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2017 DIGILAW 1760 (JHR)

Abdul Gani v. Accountant General (A&E)

2017-10-10

RAJESH SHANKAR

body2017
ORDER : Rajesh Shankar, J. 1. The present writ petition has been filed for issuance of direction upon the respondent authorities to consider the representation of the petitioner for lifting of waste and sweeping papers in pursuance of tender notice being Administration (A&E)/Adv./Tender Notice/23 dated 12.4.2017 and also for a direction upon the respondent no. 2 to declare the petitioner as a successful bidder. The factual background of the case is that the respondent no. 3-Deputy Accountant General (Administration) floated a tender notice on 10.4.2017 for auction sale of waste papers (estimated quantity 3048 kgs.) and sweeping papers (estimated quantity 1058 kgs.) and the interested bidders were asked to submit tender in sealed cover till 20.4.2017. The said tender notice was published in the newspapers vide Administration (A&E)/Adv. T.N./23 dated 12.4.2017, whereby the interested persons were advised to visit in the website of the respondents for perusal of the terms and conditions of the tender and to deposit demand draft of Rs. 25,000/- as security deposit in favour of the Pay and Account Officer (Audit), Ranchi. Pursuant to the said tender notice, the petitioner submitted tender with requisite demand draft of Rs. 25,000/- and quoted lump sum value Rs. 1,66,192/- against the purchase of the aforesaid waste and sweeping papers. However, the petitioner subsequently came to know that the said work has not been allotted to it and thereafter it made representation to the respondent authority claiming that it being the highest bidder should be awarded the aforesaid work. 2. The learned counsel appearing on behalf of the petitioner submits that the writ petition is maintainable even in the contractual matters if the action of the respondents is found to be violative of Article 14 of the Constitution of India and in the breach of public law or vitiated by mala fide or ulterior motive. It is further submitted that the estimated quantity for lifting of waste paper was 3048 kgs. and sweeping paper was 1058 kgs., thus total expected quantity was 4106 kgs. and the petitioner quoted the lump sum amount of Rs. 1,66,192/- which was the highest bid amongst all the tenderers. However, the respondent authority without any cogent reason and negotiation granted relaxation in tender notice despite the fact that the tender notice did not permit any relaxation to a bidder who has not quoted higher rate in comparison to the petitioner. 1,66,192/- which was the highest bid amongst all the tenderers. However, the respondent authority without any cogent reason and negotiation granted relaxation in tender notice despite the fact that the tender notice did not permit any relaxation to a bidder who has not quoted higher rate in comparison to the petitioner. It is further submitted that the respondent authority has not followed the established procedure by not entering into negotiation with the petitioner before finally deciding to accept one of the offers made to it. It is further submitted that the petitioner being the highest bidder deserves the contract to be awarded in its favour. 3. The learned counsel appearing on behalf of the respondents submits that after opening the tender, a comparative statement was prepared by the tender committee on 1.5.2017 and as per the comparative statement, the tender committee recommended the sale of waste papers @ Rs. 15.31 per kg. and sweeping papers @ 14.89 per kg. to one of the bidders namely Raj Kishore Prasad Gupta. The tender committee specifically mentioned that the petitioner M/s. Abdul Gani quoted lump sum amount of Rs. 1,66,192/- for purchase of waste and sweeping papers, however as per the terms and conditions of the tender, the purchase price should have been quoted per kg., hence the tender was not awarded to the petitioner. It is further submitted that the quantity of materials to be sold cannot be ascertained before being finally weighed and it is possible that the total sale price after weighing would be more than the consolidated rate of Rs. 1,66,192/- quoted by the petitioner. It is further submitted that though the tender committee recommended to lift the waste and sweeping papers to another firm (higher bidder) who quoted the rates as per the terms and conditions, however the work has not yet been awarded to any firm keeping in view the fact that the matter is pending before this court and as such the writ petition is premature. It is further submitted that the petitioner failed to follow the terms and conditions of tender and as such it cannot claim to be the highest bidder. 4. Heard the learned counsel for the parties and perused the materials available on record. It is further submitted that the petitioner failed to follow the terms and conditions of tender and as such it cannot claim to be the highest bidder. 4. Heard the learned counsel for the parties and perused the materials available on record. The respondents invited quotation from the interested bidders for lifting the waste and sweeping papers and the petitioner participated in the bid process, however its bid was rejected on the ground that it quoted the lump sum purchase price of Rs. 1,66,192/- which was in violation of the terms and condition of the tender. I have perused the terms and conditions of the tender as contained in Annexure-B to the counter affidavit of the respondents. Clause 1 of the said terms and conditions explicitly provides that the tenderer must quote the purchase price of old papers in per kilogram. Admittedly, the petitioner quoted lump sum amount of Rs. 1,66,192/- for purchase of waste and sweeping papers which was not in accordance with the condition mentioned in the tender notice. Learned counsel for the petitioner tried to justify the action of the petitioner by stating that its rate is higher than the rates quoted by the other tenderers and the respondent authorities arbitrarily rejected its quotation. The said argument advanced by the learned counsel for the petitioner cannot be accepted, as the weight of each type of old papers mentioned in the tender notice was the estimated weight and unless the weight is finally ascertained, it cannot be said as to whether the petitioner quoted the higher purchase price. Since the respondents themselves had no idea about the exact weight of the old papers, they had specifically mentioned in the tender notice itself that the tenderer must quote the purchase price in per kilogram. However, in spite of the said Specific condition mentioned in the tender notice, the petitioner quoted the lump sum price, which is contrary to the terms and conditions of the tender notice. Since the petitioner did not conform to the conditions of the tender notice, it cannot be permitted to allege arbitrariness against the respondents on that score. The contention of the respondents appears to be more convincing that the exact quantity of materials cannot be ascertained before weighing the same finally and it is quite possible that the total price after weighing could be much more than the consolidated purchase price of Rs. The contention of the respondents appears to be more convincing that the exact quantity of materials cannot be ascertained before weighing the same finally and it is quite possible that the total price after weighing could be much more than the consolidated purchase price of Rs. 1,66,192/- quoted by the petitioner. 5. In the case of Rajasthan Housing Board and Others v. G.S. Investments and Others reported in (2007) 1 SCC 477 the Hon'ble Supreme Court while discussing the power of High Court in exercise judicial review in the tender matters has held thus:- 10. The other question which requires consideration is what are the contours of power which the High Court would exercise in a writ petition filed under Article 226 of the Constitution where the challenge is to cancellation of an auction held by a public body where the prime consideration is fairness and generation of public revenue. This question has been examined by a catena of decisions of this Court. In a recent decision rendered in Master Marine Services (P) Ltd. v. Metcalfe and Hodgkinson (P) Ltd., (2005) 6 SCC 138 , where after consideration of several earlier decisions, the Bench to which one of us was a party, summarized the legal principle as under in paragraphs 11 to 15 of the said reports:- "11. The principles which have to-be applied in judicial review of administrative decisions, especially those relating to acceptance of tender and award of contract, have been considered in great detail by a three Judge Bench in Tata Cellular v. Union of India, AIR 1996 SC 11 . It was observed that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. 6. It would appear from the ratio laid down by the Hon'ble Supreme Court in the case of Rajasthan Housing Board (supra) that the power of judicial review in the matter of tender is limited and the same should be exercised only in order to prevent arbitrariness or favoritism. There can be no question of infringement of Article 14 of the Constitution of India, if the Government tries to get the best person or best quotation. In the present case, since the quotation of the petitioner itself was contrary to the terms and condition of the tender notice, the same was not accepted by the respondents and out of others, the highest bidder was selected, hence no arbitrariness or favoritism is found on the part of the respondents. 7. In view of the aforesaid discussions, the writ petition being devoid of merit is accordingly dismissed. Pending I.A. No. 8073 of 2017 also stands dismissed.