Gauhati High Court
Joyshree Dev vs Swadesh Ranjan Paul And Jahar Paul And 5 ... on 16 November, 2021
Bench: Chief Justice, Soumitra Saikia
Page No.# 1/10
GAHC010076602021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/140/2021
JOYSHREE DEV
W/O- SRI SUDIP KR DEB, R/O- LAKHISASHAR, P.O AND P.S- HAILAKANDI,
DIST- HAILAKANDI, ASSAM, PIN- 788152
VERSUS
SWADESH RANJAN PAUL AND JAHAR PAUL AND 5 ORS.
(A JOINT VENTURE FIRM, HAVING OFFICE REGD. OFFICE ATLLASHPUR,
P.O. BARAIGRAM, P.S. PATHERKANDI, DIST. KARIMGANJ, ASSAM, PIN-
78873) REP. BY ITS AUTHORISED REPRESENTATIVE SRI JAHAR PAUL.
2:THE STATE OF ASSAM
REP. BY THE COMM. AND SECY.
WATER RESOURCES DEPTT.
GUWAHATI-06
ASSAM.
3:THE SECRETARY
WATER RESOURCE DEPTT.
DISPUR
GUWAHATI-06
ASSAM.
4:THE CHIEF ENGINEER
WATER RESOURCES DEPTT.
CHANDMARI
GUWAHATI-781003.
5:HE SUPDT. ENGINEER
WATER RESOURCE (CIRCLE)
HAILAKANDI
Page No.# 2/10
DIST. HAILAKANDI
ASSAM
PIN-788152.
6:THE EXECUTIVE ENGINEER
WATER RESOURCE DIVISION
KARIMGANJ
DIST. KARIMGANJ
ASSAM
PIN-788723
Advocate for the Petitioner : MR. D DAS SR. ADV
Advocate for the Respondent : SC, WATER RESOURCE
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
Date : 16-11-2021 Heard Mr. D. Das, learned senior counsel, appearing for the appellant. Also heard Mr. J. Roy, learned counsel for respondent no. 1 as well as Mr. P. N. Goswami, learned Additional Advocate General, Assam, appearing for respondent nos. 2 to 4.
2. This is an appeal against the order dated 25.03.2021, passed by the learned Single Judge in WP(C) 3356/2020.
3. The brief facts of the case are that the Chief Engineer, Water Resources Department, Government of Assam, published an NIT inviting online bids for construction/repair of certain breached embankment in the district of Hailakandi, Assam. The last date for submission of bid was fixed as dated 10.01.2020. However, since no one responded to the aforesaid NIT, the respondent authorities cancelled the NIT and floated the NIT again for the Page No.# 3/10 second time by fixing the last date for submission of bid as 04.02.2020. In the second tender process only one bidder participated, who was technically disqualified. The respondent authorities again floated the tender on 18.02.2020 fixing the last date and time for submission of bids as 25.02.2020 and 14:00 hours, respectively. Submission of hard copy of the online bid was mandatory and the last date and time for submission of such hard copy of the bids was fixed on 25.02.2020 at 16:00 hours. Although the writ petitioner submitted his bid online, he failed to submit the hard copy of the bid documents within the stipulated time. The respondent authorities, vide a Corrigendum issued on 25.02.2020, extended the date and time for submission of bids up to 27.02.2020 at 2:00 P.M. The writ petitioner/respondent no. 1 took the advantage of the extended time and submitted the hard copies of her bid documents on 27.02.2020. The appellant (respondent no. 6 in the writ proceeding) also, although he did not submit his bid before 25.02.2020, took the advantage of the extended time and submitted his online bid as well as hard copies of his bid documents on 27.02.2020. After opening of the financial bids, the appellant/respondent no. 6 was evaluated as the L1 bidder. Being aggrieved by the manner in which the time for submission of bid was extended, filed representations before the concerned authority and since there was no response to her representations, filed the writ petition before the learned Single Judge.
4. The undisputed facts are that the last date for submission of bids was till 2:00 PM on 25.02.2020 and only one bidder (i.e., the writ petitioner) had submitted online bid but failed to submit hard copies of his bid documents before 2:00 PM on 25.02.2020 which was the stipulated. Another admitted fact is that the respondent authorities published a corrigendum on 25.02.2020 at 2:24 PM by invoking Clause No. 20 of the "Instructions to Bidders" (ITB), Page No.# 4/10 whereby the last date for submission of online bid was extended to 27.02.2020 till 2:00 PM. Clause 20 of ITB reads as under:
"20. Deadline for Submission of Bids I. Complete Bids (including Technical and Financial) must be received by the Employer at the address specified above and not later than the date indicate din appendix. In the event of the specified date for the submission of bids declared a holiday or the office remained closed on extra ordinary circumstances like bandh etc. for the Employer, the Bids will be received up to the appointed time on the next working day.
II. The Employer may extend the deadline for submission of the bids by issuing an amendment, in which case all rights and obligations of the Employer and the bidders previously subject to the original deadline will then be subject to the new deadline."
5. The corrigendum/amendment was published in the website of the respondent department. The writ appellant, who had failed to submit his bid online before 2:00 PM on 25.02.2020, submitted her bid online and also submitted the hard copies of the bid documents on 26.02.2020. This extension of time by way of amendment was availed not only by the present appellant but was also availed by the writ petitioner/respondent no. 6 by submitting hard copies of her bid documents, who had earlier failed to do so within the stipulated time on 25.02.2020. In other words, advantage of the aforesaid amendment was not just taken be the writ appellant but by the writ petitioner as well. Thereafter, when the bids were opened on 28.02.2020, the present appellant was declared L1 bidder. It is also an admitted position that Work Order Page No.# 5/10 was issued in favour of the appellant on 21.05.2020 and the appellant has already started executing the work. The ground of challenge taken by the writ petitioner in the writ petition was that although the employer had the power under Clause 20 of the ITB for extension of time for submission of bids, such amendment/extension is allowed before the deadline for the submission of bids in terms of Clause 10, however, in the present case the deadline for submission of bid was 25.02.2020 at 14:00 hours but the corrigendum/ amendment was published on 25.02.2020 at 2:24 PM. In other words the extension itself was granted to when the last date and time for submission of documents had already expired. This, learned counsel for the writ petitioner/respondent no. 1 would argue, was in violation of Clause 10(I) of the ITB, which reads as under:
"Clause 10: Amendment of Bidding Documents.
(I) Before the deadline for submission of bids, the Employer may modify the bidding documents by issuing addenda."
6. Learned counsel for the writ petitioner/respondent no. 1 would argue that the terms and conditions of the tender are supposed to be followed not only by the bidders but also by the employer and, therefore, though the employer had the power under Clause 10(I) of the ITB to extend the time for submission of bids, this power was exercised after the deadline was already over, which is hence in violation of Clause 10(I). Learned counsel for the writ petitioner/respondent no. 1 would argue that this has been done by the employer purely in order to accommodate the writ appellant and, therefore, there was malice on the part of the employer.
7. The learned Single Judge has also come to the finding in paragraph 26 of the impugned order that the writ petitioner himself was not a qualified bidder Page No.# 6/10 inasmuch as he had also not submitted the hard copies of his bid documents before the closing time, i.e. 4:00 PM on 25.02.2021 and, therefore, it is not a case where direction can be issued to the respondent authorities to consider the bid of the writ petitioner and the only alternative, now, was to call for a fresh NIT. The writ petitioner has not challenged the aforesaid finding of the learned Single Judge. The relevant portion of the finding of the learned Single Judge reads as under:
"26. The respondent No. 3 stipulated the terms in the notice inviting tender wherein it is specifically stipulated that if any amendment of bid is required the same should be done before the deadline for submission of bid. Admittedly there was violation of the said stipulation as the corrigendum was published after the deadline for submission of the bid was over the deadline being 02:00 PM and the 'Corrigendum I' was published at 02:24 PM of 25.02.2020, the end date for submission of bid. The terms of NIT cannot be ignored as superfluous. The same must be followed by the employer also. If not then there would be unequal treatment meted to the participants in the tender process. The said extension of bid submission end date is irrational and perverse due to specific violation of the terms of the NIT and also gives an indication that the same was extended with the intent to favour the respondent No. 6 who submitted her bid immediately on 26.02.2020. The decision making process adopted by the tender authority in my opinion is liable to be interfered which I accordingly do thereby holding that act of issuance of the 'corrigendum I' published on 25.02.2020 at 02:24 PM extending the end date for submission of the bid to 02:00 PM of 27.02.2020 is in clear violation of the Clause 10(1) of the ITB of the NIT under Reference No. KARIMGANJ/2019-20/SOPD-FDR/1 (Retender) for Page No.# 7/10 package No. 1 of the Scheme "Reconstruction of Breached embankment at Dullavpur and Mukamerbond along with improvement of Shingla R/B embankment from Phanirbond to Dullavpur including anti erosion measures at different reaches" is irrational and illegal and the consequent evaluation process of the tender and the act of issuance of the work order to respondent No. 6 is illegal which is set aside and quashed. There is no scope for directing the respondent No. 3 for consideration of the bids of the petitioner as he also failed to fulfill the requisite criteria while submitting the hard copy of the technical bid. In view of the same the respondent No. 3 is directed to retender the subject work against the said package (scheme) and process the same at the earliest. Further the respondent No. 6 shall have the appropriate remedy in a civil court for compensation against the action of the respondent No. 3 in violation of the terms stipulated in the NIT.
27. The writ petition accordingly stands disposed of with the aforesaid finding and direction. Interim order stands vacated. Send back the records.
8. The writ appellant has challenged the finding of the learned Single Judge on the ground that, first and foremost, it cannot be denied that the employer did have the power for extension of time under Clause 20(II) of the ITB. Moreover, Clause 20(II) does not stipulate that this power has to be exercised precisely before the closing time, i.e. before the time for submission of bids is over. Clause 10(I), which the writ petitioner has relied upon, gives power to the employer to modify the bidding documents by issuing addenda, which is to be done before the deadline for submission of bids. Clause 10(I) does not speak about the extension of time for the submission of bids. Therefore, the situations Page No.# 8/10 envisaged in Clause 10(I) and Clause 20(II) of the ITB are entirely different situations and, even assuming for the sake of argument that logically, if time was to be extended, it must have been done before the time for submission of bids came to an end, even then the delay has been merely of 24 minutes and, therefore, there cannot be malice or mala fide on the part of the employer. In fact, the writ petitioner has not even alleged mala fide in his writ petition. Moreover, the writ petitioner himself was the beneficiary of the extension of time. Had the time not been extended, the writ petitioner would not have been able to submit the hard copies of his bid documents and his bid would not have been liable to be considered. The learned Single Judge has also given the same finding. Therefore, when the extension of time was availed by none other than the writ petitioner himself, he could not have challenged the extension of time. The relevant portion of the prayer in the writ petition reads as under:
"20. That this petition is made bona fide and in the interest of justice, It is therefore, prayed that Your Lordships would be pleased to admit this petition, call for the records, issue Rule calling upon the respondents to show cause as to why:
(a) The action of the authorities more particularly respondent no. 2 in issuing the corrigendum & extension dated 25.02.2020 after expiry of the deadline for submission of bid shall not be interfered with as being illegal; and
(b) *** *** ***"
9. Learned counsel for the writ appellant would also argue that the writ petitioner approached the court belatedly inasmuch as by the time stay was Page No.# 9/10 granted by the court, Work Order had already been issued in favour of the writ appellant and almost 10% works had been executed by the appellant. Moreover, the contract work itself is of public interest since the contract relates to construction of breached embankment and, therefore, the interference made by the learned Single Judge in awarding of contract to the appellant would amount to protecting private interest ignoring public interest. Learned senior counsel for the appellant has relied upon the decision of a Three-Judge Bench of the Hon'ble Supreme Court in the case of Municipal Corporation, Ujjain and Another v. BVG India Limited and Others, reported in (2018) 5 SCC 462, wherein the Hon'ble Supreme Court held in paragraph 45 as under:
"45. Evaluating tenders and awarding contracts are essentially commercial transactions/contracts. If the decision relating to award of contract is in public interest, the Courts will not, in exercise of the power of judicial review, interfere even if a procedural aberration or error in awarding the contract is made out. The power of judicial review will not be permitted to be invoked to protect private interest by ignoring public interest. Attempts by unsuccessful bidders with an artificial grievance and to get the purpose defeated by approaching the Court on some technical and procedural lapses, should be handled by Courts with firmness. The exercise of the power of judicial review should be avoided if there is no irrationality or arbitrariness. In the matter on hand, we do not find any illegality, arbitrariness, irrationality or unreasonableness on the part of the expert body while in action. So also, we do not find any bias or mala fides either on the part of the corporation or on Page No.# 10/10 the part of the technical expert while taking the decision. Moreover, the decision is taken keeping in mind the public interest and the work experience of the successful bidder."
10. After hearing the learned counsel for the parties, we are of the opinion that the facts and circumstance of the present case calls for interference with the order of the learned Single Judge. We find no anomaly in the extension of time granted by the employer. Accordingly, we allow the appeal and set aside the order dated 25.03.2021, passed by the learned Single Judge in WP(C) 3356/2020.
11. Interim order, if any, stands vacated.
JUDGE CHIEF JUSTICE RK Comparing Assistant