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Gujarat High Court · body

2017 DIGILAW 1494 (GUJ)

Mitesh H. Shah v. District Municipal Commissioner

2017-09-01

B.N.KARIA, M.R.SHAH

body2017
JUDGMENT : M.R. SHAH, J. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and order to quash and set aside the impugned decision dated 08.08.2017 to re-invite the tender for four packages of the work i.e. one package for Resurfacing of Paver Block Road and three packages for Cement Concrete Road Resurfacing at Idar. The petitioners have also prayed to direct the respondent no. 2 to continue with the process of tender. 2. The facts leading to the present petition in nutshell are as under: 2.1 That the tenders were invited by the respondent no. 2-Idar Nagarpalika vide notice published in newspaper on 20.04.2017 for 11 different packages of work i.e. 1 package for Bituminous Road Surfacing. The bids were to be submitted online on or before 2.5.2017 As per the terms and conditions, the bidders were required to submit scan copy of demand draft/fixed deposit against the amount of tender fees, earnest money/security and other requisite documents were to be submitted by 18.5.2017 either through RPAD or any other permissible mode. The tender for 11 packages of tender work was valued item wise viz. the estimate value for Bituminous Road Surfacing Work was of Rs. 15.20 lakh; value for Resurfacing of Paver Block Work was of Rs. 68.95 Lakh and value for Cement Concrete Road and Resurfacing work was between Rs. 40.44 lakh to 90.63 lakh and the said work was required to be completed within six months from the date of award of contract. 3. That the petitioners submitted the bids for 10 packages of work. The respondent no. 3 herein submitted the bid for four packages of work i.e. one packages for Resurfacing of Paver Block road and three packages for Resurfacing Cement Concrete Road at Idar. That the bids for the respective works were opened on 11.05.2017 At the time of opening of the bids, demand draft in original of tender fees were not found. At that time, the respondent no. 3 submitted that as such he has already submitted scan copy of four demand draft of Rs. 2400/- towards tender fees (for four packages of work), however at the time of opening they were misplaced and/or not found. It appears that as the respondent no. At that time, the respondent no. 3 submitted that as such he has already submitted scan copy of four demand draft of Rs. 2400/- towards tender fees (for four packages of work), however at the time of opening they were misplaced and/or not found. It appears that as the respondent no. 3 had party while submitting the tender/bids online on 2.5.2017 already submitted scan copy of the demand draft and in fact respondent no. 3 also produced certificate of the concerned bank issuing for demand drafts, the respondent no. 2 called upon the respondent no. 3 to produce the duplicate. Instead as the duplicate of the demand draft was not feasible, the respondent no. 3 got and produced four demand drafts of Rs. 2400/- towards tender fees. At that time, the petitioner and other bidders raised the objection against the aforesaid, more particularly, granting the opportunity to the respondent no. 3 to produce the duplicate of demand draft and requested to treat the respondent no. 3 as technically disqualified on the ground that respondent no. 3 had not complied with essential conditions of producing the original demand draft of tender fees. That thereafter to avoid any further litigation, impugned decision has been taken by the respondent no. 1 to invite fresh tenders for four packages of the work i.e. one package for Resurfacing of Paver Block Road and three packages for Cement Concrete Road Resurfacing at Idar. Feeling aggrieved and dissatisfied with the impugned decision to re-invite tender, the petitioners and other bidders have preferred present Special Civil Application under Article 226 of the Constitution of India. 4. Shri Dipen A Sankhesara, learned advocate for the petitioners has vehemently submitted that the impugned decision to re-invite the tender is most arbitrary and bad in law. 5. It is further submitted by Shri Sankhesara, learned advocate for the petitioners that as such only with a view to favour the respondent no. 3 and as the bid of the respondent no. 3 was required to be declared as technically disqualified, the impugned decision has been taken with the mala fide intention and to favour the respondent no. 3 herein. 6. It is submitted that as such the respondent no. 3 was required to be declared as technically disqualified for not complying with the essential condition of the tender notice of producing the original of the demand draft for tender fees. 3 herein. 6. It is submitted that as such the respondent no. 3 was required to be declared as technically disqualified for not complying with the essential condition of the tender notice of producing the original of the demand draft for tender fees. It is submitted that after declaring respondent no. 3 as technically disqualified, the respondent nos. 1 and 2 ought to have proceeded further with the tender process. 7. It is further submitted that even an opportunity was given to the respondent no. 3 to submit duplicate demand draft, however respondent no. 3 did not produce the duplicate and instead of producing fresh demand draft which was not permissible. It is submitted that the original of the demand drafts were required to be submitted on or before 08.05.2017, which respondent no. 3 did not submitted. Making above submissions and relying upon the decision of the Hon'ble Supreme Court in the case of Sorath Builders v. Shreejikrupa Buildcon Limited reported in (2009) 11 SCC 9 and the recent decision of the Division Bench of this Court dated 21.06.2017 in the case of P. Kavitha v. State of Gujarat rendered in SCA No. 4731 of 2017, it is requested to admit/allow the present petition. 8. Present petition is vehemently opposed by Shri Dhawan Jayswal, learned Assistant Government Pleader for the respondent State. An affidavit in reply is filed on behalf of the respondent no. 1. It is submitted that as such respondent no. 3 did submit the scan copy of the four demand drafts on 2.5.2017, however, when physical bids were opened, the demand drafts were missing. It is submitted that therefore, having been satisfied that when respondent no. 3 had already submitted scan copy of the demand draft dated 2.5.2017 for tender fees, there could not have been any other mala fide intention and/or any other intention on the part of the respondent no. 3 in not producing/submitting the original demand drafts. Therefore, bona fide decision was taken by the respondent no. 1 and the respondent no. 3 was called upon to produce the duplicate demand drafts. However, as the duplicate demand drafts was not possible, respondent no. 3 produce the fresh demand drafts for tender fees. It is submitted that the original demand drafts for security deposit, EMD etc. Therefore, bona fide decision was taken by the respondent no. 1 and the respondent no. 3 was called upon to produce the duplicate demand drafts. However, as the duplicate demand drafts was not possible, respondent no. 3 produce the fresh demand drafts for tender fees. It is submitted that the original demand drafts for security deposit, EMD etc. It is submitted that thereafter when the petitioners and other bidders raised an objection against the same to avoid any further litigation and/or further controversy, a bona fide decision has been taken by the respondent no. 1 to invite fresh tenders. It is submitted that the impugned decision is therefore, neither mala fide nor with a view to favour the respondent no. 3 as alleged. 9. Making above submissions, it is requested to dismiss the present petition. 10. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that by impugned decision the respondent no. 1 has invited fresh tenders for four packages of work. Therefore, at this stage, what is required to be noted that as such the bids submitted by the respective bidders are not opened at all and they are still in seal cover and therefore, price might not known to any of the bidders. Thus, when the fresh tenders are invited, the petitioners may also submitted their fresh bids and as such no prejudice shall cause to them. 11. Having heard the learned advocates for the respective parties and considering the material on record and the affidavit in reply, we are of the opinion that the impugned decision to re-invite the tenders in the facts and circumstances of the case cannot be said to be either mala fidey and/or with a view to favour of respondent no. 3. Considering the material on record, it appears that as such when the respondent no. 3 produced the scan copy of the demand drafts for tender fees dated 2.5.2017, as such there was no reason for respondent no. 3 not to produce the original while submitting the tenders in physical form. However, when the tender in physical forms were opened, demand drafts were missing. Therefore, an opportunity was given to the respondent no. 3 to produce the original/duplicate of the demand drafts. However, as duplicate was not permissible, fresh demand drafts were issued which were produced. 3 not to produce the original while submitting the tenders in physical form. However, when the tender in physical forms were opened, demand drafts were missing. Therefore, an opportunity was given to the respondent no. 3 to produce the original/duplicate of the demand drafts. However, as duplicate was not permissible, fresh demand drafts were issued which were produced. Therefore, as such it cannot be said that the respondent no. 3 did not comply with the essential conditions, for which, it was required to be declared as technically qualified. However, when objection was raised by the petitioner against the decision of the respondent no. 1 calling upon respondent no. 3 giving one opportunity to the respondent no. 3 to produce the original demand drafts/duplicate thereafter a conscious bona fide decision has been taken by the respondent no. 1 in inviting fresh tender. It is true that the respondent no. 1 could have taken a decision to consider respondent no. 3 as technically qualified and could have proceeded further with the tender process. However, instead of that when bona fide decision has been taken by the respondent no. 1 to invite fresh tenders, to avoid further litigation, it cannot be said that the same is mala fide and/or with a view to favour the respondent no. 3, which calls for the interference of this Court in exercise of powers under Article 226 of the Constitution of India. In the facts and circumstance of the case, decisions relied upon by the learned advocate for the petitioners shall not be of any assistance to the petitioners. 12. In view of the above and for the reasons stated above, present petition fail and same deserves to be dismissed. At this stage, learned advocate for the petitioners has requested that as earlier tender process has been canceled and the fresh tenders are invited, what was deposited by the petitioners pursuant to the earlier tender notice may be returned to them. It goes without saying that one earlier tender process has been canceled and the tenders are re-invited, the petitioners/bidders who have participated in the earlier tender process shall be entitled to get back the amount/demand drafts/bank deposited which they have deposited pursuant to the earlier tender process which shall be returned to them. 13. With this, present petition is dismissed.