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J&K High Court · body

2012 DIGILAW 811 (JK)

Magna Traders v. Chairman SMC

2012-12-28

Mansoor Ahmad Mir

body2012
1. Respondent-Corporation issued NIT No. 7 of 2011 dated 16th of June, 2011 whereby tenders were invited for allotment of contract of work relating to supply and installation and commission of S.V.L 150 Watt Street Lights Philips/Havels/ Bajaj/ Crompton (CG) make (complete job). 2. It appears that besides others, petitioner and respondent No. 6 participated in the bidding process and the Corporation-respondent No. 1 to 5 after examining the bids/ tenders allotted the Contract to respondent No. 6. This allotment of contract in favour of respondent is thrown challenge to in this writ petition on the grounds taken therein. 3. Precisely the grievance of the petitioner is that petitioner participated in the process initiated by the Corporation and being the lowest tenderer was entitled to allotment order for the supply of tendered items. Further it is pleaded that the Corporation-Respondent Nos. 1 to 5 allotted the contract to respondent No. 6 who has given higher rates as compared to petitioner, thus came to be ignored without any reason. 4. The Corporation has filed reply and specifically averred that petitioner's specification was not in tone with the terms and conditions of the Tender Notice and that is why his bid was rejected and contract was allotted to respondent No. 6. it is apt to reproduce relevant Para out of Paragraph 3 of the reply herein:- "3. That in reply to para 3 of the writ petition, it is respectfully submitted that no doubt the petitioner quoted the lowest rate of Rs. 4993/- for Havels make Sodium Vopour Lights (complete job) but the model offered by the petitioner was not in accordance with the specification mentioned in the NIT particularly with regard to SVL's cover (shade) which was supposed to be of Acrylic and the petitioner quoted his rate for flat type glass shade. It is respectfully submitted that to have the quality based selection, all the participants/ tenderers were asked to furnish samples of the SVL's cover (shade) which was supposed to be of Acrylic and the petitioner quoted his rate for flat type glass shade. It is respectfully submitted that to have the quality based selection, all the participants/ tenderers were asked to furnish samples of the SVL's for which they had quoted rates. In this behalf communication No. SMC/PPS/652-57 dated 02.08.2011 bear testimony to this fact and same is enclosed herewith as Annexure "D1" to this reply affidavit. It is respectfully submitted that to have the quality based selection, all the participants/ tenderers were asked to furnish samples of the SVL's for which they had quoted rates. In this behalf communication No. SMC/PPS/652-57 dated 02.08.2011 bear testimony to this fact and same is enclosed herewith as Annexure "D1" to this reply affidavit. In response to the said communication, only two tenderers' i.e. petitioner (lowest tenderer) and respondent No. 6 (second lowest tenderer) furnished their samples which were subsequently referred to respondent No. 5 and Chief Foreman Electric of the Corporation for their technical observation and opinion. It is respectfully submitted that the samples of respondent No 6 was found to commensurate with the prescribed specification and qualifying the requirement as mentioned in the tender notice, as such it was put to functional test which showed satisfactor results. The same was therefore recommended for purchase and accordingly the case was placed along with the technical opinion of Executive Engineer concerned and Chief Foreman of the Corporation before the Purchase Committee on 09.09.2011. The issue was discussed threadbare in light of the technical opinion and besides the sample provided by respondent No. 6 (second lowest tenderer) was in accordance with the specifications having the dome type Acrylic shade which disperses the light to more are than that of fist type shade. It is respectfully submitted that the sample provided by the petitioner was having flat type glass shade which is breakable even with the small stone and because of its flat shape the light does not disperse to more area as observed. It was therefore unanimously decided to purchase Bajaj Luminary (SVL) offered by respondent No. 6 (the second lowest tenderer) and accordingly the respondent No. 6 was called before the Committee for negotiations and after long persuasion he agreed to provide complete job i.e. to supply, installation and commissioning of each SVL at the rate of Rs. 4992/- inclusive of all taxes. The Purchase Committee, therefore, decided to place orders with the respondent No. 6 for providing lights to the Corporation for the current financial year... .." 5. In response to the reply so filed by the respondents, petitioner filed supplementary affidavit to make an effort to indicate as to whether the requirements of the Tender Notice were fulfilled. 6. Apparently, it appears that petitioner has failed to indicate as to how the respondent nos. .." 5. In response to the reply so filed by the respondents, petitioner filed supplementary affidavit to make an effort to indicate as to whether the requirements of the Tender Notice were fulfilled. 6. Apparently, it appears that petitioner has failed to indicate as to how the respondent nos. 1 to 5 have exercised the power arbitrarily and on what grounds the writ jurisdiction can be invoked. The Tender Notice specifically provides that tenders can be accepted or rejected without assigning any reason thereof. The official respondents have made specific mention of the reason for rejecting the petitioner's bid despite being lowest tenderer. 7. Neither there is any allegation of malafides or malice on the part of respondents 1 to 5 nor is any respondent arrayed as party in person, so, in absence of malafides or malice, the respondents 1 to 5 were within their powers to accept or reject any tender if it did not meet their requirements. Therefore, the challenge gets emaciated in absence of allegations of malice and subsequently its prima-facie establishment. 8. The factum of petitioner, being the lowest tenderer, alone cannot, cloth it with any right to have the allotment in its favour, in any case, for, the same requires fulfillment of further terms and conditions. Thus the infringement of petitioner's right at the hands of respondents 1 to 5 is not imminent. 9. It is beaten law of the land that interference, in such matters, by the writ courts is not permissible, unless it is warranted on specific grounds. Terms of invitation to tender are not open to judicial scrutiny as they lie in realm of contract. Apex Court in a case titled Meerut Development Authority v. Association of Management Studies and another reported as (2009) 6 Supreme Court Case 171 has laid down the same principle. It is apt to reproduce Para 26 27 and 28 of the said judgment herein:- "26. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional: must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Broadly stated it must be unconditional: must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the biding process. 27. The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the Authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations. 28. It is so well-settled in law and needs no restatement at our hands that disposal of the public property by the State or its instrumentalities partakes the character of a trust. The methods to be adopted for disposal of public property must be fair and transparent providing an opportunity to all the interested persons to participate in the process." 10. The same principle has been laid down in cases titled State of Orissa and another v. Tata Iron and Steel Company Limited and others reported as 2008 (15) SCC 147 , Sorath Builders v. Shreejikrupa Buildcon Limited and another reported as 2009 (11) SCC 9 and Shimnit Utsch India Private Limited and another v. West Bengal Transport Infrastructure Development Corporation Limited and others reported as 2010 (6) SCC 303 . 11. In the given circumstances, I am of the considered view that respondents have not flattered in any way, they; rather, appear to have acted fairly, in the interests of Corporation and public in general. 12. Having regard to the above discussion, the writ petition is held to be unsustainable, and dismissed as such, along with all CMPs. 11. In the given circumstances, I am of the considered view that respondents have not flattered in any way, they; rather, appear to have acted fairly, in the interests of Corporation and public in general. 12. Having regard to the above discussion, the writ petition is held to be unsustainable, and dismissed as such, along with all CMPs. Interim direction, if any, shall stand vacated.