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Uttarakhand High Court · body

2015 DIGILAW 454 (UTT)

Manhar Sharma v. Nagar Nigam, Dehradun

2015-09-15

ALOK SINGH

body2015
JUDGMENT : Alok Singh, J. 1. Undisputed facts of the present case, inter alia, are that petitioner is engaged in the business of advertisement and is proprietor of M/s Media Professionals Enterprises and M/s Drishti Media Coverage; in the year 2013, police authorities of Dehradun city were pleased to permit the petitioner to construct/establish police booths and umbrellas at different places and to advertise thereon; petitioner in the name of M/s Media Professionals Enterprises started raising police booths and umbrellas at different places and also started advertising thereon; in the year 2013, itself, Nagar Nigam, Dehradun has raised objection in the matter of advertisement on various police booths and umbrellas saying business of advertisement can be controlled by Nagar Nigam only under Sections 305, 306 of the U.P. Municipal Corporation Act read with different Bye-laws and Regulations in this regard; on the objection being raised by the Nagar Nigam, police authorities have directed the petitioner and its proprietorship firms to pay advertisement fees to the Nagar Nigam directly; petitioner, thereafter, started paying advertisement fees, as levied by Nagar Nigam, to the Nagar Nigam for the advertisements being carried out on different police booths and umbrellas; meanwhile, Nagar Nigam was pleased to issue tender notice dated 13.03.2013 inviting tenders to grant contract of advertisement; feeling aggrieved, petitioner and its proprietorship firms have filed WPMS No. 623 of 2013; during the pendency of the writ petition, tender notice dated 13.03.2013 was withdrawn and fresh tenders were invited vide second tender notice dated 08.09.2014; feeling aggrieved by the second tender notice, petitioner was compelled to file second petition being Writ Petition No. 2544 (MS) of 2014; during the pendency of Writ Petition being WPMS No. 2544 of 2014, second tender notice was also withdrawn and entire tender process was cancelled, therefore, second writ petition no. 2544 of 2014 was dismissed being infructuous vide order dated 19.11.2014; third tender notice issued by Nagar Nigam was published in daily newspaper Dainik Jagran on 16.11.2014 (Annexure No. 1 to the writ petition); as per tender notice dated 16.11.2014, bidders were supposed to collect tender form and terms and conditions of the tender from the office of Nagar Nigam or to download from the website of Nagar Nigam; last date of submission of bids was between 18.11.2014 to 26.11.2014; bids were to be open at 03.00 p.m. on 26.11.2014; as per terms and conditions of the tender notice, every bidder should have minimum turnover of Rupees One Crore while net worth should be minimum of Rupees Three Crore; as per another term and condition of the tender notice, at page no. 35 of the paper book, minimum concession fee of the said project was Rs. 25,00,000/- per annum. 2. Undisputedly, on 19.11.2014 i.e. after first date of submission of bid document, Nagar Nigam has changed terms and conditions of the tender notice; as revealed from page 61 and 62 of the paper book, net worth was reduced from Rupees Three Crore to Rupees Sixty Six Lakh and minimum reserved concession was also reduced from Rs. 25,00,000/- to Rs. 15,00,000/-. 3. Undisputedly, as per initial, terms and conditions of the tender notice, as available at page 41 of the paper book, bidder/consortium shall submit audited balance sheet/annual report of the lead member in support of the financial date while as per corrected/amended terms and conditions of the tender notice, at page 69 of the paper book, in case of bidder being a consortium, the financial capability (turnover and net worth) criteria must be fulfilled by consortium. 4. The main grievance of Mr. V.K. Kohli, Sr. Advocate for the petitioner is that since, last date of submission of bids, was between 18.11.2014 to 26.11.2014, therefore, after commencement of the game, it was not open to the Nagar Nigam to change the terms and conditions of the tender notice reducing the net worth from Rupees Three Crores to Rupees Sixty Six Lakh, minimum reserved concession fee from Rs. 25,00,000/- should have not been reduced to Rs. 15,00,000/-. Nor other conditions should have been changed. 5. According to Mr. Kohli, since petitioner was not having net worth of Rs. 25,00,000/- should have not been reduced to Rs. 15,00,000/-. Nor other conditions should have been changed. 5. According to Mr. Kohli, since petitioner was not having net worth of Rs. Three Crore, as minimum requirement by Nagar Nigam, petitioner has not submitted his tender on 18.11.2014 or thereafter, till 26.11.2014. He further contends that no corrigendum was issued in any newspaper making aware the general public including the petitioner about the change in terms and conditions of minimum net worth in the tender notice to the effect that net worth has been reduced from Rs. Three Crore to Rs. Sixty Six Lakh. Had corrigendum been issued, petitioner would have acquired knowledge that net worth has been reduced to Rs. Sixty Six Lakh from Rs. Three Crore and reserved concession fee has been reduced to Rs. 15,00,000/- from Rs. 25,00,000/-, therefore, petitioner would have eligible to submit his bid and consequently, would have submitted his bid within time. 6. According to Mr. Kohli, the conditions were changed twice, after commencement of date of submission of tender bids and changed conditions were not notified nor corrigendum was issued just to help respondent no. 3. He further contends that as per terms and conditions of the bid document, as available at page 50 of the writ petition, contractor is required to pay licence fees on annul basis in advance, however, in the present case, although contract has been awarded in favour of respondent no. 3, however, he has not paid annual licence fees, in advance, as required by tender document. According to Mr. Kohli, learned Senior Advocate, entire action of the Nagar Nigam demonstrate every thing was not transparent and was done with sole object to help respondent no. 3. 7. On the other hand, Mr. S.S. Chauhan, learned counsel appearing for the Nagar Nigam has vehemently argued that petitioner has not approached this Court with clean hands. 8. According to Mr. Chauhan, first of all, petitioner with the collusion of police authorities has started advertising business and secondly, first tender notice was issued way back in the year 2013 and he has challenged the same, however, Nagar Nigam has decided to withdraw the first tender notice and has floated second tender notice. 8. According to Mr. Chauhan, first of all, petitioner with the collusion of police authorities has started advertising business and secondly, first tender notice was issued way back in the year 2013 and he has challenged the same, however, Nagar Nigam has decided to withdraw the first tender notice and has floated second tender notice. In compliance of second tender notice, petitioner has not submitted his tender in time and has submitted his tender with 15 minutes delay, however, finding that none of the bidders has submitted bid for more than reserved price, therefore, second tender notice was also withdrawn and thereafter, third tender notice, in question, was issued. He further contends that condition of the net worth was changed from Rs. Three Crore to Rs. Sixty Six lakh in the tender notice with sole object so that others who are otherwise eligible may also participate. It is further contended that it was for the petitioner to download the same and submit his bid within time. Petitioner has not submitted his bid, therefore, writ petition should not be entertained and should be dismissed only on this ground. 9. Mr. Anil Kumar Joshi appearing for the contractor has fairly submitted that although agreement has been executed between Nagar Nigam and respondent no. 3 in the month of January, 2015 itself, however, facts remain that till date respondent no. 3 could not commence his project on the spot since petitioner is not permitting respondent no. 3 to commence the work. He further contends that petitioner has not permitted the respondent no. 3 to commence the work, therefore, annual advance fees has not been paid by respondent no. 3, as required by the tender notice mentioned at page 50 of the paper book. 10. Facts of the case and arguments of learned counsel for the parties have already been narrated hereinbefore, therefore, I do not want to repeat the same. However, the fact remains that in terms and conditions of the tender notice, amendment was carried out by Nagar Nigam, after 18.11.2014 reducing the requirement of net worth from Rs. Three Crore to Rs. Sixty Six Lakh and no corrigendum was ever issued for the general public that amendment was carried out in the terms and conditions of the tender notice. 11. Hon’ble Apex Court in the case of Monarch Infrastructure Pvt. Ltd. Vs. Three Crore to Rs. Sixty Six Lakh and no corrigendum was ever issued for the general public that amendment was carried out in the terms and conditions of the tender notice. 11. Hon’ble Apex Court in the case of Monarch Infrastructure Pvt. Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and others reported in 2000 (5) SCC 287 in paragraph 12 has held as under: “12. The High Court had taken the view that if a term of the tender having been deleted after the players entered into the arena it is like changing the rules of the game after it had began and, therefore, if the Government or the Municipal Corporation was free to alter the conditions fresh process of tender was the only alternative permissible. Therefore, we find that the course adopted by the High Court in the circumstances is justified because by reason of deletion of a particular condition the wider net will be permissible and a larger participation or more attractive bids could be offered.” 12. Hon’ble Apex Court in the case of Meerut Development Authority Vs. Association of Management Studies and another reported in 2009 (6) SCC 171 in paragraphs 26, 27 and 28 has held as under: “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 view to eliminate all others from participating in the biding process. 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 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. 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.” 13. As per dictums of the Hon’ble Apex Court, if a term of the tender having been deleted after the players entered into the arena it is like changing the rules of the game, after it had began and, therefore, if the Government or the Municipal Corporation was free to alter the conditions fresh process of tender was the only alternative permissible. 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. 14. In the present case, as per dictum of the Hon’ble Apex Court, if Nagar Nigam wanted to carry out the amendment in the terms and conditions of the tender notice, after last date of commencement of the submission of bids Nagar Nigam ought to have issued at least corrigendum or may have issued fresh tender. Since Nagar Nigam has not issued corrigendum, such action is hit by Article 14 of the Constitution of India. 15. There is another aspect of the matter. Admittedly, till date, respondent no. 3 has not commenced his business and has not deposited the advance annual licence fee of Rs. 48 Lakh, as required in the tender notice at page 50 of the paper book, therefore, no legal right has accrued in favour of respondent no. 3. 16. 15. There is another aspect of the matter. Admittedly, till date, respondent no. 3 has not commenced his business and has not deposited the advance annual licence fee of Rs. 48 Lakh, as required in the tender notice at page 50 of the paper book, therefore, no legal right has accrued in favour of respondent no. 3. 16. In view of the above, writ petition no. 7 of 2015 succeeds and is hereby allowed. Entire tender process including grant of contract in favour of respondent no. 3 is hereby quashed. Nagar Nigam is directed to invite fresh tenders, if so desire. Since, first tender notice subject matter of WPMS No. 623 of 2013 has already been withdrawn, therefore, WPMS No. 623 of 2013 has rendered infructuous and same is dismissed as such. No order as to costs.