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Judgment
Hasnain Massodi, J.â€"M/s. Road Master, Asphaltic & Granular Pavement Builder - a sole proprietary concern of Shri Muhammad Rafiq Kasab
S/o. Shri Muhammad Amin Kasab R/o Harnag, Anantnag, was allotted a contract by Border Roads Organization (BRO) vide its order dated
11.08.2013, for surfacing works between Km. 139.00 to Km. 146.00, Kishtwar-Sinthan Pass - Anantnag Road. Petitioner completed major part
of the contract well before the scheduled date. Respondents seemingly satisfied with petitioner's performance toyed with the idea to amend the
contract allotted to the petitioner and include surfacing work between Km. 146.00 to Km. 153.800 of same road in the contract. In other words,
the respondents wanted to get surfacing work from Km. 146.00 to Km. 153.800 executed by the petitioner at a cost of Rs. 12.233 crores.
Respondents instead of initiating a fresh tendering process to allot the aforesaid work, decided to amend the earlier contract awarded to the
petitioner and include the proposed within the contract on the terms and conditions set out therein, and as agreed by the petitioner.
Petitioner's case is that OC Contract, 99 Road Construction Company (GREF)-respondent No. 5 herein, vide its communication dated
23.12.2013, addressed to petitioner informed him that it was proposed to carry out amendment to the contract issued to execute the surfacing
work between Km. 146.00 to 153.800 Km. with same terms and conditions as set out in the existing contract and requested petitioner to convey
his consent to the proposed amendment. It is pleaded, that the petitioner in response to the aforementioned communication vide his letter dated
10.01.2014, conveyed his willingness to execute the surfacing work between Km. 146.00 and 153.800 Km. and consented to amendment of the
existing contract on the rates detailed therein. Petitioners case is that Director General, Border Roads Organization (DGBA) vide his
communication dated 20.01.2014, addressed to HQ CE(P) Beacon-respondent No. 3 herein, approved the proposed amendment to the existing
contract and the execution of surfacing work between Km. 146.00 to 153.80 Km Kishtwar-Sinthan Pass-Anantnag Road, at a cost of Rs. 12.233
crores as per the quantity and the rates conveyed vide HQ letter No. 800255/48/E8 dated 15.01.2014. HQ CE(P) Beacon (respondent No. 3),
was requested to issue amendment to the contract. He was also requested to confirm availability of funds. It appears that HQ CE(P) Beacon (vide
its communication No. 800255/02/E8 dated 17.2.2014), referred the matter to AO(P) Beacon for vetting before the amendment was issued.
A.O. (P) Beacon voiced some reservation about the proposal including one that the value of proposed amendment did not fall within competence
of the office. He recommended that the case be referred to IFA(BR) or MoD for concurrence/suitable direction. Concern were expressed about
lack of competence and transparency in case proposal was taken ahead.
HQ CE(P) Beacon, accordingly vide his communication dated 17th February 2014, addressed to Directorate General Border Roads (DGBR),
recommended that letter dated 20.01.2014, whereby petitioner was asked to give his consent to the proposed amendment be withdrawn and the
proposed contract work i.e., surfacing work between Km. 146.00 to Km. 153.80 be re-tendered.
Director (Contract) DGBR in its communication dated 24.02.2014, addressed to HQ CE(P) Beacon, reiterated that the existing contract for
the reasons detailed in the communication (deserved to be amended) and having regard to petitioner's performance and the rates quoted and to
avoid delay in surfacing work between Km. 146.00 to Km. 153.80 deserved to be amended surfacing and the work in question included in the
existing contract and get executed by the petitioner HQ CE(P) Beacon, was reminded that re-tendering the contract may result in higher rates and
increase in the project cost. DGBR-Respondent No. 3 nonetheless decided to go with the recommendation by A.O. (P) Beacon and issue a
tender notice. The Tender Notice was accordingly issued on 1.3.2014, and offers invited from the interested contractors to execute the work in
question i.e., surfacing of Km. 146 to Km. 153.80 Kishtwar - Sinthan Pass - Anantnag Road (NH-244).
Petitioner aggrieved with the Tender Notice dated 01.03.2014, annexed as Annexure-G to the petition, has come up with writ petition on hand.
He seeks quashment of the Tender Notice No. 800283/E8 dated 01.03.2014, issued by respondent No. 3 and writ of mandamus commanding
respondents and in particular respondent No. 3, to issue amendment to the contract No. CE(P) BCN/09/2013-14, as solicited by respondent No.
2 in terms of his letter dated 20.01.2014, to enable petitioner to execute the work i.e., surfacing of Km. 146.00 to Km. 153.80 Kishtwar-Sinthan
Pass-Anantnag Road for an amount of Rs. 12.233 crores.
Petitioner's case is that after he conveyed his consent to the amendment to existing contract and his willingness to execute the proposed work
and the proposal found approval of Directorate General Border Roads (DGBR) (respondent No. 2), the respondents were stripped of power to
issue tender notice and invite offers for the proposed work. Petitioner insists that the respondent No. 2 has competence in terms of BR Regulations
para-710/MES Regulation, to amend the contract as long as amended amount falls within the powers and that as having regard to the value of the
works sought to be included in the existing contract, respondent No. 2 was competent to accept the offer, he was clothed with power to approve
the amendment. Petitioner insists that the contract was concluded with the approval of respondent No. 2 and respondent No. 3 was required to
issue amendment to the existing contract enabling petitioner to execute the work i.e., surfacing work between Km. 146.00 Km. 153.800
Kishtwar-Sinthan Pass-Anantnag Road. Headquarter Chief Engineer, Project HQ CE(P) Beacon, according to petitioner lacked power and
jurisdiction to issue tender notice, issuing tender notice is illegal and liable to be set aside. It is next pleaded that the petitioner having on receipt of
communication dated 23.12.2013, whereby, he signify to convey his consent to the amendment to the existing contract and willingness to execute
surfacing of Km. 146.00 to Km. 153.800, procured laborers and arranged machinery. Respondents were estopped to tender the work to the
disadvantage of the petitioner. Respondent No. 3 is said to have acted in a mala fide manner and taken a decision to issue tender notice on
extraneous consideration.
The writ petition is opposed by the respondents on the grounds set out in their reply to the petition. Respondents maintain that decision to
amend the existing contract and include surfacing of Km. 146.00 to 153.800 in the existing contract was never finalized and communications
whatever relied upon by the petitioner were interdepartmental and did not create any rights in favor of the petitioner. Mere request of petitioner to
convey his consent and willingness to amendment and execution of the work, according to the respondents would not cast any obligation on the
respondents to amend the contract and include surfacing of 146.00 to Km. 153.800 in the existing contract. Respondent No. 3 is said to have
acted well within his powers by referring the matter to A.O. (P) Beacon for its opinion on the subject, and as A.O. (P) Beacon expressed his
reservation about the proposal, HQ CE(P) Beacon, as directed by Directorate General Border Roads (DGBR) vide communication dated
24.2.2014, rightly issued the tender notice. It is pointed out that decision to issue tender notice was taken by the Authority that initially approved
the proposal and the decision therefore did not suffer from any legal infirmity. Respondents on the ground urged in reply to the petition seek its
dismissal.
I have gone through the pleadings as well as record available on the file. I have heard learned counsel for the parties at length.
To conclude whether communications exchanged by the parties resulted in finalization of contract, saddling the parties with obligations under the
contract. We have to go to communications exchanged and attending circumstances. In case, it is held that the communications matured into a
contract, the respondents would be under contractual obligation to amend the existing contract, include surfacing of Km. 146.00 to Km. 153.80 in
the existing contract and allow the petitioner to execute the work. On the other hand, if it is held that the negotiations were in a formative stage and
contract between the parties was never concluded, respondents would be within their rights to tender surfacing of Km. 146.00 to 153.80
Kishtwar-Sinthan Pass-Anantnag Road.
The record available on the file would reveal that respondents taking note of petitioner's performance and having regard to execution of existing
contract i.e., surfacing of Km. 139.00 to Km. 146.00 and to avoid delay in execution of the project, nursed an idea to amend the earlier contract
i.e., surfacing of Km. 139.00 to Km. 146.00 and include the Km. 146.00 to Km. 153.80 in the earlier contract. In case, amendment proposed
was taken to its logical end, time consumed in the tendering process could be saved and the project commissioned without any delay.
As a first step to concretize the idea of amendment to the existing contract, it was necessary for the respondents to know whether petitioner
was ready and willing to execute the proposed work and to consent to amendment of the existing contract. In the said background, communication
dated 23.12.2013 was addressed by OC (respondent No. 5), to the petitioner. Petitioner vide his communication dated 10.01.2014, conveyed
his consent and willingness to proposed amendment to contract and to execute the work in question on the rates quoted in the communication. The
communication Dated 23.12.2013, therefore, is to be treated as ""Invitation to Offer"" and not an offer from respondent No. 5 to petitioner, and
accepted by petitioner. Petitioner vide communication dated 10.01.2014, in response to respondent No. 5's communication dated 23.12.2013,
made an offer to execute the work i.e., surfacing of Km. 146.00 to Km. 153.80 on the terms and conditions detailed therein. Let us see whether
this offer was ever accepted by the respondents.
The offer received from petitioner appears to have been forwarded by Director General Border Roads (DGBR)-respondent No. 3 vide
communication dated 4.01.2014 and 15.01.2014 to respondent No. 2 for necessary inputs. Director General Border Roads (DGBR), on receipt
of requisite information approved amendment to the existing contract and inclusion of surfacing work between Km. 146.00 to Km. 153.80 as per
the quantity and rates submitted by the HQ CE (P) Beacon vide communication dated 15.01.2014. Respondent No. 3 was asked to confirm
whether surfacing of KM. 146.00 to Km. 153.80 was included in CAP 2013-14 and sufficient funds were available for execution of the work.
The decision taken was conveyed by DD (Contract) on behalf of Directorate General Border Roads (DGBR) to the respondent No. 3 with
the request to issue amendment to contract at an earlier date. Respondent No. 2 instead of acting on communication dated 20.01.2014, referred
the matter to A.O. (P) Beacon for vetting the proposed amendment. The later opined that the amendment did not fall within competence of his
office, and recommended that the matter be referred to IFA (BR) for concurrence/suitable directions. Respondent No. 3 vide communication
dated 17.02.2014, addressed to HQ DGBR, having regard to the reservations voiced by A.O. (P) Beacon, against the proposal recommended
issuance of tender notice and cancellation of communication dated 20.01.2014 addressed to petitioner. The final decision to issue Tender Notice
was taken by Directorate General Border Roads (DGBR)-respondent No. 2 on the recommendations of respondent No. 3.
It is pertinent to point out that in order to conclude a contract, it is not sufficient that the offer is accepted by the party to whom offer is made.
The acceptance must be communicated to the off ere. It is only when the acceptance of offer is received by the offerer that a contract comes into
being. We are aware that acceptance of offer is complete as against the acceptor, when it comes to the knowledge of a person making the offer.
The acceptor, therefore, may revoke acceptance before it comes to the knowledge of person making the offer. Reference in this regard may be
made to Chapter 1 of Jammu and Kashmir Contract Act, Svt. 1977. The record available on the file would show that at no point of time
acceptance to offer was conveyed to the petitioner. The communications relied upon by the petitioner are in the nature of internal correspondence
at different levels in the department. The communication dated 20.01.2014, addressed by respondent No. 2 to respondent No. 3 was a step to
take final decision in the matter and would culminate into a contract only once the amendment was made in the existing contract and the decision
conveyed to the petitioner. Before final step in the matter would be taken, A.O. (P) Beacon, expressed his serious reservation regarding the
proposal. The objections were not overruled and respondent No. 2 and 3 decided to respect the views expressed by A.O. (P) Beacon, and
shelve the proposal. Against the said backdrop, the communications exchanged by the respondents and petitioner did not mature into a contract.
Resultantly, petitioner cannot seek enforcement of a contract that never concretized. The communications relied upon by the petitioner did not
cause an obligations on respondents to amend the existing contract, and by virtue of amendment allow surfacing of Km. 146.00 to Km. 153.800
to be executed by the petitioner.
Petitioner's case that in the wake of communication dated 23.12.2013, he altered his position, mobilised men and machinery to execute the
proposed work and that the respondents were estopped from issuing tender notice, does not sound convincing. It may be reiterated that at the
cost of repetition to that communication dated 23.12.2013, was nothing except an ""Invitation to Offer"". Though, petitioner responded to ""Invitation
to Offer"" by submitting his offer vide 10.01.2014, yet petitioner was not expected to mobilize any resources for the proposed work. Such an effort
was to be made only after the acceptance of the offer was conveyed to the petitioner and a formal contract concluded. In the circumstance, the
principle of estoppel does not operate against the respondents.
Viewed thus, petition is without any merit and accordingly dismissed. Interim direction if any in force, is vacated. Dismissed.