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Himachal Pradesh High Court · body

2019 DIGILAW 1948 (HP)

Shriram Veritech Solutions Pvt. Ltd. v. State Of H P

2019-12-18

CHANDER BHUSAN BAROWALIA, TARLOK SINGH CHAUHAN

body2019
JUDGMENT Tarlok Singh Chauhan, J. - Since common question of law and facts arise for consideration in both these petitions, therefore, they were taken up together for consideration and are being disposed of by way of a common judgment. 2. The Department of Excise and Taxation issued an Online tender on the E-Tender Portal in the last week of September, 2019 inviting bids for supply of Hologram to the State of Himachal Pradesh for affixing on liquor bottles manufactured/sold in the State. 3. The eligibility condition in the original tender published in Clause-8, reads as under:- "8. Evaluation Criteria for the Bid. i) The Evaluation shall be initiated for only those Bids who qualify in the Pre-Qualification stage and will be evaluated as per the evaluation criteria in this Clause. ii) Tender Evaluation Committee (TEC) may require written clarifications from Bidders to clarify ambiguities/uncertainties arising out of the evaluation of Bid documents. # Eligibility Criteria Document Proof 1. The TENDERER should have at least 10 years of experience in the field of manufacture of Excise Adhesive Labels/High Security Holograms Printing with Master originations (both DotMatrix 6000DPI or above and 2D/3D Conventional). Moreover, the bidder should have at least 8 years of experience in manufacture and supply of fully Polyester based Excise Holograms to any State Excise Department in India in the last 10 years. The bidder should have supplied minimum of 20 crores fully Polyester Excise Holograms at least on one or more occasions within a year to any State/Central Government Department/Government Corporations in the last five preceding years. * Work Order/ Completion Certificate / good performance certificate/ Partial completion certificate issued by the client. 2. The TENDERER should have previous experience of immediately preceding last five years in printing and supplying of security items like a Holograms, Bank cheques, Demand drafts, certificate of Deposit or lottery tickets (Minimum 1 Project) * Work Order/ Completion Certificate/good performance certificate/Partial completion certificate issued by the client. 4. The pre bid meeting was held on 09.10.2019, wherein the petitioner M/s Shriram Veritech Solutions did not participate whereas the other petitioner M/s Kantas Track Pack India Ltd. raised the issues of relaxation in the eligibility criteria but the respondents did not convey its decision on the issues in pre bid meeting. However, on 15.10.2019 Corrigendum No. 1 was issued in which the issues raised during the pre bid meeting were addressed. However, on 15.10.2019 Corrigendum No. 1 was issued in which the issues raised during the pre bid meeting were addressed. This corrigendum was uploaded at 3:30 p.m. on 15.10.2019, which reads as under:- "The TENDERER should have at lest 10 years of experience in the field of manufacture of Excise Adhesive Labels/High Security Holograms Printing with Master originations (both Dot-Matrix 6000DPI or above and 2D/3D Conventional). Moreover, the bidder should have experience in manufacture and supply of fully Polyester based Excise Holograms to any State Excise Department in India within last 8 preceding years at least once. The bidder should have supplied minimum of 20 crores fully Polyester Excise Holograms at least on one or more occasions within a year to any State/Central Government Department/ Government Corporations in the last five preceding years." 5. It is the allegation of the petitioners that the respondents unilaterally, arbitrarily and in colourable exercise of power once again amended Clause-8 (1) of the tender within two hours of issuance of Corrigendum No. 1 and issued Corrigendum No. 2 which reads as under:- "xxx Moreover, the bidder should have at least 8 years of experience in manufacture and supply of fully Polyester based Excise Holograms to any State Excise Department in India in the last 10 years xxx." 6. The net result of issuance of Corrigendum No. 2 was that the petitioners were rendered ineligible to participate in the tender process and aggrieved thereby have filed the instant petition for quashing of the said Corrigendum No. 2. 7. The respondents have filed their reply and it is their specific case that after uploading the Corrigendum No. 1 on the E-Portal, it was noticed that two mistakes have crept up, namely, ''at least once'' and "Central Government Department / Government Corporations" appeared unintentionally and, therefore, Corrigendum No. 2 was issued. 8. We have heard Shri P. P. Chauhan and Shri Peeyush Verma, learned Advocates for the petitioner(s) and Shri Ajay Vaidya, learned Senior Additional Advocate General duly assisted by Mr.Vinod Thakur, learned Additional Advocate General, for the respondents. 9. At the outset, the scope of judicial review in matters of tenders, government contracts, lease tenders need to be delineated. 8. We have heard Shri P. P. Chauhan and Shri Peeyush Verma, learned Advocates for the petitioner(s) and Shri Ajay Vaidya, learned Senior Additional Advocate General duly assisted by Mr.Vinod Thakur, learned Additional Advocate General, for the respondents. 9. At the outset, the scope of judicial review in matters of tenders, government contracts, lease tenders need to be delineated. However, this exercise has been made easier by the judgment of the Hon''ble Supreme Court in M/s N. Ramachandra Reddy vs. The State of Telengana and another in Civil Appeal No. 6673 of 2019 arising out of SLP (C) No. 8185 of 2019, decided on 28.07.2019, wherein the scope of judicial review in matter relating to government tender was delineated, which reads as under:- 35. In the case of Tata Cellular v. Union of India, (1994) 6 SCC 651 while considering the scope of judicial review, in matters relating to Government contracts-tenders, this Court has held that the State''s decision/action must be in consonance of Article 14 of the Constitution of India. The scope is confined to examine only the decision-making process and not the C.A.@S.L.P.(c) No.8185 of 2019 merits of the decision itself. It is specifically held that courts cannot sit as appellate court while exercising power of review in matters relating to contracts and tenders. 36. In the case of Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited and Another, (2016) 16 SCC 818 this Court found fault in the High Court, in interfering with the decision of the authority in a matter relating to contracts and tenders, without there being any mala fides or irrationality or perversity in the procedure adopted by the authorities. 37. In the case of Consortium of Titagarh Firema Adler v. Nagpur Metro Rail Corporation Ltd., (2017) 7 SCC 486 while considering the scope of judicial review, in matters relating to power of contracts, this Court has held that exercise of power of judicial review is called for, if the approach is arbitrary or mala fide or procedure adopted is meant to favour someone. 38. Further, in the case of Municipal Corporation, Ujjain and Anr. v. BVG India Ltd. and Ors., (2018) 5 SCC 462 this Court has held that, while considering the scope of judicial review, in matters relating to contracts, C.A.@S.L.P.(c) No.8185 of 2019 it is held that the same is restricted to decision-making process but not the decision itself. 38. Further, in the case of Municipal Corporation, Ujjain and Anr. v. BVG India Ltd. and Ors., (2018) 5 SCC 462 this Court has held that, while considering the scope of judicial review, in matters relating to contracts, C.A.@S.L.P.(c) No.8185 of 2019 it is held that the same is restricted to decision-making process but not the decision itself. It is held that the High Court cannot act as appellate court to review tender evaluation and set aside the award of tender. 10. Similar reiteration of law can be found in the judgments rendered by this Court in CWP No. 765 of 2014, titled as Namit Gupta vs. State of H.P. and others, decided on 27.03.2014 and CWP No. 429 of 2016, titled as Rajesh Kumar and others vs. State of H.P. and another and connected matter, decided on 01.04.2016 . 11. Thus, what appears to be fairly settled is that the procedure adopted by the tendering authority should be fair, just and reasonable. 12. Bearing in mind the aforesaid exposition of law, the question that initially falls for consideration is whether the petitioners were, in fact, aggrieved by Clause-8 and if so, to what extent because only thereafter would the Court be required to give answers of other issues. 13. Undoubtedly, the petitioners had taken exception to Clause-8 by raising query, which is reproduced hereinunder:- "Please explain 8 years of experience in manufacture and supply of polyester based excise hologram to one state or more than one States. Is it Mandatory to have 8 years experience of supplying Holograms to State Excise Department only or other Government departments may also be included." 14. It would be noticed that the petitioners were not at all aggrieved by the other terms and conditions of the tender and even qua Clause-8 the only objection or explanation, which the petitioners'' sought was the manner in which 8 years experience in manufacturing and supply of polyester based Excise Holograms to one State or more than one States is to be calculated or was it mandatory to have 8 years of experience of supplying Holograms to State Excise Department only or other Government Departments to be included. 15. Nowhere, had the petitioner made a grievance regarding the 8 years of experience in manufacturing and supply of fully polyester based Excise Holograms or 10 years experience in State Excise Department in India in the last 10 years. 15. Nowhere, had the petitioner made a grievance regarding the 8 years of experience in manufacturing and supply of fully polyester based Excise Holograms or 10 years experience in State Excise Department in India in the last 10 years. 16. As observed above the petitioners had only sought clarification as to how 8 years experience was computed. Therefore, the allegation of the petitioners that their query had been accepted and thereafter Corrigendum No. 1 had been issued in which the condition in Clause 8(1) of the tender was modified and the experience of 8 years was reduced to one year is totally devoid of merit and not borne out from the record of the case. 17. Once the petitioners themselves were not aggrieved by Clause-8 regarding experience of 8 years in manufacturing and supply of polyester based Excise Hologram, obviously they cannot be permitted to encash upon a mistake committed by the respondents while uploading Corrigendum No. 1, especially, when the same was promptly corrected within two hours. 18. It is settled position in State of U.P. and others vs. Rajkumar Sharma and others, (2006) 3 SCC 330 , that if the State commits mistake, it cannot be forced to perpetuate the same mistake. Like other individuals, the officials of the respondents can also commit mistake and unless and until the action is questioned on the ground of malafide, bias, favoritism etc. etc., the same is not open to judicial review. After all, Article 14 of the Constitution is not meant to perpetuate illegality. 19. There is nothing on record to suggest that the respondents have not conducted themselves in a fair and impartial manner or that their conduct is not above board as alleged by the petitioners. Rather, it is the petitioners who have no locus standi to file the instant petition because they were never aggrieved by the 8 years of experience envisaged under Clause-8 and had raised a query only with regard to manner the computation of the 8 years is to be made. Nowhere, had the petitioners ever represented to the respondents that this period of 8 years should in any manner be reduced or curtailed. 20. In view of the aforesaid discussion, we find no merit in these petitions and the same are accordingly dismissed, leaving the parties to bear their own costs.