Sumer Singh vs Municipal Corporation Of Delhi
1997 Latest Caselaw 230 Del

JUDGMENT

Vijender Jain, J.

(1) The petitioner has contended that the respondents issued a public notice for inviting open bid for two years for removal of dead animals within the area following in Group 'B' within the jurisdiction of the Municipal Corporation of Delhi (in short "MCD"). The bid was to take place at 3.00 P.M. on 11.9.1996. Petitioner pursuant to the open bid deposited a sum of Rs.20,000/=. It is the case of the petitioner that he quoted Rs.10.10 lakhs which was highest amount and deposited 25% of the bid amount and 10% as security amount by 13.9.1996. Mr.R S Singh, learned counsel for the petitioner, has contended that the amount of Rs.2,52,500/ = being 25% of the bid amount was deposited vide Receipt No-311048 the Receipt inter alia mentioned "Contractual amount for removal of dead animals of Group 'B' for the year 1996-97 and 1997-98" and thereafter also deposited the security amount of Rs.81,000/ =. However, the respondents-MCD on 19.9.1996 informed the petitioner that the bid of the petitioner was approved at the rate of Rs.lO.IO lakhs per annum for the period ending 31.3.1997. The case of the petitioner is that the terms of the contract was changed without notice to the petitioner as the initial period was for two years and the curtailment of period by the respondents till 31.3.1997 was without notice to him and the respondent-Corporation is not entitled to change the terms of the contract.

(2) Learned counsel appearing for the respondents, Ms.Madhu Tewatia, contended that as the previous tenderers failed to lift the carcass, a short notice tender was flouted on 19.4.1996 in respect of Group 'B' and Group 'C'. In the meanwhile, the approved contractors .were asked in writing to continue to work till the work was awarded by the respondents. The tenders were opened on 10.5.1996 as none of the tenderers deposited the earnest money, however, after the contract, which was awarded to the other contractors of Group 'B' and Group 'C' on 13.5.1996 and 6.6.1996, was not executed nor the contractors deposited any amount with the MCD. Thereafter, the proposal for conducting fresh open bid was put up before the Board constituted by the Commissioner and notice for open bid was issued on 3.9.1996 and bid was fixed for 11.9.1996 after clubbing the area of both the Groups, i.e. Group'B' and Group 'C', into Group 'B'. The term of the bid was that the every intending bidder shall have to deposit a sum of Rs.20,000/ = before participation in the bid and will have to deposit 25% of the highest bid amount and 10% amount on account of security at the fall of hammer. Respondents have taken the stand in the counter affidavit at page-39 of the paper book that.

"IT was also made clear that the bid was upto the year 31.3.1997 and was being held because the earlier contractors had resiled from their contractual obligations by declining to perform the contract."

(3) It has contended by the counsel for the respondents that with effect from 1.4.1997 the respondent-corporation had decentralised the lifting of carcass zone-wise and the same will be carried on independently in 12 different zones of the MCD.

(4) I have given my careful consideration to the arguments advanced by the learned counsel for the parties at length. It is not disputed that a public notice was given by the respondents dated 3.9.1996, which is at page-21 of the paper book, that inter alia mentions that.

".....OPEN bid for lifting of dead animals besides cats, dogs and pigs from the Delhi Municipal Corporation area (Group-B) for a period of two years, besides Group-B (Live stock Market, Idgah Slaughter House) shall take place at 3 P.M. on 11.9.1996......."

(5) It is also contended by the petitioner that he has deposited a sum of Rs.2,52,500/ = for one year out of Rs.10.10 lakhs quoted by him in the bid as borne out from the 'Annexure-B', which is at page-23 of the paper book and the said amount was deposited on 13.9.1996.

(6) On the basis of this deposit, he has contended that respondent having received 25% of the bid amount for one year, cannot at a later stage unilaterally change the contract till 31.3.1997. I find considerable force in the arguments of the learned counsel for the petitioner. In some other proceedings pending in the Trial Court, i.e. proceedings of open bid, the period has been recorded as one year instead of two years. I have also perused the original proceedings of the bid which also state that the bid was for one year. It is strange that when it was so why the respondents in para-11 of its counter affidavit has taken the stand that it was made clear to the bidders that the bid was upto the year 31.3.1997. That averment is totally contrary to the records shown to the Court. I do not see any force in the argument of the learned counsel for the respondents that it was intended for one year and one year is also upto 31.3.199/ as the financial year starts from 1st of April in a year as per Section 267 of the Delhi Municipal Corporation Act. This argument is devoid of any force. The definition of year in Section 2 of sub-section 67 of Delhi Municipal Corporation Act relates to the year for which the Corporation has to prepare budget, levy of house tax and for other matters but when bid is invited for a specified period, Section 2 of the Delhi Municipal Act would not be attracted. It is the terms and conditions of the bid, which governs the period and once the respondents have issued notice inviting bid for two years, it was not appropriate for them to reduce the period without public notice. Even if the respondents had reduced the period from two years to one year as has been indicated by the proceedings of the bid, the stand of the respondents in the counter affidavit that the period was reduced from two years to the period ending on 31.3.1997 from the date of the award of the contract, does not seem to be plausible. Respondent was under an obligation while filing the counter affidavit to have taken the stand that though on the proceedings of the bid, the period was written one year but, as a matter of fact, it was intended to be ending by 31.3.1997. As a matter of fact, the counter affidavit gives entirely different version and what one would infer from the counter affidavit is that the period was reduced from two years to one expiring on 31.3.1997. This conduct is highly improper. But for the original record, the Court would have been misled that the bid was only for a period ending 31.3.1997.

(7) Coming to the arguments advanced by the learned counsel for the petitioner that in the absence of any notice to the petitioner, the respondents are not entitled to terminate the contract before two years. There is a letter dated 19.9.1996 on record filed by the respondent, which is at page-44 of the paper book,, inter alia informing the petitioner that his bid has been accepted at RS.IO.IO lakhs for the period ending 31.3.1997 from the date of the award of contract. Thereafter there is another notice issued by the respondent of the same date that the petitioner was approved contractor of the Mcd for removal of dead animals from entire Mcd areas except Live Stock Market of Idgah Slaughter House for the period ending 31.3.1997. Even after this notice and the letter, the petitioner deposited the amount as per receipt filed by the petitioner along with the petition, which at page-28 of the paper book, dated 23.12.1996, which gives credence to the defense put up by the respondent that-the petitioner has acquiesced to the period to be restricted to 31.3.1997. Even the legal notice sent by the petitioner, on which much reliance was placed by the learned counsel for the petitioner, is dated 14.2.1997, i.e. much after the letter of the respondents/MCD dated 19.9.1996 was duly received by the petitioner. In the facts and circumstances of the case, as the petitioner has acquiesced to the reduction of period and has been lifting the carcass and has paid the money, no relief in this writ petition can be granted to him.

(8) Before parting, however, I would like to observe that in the matter of public dealings and contract of this nature, henceforth, it is stated by the respondents/MCD that decentralisation regarding lifting of dead animals are done on zonal basis. However, in order to avoid public criticism and not to leave any room for suspicion, all the more when public money is involved, respondents must resort to issuing a public notice when terms of contract are altered or modified. In Civil Writ Petition No-4717/1996, which has been filed by one of the contractors, alleging that he has been deprived of bidding as he had no notice that the reserve amount will be reduced, as has been contended by the respondents in the present writ petition, the counsel for the petitioner in Cwp No-4717/1996, Mr.S.Dubey, has contended that it may be treated as public interest litigation so as to direct the respondents/MCD to be transparent in its dealings and in the event of any modification or amendment of terms of contract, if, has to be made, same may be done by issuance of a public notice inviting open tenders, it should not be done at the back of intending participants. I make it clear that all endeavours must be made by the respondents/MCD for ensuing tenders to specify the terms and conditions specifically regarding period of contract and the terms of the contract so that a group of people or a cartel does not take undue advantage of withholding of information or non-publication of certain terms.

(9) With these observations, this writ petition as well as C.W.P.No-4717/1996 is disposed of in terms of directions made above to the respondents.