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Judgment
Heard Mr. K. Rohan, learned counsel for the petitioner in Writ Petition (C) No. 3024 of 2022, Mr. Abhyuday Singh, learned counsel for the petitioner in Writ Petition (C) No. 3045 of 2022 and Mr. Manoj Paranjpe, learned counsel for the petitioner in Writ Petition (C) No. 3075 of 2022. Also heard Mr. Vikram Sharma, learned Government Advocate, appearing for respondents No. 1 to 3 and Mr. Pankaj Agrawal, learned counsel, appearing for respondents No. 4 & 5 in all the cases.
In all the three petitions, identical clause, being clause No. 13 of Notice Inviting Tender (NIT) in respect of system tender Nos. 101848, 101863 and 101866, has been assailed with a further prayer to permit them to take part in the tendering process. Petitioner in WPC No. 3024 of 2022 seeks participation in system tender No. 101848; petitioner in WPC No. 3045 of 2022 in system tender No. 10866 and petitioner in WPC No. 3075 of 2022 in system tender No. 101863.
Subject matter of NIT in all the three cases pertains to construction of “RCC Drain” at different locations within the municipal limits of Korba. Clause No. 13, which prescribes a pre-eligibility criteria, essentially, requires that the intending tenderers should have completed 80% of the tender amount in respect of work of similar nature (RCC Drainage) in a single work order in the last 3 years.
Subsequently, a corrigendum was issued on 24.06.2022 replacing “80%” in the NIT dated 06.06.2022 by “60%” and also replacing “RCC Drainage” “by RCC”. On the very same day, another corrigendum came to be issued again inserting the word “Drainage” along with the word “RCC”.
The learned counsel for the petitioners submit that for construction of a drain, it is not necessary that one must have experience in construction of drain only and anybody who is doing civil work can undertake such works, and therefore, insertion of word “RCC Drainage” is arbitrary and wholly uncalled for and by such insertion, the competition is sought to be restricted only to those contractors, who had such experience and not to contractors like the petitioners, who are otherwise undertaking civil works.
Arguments are also advanced that the very insertion of pre-eligibilty criteria is not countenanced in view of guidelines issued by the Urban Administration Development Department, which is applicable to the Municipal Corporation, Korba.
Mr. Pankaj Agrawal, learned counsel, appearing for respondents No. 4 & 5 submits that the word “Drainage” in the first corrigendum dated 24.06.2022 was inadvertently dropped and to rectify the same, the second corrigendum was issued on 24.06.2022 itself. By issuing the corrigendum, essentially, the figure “80%” was sought to be replaced by “60%”. He has specifically urged that the writ petitions ought not to be entertained inasmuch as the same have been filed after the last date of submission of tender was over. It is also submitted by Mr. Agrawal that financial bid has been opened in respect of system tender No. 101863 on 11.07.2022 and that financial bid has been opened in respect of system tender Nos. 101848 and 101866 today.
The learned counsel for the petitioners submit that the petitioners had raised the issue with regard to the condition at clause 13 of the NIT before the authorities concerned and as they were given to understand that the grievance of the petitioners would be redressed, they were under the bonafide impression that the authorities will take remedial steps and it is in that circumstance, there was some delay in approaching the Court, which may not be held against the petitioners in the facts and circumstances of the case.
The last date of submission of all three NITs was 02.07.2022 and the writ petitions were filed on 06.07.2022. Even assuming that some assurance was given, then also, there can be no justification for not approaching the Court before the last date of submission of tender was over.
In that view of the matter, we are inclined to accept the submission of Mr. Agrawal that in the present factual scenario, the writ petitions, having regard to the prayers made, ought not to be entertained.
In the aforesaid circumstances, we are not inclined to entertain the writ petitions and accordingly, the same are dismissed. We have expressed no opinion on the merits of the contentions as raised in the petitions and they are left open to be decided in an appropriate case in future.