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Himachal Pradesh High Court · body

2018 DIGILAW 1528 (HP)

Yog Raj v. State of H. P.

2018-08-20

SANDEEP SHARMA, SANJAY KAROL

body2018
JUDGMENT : Sanjay Karol, J. What is the meaning of the word “preceding the year in which bids are invited”, is the issue, which we are called upon to adjudicate in the present petition. 2. Facts are not in dispute. 3. On 29th September, 2017, tenders for construction of public work were invited by the State. On 9th January, 2018, bids were opened, but since it was a case of a single bid, department could not proceed and as such, the very same day, tender was re-invited. Pursuant thereto, both the petitioner and the private respondent applied. On 7th February, 2018, technical bids were opened. One of the bids was found to be technically non-responsive. It is not in dispute that bid of the petitioner was lowest, Rs.1,56,22,067.34/- paise, being 1.30% below the tendered amount which was Rs.1,58,28,424/-. However, the same was not accepted for the simple reason that he did not fulfill the requirement of Section 3 of the bidding document, whereby the bidder was required to submit documents of having executed work of civil engineering construction and payments received in regard thereto, for the last five years. Eventually, the work stood awarded to the private respondent. 4. It is also not in dispute that petitioner did not submit any document, indicating the work executed by him for the financial years 2012-2013. Documents submitted by him indicate the works executed by him for five years commencing from 2013 onwards, as under : “This is hereby certified that the gross receipts from civil contractorship in r/o Govt. Contractor Sh. Yog Raj s/o Sita Ram V.P.O. Baldwara Tehsil Sarkaghat Distt. Mandi H.P. financial year wise have been as follows:- F.Y. GROSS TURNOVER 2013-14 Rs.56,78,758.00 2014-15 Rs.88,65,906.00 2015-16 Rs.49,35,956.00 2016-17 Rs.97,18,520.00 2017-18 (upto 31.1.2018) Rs.1,35,18,520.00 Total Rs.4,27,17,660.00” 5. It is in this backdrop, Mr. Shrawan Dogra, learned Senior Advocate contends that since prior to the opening up of the technical bid which was on 7th February, 2018 and award of tender, petitioner had executed the work for the last five years, thus, act of the respondents in holding the petitioner’s bid to be non-responsive, is illegal and arbitrary. According to him, the expression “last five years” has to be counted backwards from the last date of submission of tenders and not the financial year as is projected by the respondents. According to him, the expression “last five years” has to be counted backwards from the last date of submission of tenders and not the financial year as is projected by the respondents. In support, he refers to and relies upon the decisions rendered in Employer in Relation to the Digwadih Colliery v Their Workman reported in AIR 1966 SC 75 (V53 C20); Mohan Lal versus Management of M/s Bharat Electronics Ltd., reported in (1981) 3 SCC 225 ; and Yog Raj versus State of HP and others alongwith one connected matter, reported in Latest HLJ 2010 (HP) 1172. 6. Principles, on which terms of the documents are to be construed, are now well settled. First rule of construction is to read the document as it is and if the language is plain and simple then no external aids are required for such construction. 7. In Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 , the apex court held that it is a well settled rule of interpretation applicable alike to documents as to statutes that save for compelling necessity the court should not be prompt to ascribe superfluity to the language of a document and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use. To reject words as insensible should be the last resort of judicial interpretation for the author does not uses the words having no meaning. 8. It is in this backdrop, we deem it appropriate to reproduce the essential qualification, so stipulated in Section 3 of the tender document, which is mandatory in nature, about which, also there is no dispute. “Section 3 Qualification Information Notes on Form of Qualification Information The information to be filled in by bidders in the following pages will be used for purposes of post-qualification as provided for in Clause 4 of the Instructions to Bidders. This information will not be incorporated in the Contract. Attach additional pages as necessary. 1.1 Constitution or legal status of Bidder Place of registration Principal place of business: Power of attorney of signatory of Bid [attach copy] (attach) 1.2 Total annual volume of civil engineering construction work executed and payments received in the last five years preceding the year in which bids are invited. (Attach certificate from Chartered Accountant) (Rs. 1.1 Constitution or legal status of Bidder Place of registration Principal place of business: Power of attorney of signatory of Bid [attach copy] (attach) 1.2 Total annual volume of civil engineering construction work executed and payments received in the last five years preceding the year in which bids are invited. (Attach certificate from Chartered Accountant) (Rs. In Lakhs) year 2016-17 year 2015-16 year 2014-15 year 2013-14 year 2012-13 1.3.1 Work performed as prime Contractor (in the same name and style) on construction works of a similar nature and volume over the last five years. Attach certificate from the Engineer-in-charge. Project name Name of employer Description of work Volume of contract Contract No. Date of issue of work order Stipulated date of completion Remarks explaining reasons for delay if any 1.3.2 Work performed as Sub-Contractor (in the same name and style) on construction works of a similar nature and volume over the last five years. Attach certificate from the Engineer-in-charge.” (Emphasis supplied) 9. The document is unambiguously clear. Last five years preceding the year in which the bids are invited, in this case, has to be from the year 2012-2013 onwards upto 2016-2017. The tender document itself clarifies such fact. The tender was notified on 9th January, 2018. In commercial parlance, a year is perceived to be the financial year and that fact stands elaborated with last five years, preceding the financial year, is categorically mentioned in the document itself. 10. What is important and significant is the expression “preceding”. It has to be read conjunctively with “the year in which the bids are invited”. So, by any rule of construction, assuming that there was no reference of the specified years 2012-2013 to 2016-2017, five years had to be counted from the year preceding the year in which tenders were invited and that being prior to 2018. 11. Still further, the moot question involved is as to whether the word ‘year’ used in the above expression is to be construed as a financial year or a calendar year. The general rule of construction of a document is that the words are to be given their ordinary and natural meaning unless they are technical in nature, in which case they have to be assigned their technical meaning. The general rule of construction of a document is that the words are to be given their ordinary and natural meaning unless they are technical in nature, in which case they have to be assigned their technical meaning. Giving the word ‘year’ its ordinary meaning, as per section 2(66) of the General Clauses Act, 1897, it will be construed as a year which is reckoned according to the British calendar. But a document has to be construed as a whole and not as a piecemeal. A bare reading of the Notice Inviting Tender (NIT), in addition to section 3, i.e. Qualification Information of the bidder, provides the context in which the word ‘year’ has been used as the same seeks the information of the Gross Turnover of five years preceding the year in which the NIT is issued. Since gross turnovers are calculated for a financial year which as per Section 2(21) of the General Clauses Act means the year commencing on the first day of April and ending on last day of the month of March of the year next following. 12. In Commissioner Income Tax v K. Srinivasan, 1953 AIR(SC) 113, the Apex Court observed that the expression ‘previous year’ substantially means an accounting year comprised of a full period of twelve months and usually corresponding to a financial year preceding the financial year of assessment”. (Also : M/s D handhania Kedia & Co. vs The Commissioner of Income Tax, AIR 1959 SC 219 ). 13. In the instant case, tender was invited on 9th January, 2018, a date prior to the completion of the financial year, which would have been 31st March, 2018. Further, the document, unambiguously clarified that execution of work for the years 2012-2013 was necessary which eligibility criteria, undisputedly, petitioner does not fulfill. 14. One must understand the logic and the eligibility criteria for fixing the expression “for the last five years” and that being the work experience, considering the nature and extent of work, which the department wants to get executed. The department only wants persons with sufficient experience to come forward for executing such work. A successful bidder must also be of some standing. For the work to be executed is of not only construction but maintenance of road under the Central Government Sponsored Scheme. 15. The department only wants persons with sufficient experience to come forward for executing such work. A successful bidder must also be of some standing. For the work to be executed is of not only construction but maintenance of road under the Central Government Sponsored Scheme. 15. Reliance on Digwadih Colliery (supra), Mohan Lal (supra) and Yog Raj (supra) is totally misconceived, for the said decisions deal with counting of 240 days of workman, so defined under the provisions of Industrial Disputes Act, 1947. The Court only dealt with the expression “12 calendar months” immediately preceding the date of retrenchment. 16. Significantly, the expression used in the instant tender document is not “12 calendar months” but “preceding the year” in which the bids are invited. 17. We find the petitioner not to fulfill the eligibility criteria. Hence, for all the aforesaid reasons, present petition stands dismissed, so also pending applications, if any.