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2014 DIGILAW 1025 (PAT)

Manoj Kumar Pandey v. Union of India

2014-09-23

ANJANA MISHRA, I.A.ANSARI

body2014
ORDER (Per: HONOURABLE JUSTICE SMT. ANJANA MISHRA) The appellant herein, being aggrieved by an order, dated 13.5.2011, passed by the General Manager, Telecom, Bhagalpur, cancelling the tender submitted by the petitioner pursuant to the notice inviting tender (NIT), bearing No. 039/tender/CAMC for repairing of E/A’s, preferred a writ application. The said order, impugned in the writ petition, cancels the tender allotted to the writ petitioner and by the same order, the respondents have directed initiation of a fresh tender process cancelling the earlier NIT. The said writ application was disposed by a learned Single Judge of this Court, vide order, dated 19.11.2013, declining to interfere, in exercise of jurisdiction under Article 226 of the Constitution of India, with the order, dated 13.05.2011, aforementioned, and further directing the writ petitioner to participate in the fresh tender process. Thus, the present intra Court appeal. 2. The facts, giving rise to the present dispute, followed from a tender notice, dated 24.8.2010, inviting tender, bearing No. 039/CAMC and repairing of E/A’s in Bhagalpur SSA. In pursuance thereof, the petitioner submitted his tender documents within the prescribed period. On 10.9.2010, the Tender Opening Committee opened the tenders submitted by the respective tenderers and the petitioner, being the single bidder, for Zone I, Bhagalpur district, was considered by the Tender Evaluation Committee to be technically fit for the allotment of the tender. As a consequence thereof, the petitioner also submitted his financial bid and, on 12.10.2010, the papers, relating to financial bid of the petitioner, were considered and found to be in order as per criteria laid down in the NIT, dated 24.08.2010. Thereafter, a Tender Negotiation Committee was constituted for negotiation of rates with the petitioner and the rates, set up by the said Committee, even though less, were accepted by the petitioner and accordingly a report was sent by the said Committee, on 27.10.2010, to the General Manager, Telecom, Bhagalpur. 3. In the above factual background, it was presumed by the petitioner that his tender had been duly approved. Subsequently, the then General Manager, Telecom, Bhagalpur, was transferred and the new incumbent joined. The further case of the petitioner was that the stipulated period of 180 days of the bid expired on 08.03.2011 and though the petitioner remained in constant contact with the concerned officers, no work order was issued in his favour. Subsequently, the then General Manager, Telecom, Bhagalpur, was transferred and the new incumbent joined. The further case of the petitioner was that the stipulated period of 180 days of the bid expired on 08.03.2011 and though the petitioner remained in constant contact with the concerned officers, no work order was issued in his favour. During the intervening period, it was also discovered that the file, relating to tender No. 039/tender/CAMC and repairing of E/AS/10-11, which had been handed over by one Atul Mishra to Mr. Vimal Prasad, AGM (Planning), was missing and, as such, respondent No. 4, General Manager, Telecom, Bhagalpur, issued a search order for the concerned file. The petitioner met respondent No. 4 requesting him to award the work; but the petitioner was informed that since the file had been traceless, the work, in question, could not be allotted. The respondents also asked the petitioner to submit fresh petition giving full details of the tender so that the file could be reconstructed. 4. The writ petitioner further alleged that in the newly reconstructed file, several adverse notings were made against the petitioner stating therein that other bidders had been prevented from participating in the tender process; but all such matters, according to the petitioner, were resolved in his favour. 5. It is important to mention here that on 12.05.2011, one M/s Balaji Engineering, an authorized dealer of Kirlosker Engines, had submitted a complaint that some anti-social elements had restrained them and prevented them from submitting their bid for the tender. In view of such a complaint, General Manager Telecom, Bhagalpur, upon considering the entire facts and circumstances including the fact that since M/s Balaji Engineering had been restrained from submitting their bid and also because of the fact that there was only one technically qualified bidder in the tender under reference, whose negotiated rates were almost one-third of the rates quoted in the tender, the complaint of M/s Balaji Engineering could not be overlooked and, thus, by order, dated 13.05.2011, the tender ,submitted by the petitioner, was cancelled and a direction was issued for initiating a fresh tender process. 6. The petitioner, then, filed a writ petition, which gave rise to CWJC No. 11200 of 2011, impugning therein the decision of the authorities concerned, whereby the tender process, which had been initiated by the NIT, dated 24.08.2010, stood cancelled. 7. 6. The petitioner, then, filed a writ petition, which gave rise to CWJC No. 11200 of 2011, impugning therein the decision of the authorities concerned, whereby the tender process, which had been initiated by the NIT, dated 24.08.2010, stood cancelled. 7. It was alleged in the writ petition that the action of the respondent No. 4 in misplacing and destroying the original file was mala fide in order to deprive the writ petitioner of his right to receive allotment of contract and, hence, the acts of the respondents were arbitrary, illegal, against the established rule of law and contrary to public interest. The petitioner also prayed, in the writ petition, that the said matter be investigated by an impartial investigating agency. 8. The respondents, in the counter affidavit, denied any element of mala fide as alleged by the writ petitioner and further contested the matter by stating that the cancellation of the NIT, dated 24.08.2010, was for valid and justifiable reasons arising out of a complaint of one M/s Balaji Engineering. It was further contended that after scrutiny of the entire tender matter, the respondents discovered that the entire process could not be sustained as there were other grounds as well, namely, (i) there was only one technically qualified bidder in the tender under reference and (ii) negotiated rates were almost one-third of the quoted rate in the tender of the single bidder and, as such, for maintaining transparency, the impugned order had been passed. Thus, the action of cancellation of the tender by the authorities concerned was, according to the respondents, bona fide and in public interest. 9. The learned single Judge, upon hearing learned counsel for the petitioner and also considering the submissions advanced by the learned counsel for the BSNL, respondents herein, came to the conclusion that there was no illegality in the decision of the respondents to cancel the earlier process and to issue a fresh NIT. The learned single Judge also observed that the Court, in its writ jurisdiction, did not consider it fit to exercise and issue direction on the specious claim that the file was misplaced deliberately by some vested interest. The learned single Judge further took notice of the fact that the respondents have decided to give liberty to the petitioner to participate in the fresh tender process. The learned single Judge further took notice of the fact that the respondents have decided to give liberty to the petitioner to participate in the fresh tender process. Based on these findings, the learned single Judge has disposed of the writ application declining, thus, to interfere with the cancellation of the tender process set into motion by NIT, dated 24.08.2010, and respondents’ decision to initiate a fresh tender process. 10. Being aggrieved by the order, dated 19.11.2013, passed in CWJC No. 11200 of 2011, the writ petitioner has preferred the present appeal seeking to get set aside the aforementioned order passed in the writ petition and, further, seeking judicial review of the act of the respondents in issuing the impugned order. The writ petitioner has also averred that the respondents have acted with mala fide and in not proceeding with the contract allocation in favour of the writ petitioner, the respondents have acted in arbitrary and illegal manner. 11. We have heard Mr. A. K. Mallick, learned Counsel for the appellant-writ petitioner, and Mr. Sachchidanand Singh, learned Counsel for the respondent- BSNL. 12. What has emerged from the contentions of the appellant is that the respondents have acted in a partisan manner and have deliberately concealed the file, which is prejudicial to the interest of the petitioner, and, thus, the order impugned cannot be sustained in the eyes of law. 13. On the contrary, the respondents herein have given cogent and convincing reasons for not proceeding with the NIT, dated 24.08.2010, inasmuch as after due consideration, it was discovered that there were several vagaries in the procedure adopted and, as such, the contract could not be awarded to a single tenderer, especially, when the negotiations had led to a decision, which was one-third of the rate of the quoted bid, which was against public interest. 14. The learned single Judge, while considering the submissions advanced on behalf of the respondents, has come to the conclusion that no remedy can be granted to the writ petitioner by issuance of a writ of certiorari as the respondents have proceeded to direct issuance of a fresh NIT, which is well within their jurisdiction. 15. 14. The learned single Judge, while considering the submissions advanced on behalf of the respondents, has come to the conclusion that no remedy can be granted to the writ petitioner by issuance of a writ of certiorari as the respondents have proceeded to direct issuance of a fresh NIT, which is well within their jurisdiction. 15. It is the well settled principle of law that the discretionary power, exercised under Article 226 of the Constitution, can be exercised only on definite grounds of mala fide and when a learned single Judge of this Court has found the action of the respondents to be reasonable and fair, the question of interference with the impugned order does not arise at all. The Supreme Court, in Michigan Rubber (India) Ltd. v. State of Karnataka, reported in (2012) 8 SCC 216 , has clearly held that interference by Court is not warranted unless action is mala fide and is a misuse of statutory powers. The relevant observations, appearing in Michigan Rubber (India) Ltd. (supra), read as follows: “24. Therefore, a court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”? and (ii) Whether the public interest is affected? If the answers to the above questions are in the negative, then there should be no interference under Article 226.” 16. and (ii) Whether the public interest is affected? If the answers to the above questions are in the negative, then there should be no interference under Article 226.” 16. Coupled with the above, the Supreme Court, in Arun Kumar Agrawal v. Union of India, reported in 2013 (7) SCC 1 , has held as under: “Court cannot sit in judgment over commercial or business decision taken by State or its instrumentalities which has been duly taken after evaluating and assessing the monetary and financial implications, unless the decision is in clear violation of statutory provisions or is perverse or is taken for extraneous considerations or improper motives – State and its instrumentalities can enter into various contracts which may involve complex economic factor – There is always an element of risk in such decisions – If the decision is taken bona fide and in public interest, the mere fact that a decision ultimately provides to be wrong, would not be itself be a ground to hold that the decision was mala fide or taken with ulterior motives – Matters relating to economic issues always have an element of trial and error, and so long as the trial and error is bona fide and with best intentions, such decisions cannot be questioned as arbitrary, capricious or illegal.” 17. In the present case, the Court has come to a finding that the authorities have cancelled the bid for cogent, convincing and sustainable reasons, one of them being that other bidders had been prevented from participating in the said tender process. Further-more, the petitioner had failed to establish arbitrariness on the part of the respondents inasmuch as the reasons, which were factually material and not contrary to public interest, had been assigned by the respondents, while taking the decision to cancel the tender process giving, of course, the writ petitioner liberty to participate in the fresh tender process. 18. In the result, we find and hold that under the given set of facts and circumstances, there is no error in the order of the learned single Judge in declining to interfere with the impugned order of cancellation of the NIT, dated 24.08.2010. The appeal, thus, fails and is accordingly dismissed.