Shri Sanjay Kumar Singh v. The Hon'Ble Lieutenant Governor And ORS.

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR] ...

WPA/463/2023 Shri. Sanjay Kumar Singh

Versus

The Hon'ble Lieutenant Governor and other Mohd. Tabraiz ... for the petitioner Mr. Shatadru Chakraborty ... for the respondents March 22, 2023 [AKB] Item No.7 The writ petitioner participated in a tender process pursuant to a tender notice dated January 27, 2023 (for short, first tender process), Annexure P-18 at page 133 to the writ petition for diverse construction works issued by APWD. The petitioner after his assessment of commercial bid was declared to be L-1 bidder with respect to the work mentioned against serial No. 4 to 8 of the said tender notice dated January 27, 2023.

The petitioner similarly participated in the second tender process in terms of the tender notice dated February 1, 2023 (for short, second tender process), Annexure P-20 at page 140 to the writ petition.

In the said second tender process, after assessment of the commercial bid of the petitioner, he was declared as L-1 in respect of serial No.3 mentioned in the said second tender notice dated February 1, 2023. The declaration of L-1 is available at page 144 to the writ petition.

The participation in the previous tender process issued by the APWD insofar as the petitioner was concerned was suspended on December 15, 2022.

Challenging such suspension, the petitioner had moved a writ petition being WPA/95/2023 which was disposed of by a Coordinate Bench by its order dated January 24, 2023 directing the authority to consider the issue of suspension of the petitioner after granting him an opportunity of hearing. Following the said direction, the respondent No.4 by its decision dated March 1, 2023 had upheld the said decision of suspension of the petitioner with reasons at page 146 to this writ petition.

Mr. Tabraiz, learned counsel appearing for the petitioner submitted that, even after all these events though the petitioner was allowed to participate in the said two tender processes mentioned above by the authority, despite

the said order of suspension holding the field and since in the said two tender processes, the petitioner was declared as L-1 bidder, a valuable right had accrued in favour of the petitioner to continue to participate further in the said first and second tender processes.

Mr. Tabraiz, further submitted that, on March 1, 2023 at page 149 to the writ petition, a fresh tender notice was issued in respect of the work covered under the said first tender process and identical fresh tender notice was issued on the same date i.e. March 1, 2023 at page 151 to the writ petition in respect of the works mentioned in the second tender process. He submitted that, in view of the issuance of the said fresh tender notices both dated March 1, 2023 at pages 149 and 151 to the writ petition respectively the said first and second tender process were overruled and cancelled in which the petitioner was declared as L-1 bidder. He submitted that, the said two fresh tender notices both dated March 1, 2023 were issued cancelling the said first and second tender process without assigning any reasons or hearing to the petitioner in whose favour a valid and enforceable right had accrued after being declared as L-1 bidder under both the said first and second tender processes.

Being aggrieved by the issuance of the said two fresh tender notices both dated March 1, 2023 at pages 149 and 151 to writ petition, the petitioner filed the instant writ petition.

The petitioner prayed for an interim relief as claimed in the writ petition so that no effect can be given to the said two tender notices both dated March 1, 2023 before assigning any reason for issuance of the same by which effectively the right of the petitioner as L-1 bidder was infringed.

Mr.

Shatadru Chakraborty, learned counsel appearing for the respondents submitted that, pursuant to the order of the said Coordinate Bench dated January 24, 2023, the respondent No. 4 had considered the case of the suspension of the petitioner and took its decision with reason. He submitted that, no formal agreement or contract was ever executed with the petitioner either under the said first tender process or under the second tender process. He submitted that, the decision for cancelling the first and second tender process and issuance of the fresh tender process by the said fresh tender notices dated March 1, 2023, were the policy decision of the department, without any right being accrued in favour of the petitioner. The petitioner, therefore, cannot challenge the same. Hence, no interim order can be passed at this stage. He also raised the question of maintainability of this Writ Petition as no right of the petitioner had been infringed in the facts of this case.

After considering the rival contention of the parties and on perusal of the materials on record, this Court first proceed to decide whether any valuable right be it legal or otherwise, of the petitioner had been infringed the moment, the said fresh tender notices both dated March 1, 2023 were issued. It is an admitted position that, the petitioner was declared as L-1 bidder under the said first and second tender process. It is equally true that, no formal agreement or contract was executed with the petitioner under the said first and second tender process in which the petitioner was declared as L-1 bidder. Mere evaluation of the commercial bid of the petitioner and thereby declaring the petitioner as L-1 bidder to qualify the stage for consideration of its price bid does not give any right in favour of the petitioner neither any right accrues at that juncture. This is purely a commercial matter.

To apply before a Writ Court under high prerogative writ jurisdiction under Article 226 of Constitution of India, the applicant first has to establish that any right of it be it legal or otherwise recognized under the Constitution is infringed. In the facts of this case, just by declaring as L-1 bidder, no right had accrued in favour of the petitioner as there was no promise made on the part of the respondent to award the said tender to the petitioner. No contract was executed in faovur of the petitioner to carry out the said job under the first and second tender process. Since no right had accrued in favour of the petitioner, the question of any infringement thereof did not arise. As no right of the petitioner had been infringed, the petitioner cannot maintain this writ petition.

For the foregoing discussion and reason, this Court is of the firm view that, the writ petition is not maintainable and accordingly, writ petition being WPA/463/2023 stands dismissed, without any order as to costs.

(Aniruddha Roy, J.)