in the tender conditions or in any rules/regulations is there any condition
that the spouse of a Councillor of a Nagar Panchayat cannot bid for a
tender or cannot be awarded a contract by the said Nagar Panchayat.
We have specifically asked Learned Counsel appearing for the
State/Respondents No.1 and 2 and Learned Counsel appearing for
Respondent No.3 about existence of any such condition. They have
admitted that there is no such condition, but this healthy practice is
adopted to avoid corruption. According to the Learned Counsel, a
Councillor can influence award or non-award of a contract and, therefore,
this decision was taken.
6. We are clearly of the view that the condition as such cannot be said
to be illegal. However, if any such condition had to be imposed, the same
should have been clearly mentioned in the NIT or appropriate guidelines
should have been issued in this regard that tenders submitted by persons,
who are relatives of the officers, employees, Councillor or of other elected
office bearers of the Nagar Panchayat will not be accepted. Had such a
condition been imposed, we would have no trouble in upholding the same.
However, we are clearly of the view that the rules of a game cannot be
changed after it has begun. When the NIT was issued, tender was
submitted by the Petitioner and his tender was approved by the Tender
Committee and forwarded to Respondent No.2, the Executive Engineer
for his approval, this condition was neither there nor brought to the notice
of any authority or the Petitioner. It is only after the wife of the Petitioner
lost the election, the Petitioner was denied the allotment of the works for
which he was the successful bidder.
7. We have, therefore, no hesitation in holding that Respondent No.2,4
the Executive Engineer took a decision beyond his jurisdiction in rejecting
the tender of the Petitioner on a ground which did not find mention either
in the NIT or in the tender documents or any of the rules or regulations of
the Nagar Panchayat. The decision of rejecting the tender of the
Petitioner is accordingly set aside.
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (C) No.663 of 2016
Roshan Gupta,
v
State of Chhattisgarh
Dated:18.7.2016
Citation:AIR 2016 (NOC)656 Chh
1. By the instant petition, the Petitioner has challenged the action of
the Respondents/State in dis-approving/rejecting his tender on the ground
that at the time when the tender was submitted by him, his wife was a
Councillor in Nagar Panchayat Sitapur, District Surguja. The Petitioner
has sought quashing of the Notice Inviting Tender (NIT) dated 20.2.2016.
2. Briefly stated, the facts of the case are that Respondent No.3, the
Chief Municipal Officer, Nagar Panchayat, Sitapur issued an NIT for
carrying out of number of works. The Petitioner submitted his tender for
the works prescribed at Serial No.1 to 7 and 20 of the NIT. It appears that
thereafter a notification was issued by the State Election Commission for
holding elections in Municipal Corporations/Municipalities/Nagar
Panchayats and consequently, the model code of conduct came into force
and as a result thereof tenders were not opened and kept in abeyance.
Thereafter, in view of the order passed by this Court in Writ Petition (PIL)
No.48 of 2014, the State Election Commission stayed the election
programme. Thereafter, Respondent No.3 proceeded to finalise the
tender process and the tenders were opened on 21.11.2014. The tender
of the Petitioner was approved by the Tender Committee of the Nagar
Panchayat Sitapur for items mentioned at Serial No.1 to 5 and 18. The
Tender Committee forwarded the same for approval to Respondent No.2,
the Executive Engineer, Urban Administration and Development
Department, Regional Office Ambikapur, District Surguja.
3. In the meantime, the State Election Commission issued a fresh
notification and election programme for the said elections and again a
model code of conduct came into force. As a result thereof, the tender
process was again halted. The election process completed in January,
2015. Thereafter, on 23.11.2015, Respondent No.3 initiated steps to
finalise the tender and wrote a letter to Respondent No.2, the Executive
Engineer requesting him to approve the recommendation of the Tender
Committee. It appears that Respondent No.2, the Executive Engineer
raised some queries and in response to the queries, Respondent No.3
submitted that the wife of the Petitioner was a Councillor in Nagar
Panchayat Sitapur before the election process was completed, i.e., she
was a Councillor at the time when the NIT was issued, the tender was
submitted and even at the time when the tender of the Petitioner was
approved by the Tender Committee. After this response, tenders were
allotted to all the other successful bidders for other works except for the
works mentioned at Serial No.1 to 5 and 18 for which works the most
successful bidder was the Petitioner and the tender of the Petitioner was
cancelled on the ground that since the wife of the Petitioner was a
Councillor in the Nagar Panchayat, he could not be awarded the contract.
A tender for the said works has again been re-floated and, therefore, this
writ petition. 3
4. We have heard Learned Counsel appearing for the parties and
perused the petition and the documents annexed thereto.
5. On behalf of the Petitioner, it is submitted that neither in the NIT nor
in the tender conditions or in any rules/regulations is there any condition
that the spouse of a Councillor of a Nagar Panchayat cannot bid for a
tender or cannot be awarded a contract by the said Nagar Panchayat.
We have specifically asked Learned Counsel appearing for the
State/Respondents No.1 and 2 and Learned Counsel appearing for
Respondent No.3 about existence of any such condition. They have
admitted that there is no such condition, but this healthy practice is
adopted to avoid corruption. According to the Learned Counsel, a
Councillor can influence award or non-award of a contract and, therefore,
this decision was taken.
6. We are clearly of the view that the condition as such cannot be said
to be illegal. However, if any such condition had to be imposed, the same
should have been clearly mentioned in the NIT or appropriate guidelines
should have been issued in this regard that tenders submitted by persons,
who are relatives of the officers, employees, Councillor or of other elected
office bearers of the Nagar Panchayat will not be accepted. Had such a
condition been imposed, we would have no trouble in upholding the same.
However, we are clearly of the view that the rules of a game cannot be
changed after it has begun. When the NIT was issued, tender was
submitted by the Petitioner and his tender was approved by the Tender
Committee and forwarded to Respondent No.2, the Executive Engineer
for his approval, this condition was neither there nor brought to the notice
of any authority or the Petitioner. It is only after the wife of the Petitioner
lost the election, the Petitioner was denied the allotment of the works for
which he was the successful bidder.
7. We have, therefore, no hesitation in holding that Respondent No.2,4
the Executive Engineer took a decision beyond his jurisdiction in rejecting
the tender of the Petitioner on a ground which did not find mention either
in the NIT or in the tender documents or any of the rules or regulations of
the Nagar Panchayat. The decision of rejecting the tender of the
Petitioner is accordingly set aside. We direct Respondent No.2, the
Executive Engineer to reconsider the case of the Petitioner for award of
contract relating to the items mentioned at aforesaid Serial No.1 to 5 and
18. The said reconsideration be done within four weeks from the date of
receipt/presentation of a copy of this order.
8. With the aforesaid observations, the writ petition is disposed of.
Sd/- Sd/-
(Deepak Gupta) (Sanjay K. Agrawal)
CHIEF JUSTICE JUDGE
Gopal
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