder will supply the lowest quality of goods. Thirdly, invitee of the tender must select the bidder without any favour or dis-favour considering the eligibility of past experience and capacity to supply the quality of goods. 8. However, it does not mean that the new growing up firms who have not supplied earlier and does not have the past experience can be rejected only on that ground alone if otherwise, they fulfill all the terms and conditions of the NIT. 9. I am of the further view that while choosing the bidder, it is the invitee of the tender who will be the best person to select the eligible bidder as per terms and conditions of the NIT and no discrimination should be done to anyone".

However, in this case I agree that since the petitioner was asuccessful bidder and initially his bid was accepted both in technical and financial bid but the authority had taken the decision to cancel the tender on the ground of mismatch of samples, in such circumstances, respondents should have given the petitioner an opportunity of being heard and thereafter take the decision for re-tendering. Therefore, if the respondents wants to go for retendering they are at liberty to do so but they are directed to give the petitioner an opportunity of being heard before cancelling the tender on the ground of mismatch or any other grounds which violates the terms and conditions of the Notice Inviting Tender.

Accordingly, with this observation and direction, the instant writ petition stands disposed of. Stay order if any passed earlier stands vacated.

No order as to cost.