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TMI Blog2019 (12) TMI 1655X X X X Extracts X X X X X X X X Extracts X X X X ..... atutory fees etc at which time, he had objected to the same stating that his rate did not include any taxes. But without considering the same, Ext. P8 letter of acceptance had been issued calling upon him to undertake the work for an amount, ₹ 7,99,99,990/-, inclusive of taxes. Since the petitioner was not agreeable, the work was cancelled at his risk and cost and his EMD became liable to be adjusted. Though the issue projected in the writ petition comes within the realm of a contract, if there is an arbitrary action on the part of the authorities and the issue projected does not involve substantial questions of fact, it is always open for a writ Court to consider whether there is any arbitrariness or illegality in the act of the Governmental authorities. It could be seen that the acceptance of the offer made by the petitioner was not in terms with the tender. His quoted price was without taxes and he cannot be called upon to undertake the work inclusive of all taxes. Under such circumstances, we have no hesitation to hold that the 3rd respondent was not justified in terminating the contract at the risk and cost of the contractor. It is also settled law that when an of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding Engineer addressed a letter to the petitioner accepting his price bid for the value quoted which is inclusive of taxes. He was called upon to execute necessary agreement. Responding to Ext. P8 letter dated 24/7/2017, petitioner sent Ext. P10 letter dated 14/8/2017 inter alia stating that as per online tender at column 53, he was called upon to give the total amount, without taxes and therefore, his quoted rate was without taxes. He further submitted that subsequently he was handed a hard copy of the letter of acceptance together with the accepted schedule of the subject work in which the word without taxes was seen omitted. Therefore, according to him, he cannot be forced to enter into the agreement by calling upon him to undertake the work and hence, he requested to relieve him from the subject work and to refund the EMD. Yet another letter was sent to the Superintending Engineer on 19/8/17 which is marked as Ext. P11. Petitioner also approached this Court by filing WP(C) No. 28087/2017 wherein direction had been issued to the Superintending Engineer, PWD to consider Ext. P11 representation. However, pursuant to the said direction, the Superintending Engineer of PWD term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted and therefore, there is justification on the part of the respondents to re-arrange the work and forfeit the EMD. 7. Learned counsel for the appellant while impugning the aforesaid judgment submits that though in the invitation to bid, there was a specific provision that the price shall include all taxes, duties and other levies, in the online tender documents, in the column where the price has to be mentioned, it was specifically indicated as without taxes . Ext. P2 is the format of item rate BoQ where under column 53, it is recorded as Total amount without taxes . Ext. P3 is the item rate quote submitted by the petitioner, in which also, in column 53, the total bid amount has to be specified, without taxes . It is also recorded that: BOQ template must not be modified/replaced by the bidder and the same should be uploaded after filling the relevant columns, else the bidder is liable to be rejected for this tender. Bidders are allowed to enter the bidder name and values only. 8. Apparently, in the bid document, petitioner was asked to make the bid without taxes and he had quoted 7,99,99,990/-. 9. The PWD authorities have no dispute regarding the fact that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties to a suit. In the above case of Gunwant Kaur [(1969) 3 SCC 769] this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. 11. This is also a case in which the only question to be considered is whether the action of the respondents in treating that there was a valid acceptance of the tender by the petitioner/appellant is justified or not. 12. Learned Government Pleader however raised two contentions. First is on the basis of clause 13.3 of the invitation to bid. It is true that in the bidding documents which forms part of the notice inviting tender, it was specifically mentioned that the quoted price should contain all taxes, duties and other levies. But in this case what was intended by PWD while uploading the BoQ was that the total amount ought to have been with all taxes, duties and levi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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