Allahabad High Court
Shripati Yadav vs State Of U.P. & 5 Others on 22 August, 2014
Bench: Amreshwar Pratap Sahi, Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 21
Case :- WRIT - C No. - 43712 of 2014
Petitioner :- Shripati Yadav
Respondent :- State Of U.P. & 5 Others
Counsel for Petitioner :- Shiv Avtar Sharma
Counsel for Respondent :- C.S.C.,Q.H. Siddiqui
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Vivek Kumar Birla,J.
Heard Sri Shiv Avtar Sharma, learned counsel for the petitioner and Sri V.K. Rai, learned counsel, who appears for the Jal Nigam.
The petitioner is aggrieved by the re-tender of the work in question by the respondent Jal Nigam on the ground that this action is arbitrary and in violation of Article 14 of the Constitution of India. The process of tendering and retendering without any basis is harassment.
The contention is founded on the basis of paragraph 364 of Chapter 12 of the Financial Hand Book, Volume 6.
The same is extracted herein below:
364. Usually the lowest tender should be accepted, unless there be some objection to the capability of the contractor, the security offered by him, or his execution of former work. At the same time acceptance or rejection of tenders is left entirely to the discretion of the officer to whom the duty is entrusted, and no explanation can be demanded of the cause of the rejection of his offer by any person making a tender. In cases where the lowest tender is not accepted, reasons should, however, be recorded confidently. In selecting the tender to be accepted the financial status of the individuals and firms tendering should be taken into consideration in addition to all other relevant factors.
Learned counsel for the petitioner submits that without any evident reasons having been recorded, the procedure adopted by the respondents in not proceeding with the lower officer of the petitioner, cannot be justified. No reasons have been recorded "confidently"
Such issues relating to award of contracts have to be adjudicated in terms of the provisions of the Indian Contract Act and the fundamental principles governing award of contracts that in our opinion provide that a tender is only an invitation to an offer. The petitioner, therefore, does not get any right nor is there any right so as to claim enforcement thereof against the respondent.
So far as Clause 364 is concerned, the same begins with the word "usually" and gives a guideline for the purpose of award of contract. In the aforesaid circumstances, once it is held that the petitioner has no legally enforceable right unless the contract is concluded the exercise of discretionary jurisdiction under Article 226 by this Court would not be a sound exercise of discretion at this stage.
In the event the contract is awarded contrary to rules or any legally decipherable prejudice is caused to an intending bidder, it is only then a cause of action can be said to have arisen. There is no such element involved.
Consequently, we are not inclined to entertain this petition and is hereby dismissed without prejudice to the rights of the petitioner to participate in any fresh bid that may be invited by the respondents.
Learned counsel for the petitioner has contended on the basis of oral instructions that even the fresh tender has been cancelled. We are not called upon to adjudicate any oral information without prejudice to the rights of the petitioner to challenge any action by which he may be prejudiced in law.
Order Date :- 22.8.2014
Puspendra
