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Himachal Pradesh High Court · body

2019 DIGILAW 898 (HP)

Mystic Boat Cruise v. State of H. p.

2019-07-09

DHARAM CHAND CHAUDHARY, V.RAMASUBRAMANIAN

body2019
JUDGMENT : V. Ramasubramanian, J. Challenging a Notice Inviting Tenders dated 15.2.2019, and a corrigendum dated 11.3.2019, the petitioner, who is into the business of carrying on Water Sports Activities, has come up with the above writ petition. 2. Heard Mr. Rajiv Jiwan, learned Senior Advocate, for the petitioner and Mr. Ashok Sharma, learned Advocate General for the respondents. 3. By a communication dated 26.11.2018, the Government of Himachal Pradesh accorded approval to the District Tourism Development Officer, Chamba, for leasing out the Water Sports Centre at Taleru in Chamba District by inviting fresh tenders for a period of three years "on existing terms and conditions". 4. Pursuant to the approval so granted, the third respondent herein issued a Notice on 15.2.2019 inviting tenders for the operation, maintenance and the management of the Government property and equipment at Water Sports Centre, including Jetty at Taleru in Chamba District, for a period of three years on contract. The notice stipulated that the tender form/documents will be available on-line w.e.f. 25.2.2019 and that the tenders will be opened on 23.3.2019. The bidders were required by the said notice to pay tender cost of Rs.1000/- (one thousand) and also to deposit an earnest money of Rs.1,00,000/- (rupees one lac), by way of a demand draft/bankers cheque from any of the Nationalized/Commercial Bank in favour of "Chamba District Water Sports and Allied Activities Society". The reserve price for the bid was fixed at Rs. 50,00,000/- (rupees fifty lacs) for the three years contract period. 5. The Notice Inviting Tenders was accompanied by a Tender Schedule. The Schedule reads as under:- "Tendering Schedule:- Date and Time of on-line publication: 25.02.2019 06.00 PM Period of downloading of en-tender 26.02.2019 (10 AM) to 23.03.2019 up to 11.00 AM Date and Time for Pre-bid meeting: 06.03.2019 at 11.30 AM Place of Pre Bid Meeting Office of Additional Deputy Commissioner Chamba Last date and time for submission /uploading of e-tender along with cost of tender document, Earnest Money Deposit: 23.03.2019 and up to 11.00AM Date and Time for opening of Eligibility Bid: 23.03.2019 at 11.30 AM Office of Additional Deputy Commissioner Chamba Cost of the tender document Rs.1000/- Earnest Money Deposit (EMD) Rs.1,00,000/-( one lakh) 1. Bidder shall ensure that the cost of tender document, Earnest Money Deposit are deposited in the office of DTDO Chamba (on any working day from 10.00 AM to 5PM) on and before 23.03.2019 (time 11.30 AM) and receipt is taken. Scanned copy of proof of Depositing EMD and tender cost is to be uploaded on HP etender portal. 2. If the date fixed for the opening of tender is declared a holiday, the tender shall be opened on the next working day at the same time as fixed for the original date for this purpose." 6. Before the date intended for the opening of the eligibility bid, a corrigendum was issued on 11.3.2019 to the Notice Inviting Tenders. By this Corrigendum, condition No. 19 found at page No. 14 of the Tender Document, was deleted. The deleted condition No. 19 reads as follows: "19.The Contractor shall not prohibit in any manner the registered private operators/Boat owners using the jetties installed in the premises of the water sports Centre." 7. Thereafter, the bids were opened on 23.3.2019 as per tendering schedule stipulated in the Notice Inviting Tenders. But further processing was kept on hold, as the Model Code of Conduct imposed by the Election Commission of India had come into force by then. However, the Election Commission of India accorded permission on 10.4.2019 to complete the tender process. Accordingly, the technical evaluation was done on 11.4.2019. After such evaluation, the petitioner, who was one of the bidders, has come up with the above writ petition challenging the Notice Inviting Tenders dated 15.2.2019 and also challenging the corrigendum issued on 11.3.2019. 8. However, the Election Commission of India accorded permission on 10.4.2019 to complete the tender process. Accordingly, the technical evaluation was done on 11.4.2019. After such evaluation, the petitioner, who was one of the bidders, has come up with the above writ petition challenging the Notice Inviting Tenders dated 15.2.2019 and also challenging the corrigendum issued on 11.3.2019. 8. The challenge to the Notice Inviting Tenders and the entire tendering process is on the following grounds:- (i) That when the approval granted by the Government of Himachal Pradesh by a communication dated 26.11.2018, was for leasing out the Water Sports Complex "on existing terms and conditions", the third respondent ought not to have deleted the condition relating to prior experience in carrying out Water Sports Activities; (ii) That though the bids were opened on 23.3.2019, the evaluation was up-loaded in the website only on 11.4.2019, showing thereby that there was no transparency in the process; (iii) That a person by name "Udey Singh" who did not upload the correct documents, was declared as qualified though he was not; (iv) The deletion of condition No. 19 through a corrigendum dated 11.3.2019 was done with the malafide intention of throwing out the petitioner; and (v) That the whole process was completely vitiated by arbitrariness. 9. We have carefully considered the submissions made by the learned Senior Counsel for the petitioner and the learned Advocate General. 10. It is true that by a letter dated 26.11.2018, the Government of Himachal Pradesh granted approval to the third respondent to lease out the Water Sports Complex, by inviting fresh tenders for a period of three years "on existing terms and conditions". It is also true that on earlier occasions, tenders were invited only from "Experienced Agencies". Nevertheless, the impugned Notice Annexure P-2 dated 15.2.2019 and the terms and conditions contained in the tender document did not speak about prior experience. 11. But if public interest demanded the prescription of prior experience as a pre-requisite for participating in the tender, the petitioner, in all fairness, could have approached this Court immediately after issue of impugned Notice dated 15.2.2019 or at least immediately after down-loading the tender document. The petitioner did not do so. On the contrary the petitioner participated in the tender process, by filing his bid and awaiting the outcome when the tenders were opened on 23.3.2019. The petitioner did not do so. On the contrary the petitioner participated in the tender process, by filing his bid and awaiting the outcome when the tenders were opened on 23.3.2019. As a person who participated in the entire tender process, subject to the terms and conditions contained in the tender document, the petitioner is estopped from questioning the correctness of the tender document. 12. The case on hand is not a Public Interest Litigation. The petitioner has come up primarily because he could not succeed in the tender. Therefore, the first contention that the non-prescription of prior experience as a pre-requisite, vitiated the tender, does not lie in the mouth of the petitioner to be raised. 13. The second ground of attack to the tender process is that though the tenders were opened on 23.3.2019, they were not finalized till 11.4.2019, showing thereby that there was no transparency in the process. But the respondents have filed a reply-affidavit pointing out that the Model Code of Conduct imposed by the Election Commission of India was in force at that time and that by a letter dated 22.3.2019, permission was sought from the Election Commission of India. The respondents have also brought on record, the letter of the Election Commission of India dated 10.4.2019 permitting the third respondent to proceed with and finalize the process. In the light of this, the contention that the delay in finalization of the tender was a pointer to the lack of transparency, cannot be accepted. 14. The third ground of attack to the tender process is that a person by name Udey Singh who was not qualified due to the uploading of wrong documents, was shown as qualified. But this contention loses its force, in view of the fact that Mr. Udey Singh has not come out as a successful bidder. Therefore, the declaration on 23.3.2019 that he was qualified, is hardly of any significance today. 15. The fourth ground of attack revolves around the deletion of condition No. 19 from the tender document, by way of a corrigendum dated 11.3.2019. We have already extracted condition No. 19 that was deleted by the corrigendum. 16. It may be of interest to note that the petitioner is a private player organizing various water sports activities, including boating in the lake in question. 17. We have already extracted condition No. 19 that was deleted by the corrigendum. 16. It may be of interest to note that the petitioner is a private player organizing various water sports activities, including boating in the lake in question. 17. Until the advent of the impugned tender process, a person who bagged the contract for operating the water sports complex was not entitled to prohibit other registered private operators from using the jetties in the Sports Complex. Since condition No. 19 now stands deleted from the impugned tender, through a corrigendum dated 11.3.2019, the petitioner apprehends that his rights as a private operator will get infringed. But we are of the considered view that the petitioner cannot assail the impugned tender on the basis of a collateral damage that he may suffer. The primary grievance with which the petitioner has come up with the above writ petition is that he could not become a successful bidder. If he had become the successful bidder, he would have taken advantage of this corrigendum to prevent private operators other than himself from using the jetties. 18. It is not open to the petitioner to await the outcome of the tender process and then come up with a challenge to the corrigendum issued on 11.3.2019. The petitioner cannot don two roles, one as that of a bidder and another as that of a private operator. The petitioner could have either assailed the corrigendum as a private operator, without participating in the tender or he could have assailed the tender only as a person, who participated in the tender. The reason as to why he cannot attack the tender process in two avtaars is this. The deletion of condition No. 19 was to the benefit of the highest bidder. If the petitioner had become the highest bidder, the corrigendum would have gone to his assistance. Therefore, the act of the petitioner in waiting for the result of the tender, to challenge the corrigendum, cannot be accepted. For the very same reason the fourth ground of attack should also fail. 19. According to the learned Advocate General appearing for the respondents, the third respondent has already awarded the contract by a letter dated 16.4.2019 to the successful bidder. The above writ petition was filed only on 16.4.2019. For the very same reason the fourth ground of attack should also fail. 19. According to the learned Advocate General appearing for the respondents, the third respondent has already awarded the contract by a letter dated 16.4.2019 to the successful bidder. The above writ petition was filed only on 16.4.2019. Moreover, the amount quoted by the petitioner was Rs.71,01,959/- (rupees seventy one lacs one thousand nine hundred fifty nine only). This is in contrast to the amount quoted by the highest bidder of Rs.1,51,09,000/- (rupees one crore fifty one lacs and nine thousand only). Therefore, apart from the fact that all the grounds of challenge to the impugned process are devoid of merits, the huge difference in the rate quoted by the petitioner and the rate quoted by the successful bidder would also dissuade us from interfering with the tender process. 20. Inviting our attention to the xerox copies of two demand drafts, one for rupees one thousand and another for rupees one lac drawn by the successful bidder towards payment of the cost of the tender and earnest money respectively, it was contended by Mr. Rajiv Jiwan, learned Senior Counsel appearing for the petitioner that the successful bidder ought to have been disqualified as the demand drafts were not drawn in favour of the appropriate Authority. In the impugned Notice Inviting Tender dated 15.2.2019, the tender cost and the earnest money were directed to be deposited by way of demand draft/bankers cheque in favour of "Chamba District Water Sports and Allied Activities Society". But the demand drafts which bear the name of "Shri Maa Bhawani Transport Company", who is the successful bidder, show that they were drawn in favour of "Deputy Commissioner-cum-Chairman Water, Sports Activities Society Chamba". Therefore, it is contended that the successful bidder never even complied with the essential condition for the acceptance of his bid. 21. But unfortunately, the xerox copies of the demand drafts relied upon by the learned Senior Counsel for the petitioner were filed as Annexure P-10 only along with the rejoinder. Therefore, the respondents did not have an opportunity to meet these allegations. We cannot allow the pleadings in a writ petition of this nature to be enlarged in scope over a period of time. 22. Therefore, the respondents did not have an opportunity to meet these allegations. We cannot allow the pleadings in a writ petition of this nature to be enlarged in scope over a period of time. 22. In any case, keeping aside the technicalities for a moment, if we take a look at the Note File produced by the learned Advocate General, it is seen that several bidders were granted some reprieve from the strict adherence to the prescriptions contained in the tender document. The following are some of the instances: (i) A bidder by name Udey Singh mentioned the demand draft number wrongly while up-loading the information. The same was condoned; and. (ii) Four bidders, including the petitioner herein failed to mention the date and place in the pre- qualification bids in proforma I and II. But this was also condoned by the Committee on the ground that they were trivial clerical errors. 23. Therefore, it is clear that the petitioner himself was the beneficiary of a small reprieve granted by the Evaluation Committee and hence, he cannot complain about the successful bidder's failure (if at all it is true) to take the demand drafts describing the name of drawee accurately. 24. Thus, in fine, we find that the grounds of challenge to the impugned tender process are without substance. Therefore, the writ petition is dismissed. There will be no order as to costs. Pending applications, if any also stand disposed of.