M/S Jyoti Travel vs State Of U.P. Thru Secy. And 2 ...
2013 Latest Caselaw 6977 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 10
 

 
Case :- WRIT - C No. - 62466 of 2013
 

 
Petitioner :- M/S Jyoti Travel
 
Respondent :- State Of U.P. Thru Secy. And 2 Others
 
Counsel for Petitioner :- Anoop Trivedi
 
Counsel for Respondent :- C.S.C.,Vivek Varma
 

 
Hon'ble Arun Tandon,J.

Hon'ble Anjani Kumar Mishra,J.

Petitioner before this court seeks quashing of the tender notice published by Nagar Aayukt, Kanpur dated 7.11.2013 where under bids have been invited in the matter of vehicles being provided to Kanpur Nagar Nigam. The last date for submission of the bids was 16.4.2013.  Other conditions of the tender notice are stated to be available on the website of the Kanpur Nagar Nigam. The notice inviting tender is being challenged on the following facts.

An advertisement was published by Kanpur Nagar Nigam in the year 2012 inviting bids for supply of vehicles to the Nagar Nigam. The last date for submission of the tender was notified as 28.3.2012, and the tender were to be opened on the same date. According to the petitioner, he had submitted his tender which was found to be lowest.  Since he had satisfied all other conditions prescribed, an agreement was entered into between the petitioner and Kanpur Nagar Nigam on 31.3.2012 for supply of vehicles at the rate provided for in the agreement itself. It is admitted to the petitioner that in the tender notice, it was mentioned that the maximum period of contract was one year, and that in the agreement executed between the parties  it was further specifically stipulated that the same shall remain valid only upto one year from 1.4.2012 (reference page 22 of the paper book). It is the case of the petitioner that within three months of the contract having been granted in his favour, he made an application on 15.6.2012 for the term of the contract being extended for a further three years that is four years in all, and that on the said application of the petitioner a note was put up by Prabhari, Nagar Nigam, Kanpur on 16.6.2012 for the term of the contract being extended to four years in all.  The recommendation remained pending for nearly six months and all of a sudden on 11.3.2013, the Nagar Aayukt is stated to have made an endorsement that the term of contract be extended at same rates for a period of two years.  Accordingly an order is stated to have been issued in favour of the petitioner by the Prabhari Adhikari Care Taker on 31.5.2013.

According to the petitioner, an agreement was also executed between him and the Care Taker, Nagar Aayukt on the same date i.e. 31.3.2013  extending the period of contract for two years that is upto 31.3.2015. It appears that the permanent Nagar Aayukt was appointed, and the said Nagar Aayukt has decided to invite tenders for the supply of vehicles to the Nagar Nigam.  Accordingly the tender notice has been published on 7.11.2013 which is under challenge in the present writ petition. It is the case of the petitioner that the Nagar Aayukt is estopped from violating the agreement which was entered into between the petitioner and the Nagar Nigam, in the matter of extension is the term of contract and that such extension in the term of the contract is referable to Clause 10 of the conditions of the tender notice of the year 2012. He therefore, submits that so long as the extended term does not expire the Nagar Nigam is not entitled to invite  any fresh tenders. It is also his case that the waiver of the two conditions which were imposed earlier, namely, that the prospective bidder must have  25 vehicles, and that he must have a turn over  of three crores since last two years and should be registered as Taxi owner/ Operator for last three years have been deleted from the essential qualifications under the tender impugned, which according to him is arbitrary and that he has filed  an objection in the matter of deletion of these conditions which has not been considered.

Sri Vivek Verma, learned counsel for the Nagar Nigam submits that the extension of the term of the contract in favour of the petitioner was patently illegal, and in breach of the settled principles that contractual rights must be settled by public auction. The Nagar Nigam had committed an error in misreading  clause 10 and, therefore, on a permanent Nagar Aayukt being appointed and he being appraised of the true and correct factual position, a decision has been taken to settle the contract after permitting every eligible person to participate in the bidding which is in conformity with Article 14 of the Constitution of India.

He further submits that the deletion of the three conditions under the advertisements in question is for giving opportunity of larger participation in the matter of the supply of vehicles to the Nagar Nigam instead of creating a monopoly in favour of rich Taxi Operators like the petitioner. He submits that it is the domain of the Nagar Nigam to lay down such conditions which are fair and just, and the petitioner who is only one of the prospective candidates cannot insist on any conditions being incorporated and therefore, his objections are neither here nor there.

We have heard, the learned counsel for the parties and examined the record.

We may at the very outset record that the local bodies like Nagar Nigam are bound by the terms and conditions of the tender notice and the tender notice which held out to the public at large that the contract to be awarded was for a period of one year, then, it was not open to the authorities of the Nagar Nigam to extend this term of the contract merely on the making of an application by the person in whose favour the contract has been granted.  It has repeatedly being settled by the Apex Court that the State even in the matter of grant of largess has to  Act fairly and in conformity with Article 14 of the Constitution of India. The period of contract cannot be permitted to be extended contrary to the term notified in the tender notice merely on making of an application by the person who are successful in the auction.

So far as the Clause 10 of the tender notice which has been heavily relied upon by the learned counsel for the petitioner is concerned we feel it proper to reproduced the same:-

"10.Vahanaon ko adhiktam ek varsh ke liye anubandhit kiya jayega, jisko aavasktanusar ghataya/badhaya bhi ja sakta hain."

From a simple reading of the aforesaid clause, it is apparent that it provided that the maximum term of the contract shall be one year with the stipulation that it could be extended as per  essential requirements.

We are of the opinion that the clause has to be read in a manner to suggest that the extension beyond the period of the one year can only be made in exceptional circumstances, one of which could be that the settlement for the subsequent year could not be finalised for valid reasons, and in that circumstance, to avoid any vacuum, the contract period may be extended till fresh settlement takes place. The clause 10 cannot be read in a manner to suggest that is a routine manner just after  three months of the term of the contract had elapsed a recommendation could be made for extending the term from one year to four years merely because the work and performance of the contractor is satisfactory.

We are of the considered opinion that it is only for filling in the vacuum/interregnum i.e. between  end of the term of the first contract and the grant of fresh contract for the subsequent year that the period could have been extended and not beyond it. In the facts and circumstances of the case, we are satisfied that the decision taken by the Nagar Aayukt, Kanpur Nagar to re-advertise the contract so that all prospective applicants may participate is in conformity with Article 14 of the Constitution of India and, therefore, need not be interfered with by this Court. As already held above, the extension of the period of contract by two years in favour of the petitioner was patently arbitrary and in teeth of the conditions of tender as was notified in the year 2012 and, therefore, in our opinion is in-operative in the eyes of law.

So far as the plea qua, three conditions having been arbitrarily deleted namely, (a) the applicant is a registered taxi owner for more than two years (b) he should have an annual turn over of more than three crores in last two years and (c) that he should be possessed or more than 25 vehicles have been deleted in the background that more number of persons may  participate in the bidding and it cannot be said that the deletion of these conditions is arbitrary in any manner. We hold that it is within the domain of Nagar Nigam to lay down terms and conditions on which an applicant can be said to be eligible for submitting the tender. In the totality of the circumstances, we see no good ground to entertain this petition.

The writ petition is dismissed.

Order Date :- 14.11.2013

Priyanka