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Jharkhand High Court · body

2016 DIGILAW 585 (JHR)

Tirupati Cement Products v. State of Jharkhand

2016-04-07

PRASHANT KUMAR

body2016
JUDGMENT : Prashant Kumar, J. This writ application has been filed for quashing the decision of the Tender Committee taken in the meeting dated 06.10.2015 whereby it rejected the bid of the petitioner in connection with Tender no. DWSD/Distribution/01/2015-16 dated 30.07.2015 being violative of Clause 163(a) of the P.W.D. Code. Petitioner also prayed for quashing the letter dated 12.11.2015 (Annexure-4) by which the petitioner has been communicated that its bid has been rejected under clause 163(a) of P.W.D. Code. Petitioner further prayed for issuance of a direction commanding the respondents to forthwith issue the work order in favour of the petitioner in connection with the aforesaid Tender. Petitioner further prayed that Clause 163(a) of the P.W.D. Code, 2012 be declared directory in nature. 2. It appears that the Drinking Water and Sanitation Department, Govt. of Jharkhand, issued an Invitation for bid (Annexure-1) vide Tender Reference No. DWSD/Distribution/01/2015-16 dated 30.07.2015 for Shifting of 600 mm dia D.I.K-9 pipe and 600 mm dia M.S. pipe along Booty- Bariatu road from Departmental check post to Karam toli chowk under D.W.& S.Sw./Distribution Division, Ranchi. 3. It is stated that the petitioner being an eligible contractor had participated in the tender process by uploading its bid on 18.08.2015. It is stated that apart from the petitioner, three other bidders also participated in the said tender process. It is further stated that the technical bid of the tenderers opened on 24.08.2015. Thereafter, the Superintending Engineer, Drinking Water and Sanitation Department, Urban Circle, Ranchi vide his letter no. 986 dated 02.09.2015 send the comparative statement of the tenderers to the Headquarter. The Regional Officers found the petitioner as well as three other bidders to be technically qualified and recommended for proceeding further. It is stated that on 20.09.2015, the price bids were opened online and the Executive Engineer, Swarn Rekha Distribution Division, vide letter no. 1056 dated 30.09.2015 forwarded the comparative statement of the price bids, of the aforesaid four bidders, before the Tender Committee. The Tender Committee held its meeting on 06.10.2015 under the Chairmanship of the Engineer-in-Chief, Drinking Water and Sanitation Department, Govt. of Jharkhand, Ranchi. In the said meeting, the bid of the petitioner rejected as per the provision of clause 163(a) of the P.W.D. Code, because the price offered by the petitioner was 10% below of the amount mentioned in the bill of quantity. of Jharkhand, Ranchi. In the said meeting, the bid of the petitioner rejected as per the provision of clause 163(a) of the P.W.D. Code, because the price offered by the petitioner was 10% below of the amount mentioned in the bill of quantity. On the same day, the Tender Committee took decision to award the work to one M/s L.R. Sharma & Company, New Delhi (respondent no.5). It is stated that immediately thereafter, petitioner filed representation before the Engineer-in-Chief on 29.10.2015 stating the reasons for quoting the price below 10% of the amount mentioned in the Bill of Quantity. However, the respondent (Engineer-in-Chief) inform the petitioner vide letter dated 12.11.2015 (Annexure-4) that as per Clause 163(a) of the P.W. D. Code, the tender quoted below 10% of the amount mentioned in the Bill of Quantity is required to be rejected ab initio, thus, the tender submitted by the petitioner cannot be validated. 4. It is stated that in the tender document, there is no indication that provisions of P.W. D. Code will apply. Under the said circumstance, respondents are bound to follow the terms and conditions mentioned in the Standard Bidding Document. It is further stated that Clause 29.5 of the Standard Bidding Document provides that if the bid of a successful bidder is seriously un-balanced in relation to the Engineer's estimate of the cost of the work, then the employer may require the bidder to produce detailed price analysis for any or all items of the Bill of Quantities, with a view to demonstrate the internal consistency of house prices with the construction methods and schedule proposed. It is stated that no such opportunity given to the petitioner. It is further stated that Clause 163(a) of the P.W.D. Code merely prescribed procedure for bidding. Thus, the same is not mandatory, rather directory in nature. 5. Separate counter affidavits filed on behalf of the State as well as private respondents. Wherein they stated that in the State of Jharkhand, P.W.D. Code is applicable since 5th June, 2012. It is further stated that in all the works departments (including Drinking Water and Sanitation Department) of the Govt. of Jharkhand, the tender processes are being regulated by the provisions of P.W.D. Code. It is stated that in the instant case also, the Tender Committee constituted as per the provisions of P.W.D. Code. It is further stated that in all the works departments (including Drinking Water and Sanitation Department) of the Govt. of Jharkhand, the tender processes are being regulated by the provisions of P.W.D. Code. It is stated that in the instant case also, the Tender Committee constituted as per the provisions of P.W.D. Code. Accordingly, it is stated that it is within the knowledge of the petitioner that in all the tender process, the P.W.D. Code will apply. It is stated that Clause 163(a) of the P.W.D. Code specifically states that "Tender quoted below 10% of the amount mentioned in the Bill of Quantity shall be rejected ab initio. Accordingly, it is stated that since the petitioner has quoted the price below 10%, therefore as per Clause 163(a) of the P.W.D. Code, its tender is liable to be rejected at the threshold. It is stated that Clause 29.5 of the Standard Bidding Document has no application in the case of the petitioner, because the same relates to the tender of successful bidders. Since, the petitioner's bid has been rejected ab initio being violative of Clause 163(a) of the P.W.D. Code, the question of application of Clause 29.5 and 29.6 of the Standard Bidding Document does not arise. It is stated that Clause 163(a) of the P.W.D. Code is mandatory, therefore the authority has rightly rejected the bid of the petitioner. 6. It is submitted by Sri Indrajit Sinha, learned counsel for the petitioner that in the invitation for bid, it is not stated that if the price bid of the tenderer is below 10% of the amount mentioned in the bill of quantity, then the same shall be rejected ab initio. It is further submitted that it is imperative for the State Government to disclose the procedure, which the government is going to follow in accepting or rejecting the tender and the same must be clearly mentioned in the tender notice. It is well settled that the decision making process should be transparent, fair and open. It is submitted that the tenderers must have the knowledge that the price bid of any tenderer will be rejected, if it will be found in violation of Clause 163(a) of the Jharkhand P.W.D. Code. It is well settled that the decision making process should be transparent, fair and open. It is submitted that the tenderers must have the knowledge that the price bid of any tenderer will be rejected, if it will be found in violation of Clause 163(a) of the Jharkhand P.W.D. Code. It is then submitted that in fact Jharkhand P.W.D. Code has not come into force as yet, because the State Government has not notified the appointed date from which Jharkhand P.W.D. Code, 2012 will come into force. Accordingly, it is submitted that the ground on which the petitioner's bid has been rejected is not existing in the eye of law. Thus, the same cannot be sustained. It is further submitted that admittedly petitioner's bid is lowest one, therefore, respondents are bound to accept the same and award the work in favour-of the petitioner. 7. On the other hand, learned Advocate General submitted that the Jharkhand P.W.D. Code, 2012 has been notified on 05.06.2012 and published in the Jharkhand Gazette. He further submitted that the petitioner also admitted in paragraph no.19 of the writ application that the Jharkhand P.W.D. Code, 2012 has already been notified on 05.06.2012. He then submitted that Clause 163(a) of the Jharkhand P.W.D. Code provides that if the tender quoted below 10% of the amount mentioned in the bill of quantity, the same shall be rejected ab initio. He then submits that since price quoted by the petitioner is below 10% of the amount mentioned in the bill of quantity, therefore, his bid has been rejected at the threshold. Thus, he cannot be treated as successful bidder, therefore, Clause 29.5 of the Standard Bidding Document has no application in the case of the petitioner. It is further submitted that in the State of Jharkhand, the Jharkhand P.W.D. Code, 2012 is being followed by all the departments from 05.06.2012, therefore, the contention of the petitioner that it has not come into force as yet is incorrect, therefore, liable to be rejected. It is submitted that since bid of the petitioner has been rejected ab initio therefore, the question of awarding the work to the petitioner does not arise. 8. Sri Anil Kumar Sinha, learned senior counsel appearing for the respondent no.5 submitted that it is an admitted position that Jharkhand P.W.D. Code has been notified on 05.06.2012. It is submitted that since bid of the petitioner has been rejected ab initio therefore, the question of awarding the work to the petitioner does not arise. 8. Sri Anil Kumar Sinha, learned senior counsel appearing for the respondent no.5 submitted that it is an admitted position that Jharkhand P.W.D. Code has been notified on 05.06.2012. He further submitted that from Annexure-R/5B, it will be clear that different departments had issued order for following the provisions of Jharkhand P.W.D. Code, as the same has already been notified and published in the Jharkhand Gazette. He further submitted that aforesaid annexure goes to show that Jharkhand P.W.D. Code, 2012 has been enforced in the State of Jharkhand from the date of its notification. Accordingly, Mr. Sinha submitted that the contention of the petitioner that Jharkhand P.W.D. Code has not come into force as yet, cannot be accepted. He further submitted that the petitioner has not taken the plea that Jharkhand P.W.D. Code has not come into force as yet, thus, it cannot be allowed to raise this plea. He further submitted that the State Government has got ample power to reject any tender as per the terms and conditions of invitation for bid. Clause 13 of the invitation for bid clearly stipulates that the authority reserves the right to cancel the tender at any time without any prior notice. He further submitted that the bill of quantity has been determined by the expert body in order to make the contract workable. The provisions made at Clause 163(a) of the Jharkhand P.W.D. Code has been incorporated with a view to ensure that the works should be completed as per the specification and standard fixed by the expert body and to prevent such contractor from participating in the bid, who with a view to get the work, quote lower rate and later on execute the work in sub-standard way. Thus, Clause 163(a) of the Jharkhand P.W.D. Code is reasonable and there is no arbitrariness in rejecting the bid, which is violative of Clause 163(a) of the Jharkhand P.W.D. Cod. Thus, Clause 163(a) of the Jharkhand P.W.D. Code is reasonable and there is no arbitrariness in rejecting the bid, which is violative of Clause 163(a) of the Jharkhand P.W.D. Cod. He further submitted that even it is assumed that the Jharkhand P.W.D. Code has not come into force, then also since the rate quoted by the petitioner is drastically low, the authority has all right to reject the same, because if the petitioner will execute the work in sub-standard way, then the State and the public at large will suffer. Accordingly, he submits that otherwise also the decision taken against the petitioner is reasonable, therefore, does not require any interference. 9. Having heard the submissions, I have gone through the records of the case. 10. Admittedly, petitioner's bid has been rejected taking into account the provision of Clause 163(a) of the Jharkhand P.W.D. Code. Respondent no.5 in its counter affidavit has annexed the notification no. 4043(5) dated 05.05.2012, whereby the Jharkhand P.W.D. Code notified. It appears that the aforesaid notification published in the Jharkhand Gazette on 14.6.2012. The text of aforesaid notification dated 05.06.2012 is quoted herein below :- "Bharat ke Samvidhan ka Anukshed 162 sahpathit Anukshed 309 me praddat shaktiyon ka prayog karte hue Jharkhand Rajyapal Samyak rup se vichar karne ke uparant ninmnlikhit "Jharkhand Lok Nirman Vibhag Sanhita, 2012" banate hain. (In exercise of power conferred in Article 162 read with Article 309 of the Constitution of India, the Governor of Jharkhand after due consideration makes the following Jharkhand P.W.D. Code, 2012). 11. Thus, from perusal of aforesaid notification, I find that no date stipulated in it from which the Jharkhand P.W.D .Code, 2012 will come into force. In this respect, Clause 1A of the Jharkhand P.W.D. Code is relevant for consideration, which reads as follows : "1A. It shall be deemed to have come into force on such date as the State Government may, by notification in the official Gazette, appoint in this behalf." 12. Thus, from perusal of the aforesaid provisions as contained in Clause 1A of the Jharkhand P.W.D. Code, 2012, it is clear that the same will come into force from such date as the State Government by notification in the Official Gazette appoints in this behalf. Thus, from perusal of the aforesaid provisions as contained in Clause 1A of the Jharkhand P.W.D. Code, 2012, it is clear that the same will come into force from such date as the State Government by notification in the Official Gazette appoints in this behalf. On query, learned Advocate General, after taking instruction from the concerned department submitted that apart from the notification dated 05.06.2012, no other notification issued by the State Government prescribing the date from which the Jharkhand P.W.D. Code, 2012 will come into force. 13. The contention of Sri A.K. Sinha, learned senior counsel that from Annexure- R/5B, it is clear that the different departments had issued order for following the provisions of Jharkhand P.W.D. Code, 2012, because the same has been gazetted and published in the website of Jharkhand Govt. Therefore, it will be presumed that the Jharkhand P.W.D. Code has already come into force from 05.06.2012. With great respect to learned senior counsel his submission is not acceptable. 14. It is well settled that if the law prescribes the manner in which a work is required to be done, then the same must be done in that manner or not at all. In this connection, it is worth to be quote paragraph 35 of the judgment passed by the Hon'ble Supreme Court in "Meera Sahni Vs Lieutenant Governor of Delhi and others" reported in (2008) 9 SCC- 177 :- "It is by now a certain law that an action to be taken in a particular manner as provided by a statute, must be taken, done or performed in the manner prescribed and in no other manner. In this connection we may appropriately refer to the decision of this Court in Babu Verghese Vs. Bar Council of Kerala where it was held as under :(SCC pp 432-33, paras 31-32) "31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under : "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all'. 32. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under : "where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all'. 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindh Pradesh and again in Deep Chand v. State of Rajasthan. These cases were considered by a three- Judges Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law." 15. Thus, in view of the above settled law, the Jharkhand P.W.D. Code, 2012 will come into force from such date as the State Govt. may by notification appoint in this behalf. The Jharkhand P.W.D. Code can not be enforced by order of the Departmental Secretary, like Annexure- R/5B. 16. Under the said circumstances, since no appointed date has been notified by the State Government in official Gazette for making Jharkhand P.W.D. Code, 2012 enforceable, I find and hold that still the Jharkhand P.W.D. Code, 2012 has not come into force. 17. The contention of Sri A.K.Sinha, learned senior counsel that the petitioner has not taken this point in the writ application, therefore, he cannot be allowed to raise the said point, cannot be accepted in view of the settled principle of law that a question of law can be raised at any stage even without pleading. 18. Now, coming to the next question even assuming, for the sake of discussion, that the Jharkhand P.W.D. Code, 2012 has come into force with effect from 05.06.2012, then also, in my view, it is incumbent upon the respondent-State to stipulate in the invitation for bid that the terms and conditions mentioned in the Jharkhand P.W.D. Code will be applicable. From perusal of the terms and conditions of the invitation for bid, I find that there is no stipulation that the bid of the tenderer will be governed by the Jharkhand P.W.D. Code, 2012 19. From perusal of the terms and conditions of the invitation for bid, I find that there is no stipulation that the bid of the tenderer will be governed by the Jharkhand P.W.D. Code, 2012 19. It has been held by Hon'ble Supreme Court in Dutta Associates Pvt. Ltd. Vs Indo Merchantiles Pvt. Ltd and others "(1997)1 SCC-53 that : ............."We reiterate that whatever procedure the Government proposes to follow in accepting the tender must be clearly stated in the tender notice. The consideration of the tenders received and the procedure to be followed in the matter of acceptance of a tender should be transparent, fair and open.............." 20. In Indian Railway Catering and Tourism Corporation Ltd and another Vs. Doshion Veolia Water Solutions Private Ltd and others" (2010)13 SCC-364,the Hon'ble Supreme Court held as under : ................" To hold that the State or its agencies can reject a tender for breach of a term or condition in the tender document, which is not explicit in the tender documents, is to give room to the State or its agencies to arbitrarily reject tenders even where the clear terms or conditions of the tender documents are complied with." 21. In this respect following observation of Hon'ble Supreme Court in Kanhaiya Lal Agrawal Vs. Union of India and others (2002) 6 SCC-315 at paragraph no. 5 and 6 is relevant to be quoted herein below: "5. This Court is normally reluctant to intervene in matters or entering into contracts by the Government, but if the same is found to be unreasonable, arbitrary, mala fide or is in disregard of mandatory procedures it will not hesitate to nullify or rectify such actions. "6. It is settled law that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same. Whether a condition is essential or collateral could be ascertained by reference to the consequence of non-compliance thereto. If non-fulfilment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term. This legal position has been well explained in G.J.Fernandez v. State of Karnataka." (emphasis added) 22. If non-fulfilment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term. This legal position has been well explained in G.J.Fernandez v. State of Karnataka." (emphasis added) 22. In view of the aforesaid law laid down by their Lordships of Hon'ble Supreme Court, it is clear that a bid or tender of a contractor can be rejected by the State Government, if the same is violative of any specific terms and conditions mentioned in the Tender Notice and/or documents attached with the same. From perusal of invitation for bid, I find that there is no stipulation that if the tender quoted by the tenderer is below 10% of the amount mentioned in the bill of quantity, the same will be rejected ab initio. Under the said circumstance, in absence of aforesaid stipulation in the tender, in my view, the tender quoted by the petitioner is not liable to be rejected at the threshold. Since, in the instant case, tender quoted by the petitioner has been rejected at the threshold on the ground, which has not been mentioned in the tender notice, I find that the action of the respondents is arbitrary and against the mandate of Article 14 of the Constitution of India. 23. The contention of Sri Anil Kumar Sinha, the learned senior counsel, that even assuming that there is no such stipulation in the invitation for bid if the action of the respondent-State is reasonable and in the public interest, then this Court should not interfered with the impugned order. The above contention cannot be accepted. 24. It is well settled that while making a judicial review of an administrative action, the impugned order must be examined with reference to the grounds set out in the order itself on which it is based and not with reference to any fresh ground brought out specifically. In this respect, I find it proper to quote paragraph 16 of the judgment of Hon'ble Supreme Court in "Rashmi Metaliks Limited and Another Vs. Kolkata metropolitan Development Authority and Others" (2013)10 SCC 95 :- 16. "The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Kolkata metropolitan Development Authority and Others" (2013)10 SCC 95 :- 16. "The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in Gordhandas Bhanji (AIR p.18 para 9) 9... public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.' Orders are not like old wine becoming better as they grow older." 25. As noticed above, in the instant case, the tender of the petitioner has been rejected on the ground that it is violative of Clause 163(a) of the Jharkhand P.W.D. Code, 2012. I have already come to the conclusion that Jharkhand P.W.D. Code has not come into force as yet, as no notification issued as per Clauses 1(A) of the above Code. Therefore, the ground for rejection of the bid of the petitioner is not existing in the eye of law. Admittedly, such condition has not been mentioned in the invitation for bid under consideration. Thus, the rejection of the bid of the petitioner is arbitrary and against the mandate of the Article 14 of the Constitution of India. 26. The prayer of the petitioner for issuance of a writ of mandamus commanding the respondent-State for awarding the work to the petitioner cannot be granted, because from Annexure-2, it is clear that apart from the petitioner's , bid, the bid of another tenderer has also been rejected taking recourse of Clause 163(a) of the Jharkhand P.W.D. Code. 26. The prayer of the petitioner for issuance of a writ of mandamus commanding the respondent-State for awarding the work to the petitioner cannot be granted, because from Annexure-2, it is clear that apart from the petitioner's , bid, the bid of another tenderer has also been rejected taking recourse of Clause 163(a) of the Jharkhand P.W.D. Code. Under the said circumstance, it is not in the interest of justice that a direction be issued for commanding the respondents to award the work in favour of the petitioner. 27. Next prayer of the petitioner that Clause 163(a) of the Jharkhand P.W.D. Code may be declared directory in nature. In my view, said question is not required to be determined at present, as I have already held that Jharkhand P.W.D Code 2012 has not come into force as yet. 28. In the result, I allow this writ application and quash Annexures-2 and 4 of the writ application. I find that by order dated 02.12.2015, ad interim order has been passed for not taking any step in pursuance of the decision of the Tender Committee dated 06.10.2015. Thus, I direct the respondent/State to issue a fresh tender notice within Two Months from today, stipulating all the terms and conditions of the contract and finalise the entire process of contract within Four Months from today. 29. Before parting with the judgment, I observe that if the State Government, if so desires, may notify an appointed date from which Jharkhand P.W.D. Code comes into force. The State Government also publish the said notification in the Official Gazette or in e-Gazette, as per provisions of Section 8 of the Information Technology Act. Application allowed.