Gujarat High Court
Ivrcl Limited vs State Of Gujarat & 3 on 20 March, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/SCA/3291/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3291 of 2014
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IVRCL LIMITED....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR. S.N. SOPARKAR, SR. ADVOCATE WITH MR. BHARGAV KARIA ,
ADVOCATE for the Petitioner(s) No. 1
MR. KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS. SANGEETA
VISHEN , AGP, for the Respondent(s) No. 1 & 2
MR. NAVIN PAHWA FOR MRS SANGEETA N PAHWA, ADVOCATE for
Respondent(s) No. 3
MR. MIHIR JOSHI, SR. ADVOCATE WITH MR. SANDEEP SINGHI FOR
SINGHI & CO, ADVOCATE for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 20/03/2014
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE KS JHAVERI) By way of this petition, the petitioner has prayed for the following reliefs:
"(A) That Your Lordships may be pleased to issue writ of mandamus and/or any other appropriate writ, order or direction to the respondents to quash and set aside the award of work in connection with SAUNI Yojana, Link 3, Package 3, Intermediate PS at Ch.
41.8 km to Ch. 66.295 km near Machhu I Reservoir Page 1 of 20 C/SCA/3291/2014 ORDER and Link 4, Package 1, Engineering, Procurement and Construction (EPC) Contract for Construction of Pumping Station at Limdi Bhogavo II Reservoir and Supply and laying of twin MS Pipeline and further be pleased to direct the respondents to award the aforesaid work to the petitioner in the interest of justice.
(B) Pending admission and till final disposal of this petition, stay as to further action and implementation of the award of the work in relation to SAUNI Yojana, Link 3, Package 3, Intermediate PS at Ch. 41.8 km to Ch. 66.295 km near Machhu I Reservoir and Link 4, Package 1, Engineering, Procurement and Construction (EPC) Contract for Construction of Pumping Station at Limdi Bhogavo II Reservoir and Supply and laying for twin MS Pipeline may kindly be granted in the interest of justice.
(BB) Pending admission and till final disposal of this petition Your Lordships may be pleased to grant stay as to further action and implementation of the works contract awarded to the respondent Nos. 3 & 4 in connection with SAUNI Yojana, Link 3, Package 3, Intermediate PS at Ch. 41.8 km to Ch. 66.295 km near Machhu I Reservoir and Link 4, Package 1, Engineering, Procurement and Construction (EPC) Contract for Construction of Pumping Station at Limdi Bhogavo II Reservoir and Supply and laying of twin MS Pipeline."
2. Learned Senior Advocate Mr. S.N. Soparkar appearing with learned advocate Mr. Bhargav Karia for the petitioner has contended that the tender conditions which Page 2 of 20 C/SCA/3291/2014 ORDER were originally placed in the original tenders were modified in view of the litigation which was preferred before the Court being writ petition Nos. 18052 of 2013 and 18240 of 2013 and the order delivered on 8.1.2014. In the aforesaid petitions, the State Government has filed affidavit in reply and in the further affidavit in reply at paragraph No. 2, the State Government has stated as under:
"2. I respectfully say that as I have already averred in my earlier affidavit that the prime objective behind the project is to provide water for drinking and irrigation to the people of Saurashtra at the earliest by executing and implementing the project without any obstacle in a phased manner. Thus, the State Government would like to see that the prospecting bidders who participate in the bidding process are financially sound and are not sick companies and/or are subject to any proceedings viz. Corporate Debt Restructuring (CDR for short) winding up etc. I respectfully say that I clarify that the Companies viz. (i) which have applied for corporate debt restructuring; (ii) facing recovery proceedings from financial institutions; (iii) facing winding up proceedings;
(iv) which are under BIFR in the last two financial year (2011-12 and 2012-13) shall not be considered for bid qualification. In this behalf, I crave leave to issue necessary corrigendum and/or addendum to the Tender Document, Volume-I-Pre-qualification Bid of the 12 Tender Notices at the earliest."
3. In that view of the matter, addendum for Link 4 Package 1 was issued which is at page 96 of the petition and the condition in the original tender was changed. Two columns in the addendum, one `earlier printed as' and another Page 3 of 20 C/SCA/3291/2014 ORDER `revision/read as' are reproduced hereunder:
Earlier printed as Revision/Read as
The Bidder which have applied for The bidder who have applied for
corporate debt restructuring (CDR) Corporate debt restructuring
in the last 2 financial years (2011- (CDR)/facing recovery proceedings
12 and 2012-13) shall not be from financial institutions/facing
considered for bid qualification. winding up proceedings/those
For this, Certificate of Chartered under BIFR in the last 2 financial
Accountant appointed by the years (2011-12 and 2012-13) shall
bidder must be produced. In case not be considered for bid
of Joint venture agreement, this qualification. An affidavit by bidder
note on CDR shall be applicable for along with Certificate of Chartered
Lead bidder and JV partner. Accountant appointed by the
bidder must be produced, in such
cases. In case of Joint Venture
agreement, this shall be applicable
for Lead bidder and JV partner.
Bidders furnish scanned copies duly Bidders to furnish scanned copies
notarized such as Experience duly notarized such as Experience
certificates, Turnover certificates, List certificates, Turnover certificates, List of works already completed by the of works already completed by the Tenderer (Annexure IV), Declaration Tenderer (Annexure IV), Declaration regarding works on hand (Annexure regarding works on hand (Annexure V) and Certificate of Chartered V) and An affidavit by bidder along Accountant for Corporate Debt with Certificate of Chartered Restructuring. Accountant for Corporate Debt Restructuring appointed by the bidder New addition:
Note: Over and above, the vendor list furnished in this tender, the prevailing vendor list of GWSSB shall also be applicable.
TMT Fe 500 Bars: Rs. 40,183/- per TMT Fe 500 Bars: Rs. 44,000/- per M.T. M.T.
4. Learned counsel for the petitioner has contended that the petitioner was found to be eligible being the lowest bidder in spite of that he was not called for negotiations. In view of the fact that last date of the tender was 20.1.2014, the petitioner submitted his proposal on 20.1.2014. Technical bid Page 4 of 20 C/SCA/3291/2014 ORDER was opened on 29.1.2014. Thereafter, vide letter dated 5.2.2014 at page No. 123 of the petition, the petitioner was asked to provide details of date of application for CDR which was replied by the petitioner on the same day. He, therefore, contended that in view of the clause 13 of tender document, Vol. I (Ann. A), the petitioner was eligible and was required to be considered but he was not considered though on 3.2.2014 the petitioner was found to be lowest bidder. Learned counsel for the petitioner has further contended that in view of the averment of the State Government in paragraph No. 14 of the affidavit in reply at page No. 154, which is reproduced hereinafter, the Government has never looked into the financial condition of the petitioner and issued letter of acceptance of tender of Larsen & Toubro Ltd -respondent No. 4 on 26.2.2014 which is at page No. 173 of the petition, which was not known to the petitioner. In spite of that, he has repeatedly asked about the position of the tender.
"14. I respectfully say that apparently, after the amendment, it has been made clear that any company who has applied for CDR, whether before the opening of the tender or thereafter at any stage including during the existence of the contract, will not be eligible for undertaking the execution of the tender work. It is pertinent to note that, apart from the eligibility of the bidder, to achieve the objective behind the project, necessary conditions have been incorporated in the tender documents, leaving it open for the Government to assess the eligibility and further for award of the contract to a bidder who is financially and technically resourceful so as to undertake the work in question. Further, discretion has been reserved with the Government to Page 5 of 20 C/SCA/3291/2014 ORDER reject any or all the bids without assigning any reasons."
5. Learned senior counsel Mr. Soparkar for the petitioner has also contended that in view of the decision of the Bombay High Court in the case of ADANI EXPORTS LTD. & ANR. VS. MAHARASHTRA STATE ELECTRICITY reported in 2003(5) Bom CR 743 the petitioner's case is required to be accepted and the respondents are directed to call the petitioner for negotiation in view of the fact that he was found to be eligible and he was a lowest bidder.
6. Learned Advocate General Mr. Kamal Trivedi appears for respondent Nos. 1 and 2, learned advocate Mr. Pahwa appears for respondent No. 3 and learned senior advocate Mr. Mihir Joshi with learned advocate with Mr. Sandeep Singhi appears for respondent No. 4. Learned Advocate General has contended that, looking to the conditions incorporated in the tender documents (addendum on page No. 96 of the petition) and more particularly, the affidavit in reply which has been filed by the State Government (at page No. 153 of the petition), condition of financial years 2011-12 and 2012-13 will go only with BIFR and all other conditions will continue. He has also pointed out conditions at page No. 84 of the petition clause 6.8 (e) and (g) which reads as under:
"(e) - Depending upon the actual bid capacity assessed and other qualifying requirements, the applicant will be qualified for the work. However, at the price bid evaluation stage, department has right to a careful check of the appropriate references with references to the updated information covering additional liability created by the bidder will be done and in no case, a contract will be awarded to a bidder lacking in the Page 6 of 20 C/SCA/3291/2014 ORDER financial and technical resources to undertake the work regardless of qualification.
(g) The evaluation as given by the bidder as modified tender opening authority with the ceiling limit will then be intimated to all the bidders. No further opportunity shall be given to the bidders to modify/withdraw conditions at that stage. After completion of evaluation of the technical bid in all respects the competent authority will decide about date of opening of price bid and the same will be intimated to the qualified bidders.
After opening of price bid and their evaluation the tender inviting authority reserves the right to negotiate about the tender(s) further with any or all the bidders." 6.1 He further relied on clauses 5.26 and 5.28 of the tender at page 71 of the petition which read as under:
"5.26 - Bid Acceptance -
Acceptance of bid will rest with the competent authority who does not bind himself to accept the lowest bid and reserves the right to reject any or all bids without assigning any reasons thereof. It must be clearly and distinctly understood that the conditions of contract and specifications shall be rigidly enforced and no relaxation on the ground of customs prevailing shall be allowed.
5.28 Award of Contract:
The Employer shall award the Contract to the Bidder whose offer has been determined to be the lowest evaluated bid and is substantially responsive to the Bidding Document, provided further that the Bidder is determined to be qualified to perform the Contract Page 7 of 20 C/SCA/3291/2014 ORDER satisfactorily.
Prior to the expiration of the period of bid validity, the Employer shall notify the successful Bidder in writing, that its Bid has been accepted.
Until a formal contract is prepared and executed, the notification of award shall constitute a binding contract. Promptly after notification, the Employer shall send the successful Bidder the Contract Agreement. Within ten (10) days of receipt of the notification for award of work, the successful Bidder shall sign, date and return it to the Employer.
Within ten (10 days of the receipt of notification of award from the Employer, the successful Bidder shall furnish the performance security in accordance with the conditions of contract, using for that purpose the Performance Security Form included (Contract Forms), or another form acceptable to the Employer. Failure of the successful Bidder to submit the above- mentioned Performance Security or to sign the Contract Agreement shall constitute sufficient grounds for the annulment of the award and forfeiture of the bid security or execution of the bid securing declaration and necessary steps in accordance with clause 79 of conditions of contract and as per prevailing rule shall be initiated."
6.2 He further contended that Government has right to reject any bid without assigning any reasons. Therefore, the decision taken by the State Government not qualifying the petitioner is just and proper.
6.3 He has relied on the decision of the Hon'ble Supreme Court in the case of JAGDISH MANDAL VS. STATE OF Page 8 of 20 C/SCA/3291/2014 ORDER ORISSA & ORS. reported in (2007) 14 SCC 517, particularly, paragraph Nos. 21.3, 21.4 and 22 of the judgement, which read as under:
"21.3 In RAUNAQ INTERNATIONAL LTD. VS. I.V.R. CONSTRUCTION LTD. (1999) 1 SCC 492, this Court dealt with the matter in some detail. This Court held: (SCC pp. 500-01, paras 9-11) `9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. These would be:
(1) the price at which the other side is willing to do the work;
(2) whether the goods or services offered are of the requisite specifications;
(3) whether the person tendering has the ability to deliver the goods or services as per specifications.
When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standar and quality;
(5) past experience of the tenderer, and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods Page 9 of 20 C/SCA/3291/2014 ORDER or services; and often (7) the ability of the tenderer to take follow up action, rectify defects or to give post-contract services.
Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even such a commercial transaction.
10. What are these elements of public interest? (1) Public money would be expended for the purposes of the contract. (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of the work undertaken or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work - thus involving larger outlays of public money and delaying the availability of services, facilities or goods, e.g. a delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the Page 10 of 20 C/SCA/3291/2014 ORDER general public and substantial cost escalation.
11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the Court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers.
21.4 - In AIR INDI LTD. VS. COCHIN INTERNATIONAL
AIRPORT LTD. ( (2000) 2 SCC 617) this Court
summarised the scope of interference as enunciated in several earlier decisions thus:
`7. .... The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are Page 11 of 20 C/SCA/3291/2014 ORDER commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision- making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene.' (emphasis supplied)
22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, Page 12 of 20 C/SCA/3291/2014 ORDER 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 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 succour 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 Page 13 of 20 C/SCA/3291/2014 ORDER 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." 6.4 In view of above decision, learned Advocate General has contended while consider judicial review, the Court should restrain itself from exercising power in favour of a person who has a huge debt and only with a view to get bid in his favour the petition is filed. Even otherwise, the financial condition of the petitioner is not sound. The fact of submitting CDR subsequently was not disclosed.
7. Learned advocate Mr. Pahwa for respondent No. 3 has relied on affidavit of respondent No. 3, particularly, paragraph Nos. 9 and 10 which read as under:
"9. I say and submit that as can be seen from the records, the present contract is meant for providing supply channel for distribution of water for irrigation purposes in the Saurashtra Region which faces severe water crisis every year. I say that the contract is thus required to be executed in time bound period. Any delay Page 14 of 20 C/SCA/3291/2014 ORDER in execution of work may cause serious prejudice not only to the parties but also to public at large. I say that a greater public interest is involved in execution of the present contract. I say and submit that considering the facts and circumstances, this Hon'ble Court may not be pleased to entertain the present petition in its extra ordinary jurisdiction.
10. Without prejudice to the above, I say and submit that the issues raised in the present petition as such are covered by the common oral order dated 8.1.2014 passed by this Hon'ble Court in Special Civil Application No. 18052 of 2013 with Special Civil Application No. 18240 of 2013. I say that this Hon'ble Court while issuing notice in the present petition by order dated 28.2.2014 was pleased to direct the learned counsel for the petitioner to tile a copy of the judgement dated 8.1.2014 passed by this Court rendered in Special Civil Application No. 18052 of 2013. I say that in due compliance with the said directions, the petitioner has filed a copy of the said judgement along with an affidavit dated 3.3.2014. A perusal of the said judgement would show that the Hon'ble Court was pleased to consider almost similar challenge whereby Companies which undertook CDR were excluded from consideration. I say that para 7 of the said judgement also makes reference to the clear stand taken on behalf of the respondent-State in their reply affidavit and further reply affidavit. I say that a reading of the entire judgement and more particularly upon reading the stand of the authorities as recorded in the said judgement, it becomes amply clear that this Hon'ble Court has already upheld a similar challenge by Page 15 of 20 C/SCA/3291/2014 ORDER upholding action of the authority in excluding companies with CDR. I say that the said judgement would apply in the facts of the present case as well. I say that in view of the earlier judgement, this Hon'ble Court may not be pleased to entertain the present petition as well. The present petition may also be summarily rejected by this Hon'ble Court. "
7.1 Learned advocate Mr. Pahwa has submitted that contract was already issued after completion of all formalities. Respondent No. 3 has also started executing the work after submitting all other securities and other amounts. He submitted that the petitioner has admitted in its communication dated 12.2.2014 that the total debt from Banks and Financial Assistance for the group has reached almost Rs. 6500 crore and it is not fetching any returns on the investment of about Rs. 2400 crore as on date. The finance cost is rising year after year due to which profits of the petitioner declined. Therefore, keeping in mind the financial condition of the petitioner, the contract which has already been executed may not be disturbed.
8. Learned senior counsel Mr. Joshi with learned advocate Mr. Singhi for respondent No. 4 has contended that the prayers which are claimed by the petitioner for granting him contract may not be granted inasmuch as assuming against the respondent and that the petitioner is eligible for the bid because of his lowest bid but he cannot claim, as a matter of right, to get the contract. He pointed out that in view of the general conditions which are imposed in the tender particularly clause 2.10(g) at page 48 which is reproduced hereinafter, the Government has right to reject any tender without assigning any reason.
Page 16 of 20 C/SCA/3291/2014 ORDER"2.10(g) - Government reserves the right to accept the lowest responsive offer based on evaluation of tender and reject any or all tenders without assigning any reason."
8.1 Learned counsel for respondent No. 4 has pointed out that in view of term 5.13 competency of bidder (at page 65 of the petition) which is reproduced hereunder, it is for the Government to decide which tender is required to be accepted.
"5.13 - Competency of bidder -
Contract will be awarded to pre-qualified, lowest evaluated responsive bidder capable of performing the class of the work to be completed. Before the award of the contract, any bidder may be required to show that he has the necessary facilities, experience, ability and financial resources to perform the work in a satisfactory manner within the time stipulated. Contractor shall be required to furnish the qualification information prescribed in pre-qualification documents and any additional details if asked by the department."
He has also reiterated the contentions which are argued by the learned counsel for the State more particularly clause (iii) at page 70 of the petition that "Department reserves the right to accept or reject any of the application for qualification without assigning any reason thereof" and clause 5.26 bid acceptance as well as clause 5.28 award of contract at page 71 of the petition. He has contended that the procedure is followed by the State and in view of clause 6.8 evaluation of pre- qualification and technical bids, particularly sub-clause (e) and
(g) (at pages 83 & 84 of the petition) as argued by learned counsel for the State, the State Government has rightly rejected the bid of the petitioner. He has also relied on the Page 17 of 20 C/SCA/3291/2014 ORDER decision of the Hon'ble Supreme Court in the case of B.S.N. JOSHI & SONS LTD. VS. NAIR COAL SERVICES LTD. & OTHERS reported in (2006) 11 SCC 548 more particularly, paragraph No. 68 which reads as under:
"68. - The employer concededly is not bound to accept a bid only because it is the lowest. It must take into consideration not only the viability but also the fact that the contractor would be able to discharge its contractual obligations. It must not forget the ground realities. MAHAGENCO considered all aspects of the matter while accepting the appellant's offer. In its counter-affidavit, it categorically stated that the appellant would be able to perform the contractual undertaking even at such a low rate."
8.2 Learned counsel for the respondent No. 4 therefore submitted that the prayers of the petitioner may not be granted.
9. We have heard learned senior advocate Mr. S.N. Soparkar with learned advocate Mr. Karia for the petitioner, learned Advocate General Mr. Kamal Trivedi with learned AGP Ms. Sangeeta Vishen for respondent Nos. 1 and 2, learned senior advocate Mr. Mihir Joshi with learned advocate Mr. Singhi for respondent No. 4 and learned advocate Mr. Pahwa for respondent No. 3.
9.1 Before proceeding with the matter, the first contention of learned counsel for the petitioner that in view of conditions at page 96 of the petition, the bid was opened and subsequently, the petitioner was not called for negotiation. In that view of the matter, we have to scrutinize the matter very minutely. The fact of making application for CDR has come to the knowledge of the State Government subsequently. In that Page 18 of 20 C/SCA/3291/2014 ORDER view of the matter, though the bid was opened but keeping in mind all conditions as described by the learned counsel for the respondents, particularly, clause 2.10 - general instructions (at page No. 48 of the petition), the Government has right to accept the lowest responsive offer based on evaluation of tender and reject any or all tenders without assigning any reason and in view of clause 5.23(iii) (at page No. 70) the Department reserves the right to accept or reject any of the application for qualification without assigning any reason thereof. Clauses 5.26 bid acceptance and 5.28 award of contract are required to be viewed very seriously. Keeping in mind the admission on the part of the petitioner himself at page No. 128 of the petition that total debts from banks and financial institutions has reached almost Rs. 6500 crore and investment of Rs. 2400 crore is not fetching any returns as on date and the cost of investment is adding to the finance cost of the Company as well as borrowing cost has been increased over the period of three years, we are of the opinion that the State Government has not committed any error in not calling the petitioner for the bid in question. The second contention that the petitioner was found eligible when the bid was opened but subsequently in view of change of conditions made in the tender at page No. 96 of the petition he was not called for negotiation is misconceived. In view of conjoint reading of all the clauses, in our view, the decision taken by the State Government is in the larger public interest and in view of the settled principle of law, when there is personal interest and public interest, public interest will prevail over personal interest. In our view, it is not desirable to give a huge contract to person who has debt from banks and financial institutions over Rs. 6500 crore and it is not appropriate to give a contract Page 19 of 20 C/SCA/3291/2014 ORDER to the petitioner at the cost of public interest. In that view of the matter, the State Government has not committed any error in not calling the petitioner for negotiation and rejecting its bid. In the result, the petition is devoid of any merit and the same is dismissed.
(K.S.JHAVERI, J.) (A.G.URAIZEE,J) (pkn) Page 20 of 20