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2017 DIGILAW 1497 (GAU)

G. D. Construction v. State of Arunachal Pradesh

2017-12-01

SONGKHUPCHUNG SERTO

body2017
JUDGMENT : 1. Heard Mr. Tony Pertin, learned counsel, appearing on behalf of the writ petitioner. Also heard Mr. Kardak Ete, learned Senior Addl. Advocate General, Arunachal Pradesh, assisted by Mr. Subu Tapin, learned senior Government advocate, appearing on behalf of the State respondents; as well as Mr. T.T. Tara, learned counsel, appearing on behalf of private respondent No. 6. 2. By filing this petition under article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: (1) to quash and set aside the impugned Minutes of Technical Bid Evaluation Committee (‘TBEC’), to the extent of declaring the technical bids of respondent Nos. 5 and 6, responsive: (2) to quash and set aside the Chief Executive Officer's letter, dated 22.6.2017, issued under Memo. No. RWD/PMGSY-TAP-XI/2016-17, directing the Executive Engineer and DPIU-II, to issue formal letter of acceptance to private respondent No. 5. (3) to quash and set aside the CEO's letter, dated 22.6.2017, issued under Memo. No. RWD/PMGSY-TAP-XI/2016-17, directing the EE and DPIU-II, to issue formal letter of acceptance to private respondent No. 6. (4) to direct the respondents, in particular, respondent No. 3, to proceed the tender process from the stage of technical evaluation, in a free, fair and transparent manner, after declaring the technical bids of private respondent Nos. 5 and 6, non-responsive. (5) to pass any other order or direction as deemed fit and proper in the facts and circumstances of the case. 3. The facts and circumstances, which led to filing of this writ petition, are as follows: Pursuant to NIT, dated 28.1.2017, issued by the Executive Engineer & DPIU-II, Damin Division, Siang District, the petitioner, the respondent Nos. 5, 6 and others submitted this technical bid through electronic tendering system for construction of road under PMGSY from Komsing (Kumku) to Sissen village via Komsing(Karo) Pangi village under Package No. AR/04/03/033. As per the NIT, the technical bids were to be opened on 22.2.2017 and the financial bids were to be opened on 27.2.2017. Out of 8 firms, the TBEC found the technical bids of only 4 firms responsive including that of the petitioner and respondent Nos. 5 and 6. As per the NIT, the technical bids were to be opened on 22.2.2017 and the financial bids were to be opened on 27.2.2017. Out of 8 firms, the TBEC found the technical bids of only 4 firms responsive including that of the petitioner and respondent Nos. 5 and 6. As per the Minutes of the TBEC, the reasons for declaring the technical bids of the 4 firms, non-responsive, are as follows: (i) M/s. J.J. Enterprises : Technical bid of the Firm has been found non-responsive for the following reasons: (a) Firm has failed to furnish any experience in similar nature of work. (b) Furnished insufficient machineries. (c) Blaster Licence found invalid as per online record. Hence, the Committee rejects the technical bid under section 2, clause 4.4A(b), 4.4B(i) and 4.7 of Standard Bidding Document (‘SBD’). (ii) M/s. Rup Kumar Barman: Technical bid is found to be non-responsive due to following reasons: (a) Bidder has failed to furnish evidence of performing similar nature of work. (b) Blaster Licence invalid as per online record and NOC from occupier not furnished. Hence, the Committee rejects the technical bid under section 2, clause 4.2(d), 4.4B(i) and 4.7 of SBD. (iii) M/s. R.P. Construction : Technical bid found to be non-responsive due to following reasons: (a) Failed to furnish evidence of access to or availability of credit facility bank certificate. (b) Failed to furnish affidavit stating that no near relation of the APPWD, RWD, PHED, etc., departmental officer are under his employment. Hence, the Committee rejects the technical bid under section 2, clause 4.2B(d) and 4.4B(c)(i) of SBD. (iv) M/s. N.T. Agency: Technical bid found non-responsive due to invalid Blaster Licence (online record) furnished by the bidder. Hence, the Committee rejects the technical bid under section 2, clause 4.4B(i) and 4.7 of SBD. 4. The Tender Evaluation Committee (‘TEC’), evaluated the financial bids of the 4 technically qualified firms and recommended the name of private respondent No. 5 for allotment of the contract work. Accordingly, the Chief Executive Officer, ARRDA, vide Letter, dated 22.6.2017, issued under Memo. No. RWD/PMGSY-TAP-XI/2016-17, directed the EE and DPIU-II to issue formal letter of acceptance to the said respondent No. 5. However, on the same date, i.e., 22.6.2017, the same CEO, vide another Letter, dated 22.6.2017, issued under Memo. No. RWD/PMGSY-TAP-XI/2016-17, directed the EE & DPIU-II EE to issue formal letter of acceptance in favour of respondent No. 6. 5. No. RWD/PMGSY-TAP-XI/2016-17, directed the EE and DPIU-II to issue formal letter of acceptance to the said respondent No. 5. However, on the same date, i.e., 22.6.2017, the same CEO, vide another Letter, dated 22.6.2017, issued under Memo. No. RWD/PMGSY-TAP-XI/2016-17, directed the EE & DPIU-II EE to issue formal letter of acceptance in favour of respondent No. 6. 5. The case of the petitioner, as submitted by Mr. Pertin, learned counsel for the petitioner, is that technical bids of the private respondent Nos. 5 and 6 should have been rejected by the Committee and declared non-responsive as they did not fulfill all the terms and conditions of the NIT. Therefore, the Minutes of the TBEC which declared four bidders including the respondent Nos. 5 and 6, need to be quashed and set aside in respect of the respondent Nos. 5 and 6. In support of his contention, Mr. Pertin, submitted that at the time of TEC, the TBEC had announced that technical bids of respondent Nos. 5 and 6 were found non-responsive. But when the Minutes of the TBEC was notified, the bids of the two respondents were also declared responsive. This, according to Mr. Pertin, shows that there was some foul play from the very beginning of the whole process of selection. 6. After having stated as above, Mr. Pertin, submitted, at some length, as to why the technical bids of private respondent Nos. 5 and 6 should have been rejected or declared non-responsive. The submission of the learned counsel with regard to the respondent No. 5 is as follows: (i) That as per the check list for evaluation of technical bids prepared by the TEC, the technical bid of respondent No. 5 did not fulfill the mandatory criterias provided under section 2, clause 4.4A(b) of the SBD. As per the section, for a bidder to qualify, he should have satisfactorily completed as prime or sub-contractor, at least, one similar nature of work equal in value to one-third of the estimated cost of work (excluding maintenance cost of 5 years) for which the bid is invited or such higher amount as may be specified in the appendix to UB. This information was to have been furnished in the format as provided in section 3, clause 1.3.2 of the SBD. But there is no document which would show that private respondent No. 5 have fulfilled the criteria. This information was to have been furnished in the format as provided in section 3, clause 1.3.2 of the SBD. But there is no document which would show that private respondent No. 5 have fulfilled the criteria. (ii) That the respondent No. 5 did not fulfill the requirements of section 2, clause 4.4B(b)(i) which provides that a bidder must demonstrate the availability of the key equipments for the contract work as stated in clause 4.4B(a) of the appendix to ITB, which provides that a bidder must possess 2 numbers of bulldozers and 5 numbers of tractors. Section 2, clause 4.2(d) requires that a bidder should provide evidence of ownership of key equipments. However, at serial No. 9 of the check list for technical evaluation, it is shown that respondent No. 5 has no bulldozer but possessed only 4 Nos. of tractors. Moreover, no document or information was submitted regarding the validity of the registrations of the tractors. It is submitted that one of the grounds on which the technical bid of M/s. J.J. Enterprises was rejected, was on that ground only. Therefore, on that same ground, technical bid of private respondent No. 5 ought to have been rejected. It was also submitted that non-production of certificates as defined in the appendix to ITB, was a reason enough for declaring the technical bid of respondent No. 5, non-responsive, as per section 2, clause 4.4B(a)(iii). (iii) That as per clause 4.3B(2)(ii) of the appendix to ITB, the number of licensed blaster required for the work is one with 4 years experience but as per Column 10 of the check list, the licence submitted by respondent No. 5 was no longer valid as the same has expired on 31.3.2013. It is contended that submission of invalid licence was also one of the grounds on which the technical bid of M/s. J.J. Enterprises, M/s. Rup Kumar Barman, and M/s. N.T. Agency, were rejected, as such, on the same ground, the technical bid of respondent No. 5 ought to have been rejected. According to Mr. Pertin, learned counsel, from all these, it appears that the TBEC had adopted different parameters for evaluation of technical bids for different persons/Firms which is not permissible in law. 7. According to Mr. Pertin, learned counsel, from all these, it appears that the TBEC had adopted different parameters for evaluation of technical bids for different persons/Firms which is not permissible in law. 7. At this juncture, I may also mention the submission of learned counsel for the petitioner that a representation was submitted before the Chairman and Superintending Engineer, Rural Works Circle, Pasighat on 27.6.2017, wherein it was requested that the letter dated 22.6.2017, whereby the EE and DPIU-II was directed to issue formal letter of acceptance in favour of respondent No. 5, be cancelled. After submission of such letter, the CEO, ARRDA, issued another letter, dated 22.6.2017, directing the EE and DPIU-II, Pasighat, to issue formal letter of acceptance in favour of respondent No. 6. According to Mr. Pertin, this letter was issued backdated. Following issuance of such direction, through letter dated 22.6.2017, a copy of the same and documents of respondent No. 6 submitted along with the technical bid, were obtained through RTI on 28.6.2017. After obtaining the documents, it came to light that technical bid of private respondent No. 6 also did not meet the requirement of the conditions required for qualifying the technical bid. The learned counsel submitted the following reasons: (i) That as per clause 4.4B(b)(i) of the appendix to ITB, a Firm is required to have 2 Nos. of Air-Compressor to qualify in the technical bid. However, at Serial No. 9 of the check list, for technical evaluation, it was shown that respondent No. 6 had only one Air Compressor. It was submitted that on the same ground alone, the technical bid of respondent No. 6 ought to have been rejected. (ii) That as per section 3, clause 1.7 of SBD, a Firm submitting technical bid was required to submit financial report for the last 5 years. However, as per the entry made at serial No. 12 of the check list, the financial report of respondent No. 6 for the years 2011-12, 2012-13, 2013-14 and 2014-15, were not legible. It is submitted that this requirement is included in the SBD in order to ensure that the Firm who enters in the bidding is sound financially, and if selected would be able to carry-out the work, entrusted. However, since the respondent No. 6 has not shown his financial viability, his technical bid should have been rejected. It is submitted that this requirement is included in the SBD in order to ensure that the Firm who enters in the bidding is sound financially, and if selected would be able to carry-out the work, entrusted. However, since the respondent No. 6 has not shown his financial viability, his technical bid should have been rejected. (iii) That respondent No. 6 did not submit tax return as per APGT Act, 2005, as per the entry made in serial No. 28 of the check list for technical evaluation. (iv) That respondent No. 6 also did not submit the current income-tax certificate clearance or HTPC as required under clause 4.4B(a) of the ITB and the same is recorded at serial No. 21 of the check list. (v) That respondent No. 6 also did not submit his tax exemption certificate as is shown at serial No. 30 of the check list. (vi) That the EPF Registration Certificate submitted by respondent No. 6 was not legible as per entry made at serial No. 33 of the check list. As per section 4, clause 4.1.1 of SBD, a Firm is required to submit valid EPF Registration Certificate. But as per the entry made at serial No. 33 of the check list, the EPF Registration Certificate of respondent No. 6 was valid only upto 20.2.2017. On this regard, Mr. Pertin submitted that last date of submission of NIT was on 22.2.2017 and the opening of technical bid was on 23.2.2017, therefore, on the day of opening of technical bids, the EPF Registration Certificate of respondent No. 6 has already lost its validity, therefore, the same could not have been accepted as a valid document. (vii) That when the respondent No. 6 did not submit any document to show that the firm had carried-out similar nature of work in the past or in the recent past as required under section 4.2(c) and 4.4A(b) of the SBD. The Tender evaluation committee should have rejected its bid. Mr. Pertin, learned counsel for the petitioner, after having pointed-out the above facts, submitted that technical bid of respondent No. 6 ought to have been rejected at the very threshold, as the requirements of SBD were not met by the Firm. The Tender evaluation committee should have rejected its bid. Mr. Pertin, learned counsel for the petitioner, after having pointed-out the above facts, submitted that technical bid of respondent No. 6 ought to have been rejected at the very threshold, as the requirements of SBD were not met by the Firm. But, the fact that the Firm was declared responsive and finally selected for awarding of the work order, shows that there was favouritism, nepotism, arbitrariness and biasness in the tender process, therefore, the impugned letter, dated 22.06.2017, issued by the respondent-CEO, ARRDA, to the EE and DPIU-II, Rural Works Circle, Pasighat, to award the contract work to respondent No. 5 which was replaced by another letter, issued by the same CEO, on 22.6.2017, by which respondent No. 6, was recommended for allotment of work order are liable to be quashed and set aside. Mr. Pertin, also submitted that the whole process is plagued with fraud and the same is apparent on the face of it. He also submitted that since fraud nullifies everything, and since it can be seen that on the face of the record in this case that fraud has been committed, the whole selection process has to be considered nullified. Therefore, the same cannot be allowed to stand, moreso because as the subject-matter involves public fund and public work, which demands fairness, transparency, equality and proper implementation. 8. Mr. Pertin, further submitted that the fact that there was favouritism weighed heavily in the mind of the TBEC or the decision makers in favour of respondent No. 5 first and then in favour of the respondent No. 6 can be seen from the facts and circumstances as stated above. Mr. Pertin, lastly submitted that the petitioner and the other bidders were not present on the day of the opening of financial bid, therefore, they were not aware of the result of the financial bid, for a long-time. 9. Mr. Tara, learned counsel for respondent No. 6, submitted that the fact that CPWD Manual provides for a forum for resolving any issue arising out of tender process and the petitioner being aware of the same should have availed of the same immediately after the technical bid was notified if he was really aggrieved by the decision of the TEC. Mr. Tara, learned counsel for respondent No. 6, submitted that the fact that CPWD Manual provides for a forum for resolving any issue arising out of tender process and the petitioner being aware of the same should have availed of the same immediately after the technical bid was notified if he was really aggrieved by the decision of the TEC. But having failed to do so, the petitioner is barred from approaching this Court under article 226 of the Constitution of India. Mr. Tara, cited the judgment rendered by the Apex Court in the case of United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110 , particularly paragraph Nos. 43, 44, 46 and 47 of the judgment. The contents of the paragraphs referred to are reproduced herein below: “43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.” “44. Therefore, in all such cases, High Court must insist that before availing remedy under article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.” “44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this court, which every High Court is bound to keep in view while exercising power under article 226 of the Constitution.” “46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc., seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic. will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, AIR 1969 SC 556 , Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1 and Harbanslal Sahnia v. Indian Oil Corporation Ltd., (2003) 2 SCC 107 and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass appropriate interim order.” “47. In Thansingh Nathmal v. Superintendent of Taxes, (1964) 6 SCR 654 , the Constitution Bench considered the question whether the High Court of Assam should have entertained the writ petition filed by the appellant under article 226 of the Constitution questioning the order passed by the Commissioner of Taxes under the Assam Sales Tax Act, 1947. In Thansingh Nathmal v. Superintendent of Taxes, (1964) 6 SCR 654 , the Constitution Bench considered the question whether the High Court of Assam should have entertained the writ petition filed by the appellant under article 226 of the Constitution questioning the order passed by the Commissioner of Taxes under the Assam Sales Tax Act, 1947. While dismissing the appeal, the Court observed as under: (SCC p. 1423, para 7) “7………… The jurisdiction of the High Court under article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the articles. But the exercise of the jurisdiction is discretionary : it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the court will not entertain a petition for a writ under article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not, therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.” 10. Mr. Tara, also submitted that the fact that after the result of the technical bid was notified, the petitioner did not complaint but participated in the financial bid, shows that he accepted their result of the technical bid. Mr. Tara, also submitted that the fact that after the result of the technical bid was notified, the petitioner did not complaint but participated in the financial bid, shows that he accepted their result of the technical bid. Therefore, he is barred from approaching this court for any relief by the principle of acquiescence and estoppels. The learned counsel submitted that in the Minutes of the Evaluation Committee for financial bid, it was recorded that all the bidders participated in the financial bid. In support of his submission, the learned counsel drew my attention to the Minutes of the financial bid opening at Annexure 3 (p. 247) of the counter affidavit filed by respondent No. 6. In the Minutes, it is recorded that as follows: “Before opening, attendance of all the bidder/representatives were taken and recorded in the Register.” In support of his submission as stated above, Mr. Tara cited a judgment of this court in the case of Habung Lailang v. Union of India, 2016 (2) GLT 1209. Paragraph Nos. 7, 8 and 9 are particularly cited and reproduced hereinbelow: 7. Having noticed the facts above, it clearly appears that while initiating the proceeding under the provisions of SARFAESI Act, there was no infirmity in the action of the respondent Bank. The provisions under section 13(2), 13(3A) and 13(4) were duly complied with. The only point that has been raised by the petitioner is that they were not provided with the details of the repayment and that no opportunity was afforded to them prior to issuance of the said Notices. 8. As regards section 17 of the SARFAESI Act, the Legislature has categorically provided the right to appeal by any person including the borrower who may be aggrieved by any measures taken under the provisions of section 13 of the Act. The said provision under section 17 stipulates the making of an appeal before the Debts Recovery Tribunal having jurisdiction in the matter within 45 days from the date on which measures had been taken. Under the provisions of the Act, where an alternative remedy is statutorily envisaged, the foremost consideration would be as to the maintainability of the writ petition. The said provision under section 17 stipulates the making of an appeal before the Debts Recovery Tribunal having jurisdiction in the matter within 45 days from the date on which measures had been taken. Under the provisions of the Act, where an alternative remedy is statutorily envisaged, the foremost consideration would be as to the maintainability of the writ petition. To this end, reference is made to the case of Mardia Chemicals v. Union of India, (2004) 4 SCC 311 wherein, the Apex Court held that although some of the provisions under the Act may be a bit harsh, however, the borrowers would get a reasonably fair deal and opportunity to get the matter adjudicated upon before the Debts Recovery Tribunal. In the same vein, reference can also be made to the case of United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110 where the Apex Court observed that the High Court will ordinarily not entertain a petition under article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In the view of the Apex Court, whi\e dealing with petitions involving challenge to action taken for recovery of the public dues, etc., the High Court must keep in mind that the law enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves, inasmuch as, they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievances of any aggrieved person. The Apex Court held that in all such cases, the High Court must insist that before availing remedy under article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. Last but not the least, in the said case the Apex Court also observed that it is a matter of serious concern that despite repeated pronouncements the High Court continues to ignore the availability of statutory remedies under the SARFAESI Act and exercise jurisdiction under article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. The Apex Court concluded with the hope and trust that in future the High Court will exercise their discretion in such matters with greater caution, care and circumspection. Reference may also be made to the case of Authorised Officer, Indian Overseas Bank v. Ashok Saw Mill, (2009) 8 SCC 366 , where the Apex Court held that the action taken by a secured creditor in terms of section 13(4) is open to scrutiny before the Debts Recovery Tribunal and the said Tribunal can not only set aside the action but even status quo ante can be restored by the Debts Recovery Tribunal. 9. The law with regard to the availability of an efficacious and alternative remedy under section 17 of the Act having been clearly pronounced by the Apex Court and in view of the provisions under article 141 of the Constitution of India, this Court has no option but to hold that this writ petition in the present form is not maintainable.” To further strengthen the case of the respondent, the learned counsel also cited the judgment of the Apex Court in the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285. Paragraph No. 24 of the judgment particularly cited by the learned counsel is reproduced here below: “24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realized that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the District of Kanpur also. They were not responsible for the conduct of the examination.” The learned counsel in order to strengthen his case further cited the judgment of the Apex Court in the case of Madan Lal v. State of J&K, (1995) 3 SCC 486 . Paragraph No. 9 of the judgment particularly relied upon by the learned counsel is reproduced here below: “9. They were not responsible for the conduct of the examination.” The learned counsel in order to strengthen his case further cited the judgment of the Apex Court in the case of Madan Lal v. State of J&K, (1995) 3 SCC 486 . Paragraph No. 9 of the judgment particularly relied upon by the learned counsel is reproduced here below: “9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being concerned respondents herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the concerned contesting respondents. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, 1986 Supp SCC 285 : AIR 1986 SC 1043 , it has been clearly laid down by a Bench of three learned Judges of this court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.” 11. Mr. Tara also submitted that TEC is constituted of experts in the field by virtue of their knowledge and experience earned through years of service in the field. Therefore, their decision based on assessment of all the bidders after going through all the documents submitted by them, has to be respected and accepted. Mr. Tara also submitted that TEC is constituted of experts in the field by virtue of their knowledge and experience earned through years of service in the field. Therefore, their decision based on assessment of all the bidders after going through all the documents submitted by them, has to be respected and accepted. The only ground on which such decision can be challenged is when mala fide is explicitly pleaded and shown to be apparent on the face of the decision making process. But, in this case, mala fide has not been explicitly pleaded and there is nothing on the record which would show that the decision making process was vitiated by mala fide. He also submitted that in such tender process, what has to be ensured is that there is fairness and transparency in the decision making process. Learned counsel went on and added that in this case there was no mala fide apparent on the face of the record, in fact, what is apparent is fairness and transparency in the whole decision making process from the very beginning to the end. Therefore, the expert opinion need no interference. Mr. Tara in support of his submission cited the judgment of the Apex Court as rendered in the case of Union of India v. Ashok Kumar, (2005) 8 SCC 766. Paragraph No. 21 of the judgment particularly relied upon by the learned counsel is reproduced hereinbelow: “21. Doubtless, he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, an abuse or a misuse by the authority of its powers. While the indirect motive or purpose, or bad faith or personal ill will is not to be held established except on clear proof thereof, it is obviously difficult to establish the state of a man's mind, for that is what the employee has to establish in this case, though this may sometimes be done. The difficulty is not lessened when one has to establish that a person apparently acting on the legitimate exercise of power has, in fact, been acting mala fide in the sense of pursuing an illegitimate aim. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. It is not the law that mala fide in the sense of improper motive should be established only by direct evidence. But it must be discernible from the order impugned or must be shown from the established surrounding factors which preceded the order. If bad faith would vitiate the order, the same can, in our opinion, be deduced as a reasonable and inescapable inference from proved facts. It cannot be overlooked that burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demand proof of a high order of credibility. As noted by this court in E.P. Royappav. State of Tamil Nadu, courts would be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration.” 12. In summing upon his submissions, Mr. Tara submitted that in view of what has been stated above, the case of the petitioner does not survive, therefore, to allow the same would be fatal. He also submitted that the expert opinion, as stated above, ought to be respected and accepted. Learned counsel also cited the case of Raunaq International Ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492 in support of his submission. Relevant paragraphs are quoted hereinbelow: “8. This is not a case where any mala fides have been alleged against any member of the Board. Nor is there any allegation of any collateral motive for awarding the contract to M/s. Raunaq International Ltd. The only ground of challenge in the writ petition filed by M/s. IVR Construction Ltd. is that M/s. Raunaq International did not fulfill the qualifying criterion of having laid such pipeline for a distance of 3 kms. But the challenger M/s. IVR Construction Ltd. also does not fulfill the qualifying criterion. In these circumstances, we fail to see any basis for passing the impugned order.” “9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. In these circumstances, we fail to see any basis for passing the impugned order.” “9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. These would be: (1) The price at which the other side is willing to do the work; (2) Whether the goods or services offered are of the requisite specifications; (3) Whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfill the requirements of the job is also important; (4) The ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post-contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction.” “11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed, thus, escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under article 226 in disputes between two rival tenderers.” “16. It is also necessary to remember that price may not always be the sole criterion for awarding a contract. Often when an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding which is the best offer. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded. At times, a higher price for a much better quality of work, can be legitimately paid in order to secure proper performance of the contract and good quality of work - which is as much in public interest as a low price. The court should not substitute its own decision for the decision of an expert evaluation committee.” 13. At this point, it may be mentioned that hearing could not be concluded on 2.11.2017, as time for the day was about to be over and as Mr. Pertin, learned counsel for the petitioner, submitted that he would like to give a short reply. Therefore, the matter was fixed on 3.11.2017 for further hearing. On that day, he filed an affidavit apologising before of the court for having stated the previous day that the petitioner was not present in the financial bid proceeding. After having submitted his apology, Mr. Pertin, submitted that even though the petitioner was present in the financial bid proceedings, that does not mean that he has fully accepted the result of the technical bid. After having submitted his apology, Mr. Pertin, submitted that even though the petitioner was present in the financial bid proceedings, that does not mean that he has fully accepted the result of the technical bid. Learned counsel, also submitted that after the technical bid result was declared, the petitioner had submitted a representation (Annexure/A-6) to the authority concerned as provided under the Rules, therefore, it was only after having exercised his option as provided under the Rules for seeking a remedy that he has come to this court, as such, the case of the petitioner cannot be ousted or barred under the principle of availability of an alternative remedy and principle of acquiescence and estoppels. Learned counsel further submitted that the case of the petitioner is mainly based on the fraud pleaded in the decision making process of the TEC at the stage of technical bid, therefore, what has to be considered, in this case, is whether on the facts and circumstances and the unfulfilled conditions of the SBD, the technical bids of respondent Nos. 5 and 6 could have been validly declared responsive. Learned counsel also submitted that the minutes of technical bid was not circulated, therefore, it was obtained through RTI by the petitioner. As such, the petitioner was not aware of the fact that the technical bids of the respondent Nos. 5 and 6 were declared responsive though they were actually not qualified to be declared so. 14. Mr. Tara, in reply to the above submission, submitted that the learned counsel for the petitioner cannot submit an apology affidavit on behalf of the petitioner and the law on this has been is settled in the judgment of the Apex Court in the case of Dalip Singh v. State of Uttar Pradesh, (2010) 2 SCC 114 . Relevant paragraphs referred to are reproduced herebelow: “4. In Welcome Hotel v. State of Andhra Pradesh etc., (1983) 4 SCC 575 : AIR 1983 SC 1015 , the Court held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case.” “7. Relevant paragraphs referred to are reproduced herebelow: “4. In Welcome Hotel v. State of Andhra Pradesh etc., (1983) 4 SCC 575 : AIR 1983 SC 1015 , the Court held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case.” “7. In Prestige Lights Ltd. v. State Bank of India, (2007) 8 SCC 449 , it was held that in exercising power under article 226 of the Constitution of India the High Court is not just a Court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under article 226 of the Constitution is duty bound to place all the facts before the court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain petition filed under article 226 of the Constitution. This court referred to the judgment of Scrutton, LJ, in R. v. Kensington Income-tax Commissioners, (1917) 1 KB 486, and observed: “In exercising jurisdiction under article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, then the court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible.” “20. We have heard learned counsel for the parties and scrutinized the record. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible.” “20. We have heard learned counsel for the parties and scrutinized the record. In our opinion, the appeal is liable to be dismissed only on the ground that the tenure-holder Shri Praveen Singh did not state correct facts in the application filed by him on 8.7.1976 before the Prescribed Authority for setting aside the ex parte order and the appellant did not approach the High Court with clean hands inasmuch as, by making a misleading statement in paragraph 3 of the writ petition, an impression was created that the tenure-holder did not know of the proceedings initiated by the Prescribed Authority. By making the said statement, the appellant succeeded in persuading the High Court to pass an interim order which resulted in frustrating the efforts made by the concerned authority to distribute the surplus land among landless persons. Even before this Court, a patently false statement has been made in the rejoinder affidavit on the issue of receipt of notice dated 29.11.1975 by Shri Praveen Singh.” “24. From what we have mentioned above, it is dear that in this case efforts to mislead the authorities and the courts have transmitted through three generations and the conduct of the appellant and his son to mislead the High Court and this Court cannot, but be treated as reprehensible. They belong to the category of persons who not only attempt, but succeed in polluting the course of justice. Therefore, we do not find any justification to interfere with the order under challenge or entertain the appellant's prayer for setting aside the orders passed by the Prescribed Authority and the Appellate Authority.” “25. In the result, the appeal is dismissed. We would have saddled the appellants with exemplary costs but, keeping in view the fact that possession of the surplus land was taken in 2002 and the same has been distributed among landless poor persons, we refrain from doing so.” 15. Mr. In the result, the appeal is dismissed. We would have saddled the appellants with exemplary costs but, keeping in view the fact that possession of the surplus land was taken in 2002 and the same has been distributed among landless poor persons, we refrain from doing so.” 15. Mr. Tara, learned counsel after having cited the above judgment of the hon'ble Supreme Court submitted that the petitioner, by suppressing the material facts, had obtained the interim order, the day the case was moved, therefore, from the very beginning, he has not come with clean hands. Anybody who wants relief from the court(s), must come with clean hands. As such, the case of the petitioner can be dismissed on this ground alone. Mr. Tara, further submitted that the financial bids is not challenged in this writ petition, therefore, the writ petition is a premature one, and it ought to be dismissed. Learned counsel of the petitioner in reply submitted that mala fide is writ large on the face of the record pertaining to the decision making process of the TEC for evaluation of the technical bid. By restating the reasons given by him as to why the technical bids of the respondent Nos. 5 and 6 could not have been declared non-responsive, the learned counsel submitted that all these shows that there was mala fide in the decision making process of the TEC of technical bids. 16. The learned Senior Additional A.G. submitted that he is in agreement with the submission of the private respondents but would like to add the following: That when it was found that some of the particulars entered in the prescribed bid format were not legible, the private respondents were asked to submit their duly filled up bids by hard copies. Accordingly, the hard copies were submitted and as per the particulars given in the hard copies, the evaluation committee evaluated the bids of the competitors and as per those duly filled up bid forms, the private respondents, i.e., the respondent Nos. 5 and 6 were found qualified. Therefore, there was nothing wrong which would have rendered the bids of respondent Nos. 5 and 6 non-responsible. Mr. 5 and 6 were found qualified. Therefore, there was nothing wrong which would have rendered the bids of respondent Nos. 5 and 6 non-responsible. Mr. Pertin, learned counsel for the petitioner submitted that the so-called duly filled up bid forms of the private respondents were submitted after two and half-months by improving what was earlier given by the private respondents when their bids were submitted on line. Therefore, all these were a part of the fraud committed by both the State respondents and the private respondents in connivance. 17. The technical bid was open on 23.2.2017. According to the petitioner, he obtained the tendered documents of respondent No. 6 through RTI application dated 28.6.2017. This facts shows that the petitioner got up only after 4 months from the date of opening of the technical bid. Normally, the bids of the bidders are made public through website. Therefore, there is no reason why the petitioner should not have known the entries made in the bid forms submitted by respondent No. 6. If he had look up on the website through which the bids were invited, he would have known the facts about the particulars given by the respondent No. 6 in his bid. That would have afforded him the opportunity to submit his complaint before the concerned authority against the respondent No. 6 as provided under para 22.6 of the Standard Bidding Document for PMGSY. The contents of para 22.6 of Standard Bidding Document for PMGSY is reproduced here below: “22.6 The result of evaluation of Part-I of the Bids shall be made public on e-procurement systems following which there will be a period of 5 working days during which any bidder may submit complaint which shall be considered for resolution before opening Part-II of the bid.” As per the above paragraph of the Standard Bidding Documents for PMGSY, any bidder not satisfied in the process of selection is to submit his complaint within 5 days which shall be considered for resolution before opening Part 2 of the bid. It appears from the writ petition, that the petitioner had submitted a complaint against the respondent No. 5, but did not submit against the respondent No. 6, who in fact was finally recommended for issuance of work order for the work. What prevented him from submitting the same kind of complaint against the respondent No. 6 is not explained properly. It appears from the writ petition, that the petitioner had submitted a complaint against the respondent No. 5, but did not submit against the respondent No. 6, who in fact was finally recommended for issuance of work order for the work. What prevented him from submitting the same kind of complaint against the respondent No. 6 is not explained properly. It is a settled law that availability of alternative means for resolution of such dispute is not or cannot be a bar to a writ court to entertain a petition under article 226 of the Constitution. However, each case has to be considered according to the peculiar facts and circumstances attending thereto. In this case, as stated above the petitioner submitted a complaint against the respondent No. 5 but did not submit any complaint against the respondent No. 6 and kept quite till he approached this court on 29th of June, 2017. The plea that the facts about the contents of the bid form of respondent No. 6 came to light only after applying through RTI does not appear to be a sincere and honest submission. Therefore, this Court is not inclined to accept the same but conclude that in this case, the petitioner is barred by the principles of availability of alternative means of resolution. Further, the fact that the petitioner did not submit any complaint against the private respondent No. 6, but went on to participate in the second or final stage of the bidding shows that he had accepted the result of the first bidding and proceeded to compete in the next round of the competition. Therefore, the law of acquiescence and estoppels would come into play in his case. On these grounds, the case of the petitioner seems to have loss its steam and, thus, can be dismissed. 18. It has been strongly pleaded on behalf of the petitioner that fraud was committed by the respondents in connivance with one another, therefore, there was mala fide in the decision making process. When such plea is made, the burden for showing or proving the same is heavily on the petitioner. However, in this case, the petitioner except for showing some minor discrepancies has failed to fully discharge his burden. In fact those minor discrepancies had been cured by submission of hard copies of the bidding format as submitted by the learned Senior Addl. Advocate General. However, in this case, the petitioner except for showing some minor discrepancies has failed to fully discharge his burden. In fact those minor discrepancies had been cured by submission of hard copies of the bidding format as submitted by the learned Senior Addl. Advocate General. In this kind of selection process where tenders are invited for public work, court would normally not interfere unless mala fide in the decision making process as alleged is writ large on the face of the whole process. In this case, the petitioner has failed on 3 counts: (i) as stated he has failed to show or substantiate the plea that there was mala fide in the decision making process; (ii) because he had accepted the result and joined in the second stage of the bidding, therefore, has surrendered his right to complaint; and (iii) because he had failed to exercise his right to complaint as provided under para 22.6 of the standard bidding document. 19. In the decision making process of the experts in a public tender as stated above, courts would not normally interfere because it is the experts in the field, who after assessing all the capacities of the bidders decided as to who would be best to execute the work unless the experts are found to have deviated from the conditions provided in the standard bidding documents In this case, the learned counsel for the petitioner has pointed out that the private respondent No. 6 had shown that he has only one air compressor whereas he should have at least 2 as per the standard bidding document. This requirement have been considered by the expert committee and found that the private respondent No. 6 will be able to carry out the work effectively, even with one air compressor or by hiring the same. I do not see much of a deviation from the requirement of standard bidding document, which would affect the performance of the private respondent No. 6 in executing the work that would be assigned to him. As for the other discrepancies, it has been submitted by the learned Senior Addl. Advocate General that those discrepancies have been cured when the private respondent No. 6 had submitted the hard copy of his bidding. 20. As for the other discrepancies, it has been submitted by the learned Senior Addl. Advocate General that those discrepancies have been cured when the private respondent No. 6 had submitted the hard copy of his bidding. 20. In view of the conclusions arrived at, which are based on the facts and circumstances submitted by the learned counsels and guided by the principles of law which are also submitted by the learned counsels, I am of the considered view that the petitioner has failed to make out a strong case for interference of this court in the decision of the Tender Evaluation Committee, which recommended issuance of work order in favour of the private respondent No. 6. Accordingly, the writ petition is dismissed.