Madhya Pradesh High Court
M/S Anil Gambhir (Engineer And Govt. ... vs Union Of India on 28 February, 2018
Bench: Hemant Gupta, Vijay Kumar Shukla
Writ Petition No. 4472/2018
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
Writ Petition No. 4472 of 2018
M/s. Anil Gambhir (Engineer's & Govt. Contractor) .... PETITIONER
Versus
Union of India & others ........... RESPONDENTS
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CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice
Hon'ble Shri Justice Vijay Kumar Shukla, Judge
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Appearance:
Shri K.C. Ghildiyal and Shri Aditya Khandekar, Advocates for the
petitioner.
Shri J.K. Jain, Assistant Solicitor General for respondents.
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Whether Approved for Reporting : Yes/No
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Law Laid Down:
Eligibility of the Tenderer to carryout the work is a decision to be taken
by the experts on the basis of documents required by them and furnished
by the Tenderer. The Court does not have expertise nor jurisdiction to
sit as a Court of Appeal to interfere with the decision making process to
determine the eligibility.
Significant Paragraph Nos. 8, 9, 10 and 11
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O R D E R (Oral)
(28.02.2018) Per : Hemant Gupta, Chief Justice :
The challenge in the present petition is to communication dated 9 th February, 2018 (Annexure P-17), whereby the bid submitted by the petitioner, in response to notice inviting tender No.51/EE/BCD-1/2017-18 Writ Petition No. 4472/2018 2 and NIT No.52/EE/BCD-1/2017-18, was rejected for the reason that the petitioner does not meet the eligibility criteria as specified in clause 8.1.2 of the Notice Inviting Tender.
2. A perusal of the petition shows that initially, an NIT No.33 was published for inviting bidders for comprehensive maintenance of Civil, Electrical and Horticulture operations relating to day to day maintenance etc. of general pool residential accommodation and Income Tax quarters at Bharat Nagar, Residential and Non-Residential buildings of C.B.I; S.I.B and Accountant General Bungalow at Chaar Imli; Office Building of GS.I at Bittan Market, RMNH Building of Bhopal during 2017-18/2018-19 and 2019-20. The petitioner was one of the five bidders. The bids were rejected on 11.10.2017 for the reasons that the required documents with respect of eligibility criteria, especially regarding work experience, are not forthcoming from the concerned department/authorities. It is thereafter, the present notice inviting tender were published. The last date for submissions of bid was 12th December, 2017. The petitioner offered its bids in respect of two notice inviting tenders, so published.
3. The petitioner was called upon to submit two documents which were not submitted along with Tender document on 18.12.2017. The petitioner is said to have submitted documents on 20th December, 2017. Thereafter the Chief Engineer constituted a committee on 2.1.2018. Such Committee conducted a site inspection on 6th January 2018 of Palm Royale Estate, New Green Model Town, Wadala Road, Jalandhar, Punjab.
Writ Petition No. 4472/20183
4. It is thereafter another letter was sent to the petitioner on 17th January 2018 seeking some other documents. The stand of the petitioner is that such documents were not required in terms of Notice Inviting Tender. The petitioner relies upon the work allotted to the petitioner of comprehensive maintenance of Lok Sabha Residential Quarters at R.K. Puram, New Delhi but still, the petitioner was informed on 22nd of January 2018 that "Kindly refer to your letter No. Nil dated 21.1.2018 on the subject cited above in response to this office letter of even no. 141 (H) dated 17/1/2018. As no documents have been received from you as desired earlier. In addition to above, it is requested that proof of payment of service tax may kindly be given to assure this office about the authenticity of your claims".
5. It is thereafter, the petitioner is said to have submitted - receipts and certificate of Chartered Accountant vide letter dated 27 th January 2018 but the bid of the petitioner was rejected on the last date of the validity of the bids. The petitioner alleges that bids of all the bidders have been rejected to help M/s. N.K. Garg and Sons as the respondent Nos. 4 and 5 are in hands in gloves with this Contractor. It is on that basis, the petitioner invoked the writ jurisdiction of this Court to dispute the rejection of the bids offered by the petitioner. The petitioner relies upon the Supreme Court judgment reported as (2009) 6 SCC 171 (Meerut Development Authority v. Association of Management Studies and another) and (2014) 11 SCC 288 (Siemens Aktiengeselischaft and Siemens Ltd. v. Delhi Metro Rail Corporation Ltd. and another).
Writ Petition No. 4472/20184
6. In Meerut Development Authority (supra) the Supreme Court has held that the Court is not concerned with the merits or correctness of the decision, but with the manner in which the decision is taken or the order is made. By way of judicial review, the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. The Courts have inherent limitations on the scope of any such enquiry. The relevant extract read as under:-
"40. There is no difficulty to hold that the authorities owe a duty to act fairly but it is equally well settled in judicial review, the court is not concerned with the merits or correctness of the decision, but with the manner in which the decision is taken or the order is made. The Court cannot substitute its own opinion for the opinion of the authority deciding the matter.
41. The distinction between appellate power and a judicial review is well known but needs reiteration. By way of judicial review, the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then the court cannot act as an appellate court by substituting its opinion in respect of selection made for entering into such contract. But at the same time the courts can certainly examine whether `decision making process' was reasonable, rational, not arbitrary and violative of Article 14. [See: Sterling Computers Ltd. ]."
7. In the case of Siemens Aktiengeselischaft and Siemens Ltd. (supra) the Supreme Court quoted from the judgment reported as (1994) 6 SCC 651 Writ Petition No. 4472/2018 5 (Tata Cellular v. Union of India) and (2007) 14 SCC 517 (Jagdish Mandal v. State of Orissa) to hold as under:
"23. There is no gainsaying that in any challenge to the award of contact before the High Court and so also before this Court what is to be examined is the legality and regularity of the process leading to award of contract. What the Court has to constantly keep in mind is that it does not sit in appeal over the soundness of the decision. The Court can only examine whether the decision making process was fair, reasonable and transparent. In cases involving award of contracts, the Court ought to exercise judicial restraint where the decision is bona fide with no perceptible injury to public interest. .
8. We find that whether a Contractor fulfills the eligibility criteria is a decision taken by the experts on the basis of documents required by them and furnished by the tenderer. This Court does not sit as Court of appeal over the satisfaction of the State in respect of eligibility of tenderer to carry out the work for which tenders have been invited. Neither this Court has expertise nor the jurisdiction to sit as a Court to appeal to return a finding that decision making process is the matter of eligibility to carry out the work is satisfied or not or otherwise.
9. In (2016) 16 SCC 818 (Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd.), it was held that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the Writ Petition No. 4472/2018 6 understanding or appreciation or in the application of the terms of the tender conditions. The relevant extracts of the said judgment read as under:
"15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given.
16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court."
10. In a latter judgment reported as (2016) 15 SCC 272 (Montercarlo Ltd. vs. N.T.P.C Ltd. it was held that in the competitive commercial field the technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owner's organization is taken. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matter of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have Writ Petition No. 4472/2018 7 sanguinity and are workable and realistic. The relevant extract of the judgment read as under:
"26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owner's organization is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints."Writ Petition No. 4472/2018 8
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. Therefore, we do not find any justification to examine the allegations of mala fides when they remain wholly un-substantiated.
12. Consequently we do not find any merit in the present petition and the same is dismissed.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
vivek
Digitally signed by VIVEK KUMAR
TRIPATHI
Date: 2018.03.05 21:18:39 -08'00'