Gauhati High CourtThe Assam Government Marketing ... vs The State Of Assam And 2 Ors on 26 March, 20151




                     IN THE GAUHATI HIGH COURT
          (The High Court of Assam, Nagaland, Mizoram & Arunachal Pradesh)

                                     WP(C) 1391/2015
                                      MC No. 795/15
                                      MC No. 844/15
                                      CAVT. 371/15


        The Assam Government Marketing
        Corporation Ltd., having its
        Registered Office at Pragjotika
        Bhawan, G.N.B. Road, Ambari,
        Guwahati-781001, Kamrup(M), Assam
        and represented by its Managing Director               ------- Petitioner


        1. The State of Assam
           Represented by the
           Commissioner and Secretary to
           the Government of Assam,
           Department of Social Welfare,
           Guwahati-6, Assam.

        2. The Director,
           Social Welfare,
           Uzan Bazar,
           Guwahati-1, Assam.

        3. The Superintendent,
           Directorate of Social Welfare,
           Uzan Bazar, Guwahati-1, Assam.

        4. M/s G.R. Traders,
           Having office at Rehabari, Milan
           Path, Kamrup(M), Assam
           represented by its proprietor
           Sri Arun Chandra Gogoi,
           S/o-Khageswar Gogoi,
           Resident of Bihutali,
           Rukminigaon,
           P.S. Dispur, Guwahati.                     ...       RespondentsBEFORE
                     HON'BLE Mr. JUSTICE MANOJIT BHUYAN

For the Petitioner              ::     Mr. T.J. Mahanta
                                       Mr. N.C. Das
                                                  ......learned counsel for the petitioner2For the Respondents             ::     Mr. A.M. Buzarbaruah
                                       Mr. J.I. Borbhuiya
                                       Ms. S. Saikia

                                              ......learned counsel for the respondents

Date of hearing                 ::     26.03.2015

Date of delivery of Judgment    ::     26.03.2015




                         JUDGMENT & ORDER(ORAL)


       Heard Mr. T.J. Mahanta, learned senior counsel appearing for the
petitioner and assisted by Mr. N.C. Das, Advocate. Also heard Mr. A.M.
Buzarbaruah, learned senior counsel appearing on behalf of respondent Nos. 2 &
3, assisted by Ms. S. Saikia, Advocate as well as Mr. J.I. Borbhuiya, learned
counsel representing the Private Respondent No. 4. All the parties are
represented and also agree that this matter can be taken-up for final disposal.2.         On 8th of July a notice inviting tender was issued for supply of
ICDS Pre-School Kits required for Anganwadi Centres on rate contract basis to be
supplied at the centres scattered all over the State of Assam. Pursuant to the
said notice inviting tender there were 34 bidders in the fray, out of which only 7
were considered to be valid tenderers, which also included the petitioner as well
as the Respondent No. 4. It is the case of the petitioner that work orders dated
24.12.2014 had been issued in favour of the petitioner. However, the same was
received at the petitioner's end only on 17 of February, 2015. On 25.02.2015 the
petitioner had informed the Social Welfare Department of the delay in receiving
the work orders as well as the fact of having issued supply orders to its
registered vendors towards compliance of the work orders in question.3.         The petitioner is aggrieved of the order dated 03.03.2015 whereby
the petitioner was informed of the cancellation of the work orders dated
24.12.2014 on grounds of violation of Clause 8.1, Clause 17 of the terms and
conditions as well as the conditions laid down in para 4 of the Indent i.e. the3work orders dated 24.12.2014. The petitioner also puts to challenge the Work
Order dated 04.03.2015 whereby the work allotted to the petitioner had been
realloted to the Respondent No. 4.4.     The basic challenge to the orders dated 03.03.2015 and
04.03.2015, as indicated above, are that Clause 8.1 is wholly inapplicable,
inasmuch as, the time period of 21 days is not indicated therein. In respect of
the allegation that Clause 17 had been violated, the petitioner contends that
even the said Clause 17 do not come to the aid of the state respondents,
inasmuch as, having regard to the fact that the work orders were received only
on 17.02.2015 and 21 days there-from not having expired, Clause 17 cannot be
resorted to. As regards violation / non-compliance of paragraph 4 of the Indent,
the petitioner refers to paragraph 16 of the writ petition to show that the
petitioner had visited the office of said respondent on 27.02.2015 to submit the
samples for final verification and approval but the state respondent refused to
entertain the same.5.     In so far as challenge to the order dated 04.03.2015 is concerned
the petitioner submits that the Respondent No. 4 not being a successful bidder
the work in question could not have been re-allotted to the said Respondent No.4. Upon the challenges so made, the petitioner submits that on all counts the
orders dated 03.03.2015 and 04.03.2015 are wholly un-sustainable in law, void
and illegal.6.     On the other hand learned senior counsel Mr. A.M. Buzarbaruah
submits that the challenge made by the petitioner is without any basis or
foundation. According to the learned senior counsel the writ petition has not
been filed bonafide. On facts, the learned senior counsel submits that out of the
7 valid tenderers including the petitioner all other 6 successful tenderers had
received the work orders in question in and around the same time when such
work orders were received at the petitioner's ends. Pursuant thereto, the other 6
successful bidders had executed and complied with the formalities as required
under the terms and conditions of the work orders. It was only the petitioner
who had failed to fulfil the formalities as required of it. The learned senior
counsel also submits that the statement made at paragraph 16 of the writ
petition is incorrect and, in fact, the letter dated 25.02.2015 of the petitioner,4addressed to the Department, itself indicates the non-seriousness of the
petitioner to pursue with the work in question.7.      In so far as the question of natural justice is concerned, learned
senior counsel submits that the work orders in question is in the nature of an
offer and is only a preliminary work order which would fructify into a concluded
contract only upon execution or completion of the formalities as required under
the terms and conditions thereof. In the absence of it, the work orders in
question cannot be deemed to be evidence of a concluded contract in terms of
Clause 20.1 of the terms and conditions. As such, Clause 15 of the said terms
and condition cannot come to the aid of the petitioner, in that, there is no
requirement for affording opportunity of being heard before cancellation of the
preliminary work orders. On the facts above the learned senior counsel submits
that the allegation of discrimination is wholly absent in the facts and
circumstances of the case.8.      Mr. J.I. Borbhuiyan, learned counsel appearing for the respondent
No. 4 submits that the amended writ petition had not been sworn by the present
Managing Director of the petitioner corporation and as such the amended writ
petition had been filed without any authority under the law. Mr. Borbhuiyan also
submits that the swearing of the affidavit by a person not authorised to do so
only indicates the undue interest of the deponent, who according to Mr.
Borbhuiyan is the person during whose tenure the work orders awarded to the
petitioner had been sub-contracted to other parties. Lastly, Mr. Borbhuiyan
submits that pursuant to the work order dated 04.03.2015 and considering the
fact that it is a time bound project, supply of the kits at Anganwadi Centres have
been substantially completed. Mr. Buzarbaruah, learned senior counsel also
points out that the supply of kits to the Anganwadi Centres are for the benefit of
pre-school children and the element of public interest squarely holds the field.
Also the work in question is a time bound project which has to be completed by
31 March, 2015 at all costs.9.      I have heard the counsels for the parties at great length. With
regard to the first challenge that there had been undue delay on the part of the
Social Welfare Department in making the work orders available to the petitioner,
it is apparent that the said delay did not occur only in respect of the petitioner
but the same happened in respect of all the other 6 successful bidders. The delay5has been justified by the senior counsel on ground that the same ensued due to
administrative reasons. In so far as Clause 8.1 and Clause 17 of the terms and
conditions are concerned, it is seen that notwithstanding the fact whether any
period is specified in the said clauses or not, the fact remains that unlike the
other 6 successful bidders, the petitioner even until the day prior to cancellation
of the work orders did not show any effort to comply with the formalities i.e.
execution of the rate contract agreement and furnishing of performance security.
There is also no indication supported by any document to show that the
petitioner had submitted samples for verification and approval to the department
concerned. There is no manner of doubt that the work in question i.e.
distribution of pre-school kits to the Anganwadi Centres require completion by
31.03.2015 and time being of essence, the Respondent No. 2 had no other
option but to fall back upon the respondent No. 4 to carry out distribution of the
kits in the districts which were allotted to the petitioner. The contract awarded to
the respondent No. 4 on 04.03.2015 is not in the nature of bringing an outsider
to carry-out the work in place of the petitioner. On record, the Respondent No. 4
is one of the successful bidders who had shown diligence in carrying out the
work in question.10.     The facts of the case do not point to any act of discrimination on
the part of the Respondent Nos. 2 & 3, in awarding the work to Respondent No.4.11.     In view of the above, this writ petition is devoid of any merits and
is liable to be dismissed, which is accordingly done, however without any order
as to costs.sds                                                                 JUDGE