Manipur High Court
A.S. Khathing vs Lunsat Kipgen; & Ors on 30 May, 2022
KABORA Digitally signed
by
MBAM KABORAMBAM
SANDEEP SANDEEP IN THE HIGH COURT OF MANIPUR
SINGH
Date: 2022.05.31
SINGH 14:25:01 +05'30'
AT IMPHAL
W.A. No. 71 of 2021
A.S. Khathing
...Appellant
-Versus-
Lunsat Kipgen; & Ors.
... Respondents
With
W.A. No. 73 of 2021
Chingakham Sushil Singh
...Appellant
-Versus-
Lunsat Kipgen; & Ors.
... Respondents
With
W.A. No. 75 of 2021
State of Manipur; & Ors.
...Appellants
-Versus-
Lunsat Kipgen; & Ors.
... Respondents
With
W.A. No. 76 of 2021
State of Manipur; & Ors.
...Appellant
-Versus-
Lunsat Kipgen; & Ors.
... Respondents
With
MC (W.A.) No. 122 of 2021
[Ref: W.A. No. 71 of 2021]
A.S. Khathing
...Applicant
-Versus-
Shri Lunsat Kipgen; & Ors.
... Respondents
W.A. No. 71 of 2021; & Ors. Page 1
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
HON'BLE MR. JUSTICE LANUSUNGKUM JAMIR
ORDER (ORAL)
30.05.2022
Sanjay Kumar (C.J.):
[1] By common judgment & order dated 22.11.2021, a learned Judge
of this Court allowed W.P. (C) Nos. 355 and 356 of 2019. In consequence, the
work order dated 28.02.2019 in respect of Package No. MN0 661 and the work
order dated 19.02.2019 in respect of Package No. MN0 6323, issued in favour
of respondent No. 4 in each writ petition, were quashed and the authorities were
directed to ensure that the work orders in respect of these Packages were issued
in favour of the writ petitioner within a time frame.
Aggrieved thereby, respondent No. 4 in W.P. (C) No. 355 of 2019
filed W.A. No. 71 of 2021 while respondent No. 4 in W.P. (C) No. 356 of 2019
filed W.A. No. 73 of 2021. The State of Manipur and its authorities filed W.A.
No. 75 of 2021 aggrieved by the common judgment & order in so far as it
pertained to W.P. (C) No. 335 of 2019 and they filed W.A. No. 76 of 2021 in so
far as it related to W.P. (C) No. 356 of 2019. MC (W.A.) No. 122 of 2021 was
filed in W.A. No. 71 of 2021 seeking suspension/stay of the judgment and order.
[2] Heard HS Paonam, learned senior counsel, appearing for the
appellant in W.A. No. 71 of 2021; Mr. N. Jotendro, learned senior counsel,
appearing for the appellant in W.A. No. 73 of 2021; Mr. S. Niranjan, learned
Government Advocate, appearing for the appellants in W.A. No. 75 & 76 of 2021;
W.A. No. 71 of 2021; & Ors. Page 2
and Mr. Kh. Tarunkumar, learned counsel for the contesting respondent No. 1
in all the writ appeals, the petitioner in W.P. (C) Nos. 355 and 356 of 2019.
[3] The irrefutable facts in this matter manifest the sorry state of
affairs prevailing in the State of Manipur in so far as award of contracts is
concerned. Blatant nepotism and favoritism displayed by the authorities to tilt
the balance in favour of their 'blue eyed boys', to the exclusion of worthy
contractors and to the detriment of public interest and the exchequer, is rampant
in the State of Manipur. Award of the work orders in relation to the two subject
Packages is a case in point.
[4] The bids for the two Packages were to be initially valid for a period
of 90 days. As rightly pointed out by the learned Judge, this was to enable the
authorities to complete the tendering process within that time frame. If they
failed to do so, it was for the authorities to request the bidders to extend the
validity of their bids. Surprisingly, only respondent No. 1/writ petitioner was held
disqualified on that ground. It is not forthcoming from the record as to how the
bids of the other two contractors, viz., the appellants in W.A. Nos. 71 & 73 of
2021, stood extended and under what circumstances. The undeniable fact also
remains that respondent No.1/writ petitioner was the lowest bidder, but his bid
was overlooked and work orders were issued to the other two contractors, at a
greater cost for the State and the Exchequer. The authorities even went to the
extent of suppressing material facts from this Court. According to them, the
Tender Committee had taken a decision on 15.10.2018 that the bids of the two
chosen contractors were more responsive and that respondent No. 1/writ
petitioner had failed to extend the validity of his bid. However, this fact was not
W.A. No. 71 of 2021; & Ors. Page 3
disclosed to the Court on 20.02.2019, when W.P. (C) No. 135 of 2019 filed by
respondent No.1/writ petitioner was disposed of, directing the authorities to
consider his representations before issuing the work orders for the subject
Packages. The learned Judge was therefore perfectly justified in holding that the
process of tender was not conducted in a transparent manner by the authorities
and that they had done so in such a way so as to favour selected contractors.
[5] This being the pathetic state of affairs prevailing, this Court is
informed that the selected contractors completed a major portion of the work in
relation to both Packages. In so far as Package No. MN0 661 is concerned, Mr.
Gunabanta, learned counsel, would state that approximately 46% of the work
stands completed, while in relation to Package No. MN0 6323, Mr. N. Jotendro,
learned senior counsel, would state that the work is almost complete.
That being one aspect of the matter, this Court is informed that
the latest edict of the Supreme Court, in terms of the decision in M/S. N.G.
Projects Limited Vs. M/S. Vinod Kumar Jain & Ors. [Civil Appeal No.
1846 of 2022 dated 21.03.2022], is that, even if this Court finds that there
is total arbitrariness or that the tender has been granted in a malafide manner,
still this Court should refrain from interfering with the grant of tender and,
instead, relegate the party to seek damages for wrongful exclusion.
[6] That being so, this Court finds no purpose served in turning back
the clock at this stage and directing award of these partly-completed contracts
to respondent No. 1/writ petitioner, who was subjected to patent injustice
despite being the lowest bidder. In terms of the liberty envisaged by the
Supreme Court, it is left open to respondent No. 1/writ petitioner to approach
the competent Civil Court and seek damages for his wrongful exclusion from
W.A. No. 71 of 2021; & Ors. Page 4
participating in the tender process for the subject works. It would be open to
him to implead, in their personal capacity, the members of the Tender
Committee and all others in the Government hierarchy who were responsible for
his exclusion and seek damages from them individually also.
The State of Manipur would be well advised to put its house in order
at least in future so that these planned and deliberate injustices are not
perpetuated at the cost of public interest and the exchequer.
This Court need say no more.
The writ appeals are disposed of with the above observations.
In consequence, MC (W.A.) No. 122 of 2021 shall stand closed.
A copy of this order shall be forwarded to the Chief Secretary, State
of Manipur, for guidance and necessary action in future cases.
Though highly deserving, we refrain from imposing costs.
JUDGE CHIEF JUSTICE
Sandeep
W.A. No. 71 of 2021; & Ors. Page 5
