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2019 DIGILAW 414 (JK)

Shalimar Engineer (P) Ltd. v. State of J&K

2019-09-18

ALI MOHAMMAD MAGREY

body2019
JUDGMENT : 1. The petitioner, while claiming to be a registered Engineering Private Limited Company, submits that in pursuance of the e-NIT dated 23rd of August, 2019 inviting e-tenders for the construction of Pre-Fabricated structures at various locations for accommodation of CAPF issued by the respondents, submitted its bid in electronic format within the stipulated time period as prescribed in the notice itself. It is stated that the respondents, on evaluation of the technical bid, declared the petitioner company as ‘non-responsive’ on the ground that the petitioner company having not followed the instructions incorporated in the notice in their entirely. The action of the respondents in declaring the petitioner company as ‘non-responsive’ and respondent No.4 as ‘responsive’ is assailed by the petitioner company in this petition on varied grounds detailed out in the petition itself. 2. Mr Shahbaz Sikander Mir, the learned counsel for the petitioner company, submits that due to limited access to the internet services in the Valley, the petitioner company could not upload some of the requisite documents along with the notice as prescribed under Condition Nos. 2-vi, vii, 23 and 24-2 of the notice, however, on 9th of September, 2019, the petitioner company, in order to meet the said requirement, submitted the hardcopy of the same in the office of the official respondents. It is stated that the respondent No.3, in order to accommodate M/S ABRAQ Infrastructures LLP/ respondent No.4 herein, did not allow the petitioner company to participate in the bidding process by declaring the petitioner company as ‘non-responsive’. The learned counsel has proceeded to state that the aforesaid company/ respondent No.4 has been incorporated in the year 2017 and, thus, does not fulfill the general conditions prescribed in the notice, but, despite that the said company has been declared as ‘responsive’. 3. Mr B. A. Dar, the learned Senior Additional Advocate General, submits that since the petitioner company did not comply with the terms of the e-NIT by uploading all the relevant documents, therefore, the petitioner company was rightly declared as ‘non-responsive’. The learned Senior Additional Advocate General further submits that the terms of the NIT cannot be ignored as being redundant or superfluous and that they carry some meaning and necessary significance. The learned Senior Additional Advocate General further submits that the terms of the NIT cannot be ignored as being redundant or superfluous and that they carry some meaning and necessary significance. The learned Senior Additional Advocate General has further proceeded to state that the term of the NIT is a decision taken by the Department which should be respected by all concerned at all costs. It is also submitted that the lawfulness of that decision can be questioned on very limited grounds, but the soundness of the decision cannot be questioned as otherwise this Court would be taking over the function of the tender issuing authority, which it cannot. 4. Heard the learned counsel for the parties, perused the record and considered the matter. 5. When this matter was taken up on motion hearing, i.e. on 17th of September, 2019, the Court, after hearing the learned counsel for the petitioner and in order to ascertain the genuineness or otherwise of the contentions raised by the petitioner, directed Mr Dar, the learned Senior Additional Advocate General, to appear in the matter on behalf of the respondents and produce the records substantiating the eligibility of respondent No.4 in declaring the said company as ‘responsive’ in pursuance of e-NIT dated 23rd of August, 2019 (supra) before the Court tomorrow, the 18th of September, 2019. 6. Today, Mr Dar, the learned Senior Additional Advocate General, has produced the photocopy of the record as directed by the Court which, on perusal, is returned to him in the open Court. 7. At the very outset, what requires to be stated is that the official respondents have declared the petitioner company as ‘non-responsive’ on the ground that the petitioner company has not followed certain terms and conditions prescribed in the NIT itself. In the matters of Contract, there is a golden principle prevalent which provides that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and any other methods of performance are necessarily forbidden. This principle is applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts, where there is stiff competition. This principle is applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts, where there is stiff competition. It must follow from the application of this principle that if the tendering issuing authority prescribes a particular format of the tender document to be furnished, then a bidder ought to submit the same in that particular format only and not in any other format. Any decision taken by the tendering issuing authority in accepting or rejecting a tender document in a format not prescribed by it could lead to unnecessary/ avoidable litigation requiring the authority to justify the rejection or acceptance of each tender document. This is hardly conducive to a smoother and hassle-free bidding process. 8. It is well settled principle of law that there must be judicial restraint in interfering with the administrative action, particularly in matter of tender or contract. Ordinarily, the soundness of the decision taken by the tendering issuing authority ought not to be questioned, but the decision-making process can certainly be subject to judicial review. The soundness of the decision may be questioned, firstly, if the decision made is so arbitrary and irrational that the Court can say that the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached or, second, if the process adopted or decision made by the authority is malafide or intended to favour someone or, third, if the public interest is affected. In the case on hand, when the petitioner company has failed to comply with the format prescribed in the terms and conditions of the NIT, in such eventuality, the decision of the official respondents to declare the petitioner company as non-responsive cannot be said to be one where they have acted in a manner in which no responsible authority acting reasonably and in accordance with the relevant law would have acted. Furthermore, a perusal of the record, as produced by Mr Dar, the learned Senior Additional Advocate General, coupled with the perusal of the pleadings attached with the writ petition, does not indicate that the decision made by the authority is malafide or intended to favour someone. Even otherwise, the process of finalization of the contract in question is in motion and the allegation of malafide or favouring someone would only arise when the process is finalized and contract is allotted. Even otherwise, the process of finalization of the contract in question is in motion and the allegation of malafide or favouring someone would only arise when the process is finalized and contract is allotted. At this stage, no malafide or favourtism is forthcoming either from the record produced by the respondents or from the pleadings attached with the writ petition. Likewise, the third ground of public interest is also not affected in the present case because while it may be in public interest to have greater competition, it is also in public interest that the tender conditions are complied with and that there is no uncertainty in that area. The contention of the petitioner company that the official respondents have declared it as ‘non-responsive’ only in order to accommodate the respondent No.4 is also belied by the records as well as the oral submission made by the Executive Engineer, Police Construction Division, Srinagar/ respondent No.3 that the respondent No.4 has been assessed as ‘L3’ only and no contract has been, as yet, issued to anyone. 9. For the foregoing reasons, this writ petition is found to be devoid of any merit, as a sequel thereto, same shall stand dismissed along with the connected IA. Interim directions, if any, subsisting as on date shall stand vacated. 10. There shall, however, be no order as to costs.