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2019 DIGILAW 57 (SIK)

Sajan Kumar Agarwal v. State of Sikkim

2019-08-26

MEENAKSHI MADAN RAI

body2019
JUDGMENT : Meenakshi Madan Rai, J. 1. The only question for determination herein is whether the Respondent No.2 ought to be directed to accept the Tender Bid Documents including the Term Deposit Receipt (hereinafter “TDR”), of Rs.90,62,000/- (Rupees ninety lakhs and sixty two thousand) only, submitted by the Petitioner on 07.03.2019 at 12.20 p.m., beyond the stipulated time of submission, fixed at 12 noon, by the Respondent No.2. 2. The Petitioner is a registered Government Contractor, Grade IAA. An advertisement was published in a local daily newspaper “Sikkim Express,” dated 02.03.2019, on behalf of the Gangtok Smart City Development Limited (hereinafter “GSCDL”), inviting sealed Tenders from eligible Contractors enlisted with the State Government, for construction of Social Housing for Economically Weaker Sections, under Affordable Housing for Urban Poor at Sokaythang, Gangtok, East Sikkim. The advertisement, in the paragraph “Instructions to Bidders,” specified inter alia that a complete set of Bid Documents may be purchased by interested eligible bidders from the Chief Executive Officer, GSCDL, on payment of nonrefundable cost of Bid Documents. Forms would be available from 05.03.2019 to 06.03.2019 between 13:00 Hrs to 15:00 Hrs. The Petitioner, in response thereto, purchased the said Bid Documents for Rs.2,00,000/- (Rupees two lakhs) only, vide a Demand Draft of the Central Bank of India, Gangtok Branch, dated 04.03.2019 payable to “CEO, GSCDL.” Admittedly, the last date for submission of the Bid Documents was fixed on or before 12:00 Hrs on 07.03.2019. The Petitioner avers that although he attempted to collect the entire Bid Documents from the Respondent No.2 on 05.03.2019 at 13:00 Hrs, he was told that the said documents were not ready and was instructed to collect it on 06.03.2019. The documents were issued to him on 06.03.2019 at 14:00 Hrs. On 07.03.2019, the Petitioner telephonically sought extension of one hour for submission of the documents, from the Additional Chief Engineer and the Assistant Engineer of the GSCDL in view of the time taken to complete the documents and the aforestated circumstances, apart from being obstructed by traffic on the same day. An assurance was given by the Additional Chief Engineer that his request shall be taken into consideration. However, when the Petitioner reached the Office of the GSCDL at 12.20 Hrs, he found the Office closed despite the fact that the Office Hours are till 4 p.m. and thereby could not submit his Bid Documents. An assurance was given by the Additional Chief Engineer that his request shall be taken into consideration. However, when the Petitioner reached the Office of the GSCDL at 12.20 Hrs, he found the Office closed despite the fact that the Office Hours are till 4 p.m. and thereby could not submit his Bid Documents. The Petitioner however learnt that the Respondent No.2 had relaxed the scheduled time for other Contractors and had permitted them to file their Bid Documents at around 12.10 p.m. while denying him of such opportunity. Laying the blame at the door of the Respondent No.2 for availability of the Bid Documents only on 06.03.2019 instead of 05.03.2019, the Petitioner sought the following reliefs i.e., a direction to the Respondent authorities to accept his Bid Documents for the Contract Work as published vide “Notice Inviting Re-Tender (NIT) No.GSCDL/TENDER/NIT/SHEWS/2019 vide its Ref. No.15/SPV/GSCDL/SHEWS/2019, Dated 28-02-2019,” in Sikkim Express on 02.03.2019, and in the alternative, to quash the said Notice. A further direction was sought to the Respondents to re-tender the Contract Work. 3. The Respondent No.1 had no Counter-Affidavit to file. 4. The Respondent No.2, in its Counter-Affidavit, stated that initially a Notice Inviting Tender bearing Reference No.08/SPV/GSCDL/SHEWS/2019, dated 01.02.2019, was uploaded in its official website on the same day and published in a local daily newspaper on 03.02.2019. The Notice Inviting Tender gave specific instructions to the Bidders. The instructions also stated that the Bid Documents would be available from 11.02.2019 to 13.02.2019 between 11:00 Hrs to 14:00 Hrs on 22.02.2019. The Petitioner was one of the seven Bidders who purchased the tender documents. Later, due to reduction in the bid security value for various reasons, a Corrigendum dated 12.02.2019, was issued by the Respondent No.2. As per instructions issued therein, the sealed Bids duly signed by the authorized signatory were to be delivered to the CEO, GSCDL, Gangtok, on or before 12:00 Hrs on 22.02.2019 but the Respondent No.2 did not receive any Bids despite purchase of seven Tender Documents from their Office. As per instructions issued therein, the sealed Bids duly signed by the authorized signatory were to be delivered to the CEO, GSCDL, Gangtok, on or before 12:00 Hrs on 22.02.2019 but the Respondent No.2 did not receive any Bids despite purchase of seven Tender Documents from their Office. In view of this circumstance, a proposal for re-tendering the Contract Work was made and Notice Inviting Re-Tender dated 28.02.2019 for the Project, as reflected in the petition, was again uploaded in the official website and published in the daily newspaper “Sikkim Express.” That, it was specified therein that 'Sealed bid in duplicate duly signed by authorised signatory must be delivered to CEO, GSCDL, Gangtok on or before 12:00 Hrs of 07.03.2019' and that “Late bid will not be accepted by tendering authority.” A total of eleven Bidders thereafter purchased the Tender Documents which included the Petitioner. On 07.03.2019, seven Bidders out of the eleven intending Bidders, submitted their sealed documents on or before 12:00 Hrs at the Office of the Chief Executive Officer of the Respondent No.2, however, the Bid of the Petitioner was not accepted as he arrived beyond the scheduled time of 12:00 Hrs, which disqualified him outright, in view of instruction No.5 of the “Instruction to Bidders.” Besides the Petitioner, one Nirmal Bajaj, also an intending Bidder, was not permitted to submit his Bid after the closing time. The Petitioner having purchased the Bid Documents twice, was fully aware of the requirements, consequently the petition is not maintainable as the Petitioner was not diligent and slept over his rights. Hence, the petition deserves a dismissal. 5. In Rejoinder, the Petitioner while reiterating the facts made in the Writ Petition supported his pleadings with an Affidavit filed by one Bhola Nath Sharma, representative of Tejasurya Construction Pvt. Ltd., Siliguri, who swore that his tender bid documents was accepted by the Respondent No.2 at “12.10 Hrs,” on 07.03.2019. 6. Learned Counsel for the Petitioner canvassed the arguments that although the Petitioner was denied his rights for the reason that he reached the Office of the Respondent No.2 at 12.20 Hrs, but as evident from the Affidavit of Bhola Nath Sharma, representing Tejasurya Construction Pvt. Ltd., Siliguri, despite him having reached the Office of the Respondent No.2 at 12:10 Hrs, beyond the time prescribed, he was permitted to submit his Bid Documents. That, although Annexure R-6, dated 28.02.2019 relied on by the Respondent No.2, details the 'List of Bidders who submitted their Bids on 07.03.2019 at 12:00 Hrs,' and lists Tejasurya Construction Pvt. Ltd., Siliguri, as having submitted the Bid at 12 noon, but the reverse side of the document would demolish this contention in the absence of Bhola Nath Sharma’s signature in the list of signatories. Only six signatures are affixed when the Bid Documents were accepted at 12:00 Hrs and the seventh signature is non-existent, indicating falsity in the assertion of the Respondent No.2. That, the same opportunity extended to Tejasurya Construction Pvt. Ltd., Siliguri, ought to be given to the Petitioner, as he was delayed by only another ten minutes. To augment his submissions, learned Counsel placed reliance on G.J. Fernandes v. State of Karnataka, 1990 SCC (2) 748. Reiterating the time schedule for collecting the Bid Documents, it was urged that the Respondent No.2, in his Counter Affidavit, has accepted the fact that the Petitioner had indeed come to their Office on 05.03.2019 to collect the Bid Documents. However, he reached at 1 p.m. and not earlier as sought to be posited by the Respondent No.2. That, the ineptitude of the Respondent No.2 resulted in the delayed delivery of the Bid Documents to the Petitioner and hence the petition be allowed. 7. Vehemently resisting the arguments of the Petitioner, learned Additional Advocate General would submit that in the first instance, the petition is not maintainable for the reason that the alternative prayer of the Petitioner includes quashing of the “Notice Inviting Re-Tender (NIT) No.GSCDL/TENDER/NIT/SHEWS/2019 vide its Ref. No.15/SPV/GSCDL/SHEWS/2019, Dated 28-02-2019.” Should this Court be inclined to grant the prayer, then the other Bidders who are not impleaded as parties would suffer the consequences. Thus, their impleadment is imperative, failing which, the petition deserves to be dismissed. That apart, the “Instructions to Bidders” specifically states that Bids were to be submitted on or before 12:00 Hrs of 07.03.2019 and there would be no extension of time. That, no proof of a third person having been afforded extra time by the Office of the Respondent No.2, was presented before this Court and the Petitioner rather belatedly by an Affidavit of a third person seeks to bring this stance on record. That, no proof of a third person having been afforded extra time by the Office of the Respondent No.2, was presented before this Court and the Petitioner rather belatedly by an Affidavit of a third person seeks to bring this stance on record. The Deponent of the said Affidavit has no locus standi and therefore the Affidavit deserves to be ignored by this Court. In support of her contentions, learned Additional Advocate General placed reliance on Vijay Kumar Kaul and Others v. Union of India and Others, (2012) 7 SCC 610 . 8. Parties have been heard at length, their submissions considered and all documents on record duly perused as also the citations made at the Bar. 9. On pain of repetition, it is but apposite to notice that the Instructions to Bidders of the Notice Inviting Tender specify as follows; “A complete set of bidding documents in the English language, may be purchased by the interested eligible bidders on submission of bidder application to Chief Executive Officer, GSDCL, Gangtok 737102, Sikkim (India) and on payment of the non-refundable cost of bidding document as specified in Column no. 6 of above during normal office hours and all working days from Date-05.03.2019 to 06.03.2019, 13:00 hrs to 15:00 hrs.” (emphasis supplied) It issues with clarity that the Bid Documents were to be made available to the interested Bidders on both dates i.e. 05.03.2019 and 06.03.2019 at the hours stipulated therein. The averments of the Respondent No.2 admitted at paragraph 13 as follows; “13. It is submitted that as per the instructions more particularly serial No.3, the intending bidders were required to purchase the tender documents from 5.03.2019 to 6.03.2019 within 13.00 hrs to 15.00hrs on the said days....” (emphasis supplied) This averment is an unequivocal admission that the Bid Documents were to be made available to the Contractors on both days mentioned, at the scheduled time of 13:00 Hrs to 15:00 Hrs. In contradiction to the assertion of the Petitioner that he reached the Office of the Respondent No.2 on 05.03.2019 at 13:00 Hrs, it is stated by the Respondent No.2 as follows; “... It is submitted that the petitioner came to the office of the respondent no. 2 during morning hours on 5/3/2019 instead of the facts (sic) that the documents was to be collected after 1300 hours. The petitioner failed to come during the time prescribed in NIT. It is submitted that the petitioner came to the office of the respondent no. 2 during morning hours on 5/3/2019 instead of the facts (sic) that the documents was to be collected after 1300 hours. The petitioner failed to come during the time prescribed in NIT. In other words, the petitioner failed to comply with the terms and condition for collection of the bid documents as prescribed under instruction to the bidders.” From the above, it is evident that the Petitioner had indeed reached the Office of the Respondent No.2 on 05.03.2019. This fact has not been controverted by the Respondent No.2, save to the effect that the Petitioner reached in the “morning hours,” without delineating the exact hour. In other words, the Respondent No.2 has failed to disclose the facts purported to be within their knowledge. It is indeed incongruous to imagine that the Petitioner having reached the Office of the Respondent No.2, be it in the morning hours of 05.03.2019, would not have waited till 13:00 Hrs to collect the documents. This is an inconceivable argument and deserves to be and is discarded by this Court. Despite the time detailed in the advertisement pertaining to the purchasing of Bids, lamentably, the Respondent No.2 failed to comply with its part of the bargain as described and enumerated in the advertisement and did not release the documents timely to the Petitioner. This delay led to a consequential delay of twenty minutes by the Petitioner in his submission of the documents for reasons enumerated by him. The argument of the Respondent No.2 that the Petitioner was aware of the contents of the Bid Documents having purchased it earlier thereby insinuating that he ought not to have been enmeshed in filling the details, is an incongruous and unsustainable argument, besides being timorous. If an act is expected from the Petitioner then it has to be reciprocated by the Respondent No.2, in other words, had the Respondent No.2 been diligent and handed over the document to the Petitioner on 05.03.2019, as detailed in the advertisement, it would have enabled the Petitioner to act diligently in response. The delay of twenty minutes of the Petitioner is a consequence of the delay of more than twenty four hours meted out to him by the Respondent No.2. The action of the Respondent No.2 cannot be exonerated. The delay of twenty minutes of the Petitioner is a consequence of the delay of more than twenty four hours meted out to him by the Respondent No.2. The action of the Respondent No.2 cannot be exonerated. Besides, if the Respondent No.2 had no intention of releasing the Bid Documents on 05.03.2019, they ought to have confined the date to 06.03.2019 for such purposes. 10. So far as the Affidavit of the third party Bhola Nath Sharma is concerned, it is irrelevant for the present purposes, having been filed by a third person who is not a party to the proceedings, neither does he claim to be prejudicially affected by the act of the Respondent No.2 which is being assailed before this Court and is, therefore, not even being considered. 11. In view of the aforestated circumstances and the discussions that have ensued, I am of the considered opinion that the Petitioner ought to be allowed to submit his documents before the Respondent No.2, which he shall do so on or before 12 noon tomorrow i.e. 27.08.2019. Be it noted that the relief granted to the Petitioner shall not apply to any other party who may consider himself aggrieved by the act of the Respondent No. 2 but is not a party to the instant proceedings. 12. In consideration of the undertaking given by learned Counsel for the Respondents that the Respondent No.2 shall stay its hands from taking any further steps in connection with the Notice Inviting Re-Tender (NIT) No.GSCDL/TENDER/NIT/SHEWS/2019 vide its Ref. No.15/SPV/GSCDL/SHEWS/2019, dated 28-02-2019, till 12.30 p.m. tomorrow i.e. 27.08.2019, the Order dated 29.04.2019 stands vacated. 13. Writ Petition disposed of accordingly as also I.A. No. 01 of 2019. 14. No order as to costs.