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2022 DIGILAW 148 (JK)

Mohammad Umar Bhat v. State of J&K

2022-04-01

RAJNESH OSWAL

body2022
ORDER : 1. The petitioner has filed the present petition for grant of following reliefs : “(i) A writ of Certiorari seeking quashment of rejection of technical bid of the petitioner; (ii) A writ of Mandamus commanding upon the respondents to allot the work to the petitioner on account of being lowest tenderer with regard to item No.4; (iii) A writ of Mandamus commanding upon the respondents not to make financial allotments with regard to item No.4 of NIT in favour of the private respondent.” 2. It is stated that the petitioner, in response to NIT No. SKIMS/WDB/19 of 2016 dated 28-09-2016, issued by official respondents, participated through online mode and uploaded all the documents and even submitted his financial bid as well. The date of opening of the tender was fixed on 21-11-2016 and the petitioner surfaced as a lowest tenderer with a bid of Rs. 8,41,396.10 paisa, whereas, the private respondent offered a bid of Rs. 8,45,716.94. But the official respondents rejected the tender of the petitioner on the ground that he did not upload the Registration Certificate and as a matter of fact the Registration Certificate was very much with the petitioner. It is submitted that the tenders were to be uploaded online and during the said period, the internet service in Srinagar remained blocked and as such it was difficult to upload the tender on the website. It is submitted that the petitioner filed his tender through online and the Registration Certificate was submitted before the respondents even prior to the cut-off date and as such the petitioner was all along eligible. It is also stated that the petitioner was also registered with the Commercial Department and was also having a Pan Card. The respondents uploaded the technical bid evaluation on 21-11-2016 and the technical bid of the petitioner was rejected on the plea that he had not uploaded the renewal of registration, when, as a matter of fact, the registration was renewed within time and same was submitted before the respondents as well. It is further stated that the respondents had intentionally and deliberately rejected the technical bid of the petitioner reflected in the Technical Evaluation Bid List. It is further stated that the respondents had intentionally and deliberately rejected the technical bid of the petitioner reflected in the Technical Evaluation Bid List. The petitioner has further stated that his technical bid has been rejected on flimsy grounds and he has been discriminated as the documents sought to be uploaded were not of any consequences as he was possessed of the Registration Certificate and non-renewal of registration should not have debarred him. The petitioner has further stated himself to be the lowest bidder and as such claims to have a preferential claim over the private respondent. 3. Response has been filed by the respondents, wherein it is submitted that the petitioner has raised disputed questions of fact which cannot be considered while adjudicating the present petition and it is stated that total number of 16 Bidders participated in the tender process out of which 11 bidders were found eligible on opening of the financial bid and 05 bidders were declared technically non responsive. So far as the petitioner is concerned, it is stated that he had not uploaded valid Registration Certificate up to 13-10-2016 and had also not uploaded the latest Tax Clearance Certificate up to the stipulated date. It is further stated that the Tax Clearance Certificate deposited by the bidder, has been issued by the concerned Department on 31/10/2016, i.e., 18 days after the specified last date of uploading. It is also stated that the technical bid was opened on 24.10.2016 and as the two mandatory documents were not uploaded therefore his technical bid was rejected by the tender opening committee. It is also stated that difference between the bid submitted by the petitioner and first lowest bidder is Rs. 4,320.84 and first lowest bidder has consented to down his offer by Rs. 4,320.84. 4. The allotment of the contract has remained stayed for six long years and as such the matter was heard finally with the consent of learned counsels appearing for the parties. Mr. Anis, learned counsel for the petitioner, argued that due to internet blockage, the petitioner could not upload the documents, whereas the fact remains that he had all the documents and had submitted the same with the official respondents. Per contra, Mr. Mr. Anis, learned counsel for the petitioner, argued that due to internet blockage, the petitioner could not upload the documents, whereas the fact remains that he had all the documents and had submitted the same with the official respondents. Per contra, Mr. Chashoo, learned AAG, appearing for the official respondents, submitted that the petitioner had not complied with the terms and conditions of NIT and as such his technical bid was rightly rejected by the official respondents because of non-uploading of mandatory documents. 5. Heard and perused the record. 6. It is evident from perusal of the record that the respondents issued NIT dated 28-09-2016 for various works and as per the said NIT, interested contractors/firms were to submit their respective offers and mandatory documents online from04-10-2016 to 13-10-2016 (up to 4 p.m.). Further the hard copies of the documents as mentioned at Serial Nos. 3&4, Tender Fee receipt, CDR and attested copies of other documents were to be submitted with the Chief Engineer, SKIMS, Soura, up to15-10-2016 (4.00 PM) and the technical bid was to be opened on 17-10-2016 at 11.30 AM or at any subsequent date convenient to the Tender Opening Committee. So far as the petitioner is concerned, he had neither uploaded the copy of the Registration Certificate nor the Tax Clearance Certificate within time. However, hard copies were submitted later on. The technical bid was opened on 24-10-2016. The petitioner had not uploaded the mandatory documents, therefore, his bid was rejected. The petitioner has taken contradictory stand as in para-2 of the writ petition he has stated that he had uploaded all the documents where as in rest of paras it has been stated that he could not upload the requisite documents in time due to the internet blockage. This seems to be an afterthought as when the petitioner had uploaded all other required documents as required under the e-NIT, then how he could not upload the two mandatory documents. Moreso, in para-2 of the writ petition, he has taken contradictory stand and as such there is no force in the contention of the petitioner that due to internet blockage, he could not upload the documents. Therefore, this contention is rejected. Otherwise also, Hon’ble Apex Court in M/S. N.G. PROJECTS LIMITED VERSUS M/S. VINOD KUMAR JAIN & ORS. Moreso, in para-2 of the writ petition, he has taken contradictory stand and as such there is no force in the contention of the petitioner that due to internet blockage, he could not upload the documents. Therefore, this contention is rejected. Otherwise also, Hon’ble Apex Court in M/S. N.G. PROJECTS LIMITED VERSUS M/S. VINOD KUMAR JAIN & ORS. decided on 21/03/2022 has held as under : “In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present-day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.” 7. Other contention of the petitioner is that he was having the lowest financial bid, so he had a preferential right to the allotment of contract. Once the technical bid of the petitioner has been rejected, so merely the fact that he has figured as the lowest bidder would not vest any right in him for allotment of contract. Otherwise also, it is settled law that the lowest bidder is not entitled to allotment of contract as a matter of right. Once the technical bid of the petitioner has been rejected, so merely the fact that he has figured as the lowest bidder would not vest any right in him for allotment of contract. Otherwise also, it is settled law that the lowest bidder is not entitled to allotment of contract as a matter of right. More so, as per the response filed by the official respondents it transpires that the first lowest bidder has agreed to reduce bid offer by Rs. 4,320.84. As such, this contention too is rejected. 8. Viewed thus, there is no merit in the present petition, it is, accordingly, dismissed along with connected CMs.