Gujarat High Court
Chitra Publicity Company Pvt Ltd vs Bopal Ghuma Nagarpalika & 2 on 9 June, 2017
Bench: M.R. Shah, B.N. Karia
C/SCA/16366/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16366 of 2016
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE B.N. KARIA Sd/
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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CHITRA PUBLICITY COMPANY PVT LTD....Petitioner(s)
Versus
BOPAL GHUMA NAGARPALIKA & 2....Respondent(s)
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Appearance:
MR JF MEHTA, ADVOCATE for the Petitioner(s) No. 1
MR VISHVAS SHAH for MR JR SHAH, ADVOCATE for the Respondent(s) No. 2
MR DK PUJ, ADVOCATE for the Respondent(s) No. 1
MR HARDIK VORA, AGP for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 09/06/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] RULE. Shri D.K. Puj, learned Advocate waives service of notice of Rule on behalf of respondent No.1. Shri Vishvas K. Shah, learned Advocate appearing for Shri J.R. Shah, learned Advocate waives service of notice of Rule on behalf of respondent No.2 and Page 1 of 10 HC-NIC Page 1 of 10 Created On Tue Aug 15 05:35:21 IST 2017 C/SCA/16366/2016 JUDGMENT Shri Hardik Vora, learned Assistant Government Pleader waives service of notice of Rule on behalf of respondent No.3. In the facts and circumstances of the case and with the consent of learned Advocates appearing for respective parties, present Special Civil Application is taken up for final hearing today.
[2.0] By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order to quash and set aside the impugned decision of respondent No.1 - Nagarpalika to accept the tender of respondent No.2 and to issue the Work Order / Contract in favour of the respondent No.2 and/or awarding the tender contract to the respondent No.2.
[3.0] Facts leading to the present Special Civil Application in nut shell are as under:
[3.1] That the respondent No.1 Nagarpalika invited the tender for display of advertisment by putting the hoardings and kiosks in the area of respondent No.1 Nagarpalika. The said tenders were invited for the contract of 10 years. It is the case on behalf of the petitioner that the petitioner submitted the tender with the security deposit as required within the time prescribed in the tender notice. It is the case on behalf of the petitioner that it was requested that the tender be opened in presence of the petitioner and/or its representative. It is the case on behalf of the petitioner that as such no date for opening the tender was intimated. It is the case on behalf of the petitioner that thereafter when the petitioner inquired about the date of the opening of the tender, the respondent No.1 - Authority informed orally that as and when such date will be fixed the same will be intimated to the petitioner. It is the case on behalf Page 2 of 10 HC-NIC Page 2 of 10 Created On Tue Aug 15 05:35:21 IST 2017 C/SCA/16366/2016 JUDGMENT of the petitioner that thereafter the petitioner learnt that one Media Buzz and Sai Publicity and others have also submitted the tenders. According to the petitioner, neither the Media Buzz nor Sai Publicity were having the requisite experience of minimum 5 years in the Outdoor Advertisment field and therefore, they were not qualified to participate in the tender process. It is the case on behalf of the petitioner that thereafter as the petitioner did not hear anything from the respondent No.1 authority with respect to the date for opening of the tender and nothing was heard from respondent No.1, the petitioner preferred RTI Application dated 05.07.2016 inter alia seeking the information with respect to how many tender forms received by the respondent Authority; the minutes of the meeting in which the tenders are opened; the details of the allotment of the tender to any party if allotted; the allotment letter if at all it is allowed. It is the case on behalf of the petitioner that on 28.08.2016, the respondent No.1 replied to the RTI querry by the petitioner and therefore, the petitioner came to know that the respondent No.1 has opened the tenders wihtout calling upon the parties who participated in the tender process; Sai Publicity's tender is found to be highest, no minutes of the opening of the tender is recorded; however the tenders were opened in the presence of the Committee Members only. It is the case on behalf of the petitioner that thereafter the petitioner came to know that the contract is awarded to respondent No.2 Sai Publicity. Therefore, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India challenging the impugned action of the respondent No.1 in awarding the contract in question to the respondent No.2.
[4.0] Shri J.F. Mehta, learned Advocate has appeared on behalf of the petitioner. Shri D.K. Puj, learned Advocate has appeared on Page 3 of 10 HC-NIC Page 3 of 10 Created On Tue Aug 15 05:35:21 IST 2017 C/SCA/16366/2016 JUDGMENT behalf of the respondent No.1 and Shri Vishvas Shah, learned Advocate has appeared for Shri J.R. Shah, learned Advocate appearing on behalf of the respondent No.2.
[5.0] Shri Mehta, learned Advocate appearing on behalf of the petitioner has vehemently submitted that the impugned action of the respondent No.1 in awarding the contract to respondent No.2 deserves to be quashed and set aside as the same is arbitrary and there is lack of transparency.
[5.1] It is further submitted by Shri Mehta, learned Advocate appearing on behalf of the petitioner that as such the tenders were required to be opened in presence of all the parties who submitted the tenders and that the concerned participants who submitted their tenders were required to be intimated the date on which the tender was to be opened. It is submitted that in the present case neither any date was intimated to the petitioner and others with respect to the date on which the tenders were to be opened and that the tenders were opened behind the back of the petitioner and others and as such in presence of only the Committee Members. It is submitted that fairplay and the transparency require that the date for opening of the tenders was required to be intimated and that the tenders were required to be opened in presence of all the persons who submitted the tenders. It is submitted that therefore, in the present case there is a total lack of jurisdiction and fairplay and therefore, the impugned action of the respondent No.1 in awarding the contract to respondent No.2 deserves to be quashed and set aside.
[5.2] It is further submitted by Shri Mehta, learned Advocate appearing on behalf of the petitioner that even otherwise the Page 4 of 10 HC-NIC Page 4 of 10 Created On Tue Aug 15 05:35:21 IST 2017 C/SCA/16366/2016 JUDGMENT respondent No.2 is not having requisite experience i.e. experience of 5 years in outdoor advertisment field. It is submitted that therefore as the respondent No.2 was not at all qualified, his tender was required to be rejected. It is submitted that considering the material on record more particularly the certificate which has been produced by the respondent No.1 along with the affidavit in reply at R1, it can be said that the Proprietor of the respondent No.2 - Shri Karm Patel was working with one Abhik Advertising Pvt. Ltd. and was working as part of marketing team of outdoor hoarding business of Abhik Advertising Pvt. Ltd.. It is submitted that therefore the respondent No.2 independently was not having any experience in the outdoor hoarding business of 5 years as required. It is submitted that therefore also the impugned action of the respondent No.1 in not awarding the contract to the respondent No.2 deserves to be quashed and set aside.
[5.3] It is further submitted by Shri Mehta, learned Advocate appearing on behalf of the petitioner that as such earlier and prior to the present tenders were invited, the respondent No.2 submitted the application dated 24.05.2016 by which the respondent No.2 agreed to put the signboards with the names of the societies etc. on condition that the respondent No.2 is grated the right for advertisement on the back side of such signboards for 10 years. It is submitted that the same was accepted by the respondent No.1 in its meeting held on 25.05.2016. It is submitted that thereafter to put a seal on the same and as an eyewash the tenders were invited and thereafter the respondent No.2 has been awarded the contract in question. It is submitted that therefore to give a contract to respondent No.2 was absolutely preplanned. It is submitted that therefore to open the tender in absence of the concerned persons who submitted the tenders and that too without intimating the date Page 5 of 10 HC-NIC Page 5 of 10 Created On Tue Aug 15 05:35:21 IST 2017 C/SCA/16366/2016 JUDGMENT of appointment of the tenders and to award the contract to the respondent No.2 is absolutely illegal, arbitrary and against the fairplay and there is lack of transparency and therefore, the same deserves to be quashed and set aside.
In support of his above submissions, Shri Mehta, learned Advocate appearing on behalf of the petitioner has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Maa Binda Express Carrier & Anr. vs. NorthEast Frontier Railway & Others reported in (2014) 3 SCC 760 (Paras 8 and 9).
Making above submissions it is requested to allow the present petition.
[6.0] At the outset it is required to be noted that after making submissions, Shri D.K. Puj, learned Advocate appearing on behalf of respondent No.1 has stated at the Bar that as such the resolution dated 25.05.2016 accepting the application of respondent No.2 to provide / put the signboards at his cost and in turn to give rights to the respondent No.2 of advertisement on back side of such signboards has not been acted upon. He has submitted that as such the tender contract and the rights given to the respondent No.2 under the resolution No.23(6) dated 25.05.2016 are different and for different contract. He has stated at the Bar under the instructions from the concerned Officer of the respondent No.1 that in the facts and circumstances of the case, the respondent No.1 shall invite the fresh tenders for the contract in question and for the contract which has been awarded to the respondent No.2, meaning thereby the respondent No.1 has agreed to quash and set aside the action of the respondent No.1 in awarding the contract to the respondent No.2 and has agreed for inviting the fresh tenders.
[7.0] However, the present petition is vehemently opposed by Shri Page 6 of 10 HC-NIC Page 6 of 10 Created On Tue Aug 15 05:35:21 IST 2017 C/SCA/16366/2016 JUDGMENT Vishvas Shah, learned Advocate appearing on behalf of the respondent No.2.
[7.1] It is vehemently submitted by Shri Shah, learned Advocate appearing on behalf of the respondent No.2 that as such respondent No.2 is a proprietary firm and Shri Karm Patel is its Proprietor and therefore, considering the experience certificate produced at R1 to the affidavit in reply filed on behalf of respondent No.1, it cannot be said that the respondent No.2 was not qualified.
It is submitted that as in the tender notice there was no terms and conditions fixed by the respondent No.1 about opening of the tender in presence of the tenderers and therefore, the action of the respondent No.1 in opening the tenders in absence of the tenderers cannot be said to be contrary to the terms and conditions of the tender notice. It is submitted that as such the tenders were opened in the presence of responsible Officer of respondent No.1 which is evident from the rojkam produced on record. It is submitted that therefore, it cannot be said that there is lack of transparency and/or fairplay. It is submitted that considering the aforesaid facts and circumstances of the case and considering the fact that work order has been issued in favour of respondent No.2 as far as back on 30.06.2016, it is requested to dismiss the present petition.
[8.0] Heard learned Advocates appearing for respective parties at length.
At the outset it is required to be noted that what is challenged in the present Special Civil Application is awarding the contract in favour of respondent No.2 for the advertisements on the hoardings and kiosks for 10 years. That awarding the contract in favour of the respondent No.2 by the respondent No.1 is challenged on the Page 7 of 10 HC-NIC Page 7 of 10 Created On Tue Aug 15 05:35:21 IST 2017 C/SCA/16366/2016 JUDGMENT ground of lack of transparency and fairplay and also on the ground that it was predetermined to award the contract in favour of the respondent No.2.
[8.1] At the outset it is required to be noted and it does not seem to be in dispute that in the tender notice no date for opening of bids was mentioned. While submitting the tender / bids the petitioner specifically requested that bids submitted by the eligible bidders be opened in presence of the representative of the petitioner. Even otherwise the fairplay requires that the bids are opened in presence of the representative of the bidders. If the bids are opened in presence of the representatives of the eligible bidders, the same may avoid the allegation of malpractice and/or favorism. Despite the above when the bids were opened on 23.06.2016, none of the bidders were informed about the date of opening of the tenders and therefore, the same were not opened in presence of the representative of the eligible bidders. It is required to be noted that in the Rojkam though it is mentioned that the bids are opened in presence of Chairman/Members of the Executive Committee / Officers and invited Officers and the bidders, however it is not in dispute and it is not disputed that none of the bidders were informed with respect to date of opening of the bids and the bids were not opened in presence of any eligible bidders. Even considering the material on record (Page 25) in which the persons who signed the Rojkam and who remained present at the time of opening of the bids, it is established that only Chief Officer, Chairman of the Standing Committee, Chairman of the Construction Committee and few others were present. No other persons remained present and the bids are opened in absence of the eligible bidders and the contract has been awarded to the respondent No.2. With the allegation of malafides in the petition it Page 8 of 10 HC-NIC Page 8 of 10 Created On Tue Aug 15 05:35:21 IST 2017 C/SCA/16366/2016 JUDGMENT is the case on behalf of the petitioner that as such the decision was already taken while passing the Resolution No.23(6) in the meeting of the Executive Committee held on 25.05.2016. It is the case on behalf of the Nagarpalika that the Resolution 23(6) of the Executive Committee of the Nagarpalika has nothing to do with te present contract. However, on considering Resolution No.23(6) it appears that some rights were given to the respondent No.2 of advertisement on the back side of the signboards to be placed by the respondent No.2. Be that as it may, it can be said that the respondent No.2 was in touch of the Members and the Nagarpalika. In any case it is an admitted position now that when the bids were opened, nobody was intimated about the date of opening of the bids and the bids were opened in absence of the representative of the eligible bidders.
[8.2] In the case of Maa Binda Express Carrier and Anr. (Supra), while considering the scope of judicial review in the matters relating to award of contract by State and its instrumentalities, it is observed and held by the Hon'ble Supreme Court that while these decisions clearly recognize that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party. It is further observed and held that in the matter of award of contract the Government and its agencies have to act reasonably and fairly at all points of time. To that extent the tenderer has an enforceable right in the Court who is competent to examine whether the aggrieved party has been treated unfairly or discriminated against to the detriment of public interest.
[8.2.1] Applying the law laid down by the Hon'ble Supreme Court in the aforesaid decision to the facts of the case on hand, it can safely be said that while awarding the contract in favour of Page 9 of 10 HC-NIC Page 9 of 10 Created On Tue Aug 15 05:35:21 IST 2017 C/SCA/16366/2016 JUDGMENT respondent No.2 there is a lack of transparency and fairplay. Under the circumstances, the impugned action of the respondent No.1 in awarding the contract to respondent No.2 deserves to be quashed and set aside.
[8.3] At this stage it is required to be observed and as observed hereinabove, Shri Puj, learned Advocate appearing on behalf of the respondent No.1 has stated at the Bar that the respondent No.1 has no objection if the impugned decision awarding contract to respondent No.2 is set aside and fresh tenders are invited.
[9.0] In view of the above and for the reasons stated above, present petition succeeds. Impugned decision of respondent No.1 - Nagarpalika accepting the tender of respondent No.2 and awarding the tender contract to the respondent No.2 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No costs.
At this stage Shri Vishvas Shah, learned Advocate appearing on behalf of the respondent No.2 has requested to stay the present judgment and order, however considering the fact that awarding contract in favour of the respondent No.2 is found to be illegal, arbitrary and it is found lacking transparency and fairplay, the prayer is rejected.
Sd/ (M.R. SHAH, J.) Sd/ (B.N. KARIA, J.) Ajay Page 10 of 10 HC-NIC Page 10 of 10 Created On Tue Aug 15 05:35:21 IST 2017