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2002 DIGILAW 234 (JK)

Villayati Ram Mittal v. State Of J. &K.

2002-07-29

SYED BASHIR-UD-DIN

body2002
1. Petitioner, pursuant to pre-qualification tender notice invited by J&K State Power Development Corporation for specified works of the Parnai Hydel Power Project, Jammu tendered documents on set pre-qualification prescribed form. Petitioner alleges that a complete set of papers with required information and other quatification criteria was sent to respondents in March, 2002 received by respondent No. 2 on 16-03-2002. In the meanwhile, respondents issued corrigendum dated: 02-03-2002 extending finally last date of receipt of tenders to 04-04-2002 and prescribed date of opening tenders as 05-04-2002 (Annexure-D) or any subsequent convenient date. On 02-03-2002 itself addendum to eligibility criteria regarding the qualification for tendering various works of Parnai Hydel Power Project. Jammu was also issued {Annexure-E). It among other things provided for a Joint Venture, with Electro Mechanical partner with further condition that such E & M partner should have executed E & M portion of work at least of two Hydel Power stations of more than 40 MW. 2. Petitioner supplied information and proof thereto in May 2002. The contract Committee met on 03-06-2002 to finalize pre-quatification tenders of the project. The committee found only 3 bidders have quanlified for the price bid. The petitioner™s representation to J&K PDC that the petitioner a Joint Venture between two entities made to the grade of pre-qualification tender stage was rejected on the ground that these parties have failed to fulfill eligibility criteria in full on the date of submission of tenders Petitioners aggrieved by this decision of the Contract Committee (Annexed-A) has challenged it in this petition on number of grounds pleaded. 3. Respondents have also filed objections at this pre-admission stage. Their case is that as the petitioner at the time of submission of his tender is pre-qualification bid failed to produce the proof of Joint Venture with E & M partner and criteria thereto, therefore, petitioner™s pre-qualification bid was rejected by the Committee. The certificate produced in May, 2002, after the cut of and last date of submitting she tender papers could not be considered. The addendum dated: 02-03-2002 to the initial pre-qualification tender notice is part of the lender notice, it had been widely published as part and parcel of the NIT in question and the pre-qualification criteria provided therein is part of the tender. The addendum dated: 02-03-2002 to the initial pre-qualification tender notice is part of the lender notice, it had been widely published as part and parcel of the NIT in question and the pre-qualification criteria provided therein is part of the tender. Petitioner having failed to produce the proof of eligibility of Joint Venture with the E & M partner before the due and last date of pre-qualification bid viz,. 04-04-2002, cannot question the decision of the contract committee of rejecting his pre-qualification bid. No right of petitioner has been violated. No. 489/02 for the relief to force the respondents to maintain status-quo with regard to issuance of tender documents (price bids) till the final disposal of the writ petition. While issuing notice in the main matter learned vacation Judge passed the following interim direction in the matter on 24-06-2002. "Notice Notice in the CMP also. In the meanwhile, respondents are directed to maintain status-quo with regard to issuance of tender documents (Price bids), till objections are filed and considered. Amendment/alteration on motion." The brother Vacation Judge again on 28-06-2002 modified and clarified order as under:- "Mr. Z.A. Shah CMP has been submitted with the prayer that status quo order passed on 24-06-2002 has been issued with regard to issuance of tender notice and as the tender notices/documents have already been issued, the actual prayer of the petitioner is with regard to receipt of the tender documents. Perused the entire record. From the facts and circumstance as made out from the record it appears that status quo order was passed on 24-06-2002 requiring the parties to maintain status-quo with regard to issance of tender notice. Since the tender notice have already been issued, the order shall now read as "status quo to be maintained by the parties with regard to receipt of tender documents till next date of hearing before the Bench." With this clarification the CMP is disposed of." 5. Respondents have come up with the applications (CMP No. 504/02) for vacation of above interim orders. While the matter of stay as also the admission of main matter was taken up Mr. Respondents have come up with the applications (CMP No. 504/02) for vacation of above interim orders. While the matter of stay as also the admission of main matter was taken up Mr. Z.A. Shah pointed out that he has moved another application CMP No. 525/02 in the Registry wherein he has prayed that the application may be treated as supplementary affidavit, the three successful pre-qualification bidding parties may be made parties to the petition and the documents he has annexed with the application may also be taken on record. Mr. Aslam Goni Advocate General submits though he has received copy of the application today but he has yet to examine and file the objections thereto. Faced with this situation counsel for the parties submit that the matter may be heard only for purpose of interim stay/directions in the matter of CMP No. 489/02 and 504/02 leaving the main matter as also the last CMP No. 525/02 to be deatt with at later stage after objections are filed by the otherside in the CMP, which shall be done within two weeks. 6. Mr. Z.A. Shah submits that decision of Contract Committee rejecting petitioner™s pre-qualification tender and thereby excluding it from competing for the 2nd stage price bid for the work is contrary to law and violates Article 14 of the Constitution. Respondents have failed to correctly address the question of eligibility and criteria of pre-qualification as prescribed for tenderers. No time was fixed by addendum. The eligibility criteria was issued subsequently on 02-03-2002, as regards association of E & M partner. In the original NIT the condition of E& M partner was missing and was added by the addendum on 02-03-2002 which was not notified to petitioners in time. Still once the petitioner got the knowledge, it readily came forward with the proof of Joint Venture with E & M partner on 11-05-2002 when a meeting for clarification of some points in the tender documents already tendered was fixed by the respondent No. 2. It was not a condition of tender that documents of proof sought regarding qualification and E & M documents were to be submitted before the cut of last date of submission of tender namely 04-04-2002. Therefore petitioner firm could not have been excluded from consideration at pre-qualification stage of NIT. It was not a condition of tender that documents of proof sought regarding qualification and E & M documents were to be submitted before the cut of last date of submission of tender namely 04-04-2002. Therefore petitioner firm could not have been excluded from consideration at pre-qualification stage of NIT. The rejection of representation/ application of the petitioner of counting petitioner-firm to have qualified with other firms for the price bid, by the committee is arbitrary and abuse of power. It is in this back-ground Mr. Shah submits that in the impugned writ petition the decision of the contract Committee dated: 03-06-2002, is prayed to be quashed and to declare petitioner firm to have qualified for the subsequent stage of price bid. These grounds Mr. Shah submits he has adopted for interim relief prayed in the application, without referring in detail over again to all these grounds. Based so on the grounds on consideration of prima-facie case, balance of convenience and irreparable loss, respondents are prayed in interim to be directed to maintain status quo with regard to issuance of tender documents (Price bid) pending decision of the court. 7. Mr. M. Aslam Goni Advocate General submits that apart from the manner and mode, the status-quo orders dated: 24-06-2002 and 28-06-2002 have been passed and interim matter disposed of during vacations by this court without hearing the respondents and providing them opportunity to reply and defend the interim direction of status-quo in favour of petitioner is not sustainable on merits. There has been no violation of Article 14 of the Constitution in as much as principles of fair play, fair procedure and fairness inaction, have been observe. It is neither a case of arbitrariness nor a case of abuse of powers. Petitioner firm was well aware about requirements of the NIT as issued on 07-01-2002 with addendum to eligibility criteria issued on 02-03-2002 and yet it failed to fulfill the eligibility criteria, in as much as, petitioner-Company did not submit any proof of the Joint Venture with E & M partner on or before 04-04-2002, the due and last date for pre-quatification criteria, petitioner submitted the certificate of Joint Venture only on 11-05-2002, when on scrutiny respondents had already found out that out of 8 bidders only three had qualified for pre-price bid. Merely because petitioner was called on 11-05-2002, for a pre-scheduled meeting to clarify some point does not mean that proof of Joint Venture with Electro Mech. partner as submitted/made available to the respondents/Committee on 11-05-2002, much after 04-04-2002, the cut of last date of opening of pre-qualification bid would confer any benefit on petitioner. The contention of the petitioner that he came to know late about the addendum prescribing further quatification of E & M partner is incorrect, in as much as. petitioners had full know ledge about the original tender notice as also the addendum. The addendum is part of the original tender notice. It cannot be said that the addendum is to be read out as part of original tender notice. The entire ambit of pre-requisite eligibility was prescribed by the tender with addendum and it was for the petitioner to come forward with the proof of Joint Venture with E&M partner as laid down in the tender notice. It is not as if the addendum was issued on last minute. In fact there was sufficient long time available to petitioner to comply with eligibility criteria which he failed to do. Not only pre-qualification bid of the petitioner but as also of five other companies including that of NPCC, was rejected for non-submission of proof of Joint Venture with E & M partner on the due and last date fixed as above for the pre-quatification bids. There is neither arbitrariness nor malafide on the part of the contract committee comprising of top engineering officials of the JKSPDC. The certificate submitted beyond cut of last, date of pre-qualification bid. tender, as proof of Joint Venture with E & M partner by the petitioner-Co, was rejected and application as also representation was rejected by the Contract Committee. It is further submitted that on 11-05-2002 the three qualified companies were informed by respondent No. 2 of having qualified for submitting the price bids for construction of Parnai Hydel Power Project on turn key basis. They were asked to purchase the set of documents between 14-05-02 to 21-05-2002. Again on 27-06-02 successful bidders at pre-qualification stage, were asked to submit their price bids by or before 06-07-02 to Chief Project Engineer Parnai Jammu and for the purpose even price bid conference were also proposed. Respondents have not conduct themselves in an un-usual manner and have been fair to the bidders. Again on 27-06-02 successful bidders at pre-qualification stage, were asked to submit their price bids by or before 06-07-02 to Chief Project Engineer Parnai Jammu and for the purpose even price bid conference were also proposed. Respondents have not conduct themselves in an un-usual manner and have been fair to the bidders. Once at post qualification stage of tendering process the qualified bidders have been asked to submit their price bids and for the purpose even pre-bid conference have been also arranged and scheduled with the experts, staying of the project at this stage would not only undermine public interest but even dis-serve the interest of the State as also the people who are ultimately to benefit from the project. People are to suffer on account of delay in finalizing the project. The element of public interest cannot be lost sight of. 8. At this stage it would be unfair to pass a judgment on the maintainability or otherwise of the petition. However on the question of staying and keeping on hold the project by placing embargo on finalization of the tender as an interim measure, a few facts and some aspects of the case appearing/emerging from the record need to be taken note of. 9. Admittedly after NIT for construction of the Parnai Hydel Power Project on turn key basis was issued in January, 2002 by the respondents, petitioner firm alongwith other 7 Companies applied at stage one for being assessed for qualifying for the subsequent stage of offering the price bids in the eventuatity of qualifying for price bids. On 02-03-2002 addendum was issued prescribing among other things Joint Venture with E & M partner. This addendum is part of the original tender and cannot be segregated as subsequent condition. The cut of and last date for submission of tender documents was initially 18-03-02, but subsequently extended to 04-04-02 by a corrigendum dated: 02-03-02. For the pre-qualification bid applications were invited among others on conditions that pre-qualification bid in the prescribed proforma duly completed shall be received by Chief Project Engineer Parnai Hydel Power Project before the cut of and last date as above. It is also condition of tender notice that CPE Parnai Hydel Power Project (PDC) Jammu reserves the right to declare any firm/consortia/ Company/Corporation or a group of companies ineligible for reasons thereof. It is also condition of tender notice that CPE Parnai Hydel Power Project (PDC) Jammu reserves the right to declare any firm/consortia/ Company/Corporation or a group of companies ineligible for reasons thereof. It is also condition of the tender that the application shall be furnished with sufficient evidence in support of the capacity and experience of the bidder and complete information as indicated and desired in proforma shall as well be submitted with application for the pre-qualification assessment. Once so it cannot be said that the contract Committee has no power to reject a tender or documents or application on presentation thereto for the reason of failure on the part of the bidder to submit the necessary proof/documents as eligibility criteria before the last cut of date even at pre-qualification before the last cut of date even at pre-qualification bid stage. Both initiat tender dated: 07-01-2002 and addendum dated: 02-03-2002 to eligibility criteria will have to be read as a whole and cannot be compartmentized so as to give different meaning to eligibility on/ beyond the cut of date and the initiat date of the NIT. It is to be read as compact whole. 10. Exfacie the petitioner does not appear to have produced or presented any proof. before the competent authority/Contract Committee, regarding the fulfillment of condition of Joint Venture with E & M partner on the cut of last date of opening of the bid namely 04-04-02. Whatever proof he had he produced only on 11-05-02. when he was called for a meeting in respect of clarification of certain points in the original bid documents tendered by him. Even then this mater was again considered by the Contract Committee on 03-06-2002. The Committee did not accept petitioners presentation/application on the ground that the petitioner failed to fulfill the eligibility criteria on the date of submission of the tender. No substantial amount of public interest is seen on the side of petitioner nor the transaction appears barred by malafides. 11. The Committee did not accept petitioners presentation/application on the ground that the petitioner failed to fulfill the eligibility criteria on the date of submission of the tender. No substantial amount of public interest is seen on the side of petitioner nor the transaction appears barred by malafides. 11. In the field, in case of tender offered by different persons/entities for carrying out certain works, the principles of Judicial review is applied to exercise of contractual powers by Government bodies or its instrumentalities with a view to prevent arbitrariness the right to choose contractor cannot be considered as an arbitrary power and some flexibility is to be shown even in administrative decision though the decision is questionable on "Wednesbury™s Principles of unreasonableness�. So long the reasonable procedure is followed the decision is not open to challenge except on the above principle. In Data Cellular Vs. Union of India (AIR SC) it is observed: "...But the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotations. The right to choose cannot be considered to be an arbitrary power. Of course if the said power is exercise for any collateral purpose the exercise of that power will be struck down." 12. This court is not sitting as court of appeal or revision over the decision of contract Committee. But as a writ court it is merely to review the manner in which decision is made. In absence of expertise, to substitute an administrative decision is fallible. Normally speaking the decision to accept tenders or award the contract of the sort at hand, is to be reached by a set reasonable procedure and in the process meetings, discussions and even negotiations are resorted at different levels and in the ultimate analysis for the most part, the decisions are made qualitatively by experts. 13. Keeping all these aspects in view in the facts and circumstances of this case for purpose of interim direction/order, neither prima-facie case nor balance of convenience is seen on the side of the petitioner. Any direction to keep on hold the project and place embargo on the finalization of the contract, would lead to increased avoidable expenses. 13. Keeping all these aspects in view in the facts and circumstances of this case for purpose of interim direction/order, neither prima-facie case nor balance of convenience is seen on the side of the petitioner. Any direction to keep on hold the project and place embargo on the finalization of the contract, would lead to increased avoidable expenses. The exercise of powers when viewed from the stand-point of public good it cannot be said to be an exercise undertaken unfairly and the procedure cannot be said to be not fair in action. The consideration of adverse effect on public exchequer, public in general and public good, in the eventuality of matter remaining pending even for year(s), as is the common experience need to strike a note of caution with the court while considering the question of grant of interim stay. Conjointly analyzing the above principle in the matter and considering the facts and circumstances in totality, the interim direction prayed for cannot be granted and in that view of the matter the exparte interim direction subject to objections stands vacated. Any observations made in the context of this interim direction is not and shall not be reflection on the maintainability and decision of the main writ petition. Disposed of.