'Can't Stall Public Importance Projects Halfway': J&K High Court Upholds Sanitation Contracts To Sulabh Int'l Society Sans Inviting Tenders

A division bench of Justices Tashi Rabstan and Rahul Bharti has observed that the allotment of contracts is not always bound by a tendering process and can be granted through negotiations, considering the organisation's attributes and qualifications.

Background:

The case stemmed from a writ petition filed by Saral Sugam Sewa Society (SSSO) challenging the allotment of contracts for constructing Sulabh Toilet Complexes in Jammu to SISSO. SSSO argued that the non-issuance of tenders and non-holding of auctions rendered the allotment arbitrary and illegal.

The writ petition was heard by a single judge of the High Court. SSSO argued that the Jammu Development Authority (JDA) had bypassed the mandatory tendering process, violating established norms of transparency and fairness. They further contended that SISSO lacked the requisite experience and expertise for the project.

The Single Judge, considering legal precedents like Netai Bag vs. State of West Bengal & others, ruled in favor of the petitioner, quashing the work orders and directing JDA to issue a fresh NIT.

Assailing the single bench judgment the appellant's counsel asserted that the denial of the opportunity to file objections against the writ petition deprived them of a fair chance to present their case. This denial, they argued, unfairly burdened the appellant with penal consequences, emphasizing that the right to file objections was never closed.

The appellant further contended that the single judge had overlooked their special qualifications and the urgency of completing the sanitation projects, which were already in progress.

Division Bench Observations:

Observing that the Single Judge had overlooked the ongoing construction work by the appellant and the importance of the projects for public welfare the bench underscored that the allotment of contracts is not rigidly tied to a tendering process and can be granted through negotiations, considering the unique attributes and qualifications of the organization involved.

Pointing towards the special qualifications of the appellant NGO the court recognized SISSO's extensive experience and expertise in sanitation, acknowledging it as a "special attribute" justifying direct contract allocation. They highlighted that SISSO's expertise and reputation were factors considered by the JDA in awarding the contracts.

Furthermore, the bench also found that the single judge had violated SISSO's right to natural justice by not allowing them to defend the allocation in the writ petition and this procedural error, according to the division bench, invalidated the single judge's order.

“Since the appellant had not been afforded an opportunity to file objections to the very maintainability and admissibility of the writ petition, therefore, the principles of natural justice available to the appellant have been infringed”, the court recorded.

Observing that the projects of public importance cannot be stalled halfway as it proves to be detrimental to society at large the bench noted that SISSO had already completed over 50% of the work at two sites before the writ petition was filed and allowing them to complete these projects would be in the public interest given the progress already made.

However, the court directed the JDA to issue fresh tenders for the remaining project at Rail Head Complex, ensuring transparency in future contracts.

Case Title: Sulabh International Social Service Organization Vs Saral Sugam Sewa Society

Citation: 2023 LiveLaw (JKL) 320

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