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2019 DIGILAW 567 (ALL)

Manjari Developers v. State of U. P.

2019-03-01

PANKAJ KUMAR JAISWAL, YOGENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : 1. Heard Sri Arun Kumar Gupta, learned counsel for the petitioners, learned Standing Counsel for the respondent no.1 and Sri Pranjal Mehrotra, learned counsel for the respondents no. 2 & 3. By means of the present writ petition, the petitioners have prayed for issuance of writ of mandamus directing the respondents to accept and include E-Tender of the petitioners and consider the same at the time of finalizing the Bid, which is likely to be done on 28th February, 2019 or 1st March, 2019. Brief facts of the case are that the respondent no. 4 had invited E-Tender in the news paper (Hindustan) on 27.12.2018 for the construction of under ground two level parking in front of Varansi Kachehri between Circuit House and Commissioners Sabhagar. The date of opening of technical Bid was 28.01.2019 at 02.00 PM and finalization of Bid was 30.01.2019 at 12.00 noon. Clause 1 and 5 of the E-Tender is relevant, which reads as under: **1- fufonk izi= dks mijksDrkuqlkj fu/kkZfjr ewY; o okafNr /kjksgj /kujkf'k dk Hkqxrku R.T.G.S. ds ek/;e ls ifj;kstuk izcU/kd LdkbZ&okjk.klh ds i{k esa vyx&vyx dk;kZsa gsrq fuEu fooj.k ds vuqlkj fufonk [kqyus dh frfFk ls ,d fnu iwoZ rd fd;k tk lds mijksDr dh LdSu izfr rduhdh fcM ds lkFk viyksM fd;k tkuk vfuok;Z gSA Name of Holder :-Project Manager, Construction Unit-Varanasi, Uttar Pradesh Avas Evam Vikas Parishad A/C No. :-037001000030999 IFSC Code :- IOBA0000370 Name of Bank:-Indian Oversees Bank, Lahurabeer, Varanasi 2.…................ 3................... 4....................... 5- fufonknkrk dks fufonk Lohd`fr dh n'kk esa vuqcU/k iwoZ fufonk ds vuqlkj dk;Z dh dqy ykxr dk 10 izfr'kr ¼nl izfr'kr½ flQZ Hkkjrh; jk"Vªh;d`r cSad ,Q0Mh0vkj0@lh0Mh0vkj0 ds :i esa ifj;kstuk izcU/kd] fuekZ.k bdkbZ&okjk.klh] m0iz0 vkokl ,oa fodkl okjk.klh dsi{k esa cU/kd cukdj tek djuh gksxhA** 2. On 16.01.2019 the aforesaid notice of E-tendering was amended by the respondent no. 4 to the extent that only contractors of Clause A+ of U.P. Awas Evam Vikas Parishad would participate in the said E-Tender and date of technical Bid has been extended to 19th February, 2019 and the same was to be opened on 20.02.2019. The petitioners, after depositing tender fee of Rs. 17,700/-through RTGS (Real Time Gross Settlement) net banking, submitted its Bid on 19.02.2019 at 12.55 PM. On 18th February, 2019 the petitioners tried to make payment of Rs. The petitioners, after depositing tender fee of Rs. 17,700/-through RTGS (Real Time Gross Settlement) net banking, submitted its Bid on 19.02.2019 at 12.55 PM. On 18th February, 2019 the petitioners tried to make payment of Rs. 30 Lac through RTGS from Allahabad Bank but as the server of Allahabad Bank was down, no payment of Rs. 30 Lac towards earnest money could be made through RTGS. Then the petitioners prepared FDR of Rs. 30 Lac in favour of respondent no. 4 and pledged the same in the account of respondent no. 4 and annexed the certificate issued by the Allahabad Bank dated 18.02.2019 stating therein that the amount of Rs. 30 Lac has been pledged in the account of respondent no. 4, namely, Project Manager, U.P. Awas Evam Vikas Parishad, asAnnexure-10 to the writ petition. 3. On 20th February, 2019 technical Bid was opened but the Tender of petitioners was not included on the ground that earnest money of Rs. 30 Lac was not deposited through RTGS in terms of clause-1 of the NIT. It is this action, which is impugned in the writ petition. 4. The sole contention of learned counsel for the petitioners is that the server of Allahabad Bank was down and due to this technical fault the earnest money of Rs. 30 Lac was not deposited through RTGS but the same was deposited in the shape of FDR and thus, the necessary compliance of terms and conditions of NIT was made. The respondent Authority has committed an error in not opening the tender of petitioners along with intended bidders and therefore, the impugned action of the respondents is arbitrary and violative of Article 14 of the Constitution of India. 5. On the first date when the matter was listed for admission, we directed Sri Pranjal Mehrotra, learned counsel for the respondents to take instructions in the matter and to point out as to why tender of the petitioner was excluded from the zone of consideration. Today, during the course of arguments, learned counsel for the respondents has pointed out that earnest money was required to be deposited by the petitioner through RTGS but he prepared FDR and pledged the same in favour of respondent no. 4, thus, the petitioners have failed to comply with the terms and conditions of NIT and, therefore, learned Authority has rightly excluded the petitioners from the zone of consideration. 6. 4, thus, the petitioners have failed to comply with the terms and conditions of NIT and, therefore, learned Authority has rightly excluded the petitioners from the zone of consideration. 6. It is submitted by the learned counsel for the respondents that on 27.2.2019 financial Bid was opened and contract was awarded to the lowest bidder and LOI has already been issued in his favour, thus, the present writ petition has rendered infructuous and prays for its dismissal. 7. Per contra, learned counsel for the petitioners has drawn our attention to the corrigendum issued by the respondents from time to time and has submitted that the last date for opening technical Bid was 28.02.2019 and the respondent no. 4 acted illegally in opening the technical Bid on 27.02.2019 and awarding financial contract on 27.02.2019. He further submitted that there was no fault on the part of the petitioners because server of Allahabad Bank was down, therefore, the petitioners could not deposit the earnest money through RTGS and prayed that the respondents be directed to open the technical and financial Bid of the petitioners and in case the petitioners' tender is found to be valid, the same may be considered along with successful bidder and, thereafter, the work may be awarded as per the terms of NIT. 8. In absence of any material on record, we cannot accept the aforesaid argument of the learned counsel for the petitioner. No material or document has been filed along with the writ petition to prove that server of Allahabad Bank was down on th Feb, 2019. Secondly, the terms and conditions of NIT are very clear that if anyone intends to Bid as per clause 1 and 5, which we have reproduced in the preceding paragraphs, the earnest money is required to be deposited in the shape of RTGS. It is also clear that the earnest money shall be Rs. 30 Lac and security money shall be 10 % of the bonded cost of the work. The EMD would be converted into security amount in respect of successful tenderer. The balance amount can be accepted in the shape of FDR/CDR by any nationalized bank of India duly pledged in favour of Project Manager, Construction Unit, Varanasi, U.P. Housing and Development Board, Varanasi. The EMD would be converted into security amount in respect of successful tenderer. The balance amount can be accepted in the shape of FDR/CDR by any nationalized bank of India duly pledged in favour of Project Manager, Construction Unit, Varanasi, U.P. Housing and Development Board, Varanasi. The petitioners are bound by the aforesaid conditions and they cannot deviate from the terms and conditions of NIT by depositing the amount of EMD in the shape of FDR. The EMD would be converted into security money in respect of successful tenderer and balance amount can be accepted in the shape of FDR. 9. From the aforesaid, it is clear that the petitioners failed to comply with the terms and conditions of NIT and has not deposited the earnest money of Rs. 30 Lac in the shape of RTGS along with E-technical bid on or before 19th February, 2019 and thus, the respondents have not committed any error in excluding the petitioners in the tender. 10. Exercise of power of judicial review is called for if the approach is arbitrary or malafide or procedure adopted is meant to favour some one. In the present case, in view of the fact that earnest money was not deposited in the shape of RTGS at the stage of submission of tender on or before 19.02.2019, we are of the view that the respondent no. 4 has applied its commercial wisdom and has not committed any legal error in excluding the petitioners from the zone of consideration. 11. The law is well settled. The Apex Court in catena of decisions has held that while exercising power of judicial review the courts can only examine decision making process of administrative authorities but not decision itself 12. For the above-mentioned reasons, no case is made out to issue any direction, as prayed in the present writ petition. The writ petition filed by the petitioners has no merit and is dismissed. No orders as to cost.