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2020 DIGILAW 145 (JK)

Taj Fabricating Works v. Union Territory Of J&K

2020-03-09

ALI MOHAMMAD MAGREY

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JUDGMENT 1. This appeal is directed against the order dated 17 th of February, 2020 passed by the Court of learned Principal District Judge, Anantnag, in case titled M/S Taj Fabricating Works v. Commissioner/ Secretary & Ors., whereby the interim application filed by the appellant, alongside the main suit, stands dismissed. 2. The brief facts of the case, as come to the fore from the order impugned, are that the official respondents issued a tender notice bearing NIT No.09/e- tendering/DGM/5 th /ANG/JKPCC of 2018 dated 31 st of January, 2019 inviting tenders on item rate basis approved from the eligible contractors registered with the J&K Government, CPWD, Railways and other State/ Central Governments. The NIT was issued for providing roofing structure (Tabular Sections) and sheeting for Government Medical College at Dialgam, Anantnag, for an estimated cost of Rs.481.00 lacs and that the tender document also contained guidelines, rules and regulations which every tenderer was required to fulfil and possess and such conditions were laid at Clause 10 and 11 of the tender document. It is stated that the appellant applied for the tender, submitted his tender after fulfilling all the formalities and as he was the only eligible tenderer so his tender came to be accepted initially, however, his tender was rejected for the sole reason that he was the only tenderer who had submitted the tender. Therefore, as stated, a new notification came to be issued vide No. 13/e-Tendering/DGM/5 th / ANG/JKPCC of 2019- 20 dated 13 th of May, 2019 inviting tenders for the same works with same guidelines, rules and regulation and the applicant, being eligible, qualified and possessed of all qualification, submitted his tender again in accordance with the terms and conditions laid in the tender document. It is pleaded that although the appellant was the only qualified tenderer who had submitted the tender when the first tender notice was issued, but still, in order to compete in the tendering process, he submitted his tender second time and fulfilled all the formalities as were contained in Clause 10 and 11 of the tender notice. After the tender was submitted by the appellant and other tenderers, the tenders were opened, but the tender offered by the respondent No.6 was accepted despite the fact that the appellant has fulfilled all the formalities. After the tender was submitted by the appellant and other tenderers, the tenders were opened, but the tender offered by the respondent No.6 was accepted despite the fact that the appellant has fulfilled all the formalities. It is pleaded that in the comparative list so prepared by the official respondents, he is shown to figure at S.No.3 despite the fact that the respondent No.6 was not possessed of the requisite qualifications. The tender came to be allotted to respondent No.6 without ascertaining the fact that the respondent No.6 is not qualified to be granted tender because he does not fulfil the criteria as laid down in the tender notice or the clause 10 or 11 of the tender document which provides certain terms and conditions to be fulfilled by the tenderers. The appellant, as claimed, is the only tenderer who has fulfilled all the formalities and is possessed with all the qualifications as laid down in the tender notice, whereas the respondent No.6 is not entitled to be granted tender because it does not fulfil the qualifications and has no qualifications as provided in sub-clause (c), (d), (e) and (i) of Clause 11 of the bidding document and, in this situation, it was not necessary for the official respondents to even open the financial bid of respondent No.6. It is also stated that immediately, thereafter, the appellant made representation before the respondent No.2 inviting his attention to the fact that he is the only qualified tenderer who has fulfilled the condition for the submission of tender and for the allotment of tender, but despite that no action was taken by respondent No.2. The appellant also contended in the representation that the respondent No.6 is not possessed of all the requisite qualification as provided in the tender notice, but despite that, by virtue of issuance of letter of intent bearing No. GMC/10458-62 dated 11 th of November, 2019, the tender came to be allotted to respondent No.6 and he was asked to mobilize the resources and start the work from the date of allotment of tender. Aggrieved thereby, the appellant filed a suit before the Court below for declaring the aforesaid allotment of work in favour of respondent No.6 as null and void. Alongside the said civil suit, the appellant also filed an application for interim relief. This application, vide the impugned order, has been rejected by the Court below. 3. Aggrieved thereby, the appellant filed a suit before the Court below for declaring the aforesaid allotment of work in favour of respondent No.6 as null and void. Alongside the said civil suit, the appellant also filed an application for interim relief. This application, vide the impugned order, has been rejected by the Court below. 3. Heard the learned counsel for the parties, perused the pleadings on record and considered the matter. Caveat No.361/2020, is accordingly, discharged. 4. At the very outset and upon a bare perusal of the order impugned, what requires to be stated is that the order impugned has been passed by the learned Court below in strict accordance with the law and the procedure governing the grant of interim relief. The learned Court below has, after hearing the counsel for the parties and appreciating the law governing the subject as well the principles governing grant or otherwise of the interim relief, passed the order impugned. It is settled legal position that an interim application is filed alongside the main petition/ appeal only with a view to protect the lis as involved in the main case pending its final adjudication. The concerned Court, while dealing with such an interim application, pending final adjudication of the main case, has to decide the said application in accordance with the three cardinal principles governing the grant or otherwise of such interim relief claimed therein, i.e., balance of convenience, prima facie case and irreparable loss. In the instant case, the learned Court below has considered all the above cardinal principles for the grant or otherwise of the interim relief and has passed the impugned order. That being so, this Court is of the opinion that the order impugned suffers from no legal perversity and that the same is in strict accordance with the law governing the subject. 5. Looking at the instant case from another perspective, it, needs, must be said that law is no more res integra to the effect 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 tender issuing authority ought not to be questioned, but the decision-making process can certainly be subject to judicial review. Ordinarily, the soundness of the decision taken by the tender 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. All these issues have been raised in the suit filed by the appellant and same are pending adjudication before the Court below. Keeping in view the said aspect, the Court below, has, in the impugned order, clearly emphasized that any observation made while deciding the interim application shall not be construed as an expression with regard to the merits of the case. 6. In the above background, the instant appeal, being devoid of any merit, is dismissed in limine, alongwith the connected CM. It is, however, made clear that this Court has not expressed any opinion with regard to the merits of the main case which shall be decided by the Court below in accordance with the law governing the subject.