I-75 1133..0088..22002266 Court No. 652 Sayan WPA 9925 of 2016 with CAN 2 of 2024 and CAN 3 of 2024 and CAN 4 of 2025 With WPA 14212 of 2016 with CAN 2 of 2024 and CAN 3 of 2024 and CAN 4 of 2025 Mik Enterprises represented by its proprietor Indranil Roy Vs. Asansol Durgapur Development Authority & Ors. Mr. Milan Maity Mr. Bhaskar Duttagupta Ms. Sana Khatoon ... for the petitioner Mr. Debapriya Gupta, ld. AGP Mr. Biswanath Banerjee ...for the State Mr. Debashis Saha Mr. J. Sarkar … for the A.D.D.A. 1. The two writ petitions are by the same petitioner to challenge somewhat similar alleged inaction of the respondent/Asansol Durgapur Development Authority, relating to alleged inaction by the said authority to perform terms of tender. 2. Writ petition No. WP 9925W of 2016 has been filed by the petitioner to pray for the relief inter alia that he being the lowest technical and commercial bidder in tender No. e-NIQ dated 2 22nd February, 2016, work order may be issued in its favour. 3. The other writ petition No. WP 14212W of 2016 has been filed by the said petitioner to seek relief inter alia that work order may be issued in its favour as regards the lowest technical commercial bid of the petitioner in tender No. e-NIQ dated 19th February, 2016; to continue to give effect to work order dated 21st December, 2014 under Durgapur division and not to impede the petitioner from carrying on with the work at sight; also, to reimburse the petitioner the amount of work done in respect of work order dated 29th December, 2014. In terms of petitioner’s prayer dated 5th July, 2016 and 8th July, 2016. 4. Learned advocate for the petitioner has submitted that, at a time when petitioner’s works under tender with the respondent No. 1 was continuing, the tender and work order pursuant thereto were terminated by the respondent No. 1 all on a sudden and only illegally and in violation of the principles of natural justice. He has further submitted that in spite of the petitioner having emerged as the L-1 bidder in connection with NIQ 12 (2015- 16), no fresh agreement has ever been entered into by the respondent No. 1 authority with the petitioner. It has further been submitted that by dint of a letter dated 24th June, 2016, the respondent authority has terminated the petitioner’s work order No. A.D.D.A./D.G.P/E.D./M.N.-07/14-15/463 dated 29th December, 2014, with retrospective effect, whereas in terms of verbal direction of 3 the tender inviting authority, the petitioner was carrying on works continuously beyond the period of tender. So far as this work order is concerned, that is, dated 29th December, 2014, the petitioner has submitted that it is entitled for payment of balance bill amount for the excess period beyond the tender tenure when it has continued works with verbal direction of the authority and also for refund of security deposit due to illegal termination of agreement. 5. To the submissions made by the petitioner as above, strong objection has been raised by Mr. Debashis Saha, learned advocate on behalf of the respondent No. 1. It is submitted that in connection with tender reference No. NIQ 12 (2015-16), the petitioner could not have been executed an agreement with since vide tender cancellation notice dated 24th May, 2016, the entire tender being e-NIQ No. 12 (2015-16) was cancelled by the said authority. It has further submitted that the petitioner has failed to furnish proper document as per requisition and did not upload corrigendum notice vide memo dated A.D.D.A/A.S.N./E.D./N- (2015- 16)/2233 dated 22nd February, 2015 and did not file Annexure-1 for the said tender. Therefore, according to the said respondent, even if acceptance of technical, commercial and financial bid of the petitioner, his tender stood liable for cancellation, on account of non- fulfillment of conditions of tender. It is submitted further that the respondent authority as a model authority of the State, did not continue with the same tender by allowing L-2 bidder to enter into contract but cancelled 4 the entire process of tender by dint of the said notice dated 24th May, 2016. 6. It is further submitted by Mr. Saha, learned advocate for the respondent No. 1 that even thereafter, the respondent authority has passed fresh Notice Inviting Tender. However, the petitioner has never participated in the same. So far as the petitioner’s grievance relating to work order dated December 29, 2014 is concerned, that it continued with the specified work even beyond the tender period as per verbal direction of the authority but has not been paid with the bills for that period, Mr. Saha, learned advocate for the respondent has denied such contention of the petitioner. He says that there is no material of record to suggest any instruction given by the respondent authority in this regard in favour of the petitioner. He says further that continuance of work beyond the period of tender by the petitioner was unauthorized; that the petitioner has never raised any bill for the excess work done by it, as claimed and finally that such claim of the petitioner for being reimbursed for the excess work done beyond the tender period is a belated and afterthought claim not to be entertained by this Court. 7. Mr. Saha has further submitted that the two writ petitions as above, bear similar prayer for issuance of work order with respect to the same tender, in favour of the petitioner. It is submitted that whatever is the contention of the petitioner before this Court have not actually been reflected in the prayer of the writ petitions respectively. He submits that two writ 5 petitions cannot be treated as maintainable with same prayer. 8. It is further submitted that the respondent authority has strongly disputed the claim of the petitioner. Determination thereof would depend upon determination of various pertinent questions relating to the fact like particulars of excess works done by the petitioner etc. In that event, according to the respondent No. 1, the writ Court would not be justified in entering into those in exercise of power under Article 226 of the Constitution. Mr. Saha has further submitted that the disputed questions of fact are to be determined by a fact-finding Court of appropriate jurisdiction and not this Court. 9. Mr. Debapriya Gupta, learned AGP who has appeared for the State, has submitted ad tandem with the respondent No. 1. 10. It has revealed that in 2014, there has been a tender and work order issued in favour of the petitioner being work order dated 29th December, 2014. The said tender period was concluded on 14th June, 2016. By dint of a letter dated 24th June, 2016, the Executive Engineer, Asansol Durgapur Development Authority withdrew the work order and stopped service and/or engagement of the petitioner with effect from 15th June, 2016. The petitioner has claimed that from the period from 15th June, 2016 to 24th June, 2016 it has discharged work under tender and to the knowledge of the respondent, therefore, it is entitled to payment of remuneration for that period. This fact has been denied and disputed 6 by the respondent authority. Record reveals that a new contract for the work as specified therein has been entered into by the respondent authority with effect from 15th June, 2016. Accordingly, the respondent’s contentions that matters like payment of labour etc. with effect from 15th June, 2016 comes under scope of new agreement and not that which was earlier executed by it with the petitioner in the year 2014. The petitioner depends on the letter of the respondent dated 24th June, 2016 as the proof of its excess work done beyond the contract period, without however, independently substantiating its claim as above with sufficient document. The petitioner having failed to produce any sufficient document to support its contention of excess work done pursuant to the work order dated 29th December, 2014, for a period for which the record has revealed that the respondent already entered into fresh contract with some other bidder, the submission and prayer of the petitioner does not stand as justified, the same does not inspire confidence in the mind of the Court. 11. Regarding the tender notice No. e-NIQ 12 of 2015-16 is concerned, it is an admitted fact in the instant case that the petitioner participated therein and emerged as the successful commercial and technical bidder as well as financial bidder. However, according to the records and which are not denied by the petitioner in the instant case, proper documents were not submitted by the same at the time of bidding. Therefore, the petitioner appears to have not complied with the 7 conditions of tender. In such view of the fact when his bid stands cancelled by the authority, no infirmity can be found as regards such steps taken by the authority, pursuant to an erroneous furnishing of bid. What the respondent does is not to only cancel the petitioner’s bid but to cancel the entire tender process vide notice of cancellation dated 24th May, 2016. Cancellation of a tender process is to be considered as a discretion of the tender issuing authority. The authority having found certain reason for cancellation of tender can well exercise discretion for ensuring propriety and fairness in the process. The petitioner cannot claim to be deprived of a just opportunity or any right of him in so far as admittedly the petitioner has not fulfilled all conditions of bidding, by furnishing adequate document. Since no other bidder who performed inferior to the present petitioner in the bid has been given opportunity but the entire process was cancelled, the petitioner cannot, therefore raise any grievance regarding unjust discrimination or unlawful conduct of the respondent authority. Furthermore, in the subsequent tender process the petitioner out of its own valuation, did not participate. 12. The entire facts and circumstances as discussed above, clearly suggests that neither any right of the petitioner has ever been violated or was injured by the respondent authority in the process nor the petitioner could come up before the Court with adequate document to substantiate its claim of reimbursement. The petitioner has also claimed for refund of security deposit in 8 connection with the work order dated 29th December, 2014. The Court finds that after conclusion of the tender period till when the petitioner has no dispute as regards performance of contract by the respondent authority so far as the said work order is concerned, the criteria for refund of security deposit, as enumerated in the agreement between the parties has never been fulfilled. 13. For all the reasons as discussed above Court finds that neither of the prayer of the petitioner in the writ petitions as above are sustainable. Hence, both the writ petitions are liable to be dismissed. 14. The writ petitions Nos. WPA 9925 of 2016 and WPA 14212 of 2016 are, therefore, dismissed without any order as to costs. 15. Urgent certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities. (Rai Chattopadhyay, J.)