Gujarat High Court
Pooja Green House Industries Pvt. Ltd vs State Of Gujarat & on 24 July, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/14888/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14888 of 2016
With
SPECIAL CIVIL APPLICATION NO. 903 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA sd/
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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POOJA GREEN HOUSE INDUSTRIES PVT. LTD.....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR SK PATEL, ADVOCATE for the Petitioner(s) No. 1
MR. HARDIK VORA ASST. GOVERNMENT PLEADER for the Respondent(s) No.
1 2
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 24/07/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. As common question of law and facts arise in both these petitions, they are decided and disposed of by this common judgment and order.
2.0. In both these petitions under Article 226 of the Constitution of Page 1 of 11 HC-NIC Page 1 of 11 Created On Sun Aug 13 06:55:44 IST 2017 C/SCA/14888/2016 JUDGMENT India, the respective petitioners have prayed for an appropriate writ, direction and order to quash and set aside the impugned communication / decision dated 02.08.2016 and 08.10.2016 respectively whereby the respondent no.2 has rejected the Expression Of Interest (EOI) of the petitioners and consequently respective petitioners are declared technically disqualified.
3.0. That the applications were invited by the Director of Horticulture, State of Gujarat for the Empanelment of Vendors of the Green House/ Net House/ Poly House / Poly Tunnel. That as per the schedule, issued a EOI from 02.06.2016 to 24.06.2016. That EOI issue date was 24.06.2016. The date for technical proposal opening was 28.06.2016. The Prebid meeting was scheduled on 14.06.2016. That as per the clause 6 of the Tender Notice/ Tender Document minimum eligibility criteria as per clause 6, are as under:
"6.0. Minimum Eligibility Criteria:
The following are the minimum eligibility criteria for empanelment of agency:
i. Minimum 03 (three) years of experience in the field of Green House/ Polyhouse/Net house/Poly Tunnel in supply, installation and maintenance. The agency has to submit a CA certificate to establish experience of minimum three years and format given at Annexure 11.04.2017.
ii. The agency should have Minimum Average Turnover of Rs.1.00 crore in the last 3 years (i.e. 201314, 2014 15 and 201516) from construction activity of greenhouse/nethouse/ poly house/ poly tunnel only. Nil Turnover in any of the above mentioned year will lead to disqualification.
iii. The agency should have constructed at least 30 numbers of Green house/ Net house/ Poly House/ Poly Tunnel in last three years as on date 31st March 2016. iv. The agency should have its own manufacturing / assembling facility within the State of Gujarat or the agency should give an undertaking that they will establish such facility in the State within six months after being impanelled."
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3.1. That as per Annexure 2, tender document / notice / check list for fulfillment of eligibility criteria, bidder / applicant was required to submit the following documents.
"4(A). The empanelled agency shall submit a Performance Security of Rs.2,50,000/ (Rupees Two Lac Fifty Thousand Only) in the form of Bank Guarantee for each zone separately on successful selection for impanelment. The performance security shall be appropriated against breach of the terms and condition of this EOI document. The bank guarantee shall be for a period of one year. The Bank Guarantee format is given in the Annexure7.
(B). The empanelled agency shall submit a bank guarantee amounting 10% of work value for each project to the Authority on approval to execute the project. The Authority is taken this bank guarantee on behalf of farmer to safeguard interest of farmers. The bank guarantee to the tune of 5% of the work value will be relieved after three months from project completion date and remaining 5% of the bank guarantee would be relieved by the Authority after 3 (three) years from the project completion dated (i.e. end of warranty period).
The project completion of inspection by the Authority or its nominated representative subject to satisfactory completion of the work."
3.2. That the respective petitioners did not submit format for number of Green House/ Poly House/ Net house/ Poly Tunnel work completed in last three years for subsidized cases as per Annexure 4(A). Therefore, respective petitioners were called upon to submit the same by 15.07.2016 to enable them to process their applications further. However, still the respective petitioners did not provide work completion details for last three years duly signed and stamped by the concerned department /CA Certificate and also did not provide the copies of the work order to establish construction of minimum 30 numbers of structure. Therefore, both the petitioners were declared technically disqualified. Hence, the respective petitioners have preferred present petitions for the aforesaid reliefs under Article 226 of the Page 3 of 11 HC-NIC Page 3 of 11 Created On Sun Aug 13 06:55:44 IST 2017 C/SCA/14888/2016 JUDGMENT Constitution of India.
4.0. Shri S.K. Patel, learned advocate appearing on behalf of the respective petitioners have vehemently submitted that as such as per the terms and conditions general instructions / tender documents and eligibility criteria there are only two main and essential conditions viz. 3 years experience and completion of 30 works of Green House in the last three years. It is submitted that both the petitioners produced necessary documents in support of the above and therefore, complied with essential condition including by submitting document Annexure 4(A). It is submitted that to submit the particulars in form 4(A) and the said certificate in form 4(A) to be signed by the concerned Nodal Agency for whom the petitioners have worked and completed the work of Green House etc. cannot be said to be such an essential condition for which, on non fulfillment of the same, the concerned bidder can be declared technically disqualified.
4.1. Shri Patel, learned advocate for the respective petitioners has vehemently submitted that in case of other applicants / bidders, some essential conditions are waived. It is submitted that in the case of the petitioners, the respondents have insisted for strict compliance of the terms and conditions of the tender document / notice. It is submitted that therefore, the action of the respondent is discriminatory and violative of Article 14 of the Constitution of India.
Making above submissions and relying upon the following decisions of the Hon'ble Supreme Court, it is requested to admit / allow the present petitions.
(1). B.S.N Joshi & Sons Ltd vs. Nair Coal Services Ltd and Ors reported in (2006) 11 SCC 548 (2). Tejas Constructions And Infrastructure Private Limited vs. Page 4 of 11 HC-NIC Page 4 of 11 Created On Sun Aug 13 06:55:44 IST 2017 C/SCA/14888/2016 JUDGMENT Municipal Council, Sendhwa and Another reported in (2012) 6 SCC 464 (3). Central Coalfields Limited and Another vs. SLLSML (Joint Venture Consortium) and Ors reported in (2016) 8 SCC 622
5.0. Both these petitions are vehemently opposed by Shri Hardik Vora, learned AGP for the State. It is submitted that as the respective petitioners did not comply with essential conditions of submitting form 4(A) in the prescribed format and signed by the respective Nodal Agencies with whom the respective petitioners might have worked and after giving an opportunity to them to submit required particulars in form 4(A) signed by the Nodal Agency and thereafter when the respective petitioners did not comply with the same, the present petitioners are rightly held technically disqualified.
5.1. Now, so far as the allegation that with respect to some other companies the essential conditions are waived, the same is denied. It is submitted that the name of those companies are not declared except one i.e. Indian Greenhouse Private Limited. It is submitted that even those companies are not joined as party respondent against whom the allegations are made. It is submitted that as such the petitioners have to satisfy whether they have complied with essential condition or not.
Making above submissions and relying upon the decision of the Division Bench of this Court in the case of Centre For Development Communication Trust vs. Surat Municipal Corporation rendered in Special Civil Application No.2596 of 2017, it is requested to dismiss the present petitions.
6.0. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that bids submitted by the Page 5 of 11 HC-NIC Page 5 of 11 Created On Sun Aug 13 06:55:44 IST 2017 C/SCA/14888/2016 JUDGMENT respective petitioners are declared technically disqualified on the ground that have not complied with essential conditions of submitting form 4(A) in prescribed format and signed by the concerned agency with whom the respective petitioners might have worked. The eligibility criteria for considering the case is reproduced herein above. The minimum eligibility criteria for empanelment of agency shall minimum of 3 years of experience in the field of Green house / Polyhouse / Net house/ Poly Tunnel in supply, installation and maintenance, for which, the agency was required to submit a CA Certificate to establish experience of minimum three years and format given at Annexure 11. One another eligibility criteria for empanelment of agency was that the agency would have constructed at least 30 numbers of Green house/ Net house/ Poly Tunnel in last three years as on dated 31.03.2016. The aforesaid documents were required to be submitted in form 4(A) for number of Green House/ Poly House/ Net house/ Poly Tunnel work completed in last three years for subsidized cases as per Annexure 4(A)/ certificate is to be counter signed by the concerned State Nodal Agency for whom / with whom the applicant had completed Green House / Net House for last three years. Annexure 4(A) is as under:
ANNEXURE 4(A) FORMATE FOR NO. OF GREENHOUSE/NET HOUSE/ POLY HOUSE/ POLY TUNNEL WORK COMPLETED IN LAST THREE YEARS FOR SUBSIDISED CASES.
TO WHOMSO EVER IT MAY CONCERN This is to certify that M/s. _____________________ has executed greenhouse/nethouse/polyhouse/ poly tunnel projects in the State of ___________ as follows:
Project Executed Year Green Green Net Net Poly Poly Poly Poly house house House House House House Tunnel Tunnel (1) (2) (1) (2) (1) (2) (1) (2) 2013 14 Page 6 of 11 HC-NIC Page 6 of 11 Created On Sun Aug 13 06:55:44 IST 2017 C/SCA/14888/2016 JUDGMENT 2014 15 2015 16 Note:
(1)Name of Beneficiary for whom the Project is executed in State.
(2)Area of Project.
Agency has to submit separately for each State where work is executed.
(Name of Authority of State Nodal Agency) 6.1. It is the case on behalf of the respective petitioners that the aforesaid cannot be said to be essential conditions and submitting work order etc. and / or certificate in form 4(A) (without counter signing by the concerned Nodal Agency) is sufficient. The aforesaid cannot be accepted. The certificate as per Annexure 4(A) to the effect that executor has executed the greenhouse/nethouse/ polyhouse / poly tunnel in the concerned State in last three years must be counter signed by the State Nodal Agency to have authenticity of such certificate and mere production of work order is not sufficient. It is an admitted position that the respective petitioners did not submit Annexure 4A as per format viz. with counter signed of the concerned State Nodal Agency. Under the circumstances, the essential conditions have not been fulfilled and / or complied with, the respective petitioners though even subsequently the opportunity was given to the respective petitioners to submit the same. Under the circumstances, impugned decision of considering the bid submitted by the petitioners practically disqualifying, cannot be said to be in any way illegal and / or bad in law, which requires interference of this Court in exercise of powers under Article 226 of the Constitution of India.
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7.0. At this stage, decision of the Honble Supreme Court in the case of Bakshi Security & Personnel Services Private Limited reported in (2016) 8 SCC 446 is required to be referred to. In the said decision, the Honble Supreme Court has observed that the essential conditions of the tender are required to be strictly complied with. It is also further observed that essential conditions cannot be relaxed and/or deviated from, and therefore, rejection of bid for non compliance with essential conditions is valid.
7.1 In the aforesaid decision, while upholding that the essential conditions of tender are required to be strictly complied with, the Honble Supreme Court in the said decision has considered its earlier decisions in the case of Poddar Steel Corporation v. Ganesh Engg. Works, [1991] 3 SCC 273 and in case of BSN Joshi & Sons Limited v. Nair Coal Services Limited, [2006] 11 SCC 548.
7.2 In the case of Jagdish Mandal v. State of Orissa, reported in [2007] 14 SCC 517, the Honble Supreme Court has observed and held as under :
21. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made lawfully and not to check whether choice or decision is sound. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind.
A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always Page 8 of 11 HC-NIC Page 8 of 11 Created On Sun Aug 13 06:55:44 IST 2017 C/SCA/14888/2016 JUDGMENT seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succor to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions :
i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone.
OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say : the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.
ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article
226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of state largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.
7.3. Therefore, applying law laid down by the Hon'ble Supreme Court in the aforesaid decisions, to the facts of the case on hand, it cannot be said that the action of the respondent in considering the bid submitted by the respective petitioners as technically disqualified is arbitrary, irrational and unreasonable. The respective petitioners have not complied with / fulfilled the essential conditions of the tender, referred herein above.
8.0. Now, so far as the case on behalf of the petitioners that with respect to some bidder / companies essential conditions have been waived is concerned, at the outset, it is required to be noted that as such Page 9 of 11 HC-NIC Page 9 of 11 Created On Sun Aug 13 06:55:44 IST 2017 C/SCA/14888/2016 JUDGMENT except name of Indian Greenhouse Private Limited, the petitioners have not given the names of those companies mostly in whose case, according to petitioners, essential conditions are waived. So far as Indian Greenhouse Private Limited is concerned, its bid is technically disqualified which is subject matter of Special Civil Application No.903 of 2017. At this stage, it is required to be noted that even those companies are also not joined as party respondent. The allegations are specifically denied by the respondent by filing affidavit in reply.
8.1. Even otherwise, the petitioners have to satisfy whether they have complied with / fulfilled the essential conditions or not. As observed by the Division Bench of this Court in the case of Centre for Development Communication Trust (supra) while considering some what similar submission in para 12.1 and 13, the Division Bench has observed and held as under:
"12.1 That, it is not disputed that the petitioner had not submitted a copy of agreement, work order alongwith work completion certificate and to that extent, there is non compliance of the tender notice. It is the case on behalf of the petitioner that in the additional affidavit and affidavit inrejoinder, as in case of other three bidders viz., [i] M/s. Jigar Transport Company; [ii] M/s. Western Transport Company and [iii] M/s. Om Swachatha Corporation, the Tender Evaluation Committee of SMC had accepted the technical bids submitted by them though they had not fulfilled all the conditions, and therefore, similar treatment may be given to the petitioner. As observed hereinabove, as such in the present petitioner, this Court is not required to consider the legality and validity of the action of the respondentCorporation in treating the bids submitted by the aforesaid three bidders as technically qualified or not. As observed hereinabove, none of them have been joined as party respondents. Even otherwise, there cannot be any negative discrimination. No body can be permitted to claim that as in case of other persons some benefit is given, may be wrongly, the similar treatment should be given to it/him. The petitioner has to stand on its own merit. What is required to be considered is whether the petitioner has Page 10 of 11 HC-NIC Page 10 of 11 Created On Sun Aug 13 06:55:44 IST 2017 C/SCA/14888/2016 JUDGMENT complied with the essential conditions and thereby the petitioners bid is technically qualified or not. As observed hereinabove, the petitioner has not strictly complied with the essential conditions of the tender, referred to hereinabove. Under the circumstances, the decision taken in rejecting the technical bid of the petitioner and/or treating the bid submitted by the petitioner as technically qualified cannot be held to be illegal or arbitrary and or unreasonable. However, at the same time, it is made clear that as specifically observed that in the present petition and by this judgment, this Court has not expressed anything on merits whether the action of the respondent Corporation in considering the bids submitted by the aforesaid three bidders is technically qualified is legal or not.
13. As observed hereinabove, in absence of any such prayer and/or even in absence of the aforesaid three bidders as party respondents, it will not be proper for this Court to consider the legality and validity of the action of the Corporation in treating their bids as technically qualified."
9.0. Under the circumstances, when it has been found that the respective petitioners have not complied with the essential condition of the tender notice / form, decisions relied upon by the learned advocate for the respective petitioners shall not be applicable to the facts of the case on hand.
10. In view of the above and for the reasons stated above, both these petitions fail and same deserve to be dismissed and are accordingly dismissed. Notice discharged.
sd/ (M.R. SHAH, J.) sd/ (B.N. KARIA, J.) Kaushik Page 11 of 11 HC-NIC Page 11 of 11 Created On Sun Aug 13 06:55:44 IST 2017