LPAOW No. 7/2017, LPAOW No. 10/2017 and M.P. No. 1/2017. Case: State of Jammu & Kashmir and Ors. Vs National India Construction Company, Engineers & Contractors. High Court of Jammu and Kashmir (India)
| Case Number | LPAOW No. 7/2017, LPAOW No. 10/2017 and M.P. No. 1/2017 |
| Counsel | For Appellant: Faraz Iqbal, Dy. A.G. and For Respondents: R.K. Gupta, Sr. Advocate and Ratish Mahajan, Advocate |
| Judges | N. Paul Vasantha Kumar, C.J. and Alok Aradhe, J. |
| Issue | Contract |
| Judgement Date | February 22, 2017 |
| Court | High Court of Jammu and Kashmir (India) |
Judgment:
Alok Aradhe, J.
LPAOW No. 7/2017
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In this Intra Court appeal, the appellants have assailed the validity of the order dated 18.04.2016, passed by learned Single Judge in OWP No. 219/2013, by which writ petition preferred by the respondent has been allowed. In order to appreciate the appellants challenge to the impugned order, few facts need mention, which are stated infra.
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A partnership firm, namely, M/s. National Indian Construction Company with 05 partners including one Mr. Sanjeev Singh as the working partner was constituted and a partnership deed dated 22.11.2005 was executed at Pathankot, Punjab. The firm was duly notarized and registered with the Registrar of Firms, Punjab. The Principal office of the firm was at Pathankot and Head Office was at Jammu. The aforesaid firm participated in the tendering process pertaining to four works under the Pradhan Mantri Gram Sadak Yojana in the State of Jammu & Kashmir. The said works were allotted to the aforementioned firm between the years 2005 to 2008 and same were successfully completed and handed over to the appellants, for which even the payments were made to the respondent firm.
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The firm was initially constituted for executing the works under the Pradhan Mantri Gram Sadak Yojana in the State of Jammu & Kashmir, and since the partners of the firm decided to expand the business to all road works in Jammu & Kashmir State, they got the firm registered afresh in the State of Jammu & Kashmir. However, the partners of the firm remained the same. A partnership deed dated 31.05.2010 was executed and duly registered on 03.06.2010 in the Court of Sub-Registrar, Jammu and was also registered with the Registrar of Firms, Jammu & Kashmir State on 09.06.2010. In the aforesaid deed, the office of the firm was shown to be at Jammu.
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The appellants issued a Notice Inviting Tenders on 05.05.2010, pertaining to various contracts. It is also relevant to mention here that the respondent firm was registered with the Registrar of Firms, Jammu & Kashmir on 09.06.2010 i.e. prior to the last date of submission of tender forms. The respondent firm was found to be the lowest tenderer in as many as three contract works, namely, construction of road from Dera Baba to Tanda, construction of road from Kainth Gali to Lower Basnote and construction of road from Basantgarh to Khanned. While the process of allotment of the aforesaid works was going on, some unsuccessful bidders filed a complaint against the respondent firm, which was examined by the appellants. After obtaining requisite information from the Income Tax Department as well as opinion from the Chartered Accountants, it was found that the respondent firm is a validly constituted firm. However, appellant No. 2 referred the matter to the Law Department for its opinion. The Law Department vide its opinion dated 22.11.2011 opined that the partnership deed of the respondent firm dated 22.11.2005 is not a valid document, as it is not registered with the Registrar of Firms, whereas the deed of 2010 is a valid partnership deed.
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On the basis of the aforesaid opinion received from the Law Department, appellant No. 2 proceeded to issue fresh tender in respect of two out of three contracts, in which the respondent firm was declared the lowest bidder and third contract was made subject to the opinion of the Law Department. Subsequently on 29.11.2011, appellant No. 2 issued a notice to the respondent firm, seeking its response to the opinion of the Law Department and the same was duly responded by the respondent firm. However, even before the issuance of notice dated 29.11.2011, a fresh tender was already invited by the appellants herein.
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Being aggrieved by the opinion rendered by the Law Department, the respondent filed OWP No. 1620/2011, in which a Bench of this Court was pleased to direct maintenance of the status quo. Thereafter, vide order dated 30.11.2012, the aforesaid writ petition was disposed of with a direction to the respondents that since the respondent firm had already responded to the notice dated 29.11.2011 issued by the appellant No. 2...
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