Madhya Pradesh High Court
Prince Security Services vs The State Of Madhya Pradesh on 14 March, 2018
THE HIGH COURT OF MADHYA PRADESH
W.P.No.11597/2016
Jabalpur, Dated: 14.03.2018
Shri Pradeep Kumar Dwivedi, Advocate for the
petitioner.
Shri Anoop Nair, Advocate for the respondent.
The challenge in the present petition is to the rejection of the tender submitted by the petitioner on 29.06.2016 for the reason " Firm has submitted the work order copy of M/s Essel Vidyut Vitaran, Ujjain Pvt Ltd. which is not as per NIT. Above offer is rejected".
2. The respondents have invited tenders from Reputed contractors to provide Security services for Satpura Thermal Power Station: Madhya Pradesh Power Generating Company Ltd. One of the essential condition of the Notice Inviting Tender is as under:
(ii) Credentials/Pre Qualifying Requirements:
(a) The tender documents will only be sold to those firms who have executed the similar work in (I) Thermal Power Plant of State Electricity Board/Corporation (ii) NTPC (iii) Thermal Power Station owned by Private Companies (iv) Other Government/ Semi-Government Organization.
Xerox Copy of past orders as documentary evidence in support of above is required to be submitted. The value of this order executed by the firm, should be minimum worth Rs. 50 Lacs in single order during last five Financial years.
3. The petitioner submitted his offer along with experience certificate from M/s McNally Bharat Engineering Company Limited who has certified that the petitioner has provided security services at Madhya Pradesh Power Generating Company Ltd./ Satpura project site since 11.02.2011.
4. The stand of the respondent in the return is that the certificate issued by M/s Bharat McNally Engineering Company Ltd. cannot be taken into consideration as it is a sub- contractor and not the experience from the Thermal Power Station as prescribed in clause 4 (ii)(a)(I). The relevant paras of reply reads as under:
Para- 5.5.Contents of this para are specifically denied. That the certificate issued by M/s Bharat MecNally Engineering Company Ltd. cannot be taken into consideration as it is a sub-contractor and it is not Thermal Power Station as prescribed in clause 4 (ii)(a)(I). Furthermore the work order of M/s Essel Vidyut Vitaran Company (Ujjain) Pvt. Ltd., also does not call within the category as prescribed in clause 4(ii)(a)(i) and Annexure- P/4 is concerned the said document is neither signed nor does it bear the seal of M/s. MBE. Therefore, the petitioner did not meet the criteria as prescribed in the tender document.
Para- 6.2 & 6.3. With regard to this para it is submitted that neither M/s Bharat McNelly or M/s. Essel Pvt. Ltd., is an entity as defined under clause 4 (ii)(a)(i) of the tender conditions and also the documents have not been signed by any authority nor does it bear the seal. Therefore, the documents submitted by the petitioner were rightly rejected and his bid was also rightly rejected.
5. We have heard learned counsel for the parties and find that this Court in exercise of power of judicial review cannot sit as Court of appeal to consider the grounds of rejection of the tender. The experience certificate submitted by the petitioner has not been found to satisfy the tender conditions and the eligibility criteria fixed by the Respondents. Similar matter has been examined by the Hon'ble Supreme Court in a recent judgment reported as Sam Built Well Private Limited Vs. Deepak Builders and Others (2018) 2 SCC 176 wherein, it has been held as under:
12. We have already noticed that three expert committees have scruitinised Respondent 1's tender and found Respondent 1 to be ineligible.
The impugned judgment of the Division Bench of the High Court expressly states that no mala fides are involved in the present case. Equally, while setting aside the judgment of the learned Single Judge, the Division Bench does not state that the three expert committees have arrived at a perverse conclusion. To merely set aside the judgment of the learned Single Judge and then jump to the conclusion that Respondent 1's tender was clearly eligible, would be directly contrary to the judgments aforestated. Not having found mala fides or perversity in the technical expert reports, the principle of judicial restraint kicks in, and any appreciation by the Court itself of technical evaluation, best left to technical experts, would be outside its ken. As a result, we find that the learned Single Judge was correct in his reliance on the three expert committee reports. The Division Bench, in setting aside the aforesaid judgment, has clearly gone outside the bounds of judicial review. We, therefore, set aside the judgment of the Division Bench and restore that of the learned Single Judge.
6. Similar argument was examined by Division Bench of this Court in W.P.No.4472/2018 decided on 28.02.2018 [M/s. Anil Gambhir (Engineer's & Govt. Contractor) Vs. Union of India & others] wherein, this Court referring to Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. (2016) 16 SCC 818 and Montercarlo Ltd. vs. N.T.P.C Ltd. (2016) 15 SCC 272, held as under:
11. In view the aforesaid judgment, we find that the decision of the respondents to hold that petitioner is not meeting with the eligibility criteria cannot be said to be warranting any interference in exercise of this Court in judicial review. Mere fact that the petitioner alleges mala fides against respondent Nos. 4 and 5 does not merit any consideration as M/s. N.K. Garg and sons, the Contractor who is sought to be benefited, has not been impleaded as a party respondent. It may be just that M/s. N.K. Garg and sons may not be the bidder as well there is no assertion to that effect. The petitioner has also not disclosed that who were the other bidders, whose bid also stands rejected. We find that the allegations of mala fides are leveled without any substance and without any prima-facie proof of such mala fides.
7. In view of aforesaid judgments, we find that the decision of the respondents that petitioner does not satisfy the eligibility criteria, does not warrant any interference in exercise of writ jurisdiction of this Court.
8. Accordingly, the same stands dismissed.
(Hemant Gupta) (V.K.Shukla) CHIEF JUSTICE JUDGE anu Digitally signed by ANUPRIYA SHARMA Date: 2018.03.19 15:38:57 +05'30'