Bombay High Court
Emergedata Servides Pvt. Ltd. Nagpur ... vs The Rashtrasant Tukdoji Maharaj Nagpur ... on 21 August, 2017
Author: B.P.Dharmadhikari
Bench: B. P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6739 OF 2016
PETITIONER : Emergedata Services Pvt. Limited,
Behind Saraf Chambers, Mount Road,
Sadar, Nagpur, through its Director
Rattan Pathak
VERSUS
RESPONDENTS : 1] The Rashtrasant Tukdoji Maharaj
Nagpur University,
through its Hon'ble Vice Chancellor,
Chhatrapati Shivaji Maharaj
Administrative Premises,
Ravindranath Tagore Marg,
Nagpur - 440 001.
2] Pro-Vice Chancellor, Rashtrasant Tukdoji
Maharaj Nagpur University,
Chhatrapati Shivaji Maharaj
Administrative Premises,
Ravindranath Tagore Marg,
Nagpur - 440 001.
3] The Registrar, Rashtrasant Tukdoji,
Maharaj Nagpur University,
Chhatrapati Shivaji Maharaj
Administrative Premises,
Ravindranath Tagore Marg,
Nagpur - 440 001.
4] Controller of Examinations,
Rashtrasant Tukdoji Maharaj Nagpur
University, Pariksha Bhawan, L.I.T.
Premises, Amravati Road, Nagpur.
5] Promarc Software Pvt. Limited,
12, Sukhsagar, Hindustan Colony,
Amravati Road, Nagpur.
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6] Manipal Technologies Limited,
Udayavani Building, Press Corner,
Manipal - 576 104, Karnataka, India.
7] OMR India Outsource Pvt. Limited,
503, DLF Prime Tower, Okhla Phase-1,
New Delhi.
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Mr. R. R. Shrivastava, Advocate for the petitioner.
Mr. P. B. Patil, Advocate for respondent nos.1 to 4
Mr. A. A. Naik, Advocate for respondent no.5
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CORAM : B. P. DHARMADHIKARI and
A. D. UPADHYE, JJ.
DATE : AUGUST 21, 2017.
ORAL JUDGMENT (Per B.P.Dharmadhikari, J.)
Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties. 2] The second tender floated by respondent no.1 - Nagpur University for pre and post examination work (hereinafter mentioned as "EMS Work") on 13.07.2016 forms the subject matter of present petition. There was earlier tender in June-2016, in which the petitioner did not participate. Respondent no.5 in the present matter, did participate in it. On 04.11.2016, there has been the third ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 00:55:51 ::: 3 WP6739.16.odt tender process and respondent no.5 responded even thereto. The petitioner did not find it proper to participate in it because the second tender process and his exclusion therefrom is questioned by him in the present petition.
3] In the present petition, on 30.11.2016, this Court has subjected the tender process initiated in pursuance of tender notice dated 04.11.2016 to result of this petition. This Court at that juncture has used the words "second tender" as, July-2016 tender has been treated as first tender. The June-2016 tender was then not before the Court.
4] The submission of Mr. Shrivastava, learned Advocate for the petitioner is, as the petitioner was the only eligible bidder for allotment of work in tender dated 13.7.2016, he has been eliminated by giving incorrect or wrong reason. He points out that respondent no.5 had also then participated, but his tender was submitted to entirely different University and advertisement/tender number mentioned in the tender form was also different. Hence, under the guise of no 'proper response', the tender process was cancelled and ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 00:55:51 ::: 4 WP6739.16.odt then third tender process was initiated on 04.11.2016. He submits that if there was no proper response to July-2016 tender, the tender conditions would have been relaxed to attract more bidders, but then with a view to eliminate the petitioner, the condition was made more stringent. Number of students handled by such bidder was increased to see that only respondent no.5 qualifies.
5] In this background, learned Advocate for the petitioner invited our attention to Clause 1.4 of NIT to show that there even self-declaration of the bidder is found sufficient. The petitioner met with all requirements. He had implemented similar EMS work for three Universities in last three years put together and also did satisfy requirement of service to at least 5 lakh students during said period. Two experience certificates, issued by two Universities, were with him. Those certificates with self-declaration were already submitted. He states that the third experience certificate from one University has been received later on and it has been filed along with the present petition. He invites our attention to the Certificate dated 14.12.2016, issued by Maharaja Chhatrasal Bundelkhand University, Chhattarpur (M.P.).
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5 WP6739.16.odt 6] By placing reliance upon the judgments of the Hon'ble Apex Court, reported in (2013) 10 SCC 95 in the case of Rashmi Metaliks Limited and another .vs. Kolkata Metropolitan Development Authority and others ; (2009) 1 SCC 589 in the case of Ganpati RV-Tallers Alegria Track Pvt. Ltd. .vs. Union of India and another ; and (1990) 2 SCC 488 in the case of G.J. Fernandez .vs. State of Karnataka and others, the learned Advocate for the petitioner submits that the requirement of third experience certificate could not have been treated as an essential condition. He argues that therefore, as the petitioner was the only eligible bidder in response to July-2016 tender, his bid could be accepted and the work should be awarded to the petitioner. 7] Mr. Patil, learned Advocate for respondent nos.1 to 4 and Mr. Naik, learned Advocate for respondent no.5 are opposing the petition. Mr. Patil, learned Advocate relied upon the reply affidavit. 8] Mr. Patil, learned Advocate submits that Clause 1.4 in NIT is about pre-qualification criteria and only those bidders, who fulfilled the same, were eligible to participate further. As the petitioner did not produce necessary experience certificate, ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 00:55:51 ::: 6 WP6739.16.odt requirement of managing EMS work of minimum three universities or then of catering to 5 lakh students, was not satisfied and hence, he was rightly eliminated from tender process.
9] Mr. Naik, learned Advocate for respondent no.5 also submits that in June-2016 tender process, the petitioner was not the bidder. There were only two participants i.e. respondent no.5 and respondent no.6. Then at that juncture, respondent no.5 would have favoured respondent no.5 and given work order to it. However, because of Accounts Code, the tender process was cancelled and fresh tenders were invited. Again in July-2016 tender process, the petitioner, respondent no.5 and respondent no.6 had participated. According to him, the petitioner did not fulfill essential condition as urged by the University and hence, he was rightly eliminated. He further points out that in any case, after 04.11.2016 tender process, second tender process is legally not in existence and cannot be revived. The third tender process is already over and work order therein has been given to respondent no.5. The contention that the conditions were made more stringent only to limit the competition, is, therefore, irrelevant.
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7 WP6739.16.odt 10] The relevant condition in NIT is contained in Clause 1.4. In that clause, there is a chart, which stipulates 'Criteria' on left hand side and 'supporting documents' against it is on right hand side. As per column no.3, the bidder has to demonstrate implementation of similar EMS projects for minimum three universities in India in last three years put together. The supporting documents sought for are Certified copies of Letter of Intent / Agreements / Contract. The next column i.e. column no.4 has got bearing on column no.3. It requires bidder to deliver EMS services to at least 5 lakh students for all clients put together in the last three years as per stipulation in clause 1.4(3). The supporting documents specified are Certified copies of Letter of Intent /Agreements / contract "and Self- declaration by the bidder". Thus, 'self-declaration by the bidder' is an additional requirement prescribed by criterion no.4 along with the documents in support of fact of completion of work minimum with three Universities or then in support of catering to a particular number of students.
11] The petitioner submitted self-declaration form and necessary documents in support from two Universities. The ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 00:55:51 ::: 8 WP6739.16.odt experience certificate in support of completion of work with third university is dated 14.12.2016 i.e. after date of notice inviting third tender. The present petition was filed before this Court on 29.11.2016 and that experience certificate is received by the petitioner after filing of the petition. The certificate shows that the petitioner was satisfactorily handling the Result Processing Work of Maharaja Chhatrasal Buldelkhand University, Chhattarpur (MP) from 2015 to till date of said certificate. It is specified in the Certificate that the petitioner has been handling entire pre and post examination processing work of all semester examinations of 2015. Then '50595' number appears with word 'students' after it. Hence, earlier when the petitioner participated in July-2016 tender process, admittedly he could not and did not furnish the documents as specified supra.
12] Perusal of the judgment of Hon'ble Apex Court in the case of Rashmi Metaliks Limited (supra), particularly in paragraph 2 shows that the bidder was required to possess valid PAN number and VAT number. He was required to submit copy of acknowledgement of latest Income Tax and Professional Tax return. The appellant ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 00:55:51 ::: 9 WP6739.16.odt company did not file its latest Income Tax return along with the bid. This language and requirement and failure to submit Income Tax return has been commented upon in paragraph 18 by the Hon'ble Apex Court. The Hon'ble Apex Court has found that in the background in which the conditions were imposed, it could not have been viewed as essential term. The Hon'ble Apex Court has clarified that it would have been an essential condition if one of the qualifications was either relating to gross income or net income on which tax was attracted.
13] In the case of Ganpati RV-Travellers Alegria Track Pvt. Ltd. (supra), bid was submitted by the joint venture company and in this backdrop, in paragraph 23, the requirement regarding experience as set out in advertisement has been looked into. The Hon'ble Apex Court holds that there was no basis in insisting for experience in the name of tenderer only. It has pointed out that in the situation where a person having past experience has entered into a Partnership and the tender has been submitted in the name of partnership firm, which may not have any past experience in its own name, it does not mean that the earlier experience of one of the partners of the firm cannot be taken into consideration. ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 00:55:51 :::
10 WP6739.16.odt 14] In the case of G.J.Fernandez (supra), in paragraph 14, the practice being followed by Karnataka Power Corporation and the manner in which it understood general requirements, has been accepted by the Hon'ble Apex Court. The Hon'ble Apex Court found that minutes reveal that KPC did not deviate or want to deviate from the established procedure in regard to this contract, but on the contrary, decided to adhere to it. The Hon'ble Apex Court has observed that if a party has been consistently and bona fide interpreting the standards prescribed by it in a particular manner, the Court should not interfere though, it may be inclined to read or construe the conditions differently.
15] These judgments relied on by the petitioner in the present fact, therefore, do not help the case and cause of the petitioner.
16] Mr. Patil, learned Advocate for respondent nos.1 to 4 has relied on the judgment of Hon'ble Apex Court reported in (2009) 11 SCC 9 in the case of Sorath Builders .vs. Shreejikrupa Buildcon Limited and another, particularly paragraphs 20 and 26. ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 00:55:51 :::
11 WP6739.16.odt The Hon'ble Apex Court has, in these paragraphs, pointed out limited scope available to the Courts of law while interpreting the terms and conditions of a contract.
17] Columns 3 and 4 in the table given in Clause 1.4 contain minimum pre-qualification criteria. The supporting documents are also specified therein. The petitioner submits that as there was self- declaration by the bidder and it has been recognized as supporting document, lack of certificate from third University by itself cannot be treated as fatal. We are not in a position to accept this condition when supporting documents specified in clause 3 are read in contra distinction with clause 4, insistence of self-declaration by the bidder appears to be a deliberate additional stipulation by the respondent no.1. The tender itself is for pre and post examination work and none of its conditions are in challenge before us. 18] The respondent no.1 University has filed reply affidavit. It is not in dispute that after tender process completed in June-2016, there were only two bidders and on that account because of Clause 17 in Accounts Code, that tender process was given up and the ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 00:55:51 ::: 12 WP6739.16.odt subject tender process was then initiated in July-2016. This tender process thereafter was given up on 17.9.2016. Again in reply affidavit in relation to July-2016 tender, same clause in Accounts Code has been pointed out.
19] There is no challenge to the said clause in Accounts Code. If in June-2016 there were only two bidders and tender process was cancelled, in July-2016 tender process, even if participation of the petitioner is presumed valid, there could not have been more than two bidders. The petitioner has assailed the tender submitted by respondent no.5 on the ground that it was not meant for respondent no.1 University and it was submitted to a totally different University. If these contentions and other similar challenges raised by the petitioner are accepted, only one tenderer could have been in fray in July-2016 tender. Again clause 17 of Accounts Code would have operated and necessitated fresh tender. 20] In this situation, we do not find any substance in challenge to cancellation of tender process initiated in July-2016. If any benefit was to be conferred on respondent no.5, the respondent ::: Uploaded on - 24/08/2017 ::: Downloaded on - 27/08/2017 00:55:51 ::: 13 WP6739.16.odt no.1 could have done it in June, 2016 only. Moreover, in the light of the observations above, particularly in the backdrop of clause 17 of the Accounts Code, the arguments of mala fides become irrelevant. ' 21] There is no independent challenge to the tender floated on 04.11.2016. The petitioner has not challenged independently the stringent conditions prescribed at that juncture. The petitioner has not participated in third tender. During arguments, we gathered that considering the EMS work of about 8 lakh students, more stringent conditions were prescribed and still three bidders participated. In this situation, we need not comment more on this third tender, in response to which the work has been already commenced by the respondent no.5. We, therefore, do not find any merit in the petition. The petition is dismissed. Rule discharged. No order as to costs.
JUDGE JUDGE
Diwale
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