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Gauhati High Court · body

2002 DIGILAW 212 (GAU)

Koratemjen and Ors. v. State of Nagaland and Ors.

2002-05-17

B.LAMARE

body2002
B. LAMARE, J- Heard Mr Taka Masa, learned counsel for the petitioner assisted by Mrs M. Theyo as well as Mr L.S. Jamir, learned Addl. Sr. Govt. Advocate for the respondents. 2. These 3 (three) writ petitions are taken together as they relates to the same notice inviting tender (NIT) issued by the Superintending Engineer, PWD (R&B), National Highway Circle, Kohima, respondent No. 4 regarding 3 (three) works mentioned in the NIT and the same question of facts and law are involved. 3. The notice inviting tender (NIT) was issued by the respondent No. 4 on 25.2.2002 for the works specified therein. The NIT reads as follows:- "Government of Nagaland Office of the Superintending Engineer, PWD (R&B) National Highway Circle Kohima:: Nagaland. No. SE/NH/TENDER/2001-2002 dated Kohima, the 25th Feb. 2002. Tender Notice Sealed tenders are hereby invited on behalf of the Governor of Nagaland for construction of the following works on National Highways in Nagaland as per the detail given below from the Registered Contractor of Nagaland PWD Class-I/CPWD/MES. SI. No. Name of work Approx value of work (Rs. in lakhs) Earnest Money (Rs. in lakhs) DAC in favour of the Time of completion 1 2 3 4 5 6 1. Strengthening of NH-61 from Km 200/0 to 2100/0 in NH Division Mokokchung Rs. 200.92 Tribal-Rs. 2.01 N/Tribal-Rs. 3.01 Superintending Engineer, PWD NH Circle, Kohima. 24 (twenty four months) 2. Geometric improvement and improvement of riding quality from 180/to 190/0 on NH-61 under NH Division Mokokchung. Rs. 205.42 Tribal-Rs.2.03 N/Tribal- Rs.3.05 Superintending Engineer, PWD NH Circle, Kohima. 24 (twenty four months) 3. Strengthening and improvement of NH-61 from Km 6./0 to 17/0 (except 1 Km) in NH Division, Kohima. Tribal-Rs. 3.36 N/Tribal-Rs. 5.04 Superintending Engineer, PWD NH Circle, Kohima. 24 (twenty four months) 1. Sealed tenders in two separate sealed envelopes consisting each of pre-qualification technical document and financial tender bid will be received on 20th March 2002 at 12.30 p.m. in the office of the Superintending Engineer, PWD (R&B), National Highway Circle, Kohima along with the Earnest Money and Court Fee Stamp of Rs.7.50 (Rupees Seven Fifty) only. The pre-qualification technical bid will be opened at 1.00 p.m. on the same day in presence of the contractors or their authorised representatives. Both the sealed envelopes should clearly specify the package no. & name of the work and also the Bid (Techno Commercial Bid & Financial Bid). 2. The pre-qualification technical bid will be opened at 1.00 p.m. on the same day in presence of the contractors or their authorised representatives. Both the sealed envelopes should clearly specify the package no. & name of the work and also the Bid (Techno Commercial Bid & Financial Bid). 2. The financial bid on only those contractors declare qualified by the Department on the scrutiny of pre-qualification technical documents received shall be opened on the same day in presence of the pre-qualified contractors or their authorised representatives. 3. Financial offer of those contractors who could not qualify, shall be returned back without opening. Contractors are advised to purchase the pre-qualification-bidding documents from the office of the Superintending Engineer, National Highway Circle, Kohima-797001 from 11.02.2001 to 05.03.2002 upto 1400 hours, on payment of Rs.2,000/- (Rupees two thousand) only which is non-refundable. 4. The Earnest Money shall be in the form of DAC of any nationalised bank in favour of the Superintending Engineer, PWD (R&B) National Highway Circle, Kohima mentioned in the NIT. No tenders shall be considered without required Earnest Money and Court Fee Stamp. 5. Contractors are advised to inspect the site and acquaint themselves with the site condition before tendering as no claim on this account shall be considered later on. The contractors shall be required to rectify any damage occurring on their portion of the road at their own cost for a period of 2 (two) years after the date of completion as recorded by the Department. 6. Pre-bid meeting of the prospective bidders shall be held in the office of the Superintending Engineer, PWD(R&B), Nagaland, Kohima at 11.00 hours on 19th March 2002. 7. The tenderer should have sufficient experience in execution of road work construction and should have successfully completed at least one such work costing about Rs.1.00 crores (Rupees one crore) during the last 5 (five) years. 8. Any condition by tenderer in the technical & Financial proposal shall not be acceptable and shall be liable for rejection. 9. The Department reserve the right to reject any or all the tenders without assigning any reason. Er. V. Kehie Superintending Engineer PWD (R&B) National Highway Circle, Kohima." 4. In response to the said NIT, the petitioners have submitted their respective tenders for all the 3 (three) works/items mentioned in the NIT. The tenders were submitted in two separate envelopes. 9. The Department reserve the right to reject any or all the tenders without assigning any reason. Er. V. Kehie Superintending Engineer PWD (R&B) National Highway Circle, Kohima." 4. In response to the said NIT, the petitioners have submitted their respective tenders for all the 3 (three) works/items mentioned in the NIT. The tenders were submitted in two separate envelopes. The first envelope is for technical bid which is a pre-qualification for opening of the second envelope which is for financial tender bid. The tenders of the petitioners for the first envelope were opened on 23.3.2002 in presence of the petitioners. According to the petitioners, all the tenders of the petitioners were found to be valid and they are qualified in a pre-qualification technical bid. The petitioners also contended that the NIT is meant only form the contractors of Nagaland in terms of the condition laid down in the NIT. The petitioners also contended that the envelope belonging to one contractor M/ s. G.L. Agarwalla was found unsealed to which the petitioners have raised objection and submitted a representation that the said M/s. G.L. Agarwalla does not qualify as the envelop was submitted unsealed. The second envelopes of the petitioners were also opened by the respondents. Therefore, according to the petitioners, the work should be awarded to the most qualified tenderer from amongst the present petitioners. 5. Inspite of the above action taken by the respondents, the respondent No. 4 has again issued an NIT on 28.3.2002 calling for tenders for the same items of works which were earlier called for in the NIT dated 25.2.2002. Being aggrieved by the said re-tendering of the works, the petitioners have submitted a representation dated 4.4.2002 to the Chief Engineer PWD (R&B), Nagaland, respondent No. 3. But their representation was not considered by the respondents. 6. The respondents contested the claim of the petitioners by filing a common affidavit in all the three writ petitions. According to the respondents in paragraph 6 of the affidavit-in-opposition, it is stated that after the first envelope was opened the tenders of the petitioners were placed before the Screening Committee held on 25.2.2002 for examination of the tenders. The said Committee consisted of top technical experts of the Department and have found that the tenderers are not qualified on one or the other conditions of the pre-qualification bid. The said Committee consisted of top technical experts of the Department and have found that the tenderers are not qualified on one or the other conditions of the pre-qualification bid. One of the example is that none of the tenderers possess Hot Mix Plant & Paver which are the basic requirements of the tender qualification. The respondents have also contended that there was no understanding between the said M/s. G.L. Agarwalla and the officials of the Department and his tender was also rejected. The respondents also contended that the State Government is determined to provide pliable and smooth rideable roads to the public and after the matter was examined by the Screening Committee it was decided to refloat the tender by issuing a fresh tender dated 28.3.2002. 7. Mr Taka Masa, learned counsel for the petitioners vehemently submitted that after the first envelope was opened, all the petitioners were found qualified in the pre-qualification technical bid and it is for that reason that the second envelope was opened. The counsel therefore contended that the work has to be allotted to the most qualified tenderer from amongst the petitioners. It is also contended that the NIT is meant only for the contractors of Nagaland and not for any outsiders. There was also no reason whatsoever for canceling the earlier NIT and issuing of a fresh NIT contended the learned counsel. The cancellation of the earlier NIT is therefore arbitrary, capricious and tainted with malafide contended the counsel. The learned counsel for the petitioners also submitted that the plans and machinery are to be produced within 15 days from the date of allotment of the order. But the tenders of the petitioners were rejected before allotting of the work to the petitioners. It is also contended that in the NIT, no mention is made about the Screening Committee and therefore the action of the Screening Committee in rejecting the tenders of the petitioners is without authority or jurisdiction. 8. Mr L.S. Jamir, learned Addl. Sr. Govt. Adv. at the very outset has submitted that the petitioners have no right to question the action of the respondents regarding the cancellation of the earlier NIT and issuing of fresh NIT as this action is purely within the administrative action of the State. 8. Mr L.S. Jamir, learned Addl. Sr. Govt. Adv. at the very outset has submitted that the petitioners have no right to question the action of the respondents regarding the cancellation of the earlier NIT and issuing of fresh NIT as this action is purely within the administrative action of the State. The respondents have not allotted the work to any tenderers and in order to achieve the best quality of work the respondents have exercised their administrative action by re-tendering the same works which is a bonafide intention of the State. 9. Mr L.S. Jamir also submitted that the judicial review over the administrative action is very limited as the respondents had acted for the welfare of the people of the State and no discrimination or malafide was proved by the petitioners. Mr L.S. Jamir however, fairly submitted that the second envelope was opened by mistake and that this is also one of the ground that the Screening Committee have decided to issue a fresh tender. However, considering that the petitioners have already submitted their tenders earlier, the respondents have decided to offer free tender documents to the petitioners for submitting fresh tenders to the subsequent NIT issued on 28.3.2002. 10. Before proceeding further, it would be appropriate to examine the scope of judicial review on the administrative action of the State. In the case of Tata Cellular, appellant-Vs-Union of India, respondent reported in (1994)6SCC 651 in paragraph 94 of the judgment, the Apex Court has held as follows:- "94. The principles deducible from the above are:- (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiation through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. (4) The terms of the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiation through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure." 11. In the case of Mansukhlal Vithaldas Chauhan, appellant-Vs-State of Gujarat, respondent reported in (1997)7 SCC 622 in paragraph 25 of the judgment, the Apex Court following the Tata Cellular, appellant-Vs-Union of India, respondent (supra) has held as follows:- "25. This principle was reiterated in Tata Cellular-Vs-Union of India in which it was, inter alia laid down that the Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made particularly as the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision which itself may be fallible. The Court pointed out that the duty of the Court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers?' 2. Committed an error of law; 3. Committed a breach of the rules of natural justice; 4. Reach a decision which no reasonable tribunal would have reached; or 5. Abused its powers." 12. In the case of W.B. State Electricity Board, appellant-Vs-Patel Engineering Co. Ltd. and others, respondents reported in (2001)2 SCC 451 , the Apex Court has clarified that the appellant is not obliged to award contract to any of the bidders at their quoted price bid. It is always open to the appellant to negotiate with the next lowest bidder for awarding the contract on economically-viable price bid. 13. Ltd. and others, respondents reported in (2001)2 SCC 451 , the Apex Court has clarified that the appellant is not obliged to award contract to any of the bidders at their quoted price bid. It is always open to the appellant to negotiate with the next lowest bidder for awarding the contract on economically-viable price bid. 13. This Court in the case of Purbottar Trade & Marketing Co-operative Society Ltd. & Ors., petitioners- Vs-State of Assam & Ors., respondents reported in 2000(2) GLT 145 after discussing all the cases decided by Apex Court in Tata Cellular- Vs-Union of India (supra), Mansukhlal Vithaldas Chauhan-Vs-State of Gujarat (supra) and catena of decisions of the Apex Court has come to the following decision:- "The Writ Court must guard and give protection to a citizen against transgression made by the executive. But the Court must be prudently cautious in such a matter, in the gurb of affording such protection, the Court must not take the virtual control of the administration. For each and every infraction the Court must not step in to set at naught an administrative action arrived at by due deliberation and proper application of mind, such a decision though may not be perfect yet it does not call for interference if otherwise it is not arbitrary and absurd." 14. Coming to the case in hand, the petitioners in the writ petitions have made a vague statement that they were all qualified in the pre-qualification bid and did not make a specific statement as to their pre-qualification to the bid on the opening of the first envelope. The petitioners have laid stress in paragraphs 3 and 4 of their writ petitions in which they have stated as follows:- "3. That, a mere perusal of the Tender Notice clearly stipulates that it is meant for registered contractors of Nagaland. Further, in terms of the conditions laid down in the NIT, all the Tender applications should be in sealed envelopes to avoid manipulation. It is also clear from the conditions laid down in the pre-qualification document that the applicant should prove availability of all the key items of Contractor's Machineries and Equipments for carrying out the works. The Contractors are further required to prove financial capability of the Firm/Contractor from any Nationalised Bank. Proper Earnest Money deposit and Certificate of Income Tax Clearance. It is also clear from the conditions laid down in the pre-qualification document that the applicant should prove availability of all the key items of Contractor's Machineries and Equipments for carrying out the works. The Contractors are further required to prove financial capability of the Firm/Contractor from any Nationalised Bank. Proper Earnest Money deposit and Certificate of Income Tax Clearance. Persons who are qualified in the pre-qualification only, their financial bid shall be opened in their presence. The second envelopes of the unqualified persons to be returned without opening." 4. That, the present petitioners having been qualified, applied for the contract works. Their first envelope was opened on 20.3.2002 whereby they were all qualified. However, it was found that the envelopes belonging to one of the Contractors, M/s. G.L. Agarwalla was unsealed. The present petitioners had objected to it and subsequently submitted a representation dated 21.03.02. Also during the pre-qualification test, documents belonging to M/s. G.L. Agarwalla was found to be unqualified. It was without any prove of financial capability from any Nationalised Bank, hence to be outrightly rejected. The respondents accordingly opened the second envelopes of the petitioners. It is clear from the NIT that the work should be awarded to the most qualified persons from amongst the present petitioners." 15. From the above statement it shows that the petitioners have laid stress on the tender submitted by M/s. G.L. Agarwalla and that a fresh NIT was issued only to accommodate the said M/s. G.L. Agarwalla . Nothing is shown in the petition that there is a specific mala fide or arbitrary action on the part of the respondents in issuing fresh NIT. Therefore, the contention of the counsel for the petitioner that the first envelope opened in their presence and that all the petitioners were found qualified and the petitioners also signed in the comparative statement in the first envelope is not borne out by record as no such statement is made in the writ petition. In other words, the main contention of the petitioner in paragraph 7 of the writ petition is that the fresh tender was issued to favour the person who are close to the official of the Department. But this statement is not borne out by the record and the same cannot be accepted. 16. In other words, the main contention of the petitioner in paragraph 7 of the writ petition is that the fresh tender was issued to favour the person who are close to the official of the Department. But this statement is not borne out by the record and the same cannot be accepted. 16. The respondents on the other hand have categorically stated in their affidavit that the NIT was issued not only for the contractors of the State of Nagaland but for any firm outside Nagaland also to obtain a competitive tender and to achieve the quality of the work and any tenderer from any part of India can tender for the works. This contention of the respondents also find support in the NIT issued which stated that the tenders are invited from the contractors of Nagaland PWD Class-I/ CPWD/MES. 17. Be it stated that the items of works as mentioned in NIT relates to the National Highway which is the first of its kind to be allotted to the State Government by the Central Government. The scheme is cent percent funded by the Central Government with a view to improve transport and road system in the State. The project being undertaken is therefore undoubtedly for the benefit of the State. The mode of execution of the work should also ensure that the public interest is best served. By calling a tender on all India basis, it offers an opportunity to all those who are interested in competing for the contract regarding the execution of the work and on the other hand, it affords the State Government a choice to select the best of the competitors on a competitive price without prejudice to the quality of the wo»\. It also eliminates favouritism and discrimination in awarding the public work to the contractors. 18. In the instant case, the respondents to achieve the above objective has issued the NIT on all India basis and the tenders of the petitioners were placed before the Screening Committee comprising of the highest officers of the Department and after examining all pros and cons of the matter, the Screening Committee has in their meeting held on 25.2.2002 has come to the following conclusion:- "Minutes of the Screening Committee meeting held on 25.3.02. 1. The following Officers were present, i) Engineer-in-Chief PWD ii) Chief Engineer (R&B) iii) Addl. Chief Engineer (R&B) Kohima. 1. The following Officers were present, i) Engineer-in-Chief PWD ii) Chief Engineer (R&B) iii) Addl. Chief Engineer (R&B) Kohima. iv) Superintending Engineer, National Highway Circle, Kohima. 2. Representation of the Tenderers: The representations are found to be valid and therefore, the tenders of M/s. G.L. Agarwalla & M/s. Modern Construction are rejected. 3. Qualification of Tenderers: The scrutiny of the Techno Commercial bid was made with reference to the guidelines of the Ministry of Road Transport & Highways. The National Highway being the property of the Nation and being funded 100% by the Government of India, is above all minor/ local considerations and no compromises can be made. All the other Tenderers have not fulfilled one or the other conditions of the Pre-Qualification bid, like none having Hot Mix Plant and Paver which are basic requirement of the Tender condition. Therefore the Tender is to be cancelled keeping in view the provision of NIT clause at SI. No. 9 and a fresh Tender recalled by the Chief Engineer in order to give equal opportunity to all bidders. 4. The cancellation order of the Tender dated 20.3.2002 to be issued by the S.E. PWD (R&B) National Highway Circle immediately. 5. The Re-tender notice to be issued/published immediately. E-In-C, NPWD C.E.PWD(R&B) Addl.C.E.PWD(R&B) SE,PWD(R&B) Kohima NHCircle." 19. The above findings were made by the Committee of experts. This Court does not have the expertise to go into the technicalities regarding the qualification of the petitioners or being selected for the said works. The_ expertise lies with the Screening Committee constituted by the State Government. An interference with the findings of the Expert Committee would cause delay not only in the implementation of the project but also costs escalation of the project. Needless to say that the project is time bound granted by the Central Govt. and any delay in implementing the same shall result in the sanction being lapsed which would be a huge loss to the public at large for which the project is intended. The project being the National Highway, the national interest as well as the public interest has to be given top priority. 20. For the aforesaid reasons, I am of the considered view that applying the principle of judicial review as laid down by the Apex Court and also followed by this Court, the action taken by the respondents do not call for any judicial review. 21. 20. For the aforesaid reasons, I am of the considered view that applying the principle of judicial review as laid down by the Apex Court and also followed by this Court, the action taken by the respondents do not call for any judicial review. 21. The work has not been allotted to any person and the claim of the petitioners to allot the work to the most suitable tenderers from amongst the petitioners is a vague claim. No rights of the petitioners have been affected as the work has not been allotted to any one. No prejudice is also caused to the petitioners as they have ample opportunity to submit the tenders in accordance with the NIT issued on 28.3.02. For the reasons aforestated, I find no merit in these writ petitions and all the writ petitions are therefore dismissed. No costs. The interim order dated 10.4.02 stands vacated.