Himachal Pradesh High Court
Son Of Late Sh. Bast Ram Tuli vs State Of Himachal Pradesh on 9 November, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
REPORTABLE/NON-REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 9th DAY OF NOVEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
.
&
HON'BLE MR. JUSTICE SATYEN VAIDYA.
CIVIL WRIT PETITION NOs. 6371 & 6372 OF 2021
CWP NO. 6371 OF 2021:
Between: -
NARESH KUMAR TULI
SON OF LATE SH. BAST RAM TULI,
GOVERNMENT REGISTERED CLASS-A CONTRACTOR,
RESIDENT OF HOUSE NO. 419,
SECTOR-4, PANCHKULA,
HARYANA - 134112.
...PETITIONER
(BY SH. SUNIL MOHAN GOEL, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH, THROUGH
PRINCIPAL SECRETARY (HPPWD),
GOVERNMENT OF HIMACHAL PRADESH, SHIMLA.
2. THE ENGINEER-IN-CHIEF,
H.P. PUBLIC WORKS DEPARTMENT,
NIRMAN BHAWAN, NIGAM VIHAR,
SHIMLA - 171 002.
3. CHIEF ENGINEER, HPPWD DIVISION,
HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR.
4. EXECUTIVE ENGINEER, DHARAMPUR DIVISION,
HPPWD, DHARAMPUR, DISTRICT MANDI.
5. M/S UNIPRO TECHNO INFRA PVT. LTD.
THROUGH ITS DIRECTOR SH. ANIL MADAN,
SCO-36, SECTOR-7C, MADHYA MARG,
CHANDIGARH.
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2
E-MAIL: [email protected]
[
....RESPONDENTS.
(SH. ASHOK SHARMA, ADVOCATE GENERAL,
WITH SH. R.S. DOGRA, SR. ADDL. ADVOCATE GENERAL,
SH. VINOD THAKUR, SH. HEMANSHU MSRA,
.
SH. SHIV PAL MANHANS, ADDITIONAL
ADVOCATE GENERAL, FOR R- 1 TO 4)
(SH. VIPUL SHARDA, ADVOCATE, FOR R-5)
CWP No. 6372 of 2021
Between:-
NARESH KUMAR TULI
SON OF LATE SH. BAST RAM TULI,
SECTOR-4, PANCHKULA,
HARYANA - 134112.
r to
GOVERNMENT REGISTERED CLASS-A CONTRACTOR,
RESIDENT OF HOUSE NO. 419,
...PETITIONER
(BY SH. SUNIL MOHAN GOEL, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH, THROUGH
PRINCIPAL SECRETARY (HPPWD),
GOVERNMENT OF HIMACHAL PRADESH, SHIMLA.
2. THE ENGINEER-IN-CHIEF,
H.P. PUBLIC WORKS DEPARTMENT,
NIRMAN BHAWAN, NIGAM VIHAR,
SHIMLA - 171 002.
3. CHIEF ENGINEER, HPPWD DIVISION,
HAMIRPUR, TEHSIL & DISTRICT HAMIRPUR.
4. EXECUTIVE ENGINEER, DHARAMPUR DIVISION,
HPPWD, DHARAMPUR, DISTRICT MANDI.
5. M/S UNIPRO TECHNO INFRA PVT. LTD.
THROUGH ITS DIRECTOR SH. ANIL MADAN,
SCO-36, SECTOR-7C, MADHYA MARG,
CHANDIGARH.
E-MAIL: [email protected]
....RESPONDENTS.
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3
(SH. ASHOK SHARMA, ADVOCATE GENERAL,
WITH SH. R.S. DOGRA, SR. ADDL. ADVOCATE GENERAL,
SH. VINOD THAKUR, SH. HEMANSHU MSRA,
SH. SHIV PAL MANHANS, ADDITIONAL
ADVOCATE GENERAL, FOR R- 1 TO 4)
(SH. VIPUL SHARDA, ADVOCATE, FOR R-5)
.
RESERVED ON: 25.10.2021
DECIDED ON: 09.11.2021.
_________________________________________________________________
These petitions coming on for admission after notice this
day, Hon'ble Mr. Justice Satyen Vaidya, passed the following:
ORDER
The petitioner has filed the instant petitions praying for the following reliefs:
CWP No. 6371 of 2021:
a) That this Hon'ble Court may be pleased to issue writ of certiorari quashing SMS dated 23.9.2021 (Annexure P-6), whereby the petitioner has been intimated that his bid has not been admitted and further the proceedings of the Technical Evaluation Committee dated 23.9.2021 (Annexure P-7) whereby the bid of the petitioner has not found to be substantially responsive as per the requirement of the bidding document.
b) That this Hon'ble Court may further be pleased to issue writ of mandamus directing the respondent department to consider the DD No. 773579 dated 22.9.2021 of Rs.5000/- as submitted online and FDR No.7939030002421 of Rs. 5.00 lacs as earnest money and further open the financial bid of the petitioner.::: Downloaded on - 31/01/2022 23:15:52 :::CIS 4
c) That this Hon'ble Court may further be pleased to issue writ of mandamus directing the respondents to hold a proper inquiry as to how in view of the fact that despite original DD and FDR were submitted in the sealed cover the same were not found on .
opening of the same.
CWP No. 6372 of 2021:
a) That this Hon'ble Court may be pleased to issue writ of certiorari quashing SMS dated 25.9.2021 (Annexure P-6), whereby the petitioner has been intimated that his bid has not been admitted and further the proceedings of the Technical Evaluation Committee to dated 25.9.2021 (Annexure whereby the bid of the petitioner has not found to be substantially responsive as per the requirement of the bidding document.
r P-7)
b) That this Hon'ble Court may further be pleased to issue writ of mandamus directing the respondent department to consider the DD No. 773571 dated 22.9.2021 of Rs.5000/- as submitted online and further open the financial bid of the petitioner.
c) That this Hon'ble Court may further be pleased to issue writ of mandamus directing the respondents to hold a proper inquiry as to how in view of the fact that despite original DD and FDR were submitted in the sealed cover the same were not found on opening of the same.
2. Both the petitions have been heard and are being decided together as common question of facts and law are involved.
Brief facts in CWP No. 6371 of 2021:
::: Downloaded on - 31/01/2022 23:15:52 :::CIS 53. Respondents No. 1 to 4 invited bids through the process of e-tender published on 7.9.2021 for "Construction of CHC Marhi, Tehsil Dharampur, District Mandi". The total estimated cost of the .
work was Rs.9,50,88,613/-. The last date for submission of bids was 22.9.2021 and the bids were to be opened on 23.9.2021. The bids were required to be submitted on the online portal of respondents No. 1 to 4.
Brief facts in CWP No. 6372 of 2021:
4. of e-tender Multipurpose published Hall in on to Respondents No. 1 to 4 invited bids through the process 31.8.2021 Government for Degree "Construction College, Tehsil of Dharampur, District Mandi". The total estimated cost of the work was Rs.6,33,08,957/-. The last date for submission of bids was 23.9.2021 and the bids were to be opened on 24.9.2021. The bids were required to be submitted on the online portal of respondents No. 1 to 4.
5. In both the above noted petitions, bidders were separately required to pay Rs.5000/- towards the cost of tender and Rs.5,00,000/- as earnest money. The procedure for online bidding was prescribed in Clauses 23 & 24 of the General Conditions of Contract, which read as under:
::: Downloaded on - 31/01/2022 23:15:52 :::CIS 6"23 Online bidding procedure: Scanned copies of the following documents shall be uploaded on the website http:#hptenders.gov.in from the appropriate place.
24.1 Cost of Tender: Indicated in schedule "E": The cost of .
tender may be deposited in shape of demand draft and uploaded as pdf document.
24.2 Earnest Money: The earnest money indicated in Schedule "E" and may be deposited in shape of Treasury Challan/ Deposit at Call Receipt/ FDR/Bank Guarantee of any Scheduled Bank Uploaded a pdf document.
24.3 Contractor's Registration: The contractor has to produce the enlistment of competent authority in appropriate class valid at the time of tender and upload as pdf refer general Rules No. 20.
24.4 GST Registration: The GST Registration document may be uploaded as pdf document refer HPPWD-6 16(3).
24.5 Work Done Certificate & Work in Hand Certificate: (only if required in tender document) the work done & work in hand may be filled up in the required performa shown in general rules no. 16 minimum amount of work done shown schedule 'F' and these alongwith the work done certificate of competent authority may be uploaded as pdf document. 24.6 List of Machinery Tool & Plant (only if required in tender document) the detail of machinery, T&P may be filled up on the format as shown in schedule 'F' with reference to clause 18 and this alongwith proof (R.C., Affidavits, etc. may be uploaded as pdf document.
24.7 Bill of Quantity: The bill of quantity may be uploaded in XLS format.::: Downloaded on - 31/01/2022 23:15:52 :::CIS 7
24.8 The contractor is required to study general rules & directions, conditions, contract clauses, schedules 'A" to 'F' in tender document and thereafter fill HPPWD Form No. 8 and upload pdf document.
.
24.9 Any other documents as specified by the State in performa of schedule."
6. Clause 25 of the General Conditions of Contract, mandatorily required the bidders to submit the original documents evidencing the deposit of cost of tender and earnest money on any date before opening of technical/financial bid. Failure to submit the original documents, as noticed above, would render the technical bid non-responsive.
7. Clause 25 of the General Conditions of Contract reads as under:
"25 Submission of Original Documents: The bidders are required to submit (i) original demand draft towards the cost of bid document and (ii) original earnest money in approved form and on any date before the opening time of technical/ financial part of the tender, either by registered post or by hand in the office of authority inviting tender, failing which the tenders will be declared non-responsive."
8. Petitioner in both the petitions has raised common grievances that though he had complied with each and every term of the tender document including submission of original ::: Downloaded on - 31/01/2022 23:15:52 :::CIS 8 documents as required, yet his technical bid has been rejected as non-responsive on the ground that he failed to submit the original documents evidencing payment of cost of tender and earnest .
money respectively in both the cases. According to petitioner, he had duly submitted the originals of the documents evidencing the payment of cost of tender and earnest money respectively in a sealed cover within the requisite time. Petitioner allegation is that the bid submitted by him has been rejected only to narrow down the arena of bidders. As per petitioner, he was fully aware about the requirement to submit the original documents before opening of the technical bid as he was in the business for the last more than 40 years. The petitioner has made reference to the Standard Operating Procedure of CPWD Works Manual, 2019 and has tried to take benefit of its Clauses.
9. In response, official respondents No. 1 to 4 have filed their joint reply in which they have specifically contested the claim of the petitioner with respect to submission of original documents before the opening of technical bid. The case of respondents No. 1 to 4 is that the petitioner had failed to submit the originals of the documents evidencing the payment of cost of tender and earnest money in the tender pertaining to construction of CHC Marhi and ::: Downloaded on - 31/01/2022 23:15:52 :::CIS 9 the documents evidencing the payment of cost of tender and earnest money in the tender pertaining to construction of Multipurpose Hall in Government Degree College, Tehsil .
Dharampur, District Mandi. Official respondents have pressed into service the Clause 6 (ii) of the Standard Bidding Document of HPPWD, which reads as under:
"6.(ii). As per the HPPWD-6 clause 6(ii) The tender and the earnest money shall be placed in separate sealed envelopes each marked "Tender" and "Earnest Money" respectively. Both the envelops shall be submitted together in another sealed envelope with the name of work and due date of opening written on envelope, which will be received by the tendering inviting authority up to 11: 00 AM on and will be opened by him or his authorised representative in his office on the same day at 11:30 A.M. The envelop marked "Tender" of only those tenders shall be opened, whose earnest money, placed in the another envelope, is found to be in order."
10. The official respondents have refuted the claim of the petitioner to avail benefit under the CPWD Works Manual, 2019 on the ground that the said Manual was not applicable to the work in hand. It has been asserted on behalf of the official respondents that the petitioner was fully aware about the terms of the tender and had to strictly comply with its terms.
::: Downloaded on - 31/01/2022 23:15:52 :::CIS 1011. We have heard learned counsel for the parties and have also gone through the records of the case.
12. It is not in dispute that the specific condition of the .
tenders in question mandatorily required the bidders to submit the originals of the documents evidencing the payment of cost of tender and earnest money before the stipulation time either by way of registered post or by handing over in person.
13. The only issue raised before this Court is whether the petitioner had submitted the requisite documents, in original, within stipulated time with the prescribed authority or not? The contesting parties to the instant petitions have made their rival claims, as noticed above. Petitioner claims to have submitted the requisite documents within time, whereas, the official respondents have vehemently denied the claim of petitioner.
14. The domain of this Court under Article 226 of the Constitution of India is restrictive on issues which involve intricate and disputed questions of facts. Thus, this Court merely on the basis of rival assertions, without any specific proof, will not be in a position to give finding on the above noted issue one way or the other.
::: Downloaded on - 31/01/2022 23:15:52 :::CIS 1115. Noticeably, petitioner has been categoric in his assertion that he is Class-1 contractor and has experience of about 40 years as such. He was fully aware of the tender requirement to submit .
the originals of requisite documents within stipulated time. That being so, it is definite to believe that such an experienced contractor would not obtain the receipt of submission of original documents within stipulated time. Be that as it may, as noticed above, this Court will not be in a position to answer the issue for lack of evidence.
16. to Irrespective of the fate of the instant petitions, a very disturbing situation has been highlighted by the facts of instant petitions. It is not the case of the official respondents that they maintain any record of receipt of original documents from bidders by recording date, time and acknowledgement of the person submitting such documents. This definitely leaves a veil of doubt on the entire transaction. In absence of any documentary evidence, it is very easy for officials, dealing with the tender(s), to deny the entertainment of any bid at their whims. This practice needs to be deprecated as it makes the very purpose of e-tendering process otiose. Understandably, the connectivity issues prevalent in various geographical areas prevent the respondent-State to adopt ::: Downloaded on - 31/01/2022 23:15:52 :::CIS 12 the e-tendering system with all force, whereby the payments of money could be transmitted through gateway provided by the system. This, however, does not mean that the respondent-State is .
absolved from its legal obligation to make and keep the public transactions transparent and foolproof.
17. The unsavory situation as has been brought before us, obligates us to direct the respondent-State to henceforth adopt a fully transparent and foolproof mechanism in grant of the government contracts. We specifically direct the respondent-State to issue guidelines that makes it mandatory to record in writing in specified form each and every transaction undertaken during the entire process right from floating of tender till its finalization under the signatures of competent/authorized officer/official duly acknowledged by the bidder or his authorized representative, wherever necessary. The respondent-State is directed to implement the aforesaid direction immediately and in no case later than one month from today.
18. The petitioner in the given circumstances cannot succeed. Clause 25 of the General Conditions of Contract read with Clause 6 (ii) of the CPWD Works Manual, 2019 are imminent and does not admit of any exception. Failure to comply with the ::: Downloaded on - 31/01/2022 23:15:52 :::CIS 13 aforesaid conditions, entail the rejection of technical bid being non-
responsive.
19. These petitions are accordingly dismissed with no orders .
as to cost. Pending miscellaneous application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan)
Judge
9th November, 2021 (Satyen Vaidya)
(GR) Judge
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