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2019 DIGILAW 973 (JHR)

Solar Industries v. State of Jharkhand

2019-05-02

SUJIT NARAYAN PRASAD

body2019
ORDER : This writ petition is under Article 226 of the Constitution of India, whereby and whereunder the decision taken by the Tender Committee, as on 06.09.2018 has been assailed by the petitioner, since, it has not been opened on the ground of non-submission of the BOQ cost and EMD. 2. The case of the petitioner as per the pleading made in the writ petition, is that as per the decision taken by the Drinking Water and Sanitation Department in its meeting dated 21.06.2018 it has been decided to install 323 Electrolytic De-fluoridation Plant (EDF) in different districts of Jharkhand and in pursuance thereto, a Notice Inviting Tender was issued on 28.06.2018 and as per clause (v) of the BID Document, the work is of specific technology with ten years O & M, for which technology transfer certificate from CSIR or through its related institutions like NEERI is mandatory. It is further mentioned in the said clause that the Electrolytic De-fluoridation Plant (EDF) has not been listed in the Exclusive List (reserved for purchase from State Micro and Small Enterprises) of Jharkhand Procurement Policy, 2014, therefore, any proposal on the ground of MSME will not be entertained. The petitioner has been granted exemption for EMD and cost of Bid document as per the said NIT and therefore, he has made an application before the Tender Inviting Authority on 01.07.2018, requesting therein to consider to implement Jharkhand PWD Code, 2012, Jharkhand Procurement Policy, 2014 and Jharkhand Industrial Inc. Policy, 2016 in as much as to incorporate 20 per cent mandatory purchase from local MSME as per Para 4 of the said Policy and also provision of Open Tender clause, wherein, as per Para 10, it has been provided that 20 per cent is to be purchasd from MSEs, giving price preference L1 + 15 per cent quota as per Jharkhand Procurement Policy, 2014 and to include the EDF Plant in exclusive list since the plant is run by Solar based plant in which Solar Panel and pump is used and Solar pump is in the exclusive list and also to exempt MSME from Bid document cost and EMD in terms of the aforesaid Government Policies. The petitioner has submitted his application along with the Tender details, submission of which has been confirmed but the same has been contested not to be opened on account of the fact that the BOQ cost and EMD has not been submitted along with the bid document. 3. Mr. Rajeev Sinha, learned counsel appearing for the petitioner has vehemently submitted that there is no requirement to submit BOQ cost and EMD in view of the exemption granted under the Jharkhand Procurement Policy, 2014 for depositing tender fee and the EMD fee and making it clear in the Tender details, as submitted by the petitioner, the same has also been confirmed and therefore, the rejection of Technical Bid on the ground of non-submission of BOQ cost and EMD is highly arbitrary, illegal and irrational and without any application of mind, as also without considering the exemption granted to the petitioner by the competent authority under the Jharkhand Procurement Policy, 2014, which has been implemented by the State of Jharkhand to provide incentives to the Micro and Small Enterprises by giving preferential treatment in purchases by the Government Department’s audit institutions and State Public Sector Enterprises. He has referred to the Condition No. (v) of the Notice Inviting Tender, wherein, it has been provided that the Electrolytic De-fluoridation Plant (EDF) Plant has not been listed in the exclusive list of Jharkhand Procurement Policy, 2014 and therefore, any proposal on the ground of MSME will not be entertained, but this condition will not come in the way, as because the exemption under the Jharkhand Procurement Policy, 2014, has already been granted and, therefore, the rejection is bad on this ground also. 4. Mrs. Aparajita Bhardwaj, learned A.C. to A.G. appearing for the Respondent-State has argued out the case by vehemently opposing the submission/grounds agitated by the petitioner by submitting that the petitioner, since has participated in the Bid in pursuance to the Notice Inviting Tender, where condition has been stipulated, which is binding upon the participants, as stipulated in Clause no. (i) read with (v), whereby and where under, it has been provided that an Earnest Money/Security Deposit shall be deposited through NSC/Bank Guarantee of Nationalized/Scheduled Bank/Post offices in the name of Chief Engineer cum Executive Engineer, PMU, Ranchi up to the time and date of opening of pre-qualification bid as mentioned above. (i) read with (v), whereby and where under, it has been provided that an Earnest Money/Security Deposit shall be deposited through NSC/Bank Guarantee of Nationalized/Scheduled Bank/Post offices in the name of Chief Engineer cum Executive Engineer, PMU, Ranchi up to the time and date of opening of pre-qualification bid as mentioned above. Tenders uploaded/received without earnest money shall be out rightly rejected while under Clause (v) it has been provided that this work is of specific technology with ten years O & M, for which technology transfer certificate from CSIR or through its related institutions like NEERI is mandatory. The Electrolytic De-fluoridation Plant has not been listed in the Exclusive List (reserved for purchase from state Micro and Small Enterprises) of Jharkhand Procurement Policy, 2014. Therefore, any proposal on the ground of MSME will not be entertained and hence, the petitioner, since has not complied with the condition stipulated under Clause No. (i) hence, the Tender bid has not been opened. However, the issue, which is being raised by the petitioner, is to consider its proposal on the ground of MSME, but, in view of the condition stipulated in Clause No. (v), the same cannot be considered as because the Electrolytic De-fluoridation Plant (EDF) has not been listed in the Exclusive list. Accordingly, her submission is that since the petitioner has failed to comply with the condition, therefore, the Technical bid has not been opened. 5. Having heard the learned counsel for the parties and after appreciating the rival submissions, this Court deems it fit and proper to first deal with the condition stipulated in the Notice Inviting Tender, wherein, the condition, which is at present relevant for deciding the issue, which is, as contained in Condition No. (i) and (v), which reads as under :- “(i) An Earnest Money/Security Deposit shall be deposited through NSC/Bank Guarantee of Nationalized/Scheduled Bank/Post offices in the name of Chief Engineer cum Executive Engineer, PMU, Ranchi up to the time and date of opening of pre-qualification bid as mentioned above. Tenders uploaded/received without earnest money shall be out rightly rejected. (v) This work is of specific technology with ten years O & M, for which technology transfer certificate from CSIR or through its related institutions like NEERI is mandatory. Tenders uploaded/received without earnest money shall be out rightly rejected. (v) This work is of specific technology with ten years O & M, for which technology transfer certificate from CSIR or through its related institutions like NEERI is mandatory. The Electrolytic De-fluoridation Plant has not been listed in the Exclusive List (reserved for purchase from state Micro and Small Enterprises) of Jharkhand Procurement Policy, 2014. Therefore, any proposal on the ground of MSME will not be entertained.” 6. In terms of the said Tender, the petitioner has submitted an online application, but without compliance with the condition stipulated in condition No. (i) but the fact is that the exemption has been granted in this regard since the petitioner is under the criteria of Micro and Small Enterprises and therefore, in view of the Jharkhand Procurement Policy, 2014, he is required to be given preference and considering that aspect of the matter, he has not deposited the Earnest Money/Security Deposit along with the Bid Form. 7. It is not in dispute that the Jharkhand Procurement Policy, 2014 has been implemented with an object of to encourage local Micro and Small Enterprises (MSEs) by giving preferential treatment to such units in purchases by Govt. departments, aided Institutions and State public sector enterprises etc. The said Policy is applicable to the MSE unit availing preferential treatment to an undertaking by granting the preference in the matter of open Tender, as would be evident from the Policy of 2013 and he has been granted the exemption also, but question, herein, is that the applicability of the Jharkhand Procurement Policy, 2014 vis-à-vis, the exemption granted to the petitioner being in the category of Micro and Small Enterprises, the condition stipulated in Condition No. (v) would be relevant, which speaks that the Electrolytic De-fluoridation Plant (EDF) Plant has not been listed in the Exclusive List (reserved for purchase from state Micro and Small Enterprises) of Jharkhand Procurement Policy, 2014, therefore, any proposal on the ground of MSME will not be entertained. It is not in dispute that the Articles, which is to be supplied by the petitioner, has not been listed in the Exclusive List and therefore, the exemption which has been sought for by the petitioner as granted under the Jharkhand Procurement Policy, 2014, cannot be extended in his favour in view of the exclusive exclusion as per the Condition no. (v) of the Notice Inviting Tender and therefore, the condition stipulated under condition No. (i) is mandatorily to be followed by the petitioner, but he has submitted his Tender Form without any BOQ and Earnest Deposit on the garb that he has been granted exemption and the plea has been taken by the learned counsel for the petitioner that the submission of the said Tender document has been confirmed by the authority and therefore, once the application has been accepted, the Tender Committee paper cannot be denied to be opened, rather, it ought to have been opened for its consideration on merit, but this argument is not fit to be acceptable to this Court for the reason that when any condition has been stipulated in the Notice Inviting Tender, it is to be seen by the court of law that where the aforesaid condition is mandatory or obligatory. 8. It is evident from the condition No. (i) that the condition pertaining to deposit of Earnest Money/Security Deposit is mandatory, in view of the specific stipulation made therein, that the Tenders uploaded/received without earnest money shall be out rightly rejected, meaning thereby, the said condition is mandatory and therefore, it has to be applied by one or the other Bidders. 9. The applicability of the rejection of the Bid on the ground of non-compliance of the mandatory condition, fell for consideration before the Hon’ble Apex Court in the case of G.J. Fernandez-Vs.-State of Karnataka and Ors. reported in (1990) 2 SCC 488 , wherein, it has been held that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same. Whether a condition is essential or collateral could be ascertained by reference to the consequence of non-compliance thereto. If non-fulfillment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term. “6. It is settled law that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same. Whether a condition is essential or collateral could be ascertained by reference to the consequence of non-compliance thereto. If non-fulfilment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term. Whether a condition is essential or collateral could be ascertained by reference to the consequence of non-compliance thereto. If non-fulfilment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term. This legal position has been well explained in G.J. Fernandez v. State of Karnataka.” 10. The same view was reiterated in the case of Air India Ltd. v. Cochin International Airport Ltd. reported in (2000) 2 SCC 617 , wherein, it has been laid down that the State can fix its own terms of invitation of tenders and that it is not incumbent to judicial scrutiny and the same is strictly to be adhered to. In the case of Kanhaiya Lal Agrawal-Vs.-Union of India and Others reported in (2002) 6 SCC 315 , the same view has been taken. Hence, the compliance of the condition stipulated in the Notice Inviting Tender is to be complied with by the Bidders. 11. The main emphasis of the argument of the learned counsel for the petitioner is that since the exemption has been granted and the Bid application has been submitted, which has been confirmed by the authority, therefore, the same has to be decided by opening the Tender Bid on its merit, but the said contention is not acceptable for the reason that when the condition prescribes for submission of the Bid document along with the Earnest Money and Security Deposit, if not submitted, the Tenders uploaded/received shall be rejected out rightly as per the Condition stipulated in Condition No. (i) and therefore, the authority while not opening the Tender, has taken the right decision and it will be in consonance with the Condition under Condition no. (i) of the Notice Inviting Tender. 12. The petitioner himself is presuming the relaxation. Now the question is that contrary to the terms and conditions, any relaxation can be granted deviating from the terms and conditions of the Tender, the answer would be in negative in view of the position of law as has been settled by the Hon’ble Apex Court in the case of Ramana Dayaram Shetty-Vs.-International Airport authority of India reported in (1979) 3 SCC 489 , G.J. Fernandez (Supra) as well as the judgment rendered in the case of Air India Ltd. v. Cochin International Airport Ltd. reported in (2000) 2 SCC 617 . 13. 13. Therefore, since the condition has not been complied with by the petitioner, as stipulated in the Terms and conditions of the Notice inviting Tender and since the Electrolytic De-fluoridation Plant (EDF) has not been listed in the exclusive exclusion, therefore, the preference, as has been extended to the petitioner on the ground of MSEs has rightly not been entertained, in view of the specific condition stipulated in Condition No. (v). 14. Here, it needs also to be referred that when the petitioner has participated in the Bid with open Tender accepting the Terms and Conditions of the Tender, the same cannot be assailed by him after taking any adverse decision by the authority against him, in view of the fact that once the condition has been accepted, the petitioner cannot turn around and question the terms and conditions or sought for a relaxation from the terms and conditions of the Tender. 15. The contention of the petitioner that at least Bid document ought to have been opened, but this argument is also not fit to sustain, for the reason, that when the pre-requisite condition has not been fulfilled by not submitting BOQ/Earnest Money, therefore, in view of the condition stipulated under Condition no. (i), the Technical Bid has to be rejected without opening it and therefore, it cannot be said that the authority has taken unjust decision, rather, it will be in consonance with the decision taken as per the condition stipulated under the Condition No. (i) of the Notice Inviting Tender. 16. It is settled position of law that in the matter of the Tender, the jurisdiction of the writ Court is very limited and that can only be exercised, if there is any error in the decision making process and if it is hit by Article 14 of the Constitution of India, but, according to the considered view of this Court and after going across the terms and conditions, stipulated, as has been discussed hereinabove in detail, there is no error in the decision making process and therefore, there is no reason to interfere with the decision taken in exercise by this Court is not inclined to exercise the power of judicial review conferred upon this Court under Article 226 of the Constitution of India. 17. 17. In view of the facts and circumstances enumerated in detail, hereinabove and for the reasons recorded, this Court is not inclined to exercise extraordinary jurisdiction conferred upon this Court under Article 226 of the Constitution of India, therefore, the writ petition fails and is, dismissed.