IN THE HIGH COURT MANIPUR AT IMPHAL. Writ Petition(C) No. 543 Of 2013

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1 IN THE HIGH COURT MANIPUR AT IMPHAL Writ Petition(C) No. 543 Of 2013 Shri Ngairangbam Somorendro Singh, Aged about 53 years, s/o Ng. Ibochou Singh, resident of Malom Tulihal, PO Tulihal, PS Nambol, District-Bishnupur Manipur. Vs...Petitioner. 1. The State of Manipur represented By its Principal Secretary (RD & PR) Govt. of Manipur. 2. The Chief Engineer, Manipur State Rural Roads Development Agency (MSRRDA), Imphal Manipur having Its office at New Secretariat Building North Block, Imphal. 3. Shri Apam Shimray, Special Class Contractor, Fairly Land, Stadium Road, Imphal Respondents. BEFORE HON BLE THE CHIEF JUSTICE LK MOHAPATRA HON BLE MR.JUSTICE N.KOTISWAR SINGH For the Petitioner For the Respondents Date of hearing :: Date of judgment :: :: Mr. M. Devananda,Advocate :: Mr. M. Hemchandra & Mr. H. Iswarlal, Advocates. CJ JUDGMENT & ORDER The petitioner, in this writ application, prays for quashing the work order dated for Package No. WPC 543/2013 Page 1

2 MNO 685 issued in favour of respondent No.3 in Annexure- A/10 and also prays for issuing work order in his favour. [2] It is stated in the writ petition that the petitioner is a Sub-Contractor working under one, Nehkhothang Haokip and the said Nehkhothang Haokip is a Special Class Contractor executing works under the PWD Manipur. The respondent No.2 published a notice inviting tender for execution of certain works under Phase -VIII of Pradhan Mantri Gram Sarak Yozna( for short PMGSY ) spread into 50 packages. The said Nehkhothang Haokip had submitted tender in respect of MNO 685 apart from other contractors. After evaluation, the respondent No.3 was found to be the lowest bidder and Shri Nehkhothang Haokip was found to be the second lowest bidder. Accordingly, work order has been issued in favour of the respondent No.3. Challenging the said work order issued in favour of the respondent No.3 in Annexure-A/10 dt , this writ application has been filed by the petitioner who claims to be the power of attorney holder of Nehkhothang Haokip. [3] From the grounds taken in the writ petition, it appears that the respondent No.3 had submitted a bank guarantee for an amount of Rs.19,18,500/- in respect of a work in under Phase-V. The respondent No.3 under Phase V of PMGSY for the year, was awarded with the work in respect of package No.MN0 904, i.e. construction of a road from Kamjong to Chatri Khullen. The above bank guarantee is said to have been submitted in connection with the above work. Later on, the bank guarantee furnished by the respondent No.3 was found to be a forged one and vigilance enquiry was conducted. Suppressing the above fact, the respondent No.3 submitted tender for the work WPC 543/2013 Page 2

3 covered under package No.MNO- 685 under phase-viii and being the lowest bidder, his tender was accepted. The further case of the petitioner is that under clause 4.7 of tender conditions, if a contractor has got a history of litigation, he has to be declared as disqualified and therefore the respondent No.3, who was facing vigilance enquiry, was disqualified to submit his tender for package No. MNO-685 and accordingly his tender could not have been considered. Therefore, Nehkhothang Haokip, on whose behalf the writ petition has been filed by the petitioner as his power of attorney holder being the second lowest bidder, should have got the work. [4] Shri M. Devananda, learned counsel appearing for the petitioner placed reliance on clause 4.7 of the tender condition and submitted that admittedly the date on which the respondent No.3 submitted his tender for the package No.MNO-685 a vigilance enquiry was in process against him and he had a litigation history. According to the learned counsel under clause 4.7 of the tender condition, the respondent No.3 was disqualified to submit any tender and accordingly tender submitted by him could not have been entertained by the respondent No.2. It was further submitted by the learned counsel that the vigilance enquiry was closed in favour of the respondent No.3 only after filing of the writ petition and therefore the said respondent No.3 cannot take advantage of closer of the enquiry, as on the date of submission of tender, the vigilance enquiry was continuing against him. [5] Shri M. Hemchandra, learned counsel for the respondent No.2 as well as Mr. H. Iswarlal, learned counsel for the respondent No.3 questioned the maintainability of WPC 543/2013 Page 3

4 the writ petition at the instance of the petitioner who has filed the writ petition as a power attorney holder of tenderer/bidder, Nehkhothang Haokip. It was submitted that the power of attorney annexed to the writ petition as Annexure-A/1 is neither registered nor authenticated and is hit by section 85 of the Evidence Act. Therefore, on the basis of such a power of attorney, writ petition could not have been filed by the petitioner. It was also contended by the learned counsel for the respondents that even if a power of attorney holder is permitted to file a writ application on behalf of the executant of the said power of attorney, the executant has to be the petitioner represented through the power of attorney whereas the writ application has been filed in the name of the petitioner in his individual capacity. [6] So far the merit of the case is concerned, it was contended by the learned counsel for the said respondents that there was an allegation with regard to submission of a forged bank guarantee against the respondent No.3 and an enquiry was directed to be conducted by the vigilance Department. The Vigilance Deptt closed the case having found no material to support the allegation and moreover the amount covered under the bank guarantee had already been recovered from the respondent No.3 much before filing of the writ petition. It was also contended that the earnest deposit money for the work concerned has been withdrawn by Nehkhothang Haokip in the meantime and therefore the second prayer of the petitioner for awarding the work in favour of Nehkhothang Haokip cannot also be allowed. [7] On consideration of the pleadings of the parties, we find that there are two issues which require to be addressed. The first issue is as to whether the power of WPC 543/2013 Page 4

5 attorney on the basis of which writ petition has been filed, is legally valid or not. If it is found that the power of attorney is legally valid, whether the petitioner can file writ application in his individual capacity on the basis of the said power of attorney. The second question for consideration is as to whether there was a history of litigation against the respondent No.3 at the time of submission of tender for package No.MNO 685. So far as the first issue is concerned, on perusal of the power of attorney annexed to the writ petition as Annexure-A/1, we find that it is neither registered nor authenticated. Section 85 of the Indian Evidence Act, 1872 prescribes that the court shall presume that every document pertaining to be a power of attorney, and have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Consul or Vice-Consul, or representative was so executed and authenticated. Relying on this provision, it was contended by Mr. Hemchandra, learned counsel for the respondent No.2 that the power of attorney at Annexure-A/1 is hit by the above provision and no presumption with regard to the existence of such a document is available to the Court in absence of the said document being authenticated by a Notary Public or any Court, Judge etc. as provided in the said section. In this connection, it can be said that a power of attorney need not be attested but for identification purpose should be signed before the Notary Public, or Judge or Magistrate and be authenticated by a Notary Public, or Judge, or Magistrate. Only when such a power of attorney is so authenticated, it can be admitted by the Court as the execution of such power of attorney, is presumed under Section 85 of the Indian Evidence Act, WPC 543/2013 Page 5

6 [8] Admittedly, the power of attorney is not authenticated by any such authority. In paragraph 3 of the writ petition, it is only stated that the petitioner has been authorised by way of power of attorney for filing this writ petition and except the above statement, there is nothing else in the writ petition to show as to whether the said power of attorney was authenticated by any authority or not. [9] Under these circumstances, we find that there is some force in the contention of the learned counsel appearing for the respondents- 2 and 3 that the said power of attorney cannot be treated as an authenticated one. Apart from the above, even if we accept the said power of attorney as a valid one, writ petition should have been filed by the executant of the said power of attorney through the power of attorney holder and not by the power of attorney holder in his individual capacity. There is no mention in the cause title of the writ petition that it has been filed on behalf of the tenderer,i.e. Nehkhothang Haokip through the petitioner on the basis of the said power of attorney. Therefore, the maintainability of the writ petition is questionable. [10] So far the second issue is concerned, clause 4.7 of the tender condition is quoted below: 4.7 Even though the bidders meet the above qualifying criteria, they are subject to be disqualified if they have: (i) made misleading or false representations in the forms, statements, affidavits and attachments submitted in proof of the qualification requirements; and/or (ii) record of poor performance such as abandoning the works, not properly completing the contract, inordinate delays in completion, litigation history, or financial failures etc. (iii) participated in the previous bidding for the same work and had quoted unreasonably high or low bid prices and could not furnish rational justification for it to the Employer. WPC 543/2013 Page 6

7 Clause 4.7(ii) prescribes that a tenderer can be declared to be disqualified if he has a record of poor performance such as abandoning the work, not properly completing the contract, inordinate delay in completing the work, litigation history or financial failure etc. Emphasis is given by the petitioner on litigation history with reference of vigilance enquiry initiated against the respondent No.3 and it is submitted that the respondent No.3 was disqualified to submit his tender because of pendency of the vigilance enquiry. From the annexure attached to the writ petition, we find that under Annexure-A/3, the respondent No.3 had submitted bank guarantee for an amount of Rs.19,18,500/- obtained from the Manipur Rural Bank. From Annexure-A/4 series, we find that Manipur Rural Bank, upon enquiry, had informed that no such bank guarantee had been issued from the said Bank. On the basis of such information given by the Bank, a vigilance enquiry was initiated against the respondent No.3. [11] From Annexure-C/1 to the counter of respondent No.2, we find that Superintendent of Police (Vig) Manipur intimated the respondent No.2 on that the Vigilance case has been duly closed. The date of closer of the vigilance case is not mentioned in the said letter. From Annexure-C/2 dt , we find that the agency, respondent No.2, had already recovered the amount covered by the bank guarantee from the 5 th running account bill submitted by the respondent No.3 and intimation thereof was given to the Superintendent of Police (Vig), Manipur. The tender call notice for phase VIII in Annexure-A/8 is dt The question, therefore for consideration is as to whether as on the vigilance case was still continuing or not. From Annexure-C/3 dt attached WPC 543/2013 Page 7

8 to the counter of the respondent No.2, it appears that the entire amount covered under the Bank guarantee had already been recovered from the running account bill of the respondent No.3 and it was much prior to floating of tender for phase-viii. Intimation of such recovery had already been given to Superintendent of Police (Vig) in the said letter. Therefore, it may be possible that much before the vigilance enquiry might have been concluded and closed though intimation thereof was given to the respondent No.2 on Moreover, it was just an enq uiry by the vigilance department and no case had been registered against the respondent No.3 so as to bring it within the meaning of history of litigation as provided in clause 4.7 of the tender condition. Had it been a case of submission of charge sheet before floating of tender in Annexure-A/8 for phase-viii, the question would have been different. We, therefore, do not agree with the submission of the learned counsel for the petitioner that on the date the respondent No.3 filed his tender for the above work under phase-viii, he had history of litigation and as such disqualified to submit his tender. [12] The learned counsel for the parties referred to some decisions of the Apex Court with regard to power of judicial review. The decisions relied upon by the learned counsel for the parties are - (i) Jagdish Mandal vs. State of Orissa & Ors : (2007) 14 SCC 517, (ii) A.C. Narayanan Vs. State of Maharashtra & Anr : (2014) 11 SCC 790 and (iii) AIR India Ltd. Vs. Cochin International Airport Ltd. & Ors: (2000) 2 SCC 617. There is no dispute about the proposition of law laid down by the Apex Court so far as the power of judicial review on administrative action is concerned. We have examined the case of the petitioner being conscious of limited power of judicial review available with this Court. WPC 543/2013 Page 8

9 [13] There is also no dispute that the earnest money deposit given by Nehkhothang Haokip along with the tender has already been withdrawn in the meantime. The letter written by Nehkhothang Haokip to respondent No.2 for withdrawal of the earnest money deposit is available as annexure to the counter affidavit in-opposition filed on behalf of the petitioner in Misc. Case No.77/2014. Having withdrawn the earnest money deposit, prayer of the petitioner for awarding the work in favour of said Nehkhothang Haokip cannot be entertained. [14] For the reasons stated above, we find no justification for interfering with the administrative action of the respondent No.2 in accepting the tender submitted by respondent No.3 and awarding the work in his favour having found the said respondent No.3 as lowest bidder. The writ petition, being devoid of merit, is dismissed. JUDGE CHIEF JUSTICE joy WPC 543/2013 Page 9