Sumer Singh vs Mcd & Others
2008 Latest Caselaw 2197 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  W.P.(C) 5784/2008

                 Judgment reserved on: 1st December, 2008

          Judgment pronounced on: 10th December, 2008

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      SUMER SINGH                  ..... Petitioner
                 Through: Mr. Apurb Lal, Advocate

                   versus

      MCD & OTHERS             .... Respondents
                 Through: Mr. Ravi Bassi, Adv. for
                 respondent Nos.1 to 3
                 Mr. C. Prakash, Adv. for
                 respondent No. 3

CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN

1. Whether Reporters of local papers may be allowed to see
   the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the digest?

                       JUDGMENT

MANMOHAN, J.

1. The present petition has been filed under Article 226 of

the Constitution of India seeking cancellation of award of tender

to respondent No. 4 for removal of dead animals in Najafgarh

zone awarded to respondent No. 4 and to consider the

WP(C)5784/2008 page 1 of 5 petitioner‟s subsequent higher offer so as to obviate any loss of

public revenue.

2. The learned counsel for the petitioner stated that the

petitioner is a registered contractor who has been enlisted with

MCD for removal of dead animals. He further stated that short

tender notices are issued every year by the MCD and in case,

the bid amount does not match with the amount tendered in the

previous year, the MCD‟s practice and policy has been to call

contractors for renegotiation and if in renegotiation, the

previous year‟s tendered amount is not accepted by the

contractor, then the work is re-tendered. To show that the MCD

has been following the above practice, the learned counsel for

the petitioner referred to MCD‟s letters dated 27th May, 2008

and 18th June, 2008 with regard to award of tender for removal

of dead animals in Civil Lines zone and Karol Bagh zone. The

petitioner‟s counsel also referred to an order passed by this

Court in Writ Petition (Civil) No. 2484/2007 titled as „Sumer

Singh v. MCD & others' dated 2nd April, 2007. The said order

is reproduced herein below for ready reference:-

"Petitioner, seeks to challenge the tender process and work sought to be awarded to respondents 5&6 for removal of dead animals from the Najafgarh and Narela zones. Petitioner, who was not even the bidder in the tender process, has no right to assail the tender process or seek the relief as sought in para 2 of the writ petition. Ms. Colette Kujur appears on behalf of Mr. Shivinder WP(C)5784/2008 page 2 of 5 Chopra, counsel for respondents with Dr. Sunil Ranga, V.O. It appears that MCD was seized of this matter and is conscious of the fact that the bids received this year are nearly 30% of the tendered amount for the preceding year. The low bids received this year from various bidders are apparently suggestive of a cartel.

In this view of the matter, MCD has taken a decision that highest bidder for this year be asked to match the tendered amount of the previous year, failing which, they would re-tender to avoid loss of revenue. We find nothing wrong in the above decision and no cause is made out for interference in the exercise of writ jurisdiction.

Dismissed."

(emphasis supplied)

3. The learned counsel for the petitioner pointed out that in

the present tender for removal of deal animals in Nazafgarh

zone, respondent No. 4‟s bid for a sum of Rs. 5,60,000/- for ten

months with effect from 1st June, 2008 had been accepted. He

submitted that, in the present instance, even though the

successful bidder‟s offer was only for Rs. 56,000/- per month in

comparison to the previous year‟s highest bid of Rs. 1,36,667/-

per month, the MCD had not called the contractors for re-

negotiation. He further stated that the petitioner vide his letter

dated July, 2008 had offered to pay a sum of Rs. 8,96,000/- for

the same work for remaining eight months, yet the MCD had

neither cancelled the work awarded to respondent No. 4 nor the

MCD had accepted the petitioner‟s higher offer.

WP(C)5784/2008 page 3 of 5

4. The learned counsels for the MCD as well as the

successful tenderer/respondent No. 4, pointed out that there

was no policy of re-negotiation and re-tendering in the event the

bid amount did not match with the previous year‟s accepted bid.

They stated that the Civil Lines and Karol Bagh Zones‟

documents as well as the above referred order dated 2nd April,

2007 were based on peculiar facts of the said tenders. For

instance, in the order dated 2nd April, 2007, it has been

specifically recorded that the MCD had taken the decision to re-

negotiate as it was of the view that the bidders had formed a

cartel.

5. The learned counsel pointed out that even if such a policy

as alleged by the petitioner is assumed to be in vogue, then also

respondent No. 4‟s bid for the present tender was not lower

than the previous year‟s tender as, this year, Najafgarh Zone

had been divided into three parts.

6. After hearing the parties and on perusal of the documents,

we are of the view that the petitioner has failed to show that

there is any MCD policy or any consistent practice to re-

negotiate and re-tender in case the bid amount does not match

the rates of previous year. In any event, we are in agreement

with the respondent‟s counsel submission that respondent No.

4‟s bid was not lower than the rates of the previous year as this

WP(C)5784/2008 page 4 of 5 year the Najafgarh zone had been divided into three parts and

respondent No. 4‟s bid was certainly more than 1/3rd of the last

year‟s accepted rate for the consolidated Najafgarh zone.

7. On perusal of the record, we also find that the petitioner

had participated in the impugned tender but had offered a lower

bid of Rs. 2,70,000/- in contrast to the highest bid of respondent

No. 4 for Rs. 5,60,000/-. In our view, if the petitioner believed

that the MCD‟s policy and consistent practice was not to award

tenders where the bid amount offered was lower than the rates

of the previous year, there is no valid explanation for the

petitioner to offer such a low bid of Rs. 2,70,000/- for a tender of

removal of dead animals for a period of ten months.

8. Consequently, keeping in view the petitioner‟s conduct

and the above mentioned facts, we are of the view that the

petitioner is not entitled to any relief in writ jurisdiction under

Article 226 of the Constitution of India. Therefore, the present

petition being devoid of merit is dismissed but with no order as

to costs.

MANMOHAN, J

MUKUL MUDGAL, J th DECEMBER 10 , 2008 NG WP(C)5784/2008 page 5 of 5