Himachal Pradesh High Court
Jalam Singh Son Of Sh. Ramia Ram vs State Of H.P. And Others Along With ... on 7 January, 2022
Bench: Sabina, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 7th DAY OF JANUARY, 2022
BEFORE
HON'BLE MRS. JUSTICE SABINA, JUDGE
&
HON'BLE MR. JUSTICE SATYEN VAIDYA, JUDGE
CIVIL WRIT PETITION No . 25 OF 2022
BETWEEN:
JALAM SINGH SON OF SH. RAMIA RAM,
RESIDENT OF VILLAGE BANDAL, POST OFFICE
MANJHOLI, TEHSIL KUPVI, DISTRICT SHIMLA,
H.P.
........PETITIONER
( BY SH. VINAY SHARMA, ADVOCATE )
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS ADDITIONAL PRINCIPAL
SECRETARY (PWD), GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA, H.P.
2. ENGINEER-IN-CHIEF, HPPWD GOVT. OF
HIMACHAL PRADESH, SHIMLA, H.P.
3. CHIEF ENGINEER (SZ), HPPWD, SHIMLA,
DISTRICT SHIMLA, H.P.
4. SUPERINTENDING ENGINEER, 12th CIRCLE,
HPPWD, NAHAN, DISTRICT SIRMOUR, H.P.
5. EXECUTIVE ENGINEER, HPPWD DIVISION
SANGRAH, DISTRICT SIRMOUR, H.P.
..........RESPONDENTS
(BY SH. ASHWANI SHARMA, ADDITIONAL
ADVOCATE GENERAL, FOR THE RESPONDENTS-STATE.)
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This petition coming on for orders this day, Hon'ble
Mr. Justice Satyen Vaidya, passed the following :
.
ORDER
By way of instant petition, the petitioner has prayed for following substantive reliefs:-
(i) Issue a writ of certiorari to quash Annexure P-1 i.e. cancellation tender order dated 16.12.2021.
(ii) Issue a writ of mandamus directing the respondent authority to consider the tender of the petitioner by awarding the same to the petitioner."
2. Respondent No. 5 issued Notice Inviting Tenders (for short, "NIT") for execution of work "C/o Charna to Gudagdhar Kheeldhar Sayadhar road KM 0/0 to 5/730 (Sh:- construction of 5/7 meter wide formation cutting, C/o Retaining structure, P/L Kharanja stone soling, essential reaches, Road side unlined drain, essential parapets and P/F sign Board and KM stone in Km 0/0 to 5/730 and 2 No. 4.000 meter span slab culvert including dumping site".
3. Petitioner along with other bidders submitted their respective bids in response to NIT. The bid of the petitioner was found technically responsive. On opening of financial bid, the bid submitted by ::: Downloaded on - 31/01/2022 23:35:05 :::CIS 3 the petitioner was found to be "L-1". Respondents, however, cancelled the tender on 16.12.2021 on the ground that the tender was not as per .
the notification issued vide letter No. PBW(B)A(3)1/2020-1, as the bid amount quoted by the petitioner was (-) 35.79% below amount put to tender.
4. Petitioner has approached this Court on the premise that the NIT did not contain any such condition whereby the bidders were precluded or prohibited from quoting the bid price below particular limits. It has further been contended by the petitioner that the action of respondents to recall and cancel the tender on a condition, which was not part of NIT, was not only unreasonable and arbitrary, but was also smeared with malafide.
5. The petitioner has further contended that while dealing with similar issue a Division Bench of this Court has already passed judgment dated 15.09.2021, in Civil Writ Petition No. 4954 of 2021 along with connected matters and has quashed and set aside the cancellation of tender process on identical grounds.
6. On notice, respondents have submitted written instructions alongwith certain documents. Perusal of these documents reveal that ::: Downloaded on - 31/01/2022 23:35:05 :::CIS 4 the petitioner was L-1, but the tender was recalled and cancelled on the ground that it was not as per letter No. PBW(B) A(3)1-2020-1 dated .
07.10.2021. A copy of letter dated 07.10.2021 has also been placed on record. As per this document, the Principal Secretary (PW) to the Government of Himachal Pradesh, has communicated to the Engineer-
in-Chief, HPPWD, the decision of the Government to revise Point No. 12 of the salient features for adopting of CPWD Works Manual alongwith other publications in HPPWD. As per such revision, the bid which was found less than 30% of the amount put to tender was liable to be cancelled.
7. As far as the contention of the petitioner that no such condition as described in the above noted letter dated 07.10.2021 was made part of the NIT, has not been rebutted by the respondents.
8. We have heard learned counsel for the parties and have also gone through the record.
9. It is not in dispute that the CPWD Works Manual, especially its condition No.12, as revised vide letter dated 07.10.2021 was not made part of the NIT. That being so, the issue that arises is whether the tender process could be recalled and cancelled for violation of a ::: Downloaded on - 31/01/2022 23:35:05 :::CIS 5 condition which neither was part of NIT nor was made applicable at any subsequent stage prior to evaluation of bids?
.
10. The above issue has been decided by Division Bench of this Court in which one of us (Satyen Vaidya, J.) was a Member, vide judgment dated 15.09.2021, passed in CWP No. 4954 of 2021, titled as Nakul Chauhan Vs. State of H.P. and others along with connected matters. It has been held therein that the recalling and cancellation of tender process on the ground of violation of CPWD Works Manual, in the absence of same being part of NIT or the tender process at any subsequent stage, was bad in law and on such premise the cancellation of tenders were accordingly quashed and set-aside.
11. The issue involved in the present petition is identical and is squarely covered by the above noted judgment passed by this Court. The abovesaid judgment shall, thus, apply in the facts of the present case and the reasoning and findings recorded therein shall also be applicable mutatis-mutandis.
12. In addition to the findings recorded in above noted judgment, this Court is of considered view that once the final bid submitted by qualified bidders were opened, subsequent recalling and ::: Downloaded on - 31/01/2022 23:35:05 :::CIS 6 cancellation of tender process will definitely prejudice the rights and interests of the bidders, especially the "L-1" bidder. For this reason, also .
the impugned action of respondents suffers from unreasonableness and arbitrariness. The stand of the respondents that the notification of the government need not be made part of NIT is also baseless for the reason that there was no such notification issued by the government. A perusal of documents dated 06.01.2022 reveals that this was merely an intra departmental correspondence, and as such, cannot be said to have universal application in each and every tendering process initiated by HP PWD, notwithstanding its absence from NIT.
13. In view of the above discussion, the present petition is allowed, decision dated 16.12.2021 (Annexure P-1) issued by respondent No.5 for execution of work "C/o Charna to Gudagdhar Kheeldhar Sayadhar road KM 0/0 to 5/730 (Sh:- construction of 5/7 meter wide formation cutting, C/o Retaining structure, P/L Kharanja stone soling, essential reaches, Road side unlined drain, essential parapets and P/F sign Board and KM stone in Km 0/0 to 5/730 and 2 No. 4.000 meter span slab culvert including dumping site, is quashed and set aside with the ::: Downloaded on - 31/01/2022 23:35:05 :::CIS 7 directions to the respondents to consider the award of work in question strictly in terms of the NIT.
.
The writ petition is, accordingly, disposed of in the aforesaid terms, so also the pending applications, if any.
( Sabina ) Judge ( Satyen Vaidya ) Judge 7th January, 2022.
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