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2021 DIGILAW 30 (JK)

ASEL ARS Sports Private Limited v. UT of J&K

2021-02-22

JAVED IQBAL WANI

body2021
Order Javed Iqbal Wani, J.—This order shall dispose of application of interim relief being CM 795/2021. 2. In terms of order dated 04.02.2021 notice was issued in first instance to respondents 1 to 3 consequent upon which Mr. K.D.S Kotwal Dy. AG, appeared and was granted time for filing objections. On 08.02.2021 when matter came up for consideration, Ms. Tak entered appearance for respondent No. 2. Objections stand filed by the respondent No. 1 to 3. 3. In the application in hand petitioner prays for following reliefs: - “The hon’ble court may please to stay the impugned decision dated 23.12.2020 with respect to the ousting the petitioner company from the tendering process and declaring the respondent no. 4 as lowest bidder and to restrain the respondents from issuing formal allotment order in favour of respondent no. 4 with respect to contract for construction of Global Category Synthetic Hockey Surface including allied civil works with annual maintenance of 3 years for Turf and Sprinkle at K.K.Haku Stadium Jammu in reference to notice inviting tender, tender notice e-NIT No. 05/5 of 2020 dated 18.09.2020 till the outcome of the main petition.” 4. The interim reliefs supra are being sought on the basis of following main reliefs being prayed by the applicant/petitioner in the writ petition: - (a) An appropriate writ, order or direction in the nature of writ of certiorari quashing the decision of the respondent No. 2 and 3 dated 23.12.2020 in ousting the petitioner company in the technical bid by giving remarks “non-responsive” on the basis of a highly illegal and uncalled for Corrigendum issued under no. SC/CDJ/1123-26 dated 09.11.2020 with respect to allotment of contract for construction of Global Category Synthetic Hockey Surface including allied civil works with Annual Maintenance of 3 years for Turf and sprinkler at K.K. haku Stadium, Jammu in reference to Notice inviting tender, Tender Notice e-NIT No. 05/05 of 2020 dated 18.09.2020. (b) An appropriate writ, order or direction in the nature of writ of certiorari quashing the decision dated 23.12.2020 whereby the respondent no. 4 has been declared as lowest bidder with bid amount of Rs. 5,39,78,977.37 for allotment of contract for construction of Global Category Synthetic Hockey Surface including allied civil works with Annual Maintenance of 3 years for Turf and sprinkler at K.K. haku Stadium Jammu in reference to Notice inviting tender, Tender Notice e-NIT no. 05/05 of 2020 dated 18.09.2020. 4 has been declared as lowest bidder with bid amount of Rs. 5,39,78,977.37 for allotment of contract for construction of Global Category Synthetic Hockey Surface including allied civil works with Annual Maintenance of 3 years for Turf and sprinkler at K.K. haku Stadium Jammu in reference to Notice inviting tender, Tender Notice e-NIT no. 05/05 of 2020 dated 18.09.2020. (c) An appropriate writ, order of direction in the nature of writ of mandamus commanding the respondents to declare the petitioner company as qualified in the technical bid and declare it as lowest bidder (L1) having submitted its financial bid at Rs. 5.11. Crore which is admittedly lower than the financial bid of respondent No. 4 and allot the contract for construction of Global Category Synthetic Hockey surface including allied civil works with Annual maintenance of 3 years for Turf and sprinkler at K.K. Haku Stadium Jammu, in reference to Notice inviting Tender, tender Notice e-NIT No. 05/05 of 2020 dated 18.09.2020 to the petitioner company. (d) An appropriate writ, order or direction in the nature of writ of mandamus directing the respondents not to issue formal allotment order for construction of Global Category Synthetic Hockey Surface including allied civil works with Annual Maintenance of 3 years for Turf and sprinkler at K.K. Haku Stadium Jammu, in reference to notice inviting tender notice e-NIT No. 05/05 of 2020 dated 18.9.2020 in favour of the respondent No. 4 pursuant to its illegal declaration as lowest bidder. (e) Any other relief, which this Hon’ble court in the facts and circumstances of the case deems fit and proper. 5. The petitioner implores for the aforesaid reliefs in the writ petition on the premise that the respondents 2 & 3 issued an e-Tender No. 05/5 of 2020 dated 18.09.2020 with regard to construction of Global Category Synthetic Hockey Surface including allied works with Annual Maintenance of 3 years for Turf and Sprinkler at K.K. Haku Stadium Jammu, to which the petitioner along with four other companies are stated to have responded to. 6. The petitioner states to be an Indian Company of ARS Sports with the authorization of an IFH approved International Company MONDO Group. 6. The petitioner states to be an Indian Company of ARS Sports with the authorization of an IFH approved International Company MONDO Group. The technical bid of the petitioner is stated to have been declared as non-responsive and respondent No. 4 illegally and arbitrarily declared as lowest bidder pursuant to decision dated 23.12.2020 notwithstanding the fact that the financial bid of the petitioner Company has been much lower than that of respondent No. 4. 7. The NIT supra dated 18.09.2020 is stated to have been issued subsequent to the issuance of an NIT No. 33/33 of 2019-2020 dated 17.09.2019 issued by respondents for the same work in question to which the petitioner states to have responded, participated and declared successful in technical bid and lowest bidder in financial/price bid. The said process is stated to have been not concluded without any reason while issuing the subsequent NIT dated 18.09.2020 supra. 8. It is being stated that the rejection/declaring the technical bid of the petitioner as non-responsive vide decision dated 23.12.2020 by the respondents is illegal, arbitrarily and contrary to the provisions of law, despite the fact that the petitioner in the earlier tendering process for the same work had been found qualified. 9. The ouster of the petitioner is being stated to have been done in order to pave way for award of contract in favour of respondent No. 4 while applying a corrigendum dated 09.11.2020 issued by respondent No. 3 based upon a circular issued No. A/GRF(2019)-Arrears-532 dated 19.06.2020 revising/ substituting the first paragraph of the NIT dated 18.09.2020 qualifying therein that the tender is not a global tender. 10. The respondents in the process are stated to have acted in utter and clear breach of the terms and conditions of NIT having changed the rules of the game in the middle of tendering process. 11. It is being stated that the process and impugned decision dated 23.12.2020 undertaken by the respondents are violative of Article 14 of the Constitution infringing the rights of the petitioner available under the Constitution. The petitioner is also stated to have been condemned unheard while rejecting his technical bid. The impugned actions of the respondents stated in the petition are contended to be ex-facie illegal, contrary and violative of rights of the petitioner. 12. The petitioner is also stated to have been condemned unheard while rejecting his technical bid. The impugned actions of the respondents stated in the petition are contended to be ex-facie illegal, contrary and violative of rights of the petitioner. 12. Fundamentally based upon the aforesaid contentions/grounds the interim reliefs supra are being sought by the applicant/petitioner in the application in hand. 13. Respondents 1 & 2 per contra in their objections would state that the bid of the petitioner/applicant was rejected on the basis of deficiency in the technical criteria required vide clause 15 thus having not qualified the technical bid, was declared as non-responsive. 14. The petitioner/applicant is stated to have not executed any major work in India as per required qualification envisaged under clause 15 of the bid document. Further the petitioner is stated not to have uploaded the turn over certificates and income tax returns for the last three years. 15. It is being further stated that even though the petitioner Company is authorized by MONDO S.p.A Italy to use their product yet the petitioner did not qualify the technical bid and instead respondent No. 4 was found to be qualifying the same resulting into issuance of allotment order dated 14.01.2021 in its favour. 16. Respondent No. 2 in its objections would also controvert the contentions/grounds raised and urged by the petitioner and resist the grant of any interim relief in favour of the petitioner on the premise that the technical bid of the petitioner has been rightly rejected on account of not complying with the technical criteria required vide clause 15 of the bidding document. The petitioner/applicant is stated not to have executed major work in India as per required qualification criteria as contained in clause 15 supra. 17. It is being further stated that in respect of earlier tender notice dated 17.09.2019 the petitioner’s bid was cancelled even though found to be lowest bidder after the petitioner/applicant was found to be not a member of FIH (Federation of International Hockey). 18. It is being further stated that the action taken by the respondents is absolutely legal in the matter in line with the directive of Ministry of Finance, Government of India. The respondents are stated to have followed rules and regulations prescribed during the tendering process in question. 19. Heard learned counsel for the parties and perused the record. 20. 18. It is being further stated that the action taken by the respondents is absolutely legal in the matter in line with the directive of Ministry of Finance, Government of India. The respondents are stated to have followed rules and regulations prescribed during the tendering process in question. 19. Heard learned counsel for the parties and perused the record. 20. Since this court is dealing with the application for interim relief of the applicant/petitioner as such, this court would restrain itself from expressing any opinion or making any observation qua the merits of the case, lest it may prejudice the rights of the parties. 21. Before dealing with the application in hand, it would be advantageous and appropriate to refer to the judgement of the Apex court being relevant and germane herein passed in case titled as “Raunaq International Limited Vs. I.V.R Construction Ltd and Others reported in 1999 (1) SCC 492 ”, wherein at para 9, it has been noticed as under: - “The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. These would be: (1) the price at which the other side is willing to do the work; (2) whether the goods or services offered are of the requisite specifications; (3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfill the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow-up action, rectify defects or to give post-contract services. 22. Admittedly in the light of judgement of the Apex court supra the process of tendering in question, evaluating the eligibility of petitioner and respondent No. 4 and award of contract in favour of respondent No. 4 by the official respondents is a commercial transaction/decision based upon commercial considerations. 22. Admittedly in the light of judgement of the Apex court supra the process of tendering in question, evaluating the eligibility of petitioner and respondent No. 4 and award of contract in favour of respondent No. 4 by the official respondents is a commercial transaction/decision based upon commercial considerations. 23. Keeping in mind the above, it requires to be seen as to whether in law, the interim relief sought by the petitioner could be granted more so when in the case of commercial transaction in question has an element of public law/public interest involved therein. 24. Perusal of the relief prayed in the main petition as also in the instant application reveals that the relief sought by the applicant/petitioner in the instant application essentially is the relief sought in the main petition. 25. Though, in law, as laid down in the judgement of Apex court titled as “Deoraj Vs. State of Maharashtra reported in 2004 (4) SCC 697” there is no bar in granting even the final relief itself as an interim relief, yet in such case, there has to be a very strong prima-facie case - of a standard much higher than just prima-facie case and besides, the considerations of balance of convenience and irreparable injury must as well forcefully tilt in favour of the applicant which may persuade the court to grant an interim relief though it may amount to the granting of the final relief itself and further that the case has to be a rare and exceptional one accompanied by compelling circumstances. 26. Perusal of the pleadings would reveal that the actions of the respondents/non-applicants complained of by the petitioner/applicant admittedly relates to the award of contract in favour of respondent No. 4 by the official respondents after the official respondents rejected the technical bid of the petitioner/applicant purportedly upon evaluating the same on the ground of non-compliance of technical criteria required under clause 15 of the bid document. The evaluation of the applicant/petitioner as lowest bidder by the respondents/non-applicants in the earlier e-tender will not lend any support to the petitioner/applicant for the present case in view of the stand taken by the respondents/non-applicants that the said evaluation stands cancelled in terms of communication dated 20.08.2020 which although being denied to have been communicated to the applicant/petitioner, yet remains staring at the applicant/petitioner. The presence of the same as on date cannot be overlooked by this court more so when the same is not under challenge or else under stay. In addition thereto the nature of controversy raised by the applicant in the writ petition and the infringement of rights complained thereof on one hand and the stand taken by the official respondents controverting and resisting the controversy and claims lodged by the petitioner on the other hand would require to be determined while considering the main writ petition. The case setup by the applicant/petitioner seemingly per-se do not constitute a very strong prima-facie case in favour of the petitioner/applicant inasmuch as nor do consideration of balance of convenience and irreparable injury forcefully tilt in favour of the applicant to entitle the applicant to interim relief even tantamouting to the grating of final relief itself. The case setup by the applicant do not constitute a rare case accompanied by compelling circumstances warranting grant of interim relief as prayed for by the applicant in the application. The application therefore, in the aforesaid backdrop does not merit acceptance and is, accordingly dismissed. The dismissal of the application however, shall not mean to have any effect upon the determination of the merits/issues of the case involved in the main petition. WP (C) No.158/2021 Issue notice to respondent No. 4 returnable within one week. Notice dasti as well. List the main case for consideration on 03.03.2021. In the meanwhile, reply/objections.