Jharkhand High Court
Mahto Automobiles vs Union Of India (Uoi) And Ors. on 9 December, 2003
Equivalent citations: AIR2004JHAR105, 2004(52)BLJR557, 2004(1)CTLJ519(JHAR), [2004(1)JCR562(JHR)], AIR 2004 JHARKHAND 105, 2004 AIR - JHAR. H. C. R. 1191, 2004 (1) BLJR 557, 2004 (1) CTLJ 519, (2004) 1 JCR 562 (JHA), (2004) 1 JLJR 519, (2004) 2 CIVLJ 787
Bench: P.K. Balasubramanyan, Tapen Sen
ORDER
1. This appeal has been filed by the petitioner in W.P. (C) No. 3521 of 2003. The appellant filed the writ petition challenging the award of a contract to respondent No. 7 pursuant to the tender notice issued on 20.8.2002. Pursuant to the tender notification a number of tenders were submitted. On 16.9.2002, the bids were evaluated and it was found that 40 tenderers were technically qualified. But it is seen that a number of tenderers had not produced certain documents which were considered by the Technical Evaluation Committee to be necessary. It was therefore decided to give an opportunity to all of them to produce those documents. Forty letters were prepared for dispatch calling upon the technically qualified tenderers to submit those documents. The documents were to be submitted before 31.3.2003. Due to some error in the department, the letters were dispatched only on 31.3.2003 calling for submission of the relevant documents by 31.3.2003. Obviously, the letters were not received in time. But about 30 of the tenderers came to know about the requirement for production of certain documents even before they received the letters from the department. They made available the documents. But six of them including respondent No. 7 herein did not submit the documents by 31.3.2003.
2. On 5.4.2003, the financial bids were opened. The financial bid of 31 contractors who had produced the relevant papers were opened and it was found that the appellant was the lowest bidder and the financial bids of respondent No. 7 and five others were rejected on the basis that, they had not produced the documents called for. Their financial bids were not opened on 5.4.2003, as a consequence. But on 9.4.2003, respondent No. 7 wrote a letter to the department pointing out that the letter calling upon respondent No. 7 to produce the documents fixing 31.3.2003 as the last date for submission of those papers had been dispatched only on 31.3.2003 and this was unjust since the letters were received only on 4.4.2003 and it would have been impossible to comply with the demand contained in the letter. It was therefore requested that an opportunity be given to them to produce the relevant documents. The department realising that a mistake has been made in the matter of despatch of the communications decided to give those tenderers also an opportunity to produce the documents. Departmental action was also initiated against those who are responsible for the non-despatch of the letters, in time.
3. Pursuant to the opportunity given, six tenderers submitted their documents. This included respondent No. 7 also. The evaluation took place on 2nd and 3rd June, 2003 and it was found that respondent No. 7 and two other persons who had submitted the relevant documents were eligible. It was therefore decided that the financial bid of respondent No. 7 be opened. A decision was taken that since the appellant was found to be the lowest bidder when the tenders were opened on 5.4.2003, the tender of respondent No. 7 should be opened in the presence of the appellant. Therefore notice was issued to the appellant calling upon the appellant to be present and the appellant was represented on 3.6.2003 when the financial bid of respondent No. 7 which had not been opened earlier was opened. This is clear from Page 60 of the file produced before us by the respondents. On opening the financial bid of respondent No. 7, it was found that respondent No. 7 was the lowest bidder and being also technically qualified, it was decided to award the contract to respondent No. 7. It was in that situation that the appellant came to this Court with the writ petition.
4. It was contended on behalf of the appellant, the writ petitioner, that the financial bid of the appellant was opened on 5.4.2003 and the bid of respondent No. 7 having been rejected on 5.4.2003, the respondents were not justified in giving respondent No. 7 yet another opportunity to rectify the omission and in considering his financial bid and in deciding to award the contract to it. This was met with the plea that a bona fide error was committed in the matter of despatching of the communication calling upon the tenderers to produce certain documents and the result in the situation as referred to and the respondents have acted bona fide and fairly in the matter of giving an opportunity to all including the writ petitioner and respondent No. 7. There was therefore no reason for this Court to interfere with the award of the contract. The learned Single Judge directed the respondents to produce the concerned file. He scrutinised the file and found that the story of bona fide error put forward was true. Technically "there was ho unfairness in the, procedure adopted or in the decision to award the contract to respondent No. 7, The learned Single Judge thus declined to interfere and dismissed the writ petition. Feeling aggrieved, this appeal has been filed by the appellant.
5. When this matter came up on 20.11.2003, we decided that it would be proper to scrutinize the files once more though it was already done by the learned Single" Judge. We, therefore, directed the Senior Central Government Standing Counsel appearing for and on behalf of respondents 1 to 6, to produce the files. We also directed the appellant to take out notice by Speed Post or personal service to respondent No. 7. The matter has come up again today, as per our order dated 20.11.2003. Though it is submitted that respondent No. 7 has been served with notice, respondent No. 7 has not appeared before us but the learned counsel for the respondents No. 1 to 6 has produced the entire files before us for scrutiny.
6. On scrutiny of the file, we find that except in the matter of delay in the dispatch of the letters due to some reason or other, no procedural error has been committed by the respondents in the matter of evaluation of the tenders. It is not true that the Tender Evaluation Committee on scrutiny of the tender papers decided that it was necessary to call upon the tenderers to produce certain documents. This was done. All the bidders found technically qualified, were given equal opportunity to produce the said documents. There is no unfairness or discrimination in that regard. But while issuing the communication, it so happened that the letters were not dispatched in time and those who had to submit the documents could not comply with the requirement of producing them by 31.3.2003, the day on which only the letters themselves were despatched. Of course, even then, 31 bf the tenderers including the appellant, produced the relevant documents before the time fixed, apparently having come to know to the requirement when their financial bids were opened. On 5.4.2003 the financial bid of respondent No. 7 and five others were rejected on the ground that they had hot produced the relevant documents. It is also true that the error on the part of the respondents, the delay in dispatch of the letters, being pointed out by respondent No. 7 and others, they were given one more opportunity to produce the documents. Even though their bids had been rejected on 5.4.2003, their financial bids had not been opened that day. After their submission of the relevant documents, they were evaluated and it was found that respondent No. 7 was qualified to be considered for the award of the contract. In that situation, notice was given to the appellant who was the lowest tenderer as per the evaluators on 5.4.2003 to be present when the financial bid of respondent No. 7 was to be opened. The appellant responded. Thus, in the presence of the appellant, the financial bid of respondent No. 7 was opened and it was found that the bid of respondent No. 7 was the lowest. Since he was also technically qualified it was decided that the contract be awarded to respondent No. 7.
7. What is argued is that having once rejected the bid of respondent No. 7 for one reason or other, it was not open to respondent No. 6 to give respondent No. 7 another opportunity to produce the documents and then to entertain its bid and then to open its financial bid. The question is whether because of the mistake made by respondents No. 1 to 6, some of the tenderers who could not produce the relevant documents on or before 5.4.2003 should suffer. According to counsel for the appellant in view of the mistake made by the department, what was called for was the issue of a fresh notification inviting tenders and not to complete the process which had been ever started because of the mistake.
8. Obviously, the mistake made by the department should not prejudice the tenderers leading to the rejection of their tenders which were otherwise qualified to be accepted. All of them were asked to produce documents. Some could not comply with the demand in time since the letters of demand were not dispatched to them in time. If in that process, the department took the view that those tenderers should be given an opportunity to produce the relevant documents that cannot be said to be unfair. What we have to see is whether there was fairness in the method adopted by respondents No. 1 to 6. It cannot be said to be unfair. What they did only meant that respondents No. 1 to 6 ensured that because of the mistake committed in their office some of the tenderers would not suffer. There is no case of mala fide or oblique motive in the matter of giving such an opportunity. In that situation, we are of the view that there is no justification or adequate ground made out for interference by the Court acting under Article 226 of the Constitution of India. As observed in a number of decisions, including the decision of the Supreme Court in the case of Air India Limited v. Cochin International Airport Limited, (2000) 2 SCC 617, what the Court is to ensure is that the method adopted by the concerned department is fair and once that is shown no interference with the award should be made. It cannot be said that there is any justification in interfering with the award of work by respondents 1 to 6 in this case.
9. The learned Single Judge, after a scrutiny of the files came to the conclusion that there was no arbitrariness or unfairness in the awarding of the contract. Sitting in appeal or even otherwise, we cannot say that the view so taken by the learned Single Judge on the materials available in the case is so unreasonable or improper as to justify our interference or to justify our interference under Article 226 of the Constitution.
10. We, therefore, confirm the decision of the learned Single Judge and dismiss the appeal. We make no order as to costs.