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Uttarakhand High Court · body

2017 DIGILAW 620 (UTT)

Bhaiji and Company v. State of Uttarakhand

2017-11-17

MANOJ KUMAR TIWARI

body2017
JUDGMENT : Manoj Kumar Tiwari, J. 1. By means of this writ petition, the following relief has been sought:- “(i) To issue an appropriate writ order or direction in the nature of Certiorari quashing the letter dated 20.09.2017 dismissing the representation of the petitioner. (Annexure No. 6) (ii) To issue an appropriate writ order or direction in the nature of mandamus commanding the respondents to allow the petitioner to participate in financial bid for electronic weighing bridges (Dharmakanta) in view of the tender advertisement issued by the respondent No. 3 (Annexure No. 1). (iii) To issue an appropriate writ, order or direction declaring the action of respondents in rejecting the technical bid of the petitioner as arbitrary and illegal and allow the petitioner to participate in the tender process. (iv) To issue an appropriate writ, order or direction in the nature of mandamus commanding the respondents to open the financial bid of the petitioner.” 2. According to petitioner, he responded to a notice inviting tender issued on 20.08.2017 by Uttarakhand Forest Development Corporation (hereinafter referred to as 'the Corporation'). By the said notice, tenders were invited from eligible persons in two bid system for supply, establishment, maintenance and operation of Electronic Weighing Bridges at various gates of River Gaula in District Nainital for the purpose of weighing the trucks carrying river bed material from River Gaula. 3. According to the said notice, technical bids were to be opened on 18.09.2017 and financial bid of only those bidders were to be opened whose technical bid is declared responsive. In response to the said notice inviting tender, petitioner also submitted his bid in two bid system, however, technical bid of the petitioner has been rejected due to non-fulfillment of the condition contained in clause 11 of part 4 of the tender document. 4. Part 4 of the tender document is the format in which technical bid has to be submitted and the documents which are to be enclosed with the technical bid are also mentioned therein. According to clause 11 thereof, a bidder should have three years experience of operation/maintenance of Electronic Weighing Bridges for which attested copy of Registration Certificate with Weights and Measures Department should be enclosed. Every bidder is further required to supply other information as indicated against clause 11 in part 4 of the tender document. 5. According to clause 11 thereof, a bidder should have three years experience of operation/maintenance of Electronic Weighing Bridges for which attested copy of Registration Certificate with Weights and Measures Department should be enclosed. Every bidder is further required to supply other information as indicated against clause 11 in part 4 of the tender document. 5. According to the petitioner, he had submitted his technical bid supported by all necessary documents including Experience Certificate and Registration Certificate as required in clause 11 of part 4 of the tender document. In para 12 of the writ petition, it is stated that with his technical bid “petitioner had submitted experience certificate issued by Vindvashni Stone Crusher Private Limited wherein it was categorically stated that petitioner had successfully managed and operated Weighing Bridges (Dharamkanta) of the said stone crusher from 2013 till 2016. Thus, it is the case of the petitioner that rejection of his technical bid by the Corporation is unjust. 6. Uttarakhand Forest Development Corporation has filed a counter affidavit and in para 7 thereof, it is contended that the 'Registration Certificate' submitted by the petitioner along with his technical bid is not in his name, but it has been issued in the name of M/s. Vindvashini Stone Crusher Private Limited. It has further been stated that the 'Experience Certificate' produced by the petitioner is undated. In para 13 of the counter affidavit, it is further contended that clause 11 of part 4 of the tender document is an essential condition, therefore, due to non-fulfillment of the said condition, petitioner's technical bid has been rejected. 7. It appears that after rejection of technical bid, petitioner made a representation to respondent No. 3 and in response to the said representation, respondent No. 3 issued a letter to the petitioner on 20.09.2017. In that letter, it has been stated that petitioner's technical bid was rejected on the ground that he failed to enclose 'Certificate of Registration' with the Weights and Measures Department. Thus, it is the contention of learned counsel for the petitioner that different reasons have been assigned for rejecting his technical bid in the letter dated 20.09.2017 and the counter affidavit. Thus, it is the contention of learned counsel for the petitioner that different reasons have been assigned for rejecting his technical bid in the letter dated 20.09.2017 and the counter affidavit. According to him, the aforesaid letter goes on to say that petitioner has not enclosed any Registration Certificate, whereas in the counter affidavit, it has been admitted that petitioner had furnished Registration Certificate, but it was not accepted as it was in the name of some other person. 8. Learned counsel for the petitioner further submits that as per clause 11 of part 4, what all is required is experience of operation and maintenance of Electronic Weighing Bridge for three years and there is no such requirement than one should be the owner of the Weighing Bridge. He further submits that petitioner was managing the Weighing Bridge established in Vindvashini Stone Crusher Private Limited and thus he had acquired necessary experience of three years as required in clause 11 of part 4 of the tender document. He further submits that since he had acquired necessary experience in Vindvashini Stone Crusher Private Limited, therefore, he had rightly submitted the 'Registration Certificate' of M/s. Vindvashini Stone Crusher Private Limited, which was sufficient as per clause 11 of part 4 of the tender document. He further submits that the Legal Metrology Act do not provide for registration of an individual and it provides only for verification of weights. 9. Before dealing with the submissions made by learned counsel for the petitioner, it may be stated that petitioner has nowhere disclosed in the writ petition that the experience, if any, acquired by him, is in what capacity? He has not disclosed in the writ petition, his status in M/s. Vindvashini Stone Crusher Private Limited. Since, M/s. Vindvashini Stone Crusher Private Limited is a company having a legal personality distinct from its shareholders, therefore, the experience earned by the said company cannot be treated as experience of a Director or a shareholder. Even otherwise also, petitioner is neither a Director, nor a Shareholder of the said company. This creates a doubt regarding bonafides of the petitioner as to whether he actually earned three years experience or simply obtained a certificate for participating in the tender process. 10. Even otherwise also, petitioner is neither a Director, nor a Shareholder of the said company. This creates a doubt regarding bonafides of the petitioner as to whether he actually earned three years experience or simply obtained a certificate for participating in the tender process. 10. Having regard to the nature of activity involved in establishment, operation and maintenance of Electronic Weighing Bridges, the Corporation can insert condition regarding experience of dealing with such machines. Clause 11 of part 4 of the tender document requires every bidder to produce a registration certificate to prove that he has three years experience of operation/maintenance of Electronic Weighing Bridges. Since, the registration certificate produced by the petitioner was in the name of some other person namely M/s. Vindvashini Stone Crusher Private Limited, therefore, it was not as per the requirement of the tender document. 11. The Corporation as employer has put certain conditions of eligibility which are not under challenge. A bidder who has been disqualified on account of condition regarding experience cannot complain against strict enforcement of the condition. Hon'ble Supreme Court in the case of AFCONS Infrastructure Limited v. Nagpur Metro Rail Corporation Limited, (2016) 16 SCC 818 has considered scope of judicial review of a decision taken by the employer regarding eligibility of a bidder. Para 15 of the said judgment is extracted below:- “15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.” 12. Similarly, in the case of Central Coalfields Limited and Another v. SLL-SML (Joint Venture Consortium) and others, (2016) 8 SCC 622 , Hon'ble Supreme Court has held that the decision taken by the employer regarding term of NIT should be respected. Para 48 of the said judgment is extracted below:- 48. Similarly, in the case of Central Coalfields Limited and Another v. SLL-SML (Joint Venture Consortium) and others, (2016) 8 SCC 622 , Hon'ble Supreme Court has held that the decision taken by the employer regarding term of NIT should be respected. Para 48 of the said judgment is extracted below:- 48. Therefore, whether a term of NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in 'Ramana Dayaram Shetty'. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness or the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot.” 13. For the aforesaid reasons, I am of the opinion that there is no illegality or infirmity, whatsoever, in rejection of technical bid of the petitioner for non-compliance of clause 11 of part 4 of the tender document. 14. In such view of the matter, I find no force in the writ petition and the writ petition is liable to be dismissed and is hereby dismissed.