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2015 DIGILAW 217 (JK)

Ghulam Jeelani Bhat v. S. K. I. M. S & ors.

2015-04-29

MUZAFFAR HUSSAIN ATTAR

body2015
JUDGMENT Muzaffar Hussain Attar, J. – Construction of 'Accident & Emergency, Phase III', at Sher-i-Kashmir Institute of Medical Sciences, (SKIMS), is still at the embryonic stage. The delay, in launching such an important phase of medical care, has, directly and proportionately, affected the patient care of the people of State of J&K. Sometimes small/nominal aberrations result in delaying and derailing such projects of great public importance. The case on hand reflects one such example. 2. The SKIMS issued NIT No. SIMS/HEC/C/ET/08 of 2014-15 dated 16th July, 2014 and invited e.Tenders from "AAY" Civil Class Contractors, registered by PWD/CPWD/MES for allotment and execution of the work for "Construction of Accident & Emergency, Phase III, at SKIMS at a cost of Rs. 258/- lacs." The process suffered collapse because only two registered Contractors/Firms responded to the said NIT. Second NIT dated 23rd August, 2014 was aborted as it did not evoke any response. Consequently, NIT No. SIMS/HEC/C/ET/31 of 2014 dated 09th October, 2014, which is the subject matter of writ petition, was issued in respect of aforesaid work and for the same cost. 3. Writ petitioner responded to the said NIT. In terms of the NIT, the tenders were to be submitted in two Cover System (Technical Bid and Financial Bid). The tender documents were opened in respect of both Technical as well as Financial bids. The lowest amount of L2,35,86,739.00 was quoted by the petitioner followed by M/s. Zeal Construction Company, which quoted an amount of Rs. 2,37,94,91.50 and by M/s. Mohammad Ashraf Gilkar, Engineers & Contractors, who quoted Rs. 2,55,65,86.55. Technical bid was opened on 27th August, 2014 and financial bid on 14th November, 2014. On 19th November, 2014, a Committee of three officers was constituted by the respondent - Institute to physically verify the status of various works, in respect of which, completion certificates were submitted by all the three Firms. The said Committee was constituted after opening of financial bid and consequently, it gave its report on 25th November, 2014. 4. On 04th December, 2014, meeting of 31st Contract Sub Committee was held under the chairmanship of Director, SKIMS. The Contract Sub Committee considered various contract cases including the contract relating to construction of Accident & Emergency, Phase III. The said Committee was constituted after opening of financial bid and consequently, it gave its report on 25th November, 2014. 4. On 04th December, 2014, meeting of 31st Contract Sub Committee was held under the chairmanship of Director, SKIMS. The Contract Sub Committee considered various contract cases including the contract relating to construction of Accident & Emergency, Phase III. After deliberating upon the same, it was observed that the "financial bid has been prematurely opened without properly obtaining clarifications of some other documents by the Tender Opening Committee", which documents were submitted by the tenderers, including the petitioner. It is for this reason that the tendering process, in its entirety, was cancelled, which resulted in cancellation of e.Tendering NIT dated 09th October, 2014 also. It was also decided that in case of issuance of fresh NIT, the contractors, who competed earlier, would be issued documents free of cost. 5. The petitioner filed the writ petition, where he prayed for issuance of direction for allotment of work for construction of Accident & Emergency, Phase III. It was also prayed in the writ petition that the respondents be further directed not to allot the work to any other contractor other than petitioner, who has been found to be the lowest tenderer by the respondents on comparative assessment of the bids. 6. The writ petition was considered by the Court, on 20th December, 2014. The respondents were on caveat. Learned counsel for the respondents informed the Court that NIT dated 09th October, 2014 stands cancelled. Since the work was not retendered, the Court directed the respondents not to retender the work notified vide NIT dated 09th October, 2014 till next date of hearing. The petitioner, thereafter, filed application seeking permission of the Court to amend the writ petition to enable him to throw challenge to the decision dated 04th December 2014, taken by the 31st Contract Sub Committee as also the decision about cancellation of NIT dated 09th October, 2014. The permission to amend the writ petition was granted and the petitioner filed amended writ petition. 7. The respondent-Institute filed the Reply Affidavit and in pursuance to Court orders, filed another Affidavit. 8. Mr. M.A. Qayoom, learned counsel for the petitioner submitted that the petitioner, who responded to the NIT, filed all the requisite documents before the competent authority. The permission to amend the writ petition was granted and the petitioner filed amended writ petition. 7. The respondent-Institute filed the Reply Affidavit and in pursuance to Court orders, filed another Affidavit. 8. Mr. M.A. Qayoom, learned counsel for the petitioner submitted that the petitioner, who responded to the NIT, filed all the requisite documents before the competent authority. He further submitted that on opening of financial bid, the petitioner was found to be a person who had quoted the lowest rates amongst three tenderers. Learned counsel, extensively, referred to the documents placed on writ record to indicate that the objections raised about them were appropriately responded. Learned counsel submitted that after entering into satisfaction about the fulfilment of terms and conditions of NIT by the petitioner and for the reason that he had quoted the lowest rate, a duty was cast on the respondents to allot the work for construction of Accident & Emergency, Phase III, to him. 9. Learned counsel further submitted that the respondents have conducted themselves in unfair manner by cancelling the tender process and the NIT. Learned counsel also submitted that an incompetent authority has cancelled the tendering process. Learned counsel in this behalf, at the time of hearing of the case, produced copy of Government Order No. 35-IMS of 1999 dated 14th September, 1999. Learned counsel submitted that respondents have acted illegally and arbitrarily in taking the impugned decision and that too at the back of the petitioner. Learned counsel submitted that this Court has the power to review the decision making process of the authorities even in contractual matters. Learned counsel, in support of his contention, referred to and relied upon the judgements reported in AIR 1997 SC 1225 , 1997 (3) SCC 261 , 1993 (1) SCC 445 , AIR 1996 SCC 11 & AIR 2000 P&H 167. Besides this, Mr. Qayoom also submitted that the petitioner, who participated in the tendering process, in view of he having been declared to be the person, who quoted the lowest rates, had entertained legitimate expectation that the work for construction of Accident & Emergency, Phase III, will be allotted to him. Learned counsel submitted that the respondents are dutybound to allot the work to the petitioner. Learned counsel, in this behalf, referred to and relied upon judgements of Hon'ble the Supreme Court, reported in AIR 1994 SC 988 . Mr. Learned counsel submitted that the respondents are dutybound to allot the work to the petitioner. Learned counsel, in this behalf, referred to and relied upon judgements of Hon'ble the Supreme Court, reported in AIR 1994 SC 988 . Mr. Qayoom, in support of his contention that the decisions have been taken at the back of the petitioner and without following principles of natural justice, referred to and relied upon judgement of this Court reported in AIR 2015, J&K 7. Learned counsel, accordingly, prayed for allowing of the writ petition. 10. Mr. M.I.Dar, learned counsel for the respondent - Institute, submitted that the writ petition is not maintainable for the reason that the contractual matters cannot be made subject matter of writ petitions. Learned counsel, accordingly, submitted that this writ petition merits dismissal on this ground alone. Learned counsel, while referring to paragraph 12 of the Reply Affidavit filed by respondents 1&2 to the amended writ petition, submitted that the process of verification of certificates was initiated for the reason that M/s. Zeal Constructions personally represented to the Chief Engineer on 30th November, 2014 and to the Director, SKIMS on 17th November, 2014 and raised objections about competence of the petitioner to participate in the tendering process as he (petitioner) had not completed the works on ground, about which he had furnished certificates along with his tender documents. Learned counsel while referring to the terms and conditions of the tender documents, submitted that the eligible persons, besides producing other documents, had also to produce experience certificate of having executed at least such works duly entered into the Enlistment Card and certifying their completion successfully by the concerned authorities. Learned counsel submitted that in terms of the NIT, these works ought not to be below 25% cost of tender value within three phases, i.e. 75% of 1st, 50% of 2nd and 25% of 3rd. Learned counsel further submitted that it is for this reason that Committee of Officers was constituted to have physical verification of the works in respect of not only the petitioner but also the other two eligible persons, who had participated in the tender process. 11. Learned counsel further submitted that it is for this reason that Committee of Officers was constituted to have physical verification of the works in respect of not only the petitioner but also the other two eligible persons, who had participated in the tender process. 11. Learned counsel, while referring to the Affidavit filed on 20th April, 2015, submitted that in its 31st Contract Sub Committee Meeting on 04th December, 2014, in respect of subject matter of the writ petition, it was found that the financial bid was prematurely opened without properly obtaining the clarification of some of the documents by the Tender Opening Committee. Learned counsel submitted that it is for this reason that the tendering process was cancelled. Learned counsel also submitted that the respondents are duty-bound to protect the finances of the Institute/State, of which it is the guardian. Learned counsel also submitted that if any defect is found in the decision making process, no writ will lie about the same. Learned counsel in support of his contention referred to and relied upon judgements of Hon'ble the Supreme Court reported in AIR 2006 SCW 5834 , (2003) 7 SCC 410 , (2002) 1 SCC 216 , AIR 1993 SC 1994, AIR 1996 SC 11 , (2005) 6 SCC 138 & (2010) SCC 619 and prayed for dismissal of writ petition. 12. The manner, in which the Constitution is designed, brings forth complete delineation of jurisdictions of three wings of the State, viz. Executive, Legislature & Judiciary. Every limb of the State is dutybound to perform its functions within the boundaries earmarked by the Constitution itself. Transgression of boundaries by any one organ is bound to have adverse impact on the functioning of other wings of the State. 13. Ours is a constitutional democracy. In our constitutional philosophy, people are sovereign. The power and authority flows from the people and in order to run the affairs of the State in accordance with mandate contained in the Constitution, trust is created in certain persons. The people, who hold constitutional/public posts, thus hold the same in trust for the benefit of the people at large. They have to perform their duties in accordance with the mandate contained in the Constitution and other laws of the land. The authorities are accountable for their actions to the institutions created by the Constitution and laws. The people, who hold constitutional/public posts, thus hold the same in trust for the benefit of the people at large. They have to perform their duties in accordance with the mandate contained in the Constitution and other laws of the land. The authorities are accountable for their actions to the institutions created by the Constitution and laws. The Constitutional law, in our country, has undergone tremendous evolution. In order to maintain the rule of law, which constitutes the edifice and foundation of a democratic society, the Constitutional Courts and other Courts are duty bound to adjudicate upon the issues, in accordance with law, which are brought before them. 14. The judicial review is a sacrosanct duty cast on the Court of law. Administrative maladies are cured by sagacious wand of judicial review. However, mere insignificant administrative aberrations do not call for judicial interventions. Executive actions can not be interjected on mere personal perceptions. 15. In the case on hand, admitted facts would show that the authorities acted improperly when they opened the financial bid prematurely before testing the veracity of the documents/experience certificates submitted by the competing bidders. The action of the authorities in cancelling the tendering process and tender notice, which got tainted due to administrative impropriety, is but to be appreciated. Any competing bidder would have successfully challenged the improper administrative action of opening of financial bid prematurely, before a Court of law. The decision, taken for cancelling the tendering process, deserves to be respected and maintained. 16. Merely being lowest tenderer, would not, in law, bind the authority to allot the construction work in favour of the petitioner and merely quoting lowest rates does not clothe a tenderer with right in law to seek allotment of construction in his favour. ( AIR 1996 SC 11 ). 17. No decision has been taken in this case, which would denude the petitioner of any of his vested legal rights. The authorities have not acted unfairly or unjustly. They, in fact, have corrected their own mistakes, which would come within the realm of administrative impropriety. Thus the soul of Article 14, of acting fairly, has been observed faithfully by the authorities. 18. In the case reported in AIR 2015, J&K 7, the contractor was debarred from participating in future tendering process and his earnest money was forfeited. They, in fact, have corrected their own mistakes, which would come within the realm of administrative impropriety. Thus the soul of Article 14, of acting fairly, has been observed faithfully by the authorities. 18. In the case reported in AIR 2015, J&K 7, the contractor was debarred from participating in future tendering process and his earnest money was forfeited. Such a decision was taken at his back and without affording him opportunity of hearing. Same is not the case on hand. In this case the petitioner is not debarred from participating in any tendering process, nor any other punitive action is taken against him. 19. Though the principles underlying doctrine of legitimate expectation is not available in this case, such a plea cannot, otherwise, be taken cognizance of when no such foundation is laid in the pleadings of writ petition. 20. It is the settled principle of Law of Pleadings that facts and grounds are to be pleaded in the writ petition and evidence/material in support thereof is to be annexed with the writ petition to enable the opposite party to effectively meet the same in the like manner. A party cannot be permitted to raise an issue at the time of hearing when foundation thereof is not laid in the pleadings, as it has the effect of taking away the right of the adversary party to deal with same, which, in turn, would be violative of principles of natural justice. In the like manner, the objection about composition of Contract Sub Committee cannot be entertained. ( AIR 1988 SC 2181 ) (Paragraph-13). 21. The judgements, cited at bar by learned counsel for the petitioner, does not advance the cause of the petitioner. These judgements lay down the principles of judicial review in contractual matters, which have been followed by the Court. 22. The discussion is complete. Writ petition is dismissed along with connected IA's.