Patna High Court
Shristi Developers Pvt. Ltd vs The State Of Bihar And Ors on 15 March, 2019
Equivalent citations: AIRONLINE 2019 PAT 911
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.3003 of 2019
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Shristi Developers Pvt. Ltd. having is registered office at Krishi Utpadan
Bazar Samity, Katra Bazar, Patna City, Patna-800009, through its Director,
Shailendra Kumar, aged about 50 years (Male), son of Sri Ramprit Singh,
resident of Mohalla-Nurpur, Katra Bazar, Patna City, P.o.-Madhav Mill, P.s.-
Malsalami, Distt.-Patna-800008
... ... Petitioner
Versus
1. The State of Bihar through Principal Secretary, Road Construction
Department, Govt. of Bihar, Patna
2. The Engineer-in-Chief Road Construction Department, Govt. of Bihar, Patna
3. The Chief Engineer South Bihar Wing, Road Construction Department,
Govt. of Bihar, Patna
4. The Superintending Engineer Central Circle, Patna
5. The Executive Engineer Patna City Road Division, Gulzarbagh
6. Amhara Construction Pvt. Ltd. Through its Managing Director Rakesh
Kumar, S/o Late Dineshwar Prasad Sharma, Resident of Flat No. 105, Raj
Mahal Complex, New Bahadurpur, P.S. Bahadurpur, District - Patna.
7. Brajendra Kumar Singh, age about - 50 years, Gender - Male, son of Ram
Bahadur Singh, resident of Sankat Mochan House, Congress Maidan Road,
New Area, Kadamkuan, P.S. - Kadamkuan, District - Patna.
... ... Respondents
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with
Civil Writ Jurisdiction Case No. 3649 of 2019
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Shristi Developers Pvt. Ltd. having its registered office at Krishi Utpadan
Bazar Samity, Katra Bazar, Patna City, Patna- 800009, through its Director,
Shailendra Kumar, aged about 50 years (Male), son of Sri Ramprit Singh,
resident of Mohalla- Nurpur, Katra Bazar, Patna City, P.O.- Madhav Mill, P.S.
Malsalami, District- Patna- 800008.
... ... Petitioner
Versus
1. The State of Bihar through Principal Secretary, Road Construction
Department, Government of Bihar, Patna.
2. The Engineer-in- Chief, Road Construction Department, Government of
Bihar, Patna.
3. The Chief Engineer, South Bihar Wing, Road Construction Department,
Government of Bihar, Patna.
4. The Superintending Engineer, Central Circle, Patna.
5. The Executive Engineer, Patna City Road Division, Gulzarbagh.
6. Amhara Construction Pvt. Ltd. Through its Managing Director Rakesh
Kumar, S/o Late Dineshwar Prasad Sharma, Resident of Flat No. 105, Raj
Mahal Complex, New Bahadurpur, P.S. Bahadurpur, District - Patna.
Patna High Court CWJC No.3003 of 2019 dt.15-03-2019
2/23
7. Brajendra Kumar Singh, age about - 50 years, Gender - Male, son of Ram
Bahadur Singh, resident of Sankat Mochan House, Congress Maidan Road,
New Area, Kadamkuan, P.S. - Kadamkuan, District - Patna.
... ... Respondents
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Appearance :
For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate
For the Respondents : Mr. P.K. Shahi, Sr. Advocate
Mr. Ambarish Kumar, Advocate
Mr. Chakrapani, Advocate
For the State : Mr. Shailendra Kumar, AC to PAAG 2
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date : 15-03-2019
Both the matters have come up for Admission (Fast
Track).
2. Petitioner in the present case is praying for the
following reliefs:-
(In CWJC No. 3003 of 2019)
"(i) To issue a writ/order/direction in the nature of
certiorari for quashing the Clause 2.4.2 of MBD
(Model Bidding Document) whereunder in
Package No. 42A & 42B under eligibility a
separate experience for Bituminous Treatment
(Mastic Asphalt) - 50% of quantities in estimates
- 3423.75 M2 has been asked from the contractor
intended to participate in the tender process
against Package No. 42A & 42B under OPRMC
Phase-II in contravention with the
guidelines/clarification issued in memo no.
6866(s) dated 15.10.2012 under the signature of
the Engineer-in-Chief, Road Construction
Department, Government of Bihar, Patna
(Annexure-4).
(ii) To issue a writ/order/direction in the nature of
certiorari for quashing an advertisement of notice
inviting tender bearing NIT No. RCD/OPRMC-
2/20/Patna City/2018-19 dated 28.12.2018
Patna High Court CWJC No.3003 of 2019 dt.15-03-2019
3/23
published on 30.12.2018 re-inviting the tender for
Package No. 42A & 42B under OPRMC Phase-II
published by office of the Executive Engineer,
Patna City Road Division, Gulzarbagh
(Annexure-3).
(iii) To issue a writ/order/direction in the nature
of certiorari for quashing the notice inviting
tender bearing NIT No. CE
(South)/RCD/OPRMC-2/01 dated 26.11.2018
only with regard to the Package No. 42A & 42B
under OPRMC Phase-II whereunder in terms of
the Clause-13 detailed NIT/MBD has been issued
by the Road Construction Department with the
conditions of eligibility/experience (Annexure-1).
(iv) To issue a writ/order/direction in the nature
of mandamus commanding the respondent to
delete clause 2.4.2 against the heading for
experience from the MBD of the Gulzarbagh
Division and published a fresh advertisement/re-
tender/NIT against Package No. 42A & 42B
under OPRMC Phase-II of Gulzarbagh Division.
(v) To issue a writ/order/direction in the nature of
mandamus commanding the respondent to stay
the bidding process and not to finalize the tender
or award the contract/NIT No. RCD/OPMRC-
2/20/ Patna City /2018-19 against the package
No. 42B & 42B of Patna City Road Division in
favour of any other bidder/contractor during the
pendency of the present writ application.
(vi) To issue a writ/order/direction in the nature
of mandamus commanding the respondent
authorities particularly respondent no. 2 to 5 not
to issue letter of intent or execute any agreement
with any other bidder or create any third party
right till the pendency of the present writ
application.
(vii) To issue a writ/order/direction in the nature
of mandamus commanding the respondents no. 2
to 5 not to proceed with the work against Package
No. 42A & 42B under OPRMC Phase-II
Patna High Court CWJC No.3003 of 2019 dt.15-03-2019
4/23
published by office of the Executive Engineer,
Patna City Road Division, Gulzarbagh.
(viii) To any other relief or reliefs for which the
petitioner is found to be entitled in the facts and
circumstances of the case."
(In CWJC No. 3649 of 2019)
"(i) To issue a writ/order/direction in the nature of
certiorari for quashing the Clause-2.4.2 if
/Technical Bid-sheet of New Capital Division
whereunder in Package No. 41A & 41B under
eligibility a separate experience for Bituminous
Treatment (Mastic Asphalt) - 50% of quantities in
estimates - 38433.99 M2 & 28372.52 M2 have
been asked from he contractor intended to
participate in the tender process against Package
No. 41A & 41B under OPRMC Phase-II in
contravention with the guidelines/clarification
issued in memo no. 6866(s) dated 15.10.2012
under the signature of the Engineer-in-Chief, Road
Construction Department, Government of Bihar,
Patna (Annexure-4).
(ii) To issue a writ/order/direction in the nature of
certiorari for quashing the notice inviting re-tender
bearing NIT No. RCD/NCD/02/2018-19 dated
15.11.2018and corrigendum dated 03.12.2018 in NIT No. RCD/NCD/02/2018-19 wherein through corrigendum a separate experience of 11466.60 Sq.m. Mastic Asphalt has been asked by the office of the Executive Engineer, Road Division New Capital Division, Patna (Annexure-3).
(iii) To issue a writ/order/direction in the nature of certiorari for quashing corrigendum dated 03.12.2018 issued under the signature of Chief Engineer, Road Construction Department, (C Wing) Patna whereunder separate experience of 11466.60 Sq.M. mastic asphalt has been asked and the clause of the CMBD has been amended with abovementioned amendment (Annexure-3A).
(iv) To issue a writ/order/direction in the nature of Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 5/23 certiorari for quashing the notice inviting tender bearing NIT No. CE (South)/RCD/OPRMC-2/01 dated 26.11.2018 only with regard to the Package No. 41A & 41B under OPRMC Phase-II of New Capital Division. (Annexure-1).
(v) To issue a writ/order/direction in the nature of mandamus commanding the respondent to delete clause 2.4.2 against the heading for experience from the technical bid-sheet of Package No. 41A * 41B of New Capital Division and published a fresh advertisement/Re-tender/NIT against Package No. 41A & 41B under OPRMC Phase-II of New Capital Division.
(vi) To issue a writ/order/direction in the nature of mandamus commanding the respondent to stay the bidding process and not to finalize the tender or award the contract/NIT No.RCD/NCD/02/2018-19 and NIT No. RCD/OPRMC-2/20/ Patna City/2018-19 against the package No. 41A & 41B of New Capital Division in favour of any other bidder/contractor during the pendency of the present application.
(vii) To issue a writ/order/direction in the nature of mandamus commanding the respondent authorities particularly respondent no. 2 to 5 not to issue letter of intent or execute any agreement with any other bidder or create any third party right till the pendency of the present writ application.
(viii) To issue a writ/order/direction in the nature of mandamus commanding the respondents no. 2 to 5 not to proceed with the work against Package No. 41A & 41B under OPRMC Phase-II published by office of the Executive Engineer, New Capital Division and with regard to NIT No. CE (South)/RCD/OPRMC-2/01 dated 26.11.2018 and NIT No. RCD/NCD/02/2018-19 dated 15.11.2018.
(ix) To any other relief or reliefs for which the petitioner is found to be entitled in the facts and circumstances of the case."
Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 6/23
3. I.A. No.1 of 2019 in CWJC No. 3003 of 2019 has been filed on behalf of one Amahara Construction Private Limited through its Managing Director Rakesh Kumar for impleadment as intervenor-respondent in the present writ application. The intervenor was declared qualified at the technical bid stage in respect of the work in question. In another tender for package no. 41A & 41B under New Capital Road Division, RCD, Patna for similar nature of work the petitioner was declared lowest tenderer (L-1). Package No. 41A & 41B is subject matter of dispute in C.W.J.C. No. 3649/2019, in the said writ application also an Interlocutory Application has been filed seeking impleadment. I.A. No. 2 of 2019 has been filed by the contractor who has been declared L-1 in respect of the tender under challenge in CWJC No. 3003 of 2019. In both the writ applications for similar reason both the intervenors have sought their impleadment.
4. It is the common contention of the intervenors that because of pendency of these two writ applications the Department is not proceeding with the award of work, execution of agreement and issuance of the work order.
5. In CWJC No. 3003 of 2019, a counter affidavit has been filed on behalf of the State respondents and petitioner Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 7/23 has responded the same by filing a rejoinder. Issues involved in both the writ applications are identical.
6. When the matters were called out, Mr. Y.V. Giri, learned senior advocate submitted that while he would have no objection in allowing the Intervention applications,the petitioner should be given adequate opportunity to file a reply thereto.
7. Mr. P.K. Shahi, learned senior advocate representing the intervenor submitted that the intervenors have not pleaded anything more than what has been stated in the counter affidavit of the State. It is submitted that the writ applications are fit to be heard with some urgency because by filing the writ applications and keeping them pending, the petitioner is only trying to delay the entire project. It is submitted that the submissions made in paragraph '4' of the counter affidavit of the official respondents would show that the petitioner has no locus standi to maintain these writ applications.
8. After considering the aforesaid submissions, this Court allowed I.A. No.1 of 2019 and I.A. No.2 of 2019 in both the writ applications. Let the intervenors be added as party respondent nos. 6 & 7 respectively in these two writ applications in course of the day.
Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 8/23
9. As prayed by Mr. Giri learned senior counsel, time till 25th March, 2019 was granted for filing a reply to the amendment application. At this stage, Mr. P.K. Shahi, learned senior counsel wanted that this court should make it clear that pendency of the writ application would not be an impediment for the department in proceeding further in these two matters. Mr. Giri, learned senior counsel submitted that since there is no interim order of this court, the apprehension of Mr. P.K. Shahi, Sr. Advocate is baseless. Thereafter, this court dictated the following orders : -
"The apprehension of the intervenors-respondents that pendency of the writ application is a reason for not proceeding with the further action by the Department is not based on any such order passed by this Court."
10. After the aforesaid quoted part was dictated, Mr. Giri learned senior counsel insisted for recording that any further action shall be subject to result of the writ applications.
11. This court was of the view that unless court is satisfied with a prima-facie case and larger public interest involved in this case requiring any such observation of this court, on a mere asking the observation as sought for cannot be granted. This court, thereafter called upon Mr. Giri to argue the Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 9/23 matter to satisfy this court prima facie and availability of other ingredients if he was looking for interim relief.
12. Mr. Y.V. Giri, learned senior advocate has thereafter argued the matter for grant of interim relief. It was contested by learned counsel for the State and Intervenor- respondents.
13. Arguments begun and the matters were heard in pre-lunch as well as post-lunch session. This court proceeded to dictate a detail order in presence of both the learned senior counsel, the court was towards the end of the order. As soon as the learned senior counsel for the petitioner noticed that the court is not going to grant any interim order in his favour, learned senior counsel submitted that let the whole writ application be disposed off on merit itself.
14. This court has taken note of the developments step by step only to place on the record, the reasons as to why the writ applications are being disposed of on the basis of the materials available on the record.
15. With consent of the parties, therefore both the writ applications have been taken up for consideration and disposal at the stage of admission itself.
16. Learned senior counsel for the petitioner Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 10/23 submits that in the writ application petitioner has challenged Clause2.4.2 of the Model Bidding Document (MBD) whereunder in package No. 42A & 42B under the eligibility conditions a separate experience for Bituminous Treatment (Mastic Asphalt)-50% of quantities in estimates - 3423.75 M 2 has been asked from the contractor who were intending to participate in the tender process against package No. 42A & 42B under OPRMC Phase-II.
17. The contention of learned senior counsel is that the condition introduced in this regard is in complete contravention of the guidelines/clarification issued in Memo No. 6866(s) dated 15.10.2012 under the signature of the Engineer- in-Chief, Road Construction Department, Government of Bihar, Patna as contained in Annexure-4 to the writ application.
18. In course of argument, learned senior counsel has taken this court through the relevant clause present in the NIT. It is submitted that the requirement as mentioned under Clause 2.4.2 providing separately for having an experience of executing a work of Bituminous Treatment (Mastic Asphalt) to the extent of 50% of the quantity in estimate was purposely introduced with an intention to oust the petitioner. It is submitted that there was no need of such a requirement in the Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 11/23 MBD which will be evident also from the NIT floated with respect to package No. 43B, the relevant clause whereof as contained in Annexure-6 to the writ application has been placed before this court. It would appear that in Annexure-6 in the column requiring specific experience under Clause 2.4.2(b) no separate experience of executing a work of Mastic Asphalt has been provided and it has been taken together in the group of BM, DBM, BC, SPDC. Reference has also been made to an another document present at page 142 of the writ application. On these grounds it is submitted that the respondents have been wrongly ousted from participating in the tender.
19. Learned senior counsel has also pointed out from paragraph-11 of the writ application that in the entire division of Road Construction Department, Bihar in the technical bid-sheet in MBD against specific experience the concrete work, non-bituminous and bituminous treatment are treated under similar nature and no specific experience is required against the Mastic Asphalt work in terms of the clarification issued by the Road Construction Department. On these strength, learned senior counsel for the petitioner submits that the respondents should be restrained for the present from proceeding with the award of work in favour of the intervenors. Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 12/23
20. Contesting the submissions of Mr. Y.V. Giri, learned senior counsel, Mr. P.K. Shahi, learned Advocate representing the Intervenor respondents submits that in the present case vide Annexure-1 to the writ application when NIT was issued, the last date of receiving queries was 18.12.2018 and the last date and time for uploading tender document was notified as 26.12.2018 till 15:30 hours. The petitioner had not participated in the tender, however when the same was re- tendered vide Annexure-3 to the writ application in respect of the package No. 42A & 42B with the last date and time for uploading the tender on 22.01.2019, the petitioner submitted his objection dated 21.01.2019 as contained in Annexure-5 to the writ application before the Principal Secretary, Road Construction Department, Patna. Referring to Annexure-5, learned senior counsel submits that the objection was submitted by this petitioner at a belated stage but in order to avoid any controversy the Technical Evaluation Committee considered the objection of the petitioner in it's meeting held on 25.01.2019. A copy of the decision of the Tender Evaluation Committee has been brought on record with the counter affidavit (Annexure-D) filed on behalf of the State and also as Annexure-1/B in the Interlocutory Application No. 1 of 2019 filed on behalf of the Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 13/23 Intervenor respondent. The relevant part of the consideration given by the Tender Evaluation Committee and the decision taken by the Tender Evaluation Committee on 25.01.2019 are quoted hereinunder for a ready reference:
"bl chM ds laca/k esa fnukad 21.01.2019 dks la/;k 5.00 cts Shristi Developers Pvt. Ltd. ls vkosnu@ifjokn miHkkxh; dk;kZy; esa izkIr gqvk gS ftldk lkj fuEu gS%& "iVuk flVh iFk izeaMy ,oa ubZ jkt/kkuh iFk izeaMy iVuk vUrZxr OPRMC Phase-II ds fu, vkeaf=r fufonk esa Hkkx ysus gsrq Mastic dk;Z gsrq vyx ls vuqHko ekax dh xbZ gS A fofnr gks fd bl laca/k esa foHkkxh; i=kad&6866 (E) vuq0 fnukad 15.10.2012 (layXu) ds dafMdk (iv) esa mYysf[kr gS Bituminous work (DBM/BM/SDBC/BC/Mastic m3 .........etc. ) (as per approved BOQ) ds vuqlkj Mastic dk;Z dk Bituminous dk;Z ds vUrxZr gh vuqHko ekuk x;k gS A vr% Jheku ls fuosnu gS fd .................. U;k;laxr ugha ekurs gq, funsZ"k nsus dh d`ik dh tk; rkfd Bituminous dk;Z esa izkIr vuqHko ds vk?kkj ij fufonk esa Hkkx ys ldwWaA"
blh chM ds laca/k esa nwljk vkosnu@ifjokn fnukad 25.01.2019 dks Jh euh'k dq"kokgk] tn;q ftyk mik/;{k ukyUnk (fcgkj) dk (iz/kku lfpo] iFk fuekZ.k foHkkx] iVuk dks lacksf/kr gS) izkIr gqvk gS A vkosnu@ifjokn dk lkj fuEu izdkj gS %& ^^vkidks lwfpr djuk gS fd New Capital Road Division, RCD, Patna esa OPRMC ds NIT No. CE (South)/RCD/OPRMC-2/01 dated 26.11.2018 ds vUrxZr Package No., 41A/OPRMC2/New Capital Road Vision, Package No. 41B/OPRMC2/New Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 14/23 Capital Road Division ,oa CMBD ds vUrxZr Construction/Improvement cum Output & Performance Based Road Assets Maintenance work for the road from Indra Bhawan (Punaichak) to Rukanpura via Samanpura (Bailey Road) with other connecting roads under New Capital Road Division, R.C.D., Patna ,oa Patna City, Road Division, Gulzarbagh, Patna,-7 esa OPRMC ds vUrxZr NIT No. RCD/OPRMC-2/20/Patna City/2018-19 ds vUrxZr Package No.-42A ,oa Package No. 42B ds Tender izfØ;k esa vfu;ferrk cjrh x;h gS tks fuEu izdkj gSA ¼d½ fcgkj ds lHkh dk;Z izeMayks ds iFk fuekZ.k foHkkx esa vkt rd Mastic Asphalt dk dk;Z Bituminous gh ekuk x;k gS ysfdu New Capital Road Division, RCD, Patna ,oa Patna City Road Division, Gulzarbagh, Patna-7 ds mijksDr fufonk esa dk;Zikyd vfHk;ark ds }kjk fdlh O;fDr fo"ks'k dks ykHk igq ¡pkus ds fy, ,oa ljdkj dks uktk;t rjhds ls ?kiyk djus ds fy, Mastic Asphalt ds dk;Z dks technical qualification ds qualifying criteria esa Mastic Asphalt dk;Z dks vyx ls ekax fd;k x;k gSA ¼[k½ Mastic Asphalt ds dk;Z ds fy, Bituminous dk;Z tSls B.M., D.B.M., S.D.B.C., B.C. ds dk;Z dks fufonk esa technical qualification ds qualifying criteria esa vkt rd ekU; jgk gS mnkgj.k ds rkSj ij vusd izeaMyksa esa vkt Hkh Mastic Asphalt dk dk;Z ds fy, Bituminous dk;Z tSls B.M.,, D.B.M., S.D.B.C. ds dk;Z dks gh ekuk tkrk gSA vr% Jheku ls vuqjks/k gS fd New Capital Road Division, R.C.D., Patna ,oa Patna City, Road Division, Gulzarbagh, Patna,-7 ds mijksDr fufonk izfØ;k dks jn~n djus dh d`ik dh tk; ftlls ljdkjh /ku dk nq:i;ksx gksus ls cpk tk lds ,oa vU; laosnd Hkh mijksDr fufonk esa Hkkx ys ldsA** mi;qZDr vkosnuksa@ifjoknksa ds laca/k esa fuEukafdr rF; m)`r djuk gS %& Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 15/23
(i) fnukad 20-12-2018 dks OPRMC Phase - II ds Bids gsrq Pre Bid meeting foHkkx }kjk vk;ksftr fd;k x;k Fkk fdUrq vkosndksa }kjk bl eqn~ns dks Pre Bid Meeting esa ugha mBk;k x;k A bl Bid Process ds vfUre pj.k esa mBkuk mfpr ugha gS D;ksafd blls iwjk Bid Process Disrrupt gks tk;sxk A
(ii) ;g iSdst iVuk ftyk ds iFkksa ls lacaf/kr gS vkSj blesa Mastic asphalt izpwj ek=k esa fd;k tkuk gSA
(iii) Mastic asphalt ls DBM/BM/SDBC/BC fcYdqy gh vyx izd`fr dk dk;Z gSA ftlesa vyx fdLe ds Bitumen/Machines ,oa technology dk mi;ksx fd;k tkrk gSA
(iv) bls manually fcNk;k tkrk gS ftlds fy, specially trained ,oa experience okys technician dh vko";drk gksrh gSA
(v) bldk specification Hkh vU; Bituminous dk;ksZa ls fHkUu gksrk gSA
(vi) Shristi Developers Pvt. Ltd. us vfHk;ark izeq[k&lg&vij vk;qDr&lg&fo"ks'k lfpo ds ftl i= dk ftØ fd;k gS mlh i= ds dafMdk & (v) esa of.kZr gS fd ;fn dksbZ fof"k'V izd`fr dk dk;Z gks rks v/kh{k.k vfHk;ark lE;d fopkjksijkUr SBD ds dafMdk 4.5A(c) ,oa Appendix to ITB '5' esa mYys[k dj ldrs gSA dafMdk 4.5A(c) oa Appendix to ITB esa enksa ,oa ek+=k dk mYys[k djus esa ;g lko/kkuh j[kh tk; fd oSls en ,oa ek=k dk mYys[k gks tks ifjek.k foi= esa lfEefyr gks A
(vii) blh vkyksd esa lacaf/kr dk;Zikyd vfHk;ark@v/kh{k.k vfHk;ark }kjk bl chM esa Mastic Asphalt ds vuqHko dks vyx ls vafdr fd;k x;k gSA
(viii) DBM/BM/SDBC/BC dk unit M3 gksrk gS tcfd Mastic Asphalt dk unit M2 gksrk gS A
(ix) iFk fuekZ.k foHkkx ,oa fcgkj LVsV jksM MsoyiesaV dkWjiksjs"ku fyfeVsM ds iwoZ ds vusd fufonkvksa esa Mastic Asphalt ds vuqHko dks "ks'k Bituminous ds dk;Z ls vyx Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 16/23 j[kk x;k gSA mi;qZDr rF;ksa ds vkyksd esa lfefr dk eUrO; gS fd lacaf/kr dk;Zikyd vfHk;ark@v/kh{k.k }kjk Mastic Asphalt ds vuqHko dks bl fufonk esa "ks'k Bituminous dk;Z ds vuqHko ls vyx j[kuk loZFkk mfpr gSA vr% lfefr mi;qZDr nksuksa vkosndksa dh ifjoknksa dks vekU; djrs gq, nksuksa fufonkdkjksa Amhara Construction Pvt. Ltd. ,oa Brajendra Kumar Singh dks rduhdh chM esa lQy djus dh vuq"kalk djrh gSA**
21. It is the submission of Mr. Shahi, learned Senior Advocate that the decision taken by the Tender Evaluation Committee on 25.01.2019 was not challenged by the petitioner either before opening of the financial bid or at this stage in the writ application. It is his submission that if the petitioner has chosen not to challenge the decision of the Tender Evaluation Committee, on the face of the reasons disclosed by the said Committee for rejecting the representation of the petitioner, this court sitting in its writ jurisdiction may not go into such aspects of the matter which are not under challenge.
22. It is submitted that for the purpose of any relief by interfering with the tender process which has already reached to a final stage and thereby staying the further action of the respondents to proceed with the award of work and issuance of work order the petitioner is not able to make out a case showing that the said tender condition was introduced with a mala fide Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 17/23 intention towards the petitioner. Submission is that save and except a bald plea at this belated stage no other document has been brought on record to show the mala fide on the part of the respondents.
23. On the contrary, learned senior counsel submits that it will appear from the reasons assigned by the Tender Evaluation Committee that considering the special nature of work, consciously this clause has been introduced in the tender conditions whereunder the employer is looking for a qualification criteria inter alia showing that in seven years period of the maintenance work, for any one year of the quantity of work the participants should have an experience of executing a work to the extent of 50% of that quantity of work. It is submitted that this condition, given the nature of the work cannot be said to have been introduced with any mala fide intention.
24. It is further submitted that the comparison sought to be drawn by the learned senior counsel for the petitioner between the work of the present package and that of those in Annexure-6 to the writ application is not based on a true and correct appreciation of the nature of the work. It is submitted that under Annexure-6 there is no work of Mastic Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 18/23 Asphalt. It is submitted that in such circumstance there was no need to introduce a separate eligibility criteria as has been done in the present case.
25. Mr. Shahi learned senior counsel has also relied on a decision of the Hon'ble Supreme Court in the case of Monte Carlo Limited Vs. National Thermal Power Corporation Limited reported in (2016) 15 SCC 272 to submit that while exercising the power of judicial review this court will keep in mind that the tender inviting authority is the best person to understand and appreciate it's requirement and interpret tender documents, so long as there are no mala fide/arbitrariness etc.
26. Learned counsel for the State has also drawn attention of this court towards the statement made in the counter affidavit. Paragraph-4 of the counter affidavit is being taken note of hereunder:
4. That the statement made in para No. 2(A) of the writ petition is false and baseless. The tender has been invited on national basis through e-tendering and there are a number of bidders who qualify this specific criterion. The complainant did not participate in the tenders as well as did not raise any query in the pre-bid meeting. So, he cannot claim the criterion was to eliminate him. The department is at liberty to specify certain criterion on the basis of requirement of the work."
Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 19/23
27. In it's counter affidavit, State has explained in paragraph-20 that there was bulk quality of Mastic Asphalt to be executed in the Gulzarbagh and New Capital Division. Further in sub-paragraph (v) of second paragraph of the Engineer-in- Chief's letter No. 6866(E) dated 15.10.2012, it is specifically provided that if the work is of the specific nature, the Superintending Engineer after due consideration may specify those quantity. It is submitted that the specific experience of Mastic asphalt had been asked in clause 2.4.2(B) which is in accordance with the guidelines issued by the Engineer-in-Chief.
28. It is further stated in paragraph '21' & '22' that after uploading the bid document on website two pre-bid meetings were organized on 24.11.2018 and 20.12.2018 to clarify issues to answer questions on any matter that may be raised at that stage but the complainant did not participate in any pre-bid meeting organized by the department. Further the complainant had not raised this issue when the technical bid of package No. 41A and 41B were finalized and the package No. 42A & 42B was opened. The complainant raised this issue only when the financial bid of package no. 41A & 41B was opened and for the first time the representation was given to the department on 21.01.2019 which was rejected by the Technical Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 20/23 Evaluation Committee on 25.1.2019.
29. It is further stated in paragraph 23 of the counter affidavit that a high level technical committee of the department has also justified the provision of Mastic as a separate item for qualification vide it's decision dated 07.02.2019, a copy of which has been brought on record as Annexure-'E' to counter affidavit.
30. Petitioner has filed a rejoinder to the counter affidavit filed on behalf of the respondent Nos. 2 to 5. In the counter affidavit there is no specific reply to paragraph '21' of the counter affidavit. A vague statement has been made that the same are incorrect and has already been replied in the abovementioned paragraphs.
31. Again while answering paragraph '22' of the counter affidavit, it is the contention of the petitioner that the Technical Evaluation Committee has given an incorrect reasoning and wrongly interpreted the notification No. 6866(E) dated 15.10.2012.
32. Although in CWJC No. 3649/2019, no separate counter affidavit has been filed on behalf of the State, it is not in dispute that the writ application involves identical issues and the pleas which have been taken in CWJC No. 3003/2019 are the Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 21/23 pleas of the parties in this writ application as well.
33. Having heard learned senior counsel for the parties and learned counsel representing the State and the learned senior counsel for the Intervenors-respondents No. 6 & 7, this court finds that the petitioner had raised an objection as contained in Annexure-5 to the writ application with regard to one of the tender conditions before the Principal Secretary, of the department. The said objection of the petitioner was taken up for consideration at the time of opening of the financial bid of Package No. 41A & 41B by the Tender Evaluation Committee. The Tender Evaluation Committee in it's meeting held on 25.02.2019 dealt with the objection of the petitioner and passed a reasoned order thereon which have been taken note of hereinabove.
34. Although it is the submission of Mr. Y.V. Giri, learned senior counsel at this stage that the said decision taken in the meeting of the technical evaluation committee was never made available to the petitioner, but his submission has been contested by learned counsel for the State by saying that the decision of the technical evaluation committee has been uploaded on the website of the department.
35. Learned senior counsel for the intervenors- Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 22/23 respondents has also submitted that petitioner had received the copy of the Interlocutory Application of the intervenors- respondents, thus at least on 08.02.2019 the petitioner came to know about the decision of the Tender Evaluation Committee, still he has not challenged it by filing any amendment to the writ application.
36. These submissions of learned counsel for the State and the intervenors-respondents, in the opinion of this court have got much force. The submission of learned senior counsel for the petitioner that the decision of the Technical Evaluation Committee was not available to him is, therefore, rejected.
37. The plea of mala fide raised on behalf of the petitioner is also not appealing to this court for the reason that the respondent State has come out with a counter affidavit stating the reasons as to why the said clause has been introduced considering the nature of the work. This court is satisfied that the State has a reason to put a specific condition in the tender as regard the eligibility in terms of clause 2.4.2 of the MBD. The scope of judicial review in these nature of cases are limited. The ratio of thejudgment of Hon'ble Supreme Court in the case of Monte Carlo Limited (Supra) would fully apply.
Patna High Court CWJC No.3003 of 2019 dt.15-03-2019 23/23
38. A perusal of the entire pleadings available on the record would lead to a conclusion that the plea of mala fide raised by the petitioner in the matter of introducing a condition in the tender has not been substantiated in course of argument. No ground for issuance of a writ of certiorari to quash the advertisement and the relevant Clause 2.4.2 could be made out on behalf of the petitioner.
39. These writ applications are, thus, devoid of merit and both are dismissed accordingly. It is open for the Department to proceed with the tender in question in accordance with law.
(Rajeev Ranjan Prasad, J) Rajeev/-
AFR/NAFR CAV DATE Uploading Date 20.03.2019 Transmission Date