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2012 DIGILAW 473 (UTT)

Krishna Ballabh v. State of Uttarakhand

2012-08-09

TARUN AGARWALA

body2012
ORDER Heard Sri S. N. Babulkar, the learned Senior Counsel assisted by Mr. Sushil Vashisth, the learned counsel for the petitioner, Sri Paresh Tripathi, the learned Addl. C.S.C. for the State and Sri N. S. Negi, the learned counsel for respondent No.4 2. The Court has also perused the original record which was produced by the respondents. 3. The petitioner has challenged the validity and legality of the order dated 4th July, 2011, by which the tender of M/s. Deepak Nautiyal (respondent No.4) has been accepted for supply of food in H.N.B. Base/Teaching Hospital, Srinagar, District Pauri Garhwal, for a period of three years. 4. The facts, leading to the filing of the present writ petition is, that a tender notice dated 3rd March, 2011 was issued, inviting applications for supply of food in the Hospital at Srinagar in District Pauri Garhwal for a period of three years. Pursuant to this tender notice, the petitioner applied, but the said tender was cancelled on account of the fact that only one person had applied. The respondent thereafter issued a fresh tender on 21.5.2011, inviting applications afresh for supply of food in the Hospital. It transpires that 4 tenders were received. The Selection Committee opened the technical bids of all the 4 tenderers. The Selection Committee recorded in its minutes of 4th July, 2011 that the technical bids of M/s. Prime Services Delhi and M/s. Deepak Nautiyal of Srinagar were found to be in order, meaning thereby, that the technical bids of the two other tenderers, including the technical bid of the petitioner, was not found to be in order and were consequently rejected. The minutes of the Selection Committee further records that the financial bids of 3 persons were opened, namely, of M/s. Prime Services Delhi, M/s Deepak Nautiyal and Krishna Ballabh, i.e., the petitioner and, on the basis of the comparative chart so prepared, came to the conclusion that the financial bid of the petitioner cannot be accepted since he did not fulfill the terms and conditions of the technical bid, i.e., to say he did not supply the solvency certificate and security of Rs.2.00 Lakhs. The Selection Committee accepted the bid of M/s. Deepak Nautiyal and accordingly granted him the contract. The petitioner, being aggrieved by the decision of the Selection Committee in awarding the contract to respondent No.4, has filed the present writ petition. 5. The Selection Committee accepted the bid of M/s. Deepak Nautiyal and accordingly granted him the contract. The petitioner, being aggrieved by the decision of the Selection Committee in awarding the contract to respondent No.4, has filed the present writ petition. 5. Sri S.N. Babulkar, the learned Senior Counsel contended that the contract awarded to respondent No.4 was patently illegal and in violation of The Uttarakhand Procurement Rules, 2008 (hereinafter referred to as the Procurement Rules), framed by the Government. The learned Senior Counsel contended that the financial bids could not have been opened, since after shortlisting, only 2 tenderers remained in the contest and, as per Rule 51 of the Procurement Rules, the shortlisting could not be less than 3 contestants. The learned Senior Counsel further submitted that under the instructions to bidders, the bidder was required to file the licence, given under the Prevention of Food Adulteration Act, 1954, the licence certificate and the details of experience and past performance of the bidder, which in the present case, was not of the respondent No.4 and that the certificates given by respondent No. 4 was that of his father, who was running a proprietorship firm under the name of Chahat Tent House, in which respondent No.4 was not a partner and, consequently, such certificates could not be taken into consideration. 6. Sri N. S. Negi, the learned counsel for respondent No.4 contended that admittedly the father of respondent No.4 was doing the business of catering under the name and style of Chahat Tent House as a proprietor and that the licence under the Food Adulteration Act was also in his name and that the experience certificates were all of Chahat Tent House, but the father of respondent No.4 executed a registered power of attorney, which permitted respondent No.4 to apply for a contract and give a bid on behalf of Chahat Tent House. The learned counsel submitted that on the basis of the power of attorney, respondent No.4 applied in his personal capacity case Chahat Tent House and consequently the contract was rightly accorded in favour of respondent No. 4. 7. Sri Paresh Tripathi, the learned Addl. The learned counsel submitted that on the basis of the power of attorney, respondent No.4 applied in his personal capacity case Chahat Tent House and consequently the contract was rightly accorded in favour of respondent No. 4. 7. Sri Paresh Tripathi, the learned Addl. C.S.C. appearing for respondent Nos.1, 2 and 3 submitted that the contract was rightly awarded to respondent No.4, and that, on the basis of power of attorney issued by the father of respondent No.4, the contract was given and the food licence, experience certificate, etc. were duly considered, which were found to be in order. 8. In order to resolve the issue, Rule 51 of The Uttarakhand Procurement Rules, 2008 needs to be looked into. For facility, the said provision is extracted hereunder: 51. Short listing of Consultant On the basis of responses received from the interested parties as per Rule 50 above, consultants meeting the requirements should be short listed for further consideration. The number of short listed consultants should not be less than three. 9. A perusal of this Rule indicates that on the basis of the responses received by the interested parties, the bids should meet the requirements and should be shortlisted for further consideration and that such shortlisting should not be less than three. In this regard, it is admitted by the respondents that when the first tender bid was invited in March, 2011, the respondents received only one bid and the same was rejected and fresh bids were invited considering Rule 51 of the Procurement Rules, namely, that the total numbers of bids received was less than three. 10. In the instant case, when the second tender was issued, 4 applications were received by the respondents. The technical bids of 2 persons were rejected and, consequently, only 2 bids were shortlisted. Once 2 bids are shortlisted, Rule 51 comes into play, which indicates that the shortlisted consultants should not be less than 3. This is a mandatory provision and cannot be deviated in any fashion. The respondents knew of this fact but surreptitiously chose to add a third consultant, namely, the third bidder whose technical bid had already been rejected. This was done deliberately for the purpose of opening the financial bid. This is a mandatory provision and cannot be deviated in any fashion. The respondents knew of this fact but surreptitiously chose to add a third consultant, namely, the third bidder whose technical bid had already been rejected. This was done deliberately for the purpose of opening the financial bid. The respondents after opening the financial bids of the three bidders, including a non qualified bidder, i.e., the petitioner, rejected the financial bid of the petitioner on the ground that he was not technically qualified. This was done apparently by the respondents to defeat the provision of Rule 51 of the Procurement Rules. 11. The Court is of the opinion that the device adopted by the respondents was patently illegal and in gross violation of Rule 51 of the Procurement Rules. The Court is of the opinion that when the Committee came to the conclusion that there were only two qualified bidders, whose technical bids were found to be in order, the matter could not proceed further under Rule 51 since the minimum requirement is that after shortlisting, there should be a minimum of 3 bidders. 12. In the light of the aforesaid, the Court is of the opinion that the financial bids of the 2 bidders, including that of the petitioner, could not be opened nor the contract could be finalized thereafter. The contract awarded to respondent No.4 is, consequently, wholly illegal and cannot be allowed to continue and is quashed. 13. Before parting, there is another aspect. The Court finds that respondent No.4 gave a bid in his own name and at some place stated case Chahat Tent House. The Court does not know what was the intention of using the words case Chahat Tent House. Does it mean that the bid was being given on behalf of Chahat Tent House? If that was the intention, then the bid should have been given on behalf of Chahat Tent House and not behalf of respondent No.4. Chahat Tent House is a proprietorship firm, which is being managed by the father of respondent No.4. The bid was not on behalf of his father or on behalf of Chahat Tent House, but the Court finds from the perusal of the documents, that the bid was given on behalf of respondent No.4 in his individual capacity. Chahat Tent House is a proprietorship firm, which is being managed by the father of respondent No.4. The bid was not on behalf of his father or on behalf of Chahat Tent House, but the Court finds from the perusal of the documents, that the bid was given on behalf of respondent No.4 in his individual capacity. The licence under the Food Adulteration Act is in the name of father of respondent No.4, which cannot be utilized. The experience certificate is that of Chahat Tent House, which also cannot be utilized by the petitioner, since he is not a proprietor of that firm. Consequently, in the light of the aforesaid, the acceptance of the tender of respondent no.4 is patently illegal and against the requirement mentioned in the bidders instructions. 14. In the light of the aforesaid, the awarding of the contract in favour of respondent No.4 pursuant to the resolution of the Selection Committee dated 4th July, 2011 is patently illegal and is quashed. The writ petition is allowed. The respondents are directed to invite fresh tenders for supply of food to its Hospital within two weeks from today and culminate the tender process within a period of three months thereafter. In the meantime, it will be open to the Hospital authorities to make an interim arrangement for the running of the food supply, either with respondent No.4 or with any other person, but it is made clear that such interim arrangement will not continue beyond three months from today. 15. The Addl. C.S.C. is directed to return the record to the Department forthwith. 16. Certified copy of the order shall be made available to the parties on payment of usual charges, before 15th August, 2012. Petition allowed.