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2022 DIGILAW 269 (JK)

Ghulam Mustafa Batt v. Union Territory of J&K

2022-05-25

PUNEET GUPTA

body2022
JUDGMENT : Puneet Gupta, J. The petitioner is aggrieved of the participation and acceptance of the technical bid of the private respondent No.7 and subsequently also of acceptance of the final bid of the private respondent in pursuance to e-NIT No.3 of 2021-22/East dated 09.06.2021 and therefore preferred two Writ Petitions- one after acceptance of technical bid of the respondents and the other after the final bid of the petitioner was accepted by the respondents. The challenge in the two petitions by the petitioner is more or less on the similar grounds and that is why both the petitions are taken up for consideration together by this Court. 2. The basic claim put forth by the petitioner for all practical parties in both the petitions is that the private respondent was not eligible to bid in the tender as he did not fulfill the terms and conditions of the e-NIT and the relevant Clauses of the Regulations. The respondent was not eligible to participate in the tender notice because of his being not eligible as Class A Contractor. The grant of Class A Contractor certificate and the other certificates issued in favour of the respondents is illegal as the same were issued in order to make him eligible for participation in the tender. 3. The objections stand filed in both the writ petitions by the official respondents as well as the private respondent No.7. Indeed, the respondents have denied the allegations made in both the petitions of arbitrariness and alleged illegality committed by the official respondents. The private respondent was eligible to participate in the tender and the respondent No.7 being the lowest tenderer his bid was accepted is the crux of the stand taken by the respondents. The certificate issued in favour of the respondent No.7 is as per Rules and no arbitrariness is to be found in the manner certificates/documents are issued to the respondents is the stand taken in the objection. 4. It may be suffice to mention herein that the both sides have placed on record the documents which are more or less not in dispute. In fact the petitioner has mainly relied upon the documents placed on file by the private respondent and has raised the arguments on the strength of the documents placed by the respondents. 5. 4. It may be suffice to mention herein that the both sides have placed on record the documents which are more or less not in dispute. In fact the petitioner has mainly relied upon the documents placed on file by the private respondent and has raised the arguments on the strength of the documents placed by the respondents. 5. The learned counsels appearing for both the sides have raised extensive arguments in support of their respective pleas taken in the pleadings. The same shall be referred as per the discussion which is to be made by the court. The written arguments have been filed by the petitioner wherein the petitioner has reiterated pleas taken in the writ petition. 6. The key argument raised by the petitioner against the respondents is that in order to be eligible for participation in the tender, the tenderer has to be Class A Contractor and that in order to be Class A Contractor certain conditions are required to be fulfilled. The reference is made to Clause 4 of J&K State Forest Corporation Registration of Contractors and their Conduct Regulations, 2014 (hereinafter accord the Regulations). The respondent did not fulfill the criteria as laid down in Clause 4 of the Regulations and therefore was not eligible to participate in the tender. 7. M/S K. S. Johal and M. A. Goni, learned senior counsels appearing on behalf of the petitioner have tried to convince the court that the very basic acceptance of the technical bid of the respondent No.7 by the respondents was flawed one as the certificate Class A Contractor issued in favour of the private respondent could not be issued for want of compliance of the requisite formalities. 8. Learned Advocate General and Mr. Sunil Sethi, learned senior counsel have argued that the petitioner has raised disputed questions of fact and the court is debarred from determining the issued raised in the present writ petition. The official respondents after following procedure and taking into consideration all the facts issued the certificates to the respondent No.7 and found him entitled for participation in the tender. 9. The respondents have submitted that the reliance is mainly placed by the petitioner on the documents which are placed on record by the private respondent and that the petitioner has not brought any record of his own to substantiate his pleas. 9. The respondents have submitted that the reliance is mainly placed by the petitioner on the documents which are placed on record by the private respondent and that the petitioner has not brought any record of his own to substantiate his pleas. The court is not an agreement with the argument of learned counsel for the respondents and particularly the learned senior counsel appearing for the private respondent as the court is not barred from looking into the documents which are placed on record by the private respondent. The documents on the record are sufficient or not to adjudicate upon on the pleas raised by the petitioner is a different question. 10. The learned senior counsel appearing for the petitioner has referred to the documents in order to substantiate the argument that the documents explicitly make out that the respondent No.7 did not fulfill the criteria for grant of Class A Contractor certificate as on the date of issuance of e-NIT or even when the tender was finally opened. The reference is made to the documents issued by the Chief General Manager of the respondents department vide No.654-59/GM/SFC/ECD dated 31.05.2017, wherein the private respondent was allowed to work out the markings to the tune of Rs. 40 lacs. cft (RV) equal to (=) 0.02 lacs cft (SV) in compartment No.84/Udil on Amani basis. Another communication dated 14.07.2018 issued by the General Manager to the Divisional Manager Ext., J&K SFC Division Kisthwar West (annexure-13) in the Writ Petition No.1372/2021 mentions for extension of time for completion of work of left over volume in compartment 84/Udil so that the whole volume can be extracted and hauled down jointly upto sale depot Jammu by ending March 2019. Similarly, the order dated 05.07.2021 (annexure-14 of the writ petition) states of further concession granted to the private respondent so far as the completion of the work. The payment was also withheld of the work done by the private respondent is also stated on behalf of the petitioner. The aforesaid position did not make the respondent eligible to get Class A Certificate Contractor is the contention of the petitioner. The respondent failed to complete the allotted work as required as Class B Contractor and the work which was done by the respondent was only on Amani basis and therefore the respondent was not even entitled to be classified as Class A Contractor. The respondent failed to complete the allotted work as required as Class B Contractor and the work which was done by the respondent was only on Amani basis and therefore the respondent was not even entitled to be classified as Class A Contractor. The respondents have contended that Class A Certificate has been issued by the respondents after scrutiny and taking into consideration all the relevant material. The class A certificate has been issued in favour of the respondent No.7 on 26.06.2021. The perusal of the file reveals that the respondents have also placed on record the certificate bearing No.18/SIGDI dated 15.06.2021 issued by Range Manager and counter signed by Divisional Manager, Forest Corporation, wherein it is certified that Jaffer Hussain Wani has completed the allotted works in compartment 84/Udil and compartment 67-C/Udil. In the order No.389-91/GM/FDC/ECD dated 13.07.2021 from General Manager (Ext) East Circle, Doda the actual overturn as against projected overturn has been regularized. 11. The emphasis is laid on behalf of the petitioner on Clause 4 of the regulations wherein conditions have been laid down for eligibility to qualify as Class A Contractor. The certificate of Class B certificate of the respondent has been renewed as per certificate dated 11.06.2021 issued by General Manager. The documents on file and which have been referred to by the petitioner may not be sufficient themselves to accept the contentions of the petitioner. The class A certificate has been issued in favour of the respondent No.7 and the presumption is that the same has been issued after the respondents were satisfied with regard to eligibility of the respondent No.7 in terms of the Regulations. It is not for the court in the Writ Petition to determine the eligibility of the respondent No.7 as class A contractor. The said respondent had done the work on Amani basis only and the documents mentioned above do not certify that the respondent has completed the work as required by the Regulations is the aspect which cannot be finally determined by the Writ Court. The concession, if any, given by the respondents with regard to the work done by the respondent No.7 justifies for his being classified as Class A Contractor or that there were other sufficient reasons to grant concession to the respondent is again the matter which is required to be seen by the official respondents. The concession, if any, given by the respondents with regard to the work done by the respondent No.7 justifies for his being classified as Class A Contractor or that there were other sufficient reasons to grant concession to the respondent is again the matter which is required to be seen by the official respondents. The court cannot normally substitute its own satisfaction for the satisfaction which is arrived at by the concerned authority before issuing the certificate. The respondents if have taken some decision the same cannot be questioned unless there is apparent arbitrariness exercised by the authority. It is trite proposition of law that where administrative action has been taken by the official and in order to determine its validity the evidence may be required to be produced by parties and the matter is required to be trashed after assessing the evidence the challenge to such action of the official cannot be thrown in the writ petition. The court is not to interpret the satisfaction of the official respondents in a particular way. The petitioner cannot seek relief of invalidating the certificate No.78 Class A issued by the Chief General Manager Forest Department vide dated 26.06.2021 on the aforesaid ground. The respondent while referring to letter bearing No.1029/GM/SFC/ECD dated 11.09.2019 issued by General Manager SFC East Circle Doda, has argued that in fact the petitioner had himself failed to complete certain works allotted to him and therefore cannot raise finger against the private respondent qua his eligibility as Class A Contractor. The court is not required to determine the impact of this communication/letter as the same is not germane to the issue raised in the present petition. 12. As stated above Clause 4 of the Regulations refers to the conditions to be fulfilled before the contractor can be classified as class A contractor. Five conditions have been mentioned in the same. It may be noted herein that except for condition (V) of Clause 4 which relates to the completion of minimum work as Class B contractor, the petitioner has not specifically challenged the other conditions of Clause 4 in the writ petition. However, the learned counsels for the petitioner have referred to the documents on the file to substantiate their claim that the respondent No.7 did not fulfill those criteria also which could make him eligible as Class A Contractor. However, the learned counsels for the petitioner have referred to the documents on the file to substantiate their claim that the respondent No.7 did not fulfill those criteria also which could make him eligible as Class A Contractor. One of the conditions laid in the Regulations 4 is that the contractor should have immovable property worth not less than Rs.75 lakhs free from all encumbrances and to be certified by an officer not below the rank of Assistant Commissioner, Revenue. The private respondent has placed on record certificate from the Deputy Commissioner, Kisthwar bearing No.DCK/SQ/232/2021-22 dated 18.06.21. It is mentioned in the certificate that the respondent has property valuation of Rs.75 lakhs. The learned counsel for the petitioner has vehemently argued that the certificate does not fulfill the criteria and the same is evident from the certificate itself though the other side has contested the claim of the petitioner that the respondent failed to fulfill the criteria as required under the Regulations and submits that the certificate does not either indicate that the property is mortgaged me. The other condition as envisaged under Clause 4 is that the contractor should have minimum balance of Rs. 25 lakhs or more during past six months, the contractor has furnished a fixed deposit certificate of Rs.1.00 lakh from any of the scheduled bank pledged to the Managing Director, J&K SFC. None of the conditions is met by virtue of the documents which are placed on record is submitted on behalf of the petitioner. The Solvency Certificate dated from the J&K Bank, Chatroo, speaks of the bank providing secured overdraft facility of 10% to the petitioner to meet their work requirement, if any, contract is to be allotted to the respondents. The two FDRs dated 20.01.2016 & 16.06.2021 amounting to Rs.1.00 lakh and another certificate from the J&K Bank, Chatroo dated 19.04.2021 mentions of the balance amount of more than Rs.25 lakhs. in the Saving Account of the respondent as on 18.04.2021are also placed on record. The argument raised on behalf of the petitioner is that aforesaid documents do not reflect that they were in force as on date when the tender was issued is met by the counsel for the private respondent with the argument that the documents do not necessarily show that their validity had expired on the crucial date. The argument raised on behalf of the petitioner is that aforesaid documents do not reflect that they were in force as on date when the tender was issued is met by the counsel for the private respondent with the argument that the documents do not necessarily show that their validity had expired on the crucial date. The court is of the view that in case the official respondents have relied upon on the aforesaid documents the same must have been done by them after satisfying that the respondents did possess the aforesaid amount before issuing the certificate. It is not expected that the respondents who are to issue the necessary certificate which requires fulfillment of certain conditions will issue the same without adhering to the formalities which were required to be complied with as per the Regulations. It is for the petitioner to bring by positive evidence that the respondent had not that much of amount with him as reflected in the documents as on date when the certificate was issued in favour of the respondent. 13. Last but not the least, the petitioner has tried to highlight the issue of non-availability of the No Objection Certificate (NOC) from the CID Department as required in terms of Clause 5 of the Regulations and has referred to the certificate which is issued by Senior Superintending Police, District Kisthwar vide dated 20.06.2021 to the effect that there is nothing adverse/incriminating against respondent-Jaffer Hussain Wani. No doubt the certificate does not mention of the verification from CID, however, the petitioner has not produced any documents on record that the concerned agency did not issuance any such certificate in favour of the respondent. It is for the petitioner to place on record with positive evidence that the respondent was not having all the criteria which was required to be fulfilled before he could be issued the Class A Certificate or lacked qualification in pursuance to the tender issued by the respondent. The petitioner cannot base all his claim mainly on the strength of the documents which are placed on file by the private respondent. The deficiency if any occurring in the formalities required to be fulfilled can be condoned is for the authorities to take all on the same and not for the court to normally fathom the same. The petitioner cannot base all his claim mainly on the strength of the documents which are placed on file by the private respondent. The deficiency if any occurring in the formalities required to be fulfilled can be condoned is for the authorities to take all on the same and not for the court to normally fathom the same. The assessment and the satisfaction of the authorities cannot be scrutinized by the court very minutely. 14. Admittedly, disputed questions of fact have been raised in the writ petition which may even require evidence. The court in exercise of its writ jurisdiction cannot determine the disputed questions of fact. 15. The court cannot normally interfere into the tender and the terms and conditions which are incorporated in the tender and required to be fulfilled unless the same appear to be manifestly arbitrary and against public policy. 16. The learned counsels for the parties have relied upon the judgments in support of their contentions. The petitioner has referred to ‘2017 0 Supreme SC 1185 titled M/S Sam Built Well Pvt. Limited Vs. Deepak Builders and others’, wherein on facts the Hon’ble Apex Court set aside the judgment of the Division Bench of the High Court on the ground that the Division Bench had not stated that the three experts committees had arrived at perverse conclusion and that the matter which is required to be considered by the technical experts should be left to those technical experts. The court also took note of the judgment of Montecarlo Limited Vs. NTPC Limited reported in (2016) 15 SSC 272, and Afcons Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited and another reported in (2016) 16 SCC 818 . The court had held that the bidder’s expertise, technical capability and capacity is to be assessed by the experts and further exercised of judicial review would be invoked if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision making process should clearly show that said maladies are kept at bay. 17. In Caretel InfoTech Limited Vs. The decision making process should clearly show that said maladies are kept at bay. 17. In Caretel InfoTech Limited Vs. Hindustan Petroleum Corporation Limited and others, in SLP No.48 of 2019 decided on 9th April, 2019, the apex court took note of the earlier decisions and held that the court should not give interpretation to the contracts and more particularly to the tender terms at the behest of the third party competing for the tender rather than what is propounded by the party framing the tender. 18. In celebrated case of Tata Cellular Vs. Union of India reported in 1994 0 Supreme SC 697, the apex court held that it cannot be denied with the principles of judicial review would apply to the exercise of contractual powers by government bodies in order to prevent arbitrariness or favoritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. It was further held that the judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made but the decision making process. 19. In SLP (Civil) No. 2013 of 2022 case titled M/S N.G. Projects Limited Vs. M/S Vinod Kumar Jain and others decided on 21st March, 2022 it was held by the Supreme Court that the satisfaction as to whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids and that such authority is aware of expectations from the tenderers while evaluating the consequences of non performance. It was further held that on same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee, the court should refrain itself from imposing its decision over the decision of the employer as to whether or not accept the bid of a tender. It was also held that the approach of court should not be 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. It was also held that the approach of court should not be 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. Further, it was held if the court finds that there is total arbitrariness or the tender has been granted in a mala fide manner still the court should refrain from interfering in the grant of tender but relegate the parties to seek damages for the wrongful claim rather than to inject the execution of the contract. There can be no dispute with what has been held by the Apex court of the country in aforesaid judgments. The petitioner has also submitted that nature of work to be carried out as per tender did not require any special skill or expertise. The court cannot act as evaluator of the terms and conditions which are to be acted upon. 20. The learned counsel for the petitioner has vehemently argued that the manner in which Class A Certificate has been issued by the respondents in favour of the petitioner manifestly speaks of mala fide on the part of the official respondents. It is submitted that the respondent No.7 applied for issuance of the certificate on 19.06.2021 after issuance of tender and the certificate was issued on 26.06.2021. The counsels appearing for the respondents have denied that any favoritism was shown to the respondent in this respect. All has been done as per the rules and regulations and the petitioner has not been able to make out any arbitrariness or unjustified action on part of the official respondents. Merely because the certificate has been issued within a short period to the respondent No.7 of his being class A contractor after the tender was issued by itself does not present the picture of arbitrariness and therefore no interference by the court on aforesaid plea of the petitioner. The court cannot substitute the satisfaction of the authority with its own or on the minimum period which the authority should take to process the case of the party. 21. The basis of both the petitions is the alleged non fulfillment of the conditions which are required to be fulfilled to gain qualification as Class A Contractor and consequently the participation of the petitioner in the tender. 21. The basis of both the petitions is the alleged non fulfillment of the conditions which are required to be fulfilled to gain qualification as Class A Contractor and consequently the participation of the petitioner in the tender. Whereas the first petition challenges the certificate issued by the respondents of Class A certificate and the decision taken by the respondents in accepting the technical bid, the second petition in addition to the aforesaid also seeks quashment of work order issued for compartments 31-AB/Keshwan and 35-D/Keshwan and the agreements executed in pursuance to the acceptance of tender of the respondent No.7 and that the respondent be prohibited from entering the compartments and not to carry the work allotted to the petitioner. 22. As the court has held that the disputed questions of fact have been raised by the petitioner the same cannot be determined in the present case. The official respondents committed flaw while granting Class A Contractor certificate in favour of the respondent No.7 is not otherwise prima facie made out by the petitioner on the strength of the documents on which the petitioner has relied upon and moreso when other evidence may be required to be produced so as to consider the claim set up by the petitioner in the petitions. It may be pertinent to mention herein that the petitioner has not challenged the decision of awarding of the works to the petitioner in pursuance to the tender on the basis that the respondent No.7 was not lowest tender or the official respondents had otherwise faulted in awarding the tender at the time of taking final decision on the tender. 23. In view of what has been discussed above both the petitions are liable to dismissed and are accordingly dismissed. The petitioner is however at liberty to avail any other remedy which he may have under law. Copy of the judgment shall be placed on both the files.