Gujarat High Court
Shankar Mega Store vs State Of Gujarat & 4 on 15 February, 2017
Author: Harsha Devani
Bench: Harsha Devani, A.S. Supehia
C/SCA/470/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 470 of 2017
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SHANKAR MEGA STORE....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
TIRTH N BHATT, ADVOCATE for the Petitioner(s) No. 1
MR VIRAT G POPAT, ADVOCATE for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GP/PP for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS for the RESPONDENT(s) No. 1,3-4
MR UM SHASTRI, ADVOCATE for the Respondent(s) No. 2
MR VIJAL P DESAI, ADVOCATE for the Respondent(s) No. 4-5
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 15/02/2017
ORAL ORDER
(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
1. The learned advocate for the petitioner has tendered draft amendment. The amendment is allowed in terms of the draft. The same shall be carried out forthwith.
2. By this petition under Article 226 of the Constitution of India, the petitioner seeks a declaration that allotment of tender for supply of uniform to students connected with Aanganwadi schools floated by the second respondent, to the fourth respondent, is illegal, bad in law and further seeks Page 1 of 8 HC-NIC Page 1 of 8 Created On Sat Aug 12 09:54:50 IST 2017 C/SCA/470/2017 ORDER quashing of the same and seeks a direction to the second respondent to open the bid/tender of the present petitioner and take necessary further action and for that purpose to pass necessary and consequential orders. The petitioner further seeks a direction to the concerned respondent to open bid/tender of the petitioner and award contract as referred in the advertisement to the petitioner, if the petitioner is entitled to the same.
3. The facts, as emerging from the record, are that the second respondent Programme Officer, ICDS Lunawada, invited a tender for supply of uniform to students connected with Aanganwadi schools. One of the terms of the tender were that specimens are required to be prepared as per the criteria and specifications fixed by the Technical Manager, Ahmedabad Textile Industrial Research Association, Ahmedabad and the said specimen should be got tested by ATIRA and a certificate and test report shall be submitted therewith. It is only when the bidder's specimen has been approved, that the technical bid shall be opened. If the technical bid is in accordance with the rules, the financial bid would be opened.
4. It appears that, in all, thirteen bidders applied pursuant to the above tender notice. The petitioner and all others got their test reports from ATIRA, Ahmedabad, whereas the fourth respondent obtained test reports from ATIRA, Bhilwara centre at Rajasthan. It is the case of the petitioner that the specimen submitted by it, satisfied all the criteria prescribed for fabric material for suiting (pant), while for shirting fabric, except 1.13% elongation at break, all other conditions were satisfied. It is further the case of the petitioner that at the preliminary Page 2 of 8 HC-NIC Page 2 of 8 Created On Sat Aug 12 09:54:50 IST 2017 C/SCA/470/2017 ORDER stage only two bids were opened, that is, of the fourth respondent and his brother and the bids of the other bidders failed to meet with the technical specifications at the initial stage. It appears that upon opening of the tenders, the tender was allotted to the fourth respondent. Being aggrieved, the petitioner has filed the present petition.
5. Mr. Virat Popat, learned advocate for the petitioner, submitted that ATIRA, Ahmedabad, has a laboratory which is certified and accredited by the National Accreditation Board for Testing and Calibration Laboratories (hereinafter referred to as 'NABL") and that most of the bidders had got their test reports conducted by the laboratory situated at Ahmedabad, which is accredited with NABL, whereas the fourth respondent and his brother obtained test reports from ATIRA, Bhilwara, and that the said laboratory is not accredited by NABL. It was submitted that, therefore, the reports obtained from ATIRA, Bhilwara cannot be said to be authentic reports, inasmuch as, the said laboratory is not NABL accredited and hence, the respondents were not justified in accepting the report of the said laboratory. It was further submitted that the petitioner has made an application under the Right to Information Act as, according to the petitioner, it has learnt from reliable sources that the Bhilwara centre of ATIRA lacks the necessary equipment and infrastructure to carry out the four crucial tests, viz., (I) Colour Fastness to Perspiration, (ii) Colour Fastness to Light (iii) Pilling Rev Resistance at 18000 Rev, and (iv) Air Permeability Tests, as required by specifications No.10, 12, 16 and 17 of the technical specifications and that such tests are carried out through outsourcing. It was submitted that under the circumstances, the reports submitted by ATIRA, Bhilwara Page 3 of 8 HC-NIC Page 3 of 8 Created On Sat Aug 12 09:54:50 IST 2017 C/SCA/470/2017 ORDER centre, could not have been accepted by the respondents. A request was made to adjourn the matter for the time being so as to enable the petitioner to obtain the necessary information under the Right to Information Act.
5.1 The learned advocate for the petitioner further invited the attention of the court to a specification report which the petitioner has obtained from ATIRA, Bhilwara centre, to point out that in the case of the petitioner also, a report has been given which shows that the sample submitted by the petitioner also meets with all the specifications.
6. Opposing the petition, Mr. Hriday Buch, learned advocate for the fourth respondent submitted that insofar as the petitioner is concerned, the petitioner has failed to satisfy the specifications laid down in the tender notice and hence, the court may not entertain the petition at the instance of a party who has failed to meet with the specifications. It was submitted that the condition stipulated in the tender notice is that the specifications have to be provided by the Technical Manager, ATIRA, Ahmedabad, whereas the tests have to be carried out through ATIRA. It was submitted that since the fourth respondent had purchased the goods in question from Bhilwara, the testing was got done at ATIRA, Bhilwara, and there was no oblique intention in getting the sample tested through the said laboratory. It was submitted that in terms of the tender conditions, the testing had been done through ATIRA and the test report indicates that the fourth respondent meets with all the technical specifications. Hence, it cannot be said that there is any infirmity on the part of the respondent authorities in awarding the contract to the fourth respondent.
Page 4 of 8HC-NIC Page 4 of 8 Created On Sat Aug 12 09:54:50 IST 2017 C/SCA/470/2017 ORDER It was, accordingly, urged that the petition being devoid of merits deserves to be dismissed.
7. Mr. U.M. Shastri, learned advocate for the respondent No.2 reiterated the contents of the affidavit in reply filed on behalf of the respondents No.2 and 3. Reference was made to paragraph 4 of the affidavit in reply to submit that the procedure was carried out in a transparent manner in the presence of all the bidders. It was submitted that the test report submitted by the private respondents indicated that the specimen fabric met with the criteria laid down in the tender notice. It was further submitted that in terms of the tender conditions, the test was required to be got done through ATIRA and not through ATIRA, Ahmedabad alone. It was also pointed out that the purchase of items under the tender in question is to be made from grant given by the Government, which will lapse on 31.3.2017 and hence, the interim relief granted earlier is required to be vacated at the earliest or the entire process will stand frustrated.
8. From the rival contentions advanced by the learned advocates for the respective parties and from the facts as emerging from the record of the case, it appears that the sole ground on which the tender process has been challenged is that the fourth respondent who has been found to have technically qualified has got the specimen fabric tested through ATIRA, Bhilwara centre and not from ATIRA, Ahmedabad. The facts reveal that the specimen fabric submitted for testing to ATIRA, Ahmedabad by the petitioner failed to meet with the specifications laid down in respect thereof, whereas the specimen fabric submitted for testing to Page 5 of 8 HC-NIC Page 5 of 8 Created On Sat Aug 12 09:54:50 IST 2017 C/SCA/470/2017 ORDER ATIRA, Bhilwara by the fourth respondent meets with such specifications. The petitioner now contends that ATIRA, Bhilwara is not NABL accredited and that the tests carried out by the said laboratory cannot be taken into consideration.
9. To test the contention raised by the petitioner, it would be necessary to refer to the relevant tender condition, viz. condition No.10. Condition No.10 as translated into English reads thus:
"(10) Specimens should be prepared in terms of the specifications mentioned in Appendix-1 and Appendix-2 hereto as per the quality and specifications fixed by the Technical Manager, "ATIRA" Ahmedabad Textile Industries Research Association and should be got tested by "ATIRA" and its certificate and test report shall have to be enclosed and the technical bid of the contractor whose specimen has been approved shall be opened and if the technical bid is in accordance with the rules, the financial bid shall be opened."
10. Thus, what the condition envisages is that the specifications have to be laid down by the Technical Manager, ATIRA, Ahmedabad and the testing is got to be done through ATIRA. Insofar as testing of the specimen is concerned, the condition merely refers to ATIRA and not ATIRA, Ahmedabad. On a plain reading of the above condition, there is nothing therein to infer that the testing of the specimen fabric has to be done through ATIRA, Ahmedabad alone and not through any other branch of ATIRA. It has further sought to be contended that the Bhilwara centre of ATIRA does not have the necessary equipment or infrastructure to carry out the tests in question Page 6 of 8 HC-NIC Page 6 of 8 Created On Sat Aug 12 09:54:50 IST 2017 C/SCA/470/2017 ORDER and that it is not an NABL accredited laboratory and hence, the said test report cannot be taken into consideration. In the opinion of this court, from the language employed in condition No.10, there is nothing therein to lead to an inference that the test has to be carried out through an NABL accredited laboratory. What is stipulated in the said condition is that the test should be got done through ATIRA, without any specification of any branch of ATIRA or NABL accredited branch. Under the circumstances, there does not appear to be any misreading of the tender conditions on the part of the respondents while accepting the test report of ATIRA, Bhilwara.
11. The submission advanced on behalf of the petitioner with regard to ATIRA, Bhilwara not having the necessary infrastructure to carry out the tests in question and outsourcing the same are within the realm of disputed questions of fact and this court in exercise of powers under Article 226 of the Constitution of India would not embark upon any inquiry into such disputed questions of fact. Having regard to the fact that the specimen fabric submitted by the fourth respondent meets with the tender conditions, no infirmity can be found in the action of the respondent authorities in awarding the tender to the fourth respondent.
12. The petitioner has inter-alia sought a relief that the tender in question be awarded to the petitioner. From the test report submitted by ATIRA, Ahmedabad, it is evident that the petitioner does not meet with the technical specifications. Under the circumstances, awarding the contract to the petitioner does not arise at all.
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13. The learned advocate for the petitioner has prayed for time to bring on record additional material in support of his case. It has been submitted that the petitioner has made application under the Right to Information Act and that such information when received, would have a vital bearing on the controversy involved in the present case. As noted hereinabove, on behalf of the respondents No.2 and 3 it has been submitted that the grant for purchase of the fabric for uniforms would lapse on 31st March, 2017. Therefore, grant of adjournment may result in the tender process being frustrated and hence cannot be granted. However, in case of future contracts the respondents may make Condition No.10 more specific. Besides, having regard to the fact that the material to be purchased is for uniforms for children attending Anganwadis, the respondents would be well advised to provide for a condition for getting the specimen fabric tested through an NABL accredited laboratory. However, considering Condition No.10 as it stands today, no case is made out for interference.
14. In the result, the petition fails and is, accordingly, dismissed. Notice is discharged with no order as to costs. The ad-interim relief granted earlier shall stand vacated.
(HARSHA DEVANI, J.) (A. S. SUPEHIA, J.) zgs Page 8 of 8 HC-NIC Page 8 of 8 Created On Sat Aug 12 09:54:50 IST 2017