Rajasthan High Court - Jaipur
M/S Prl Project vs R S R D And Ors on 24 May, 2013
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T D.B. CIVIL SPECIAL APPEAL (WRIT) 508/2013. IN S.B. CIVIL WRIT PETITION No.4594/2013. M/s.PRL Project & Infrastructure Limited Vs. Road State Road Development & Construction Corporation Limited & Ors. Date of Judgment :- May 24, 2013. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ HON'BLE DR.JUSTICE SMT.MEENA V.GOMBER Shri R.N. Mathur, Senior Advocate with Shri Punit Singhvi for the appellant. Shri S.N. Kumawat, Additional Advocate General with Shri V.P. Mathur for respondents No.1 and 2. Shri R.P. Garg for respondent No.3. ***** Reportable BY THE COURT:- (Per Mohammad Rafiq, J.).
This appeal seeks to challenge the order of the learned Single Bench of this court dated 3/5/2013 by which, writ petition filed by the appellant was dismissed. Appellant in the writ petition had prayed then action of the respondents in not opening the technical bid and financial bid for construction of ROB (excluding Railway portion) at LC No.36-C on Kuchaman City-Makrana Section of Mangalana Road SH-2B in Km.8, be declared as illegal, arbitrary and unconstitutional and their action in declaring respondent No.3 as successful bidder without opening the bid of petitioner company, be quashed and set-aside with direction to open the technical and financial bid of the petitioner company and then award contract to the petitioner if it is declared as lowest bidder.
Respondent-Road State Road Development & Construction Corporation Limited invited bid for construction of ROB (excluding Railway portion) at LC No.36-C on Kuchaman City-Makrana Section of Mangalana Road SH-2B in Km.8. The approximate value of the contract was Rs.5.15 crore and the work was to be completed within nine months. All bidders were required to deposit a bid security of 2% i.e. Rs.10.30 lacs for the purpose of participation in the bid. Appellant also submitted his tender along with requisite amount including 2% amount of Rs.10.30 lacs in the form of Fixed Deposit Receipt (FDR) in favour of the Project Director. The technical bid was to be opened on 15/3/2013. Technical bid of the appellant was rejected by the respondents on the ground that the FDR issued in favour of the Project Director has not been rightly issued as per their requirement. The FDR was required to be issued as per the Tender Condition No.5 payable in the name of 'Project Director, RSRDC Ltd., Unit Merta City, at Merta', whereas it has been issued payable in the name of 'Project Director, RSRDC Ltd., Unit Merta City Jaipur'. Condition No.5 of the Tender Conditions and Instruction No.16.1 chapter titled 'Bid Security' in Part-C of Section 1 of the Instructions to Bidder. Condition No.16.1 provides that the bidder shall furnish, as part of his Bid, a Bid security for the amount shown in IFB for this particular work, in favour of Project Director, RSRDC, Unit, Merta city, in one of the following forms:
(a) Bank Guarantee from any Nationalised Indian bank,in the format given in Volume 3.
(b) Fixed Deposit Receipt, issued by any Nationalised Indian Bank.
(c) Demand Draft.
Appellant chose to submit FDR of Union Bank of India, Punjabi Bagh, New Delhi in favour of Project Director, RSRDC Ltd., Unit Merta City, Jaipur, whereas it should be made payable in favour of Project Director, RSRDC Ltd., Unit Merta City, at Merta. Since Condition No.5 of the information for bid document was not followed in letter and spirit, respondents as per the prescription made in clause 16.3 of Part-C Section 1 instructions to bidder supra, rejected the bid submitted by the appellant as non-responsive. Learned Single Judge upheld action of the respondents as lawful.
Shri R.N. Mathur, learned senior counsel for the appellant contended that in the tender submitted by the appellant, appellant had given a lowest bid and had offered to complete the work at a lesser cost by Rs.2 lacs than one quoted by respondent No.3, successful bidder, who was awarded the work. Learned senior counsel for the appellant submits that this is straight loss to the State exchequer and there is no legitimate reason for rejection of the bid of the appellant. Appellant is a reputed company. It had submitted duly completed tender in the required format. Word Jaipur was indicated in the FDR because no branch of Union Bank was situated at Merta city and therefore the home of the branch closed to the unit was indicated. Immediately on coming to know of this objection, appellant wrote to the Manager, Union Bank of India, Punjab Bagh, New Delhi, who sent a clarification to the Project Director, RSRDC Ltd, Unit Merta city, Merta that due to non-existence of branch in Merta, FDR in nearest branch linked at Jaipur as per bank norms, has been issued. On demand of the beneficiary, a demand draft can be issued in favour of the beneficiary payable at the nearest link branch. On the same day, another clarification was issued by the bank to the same Project Director saying that on demand of the beneficiary, Demand Draft will be issued by them in favour of Project Director, RSRDC Ltd, Unit Merta city, Merta. This was sufficient compliance of the requirement of the tender condition and it was not essential condition but was merely an ancillary condition to the main object of completion of the contract. Respondents with malafide intention rejected the tender of the appellant treating it to be non-responsive. Malafide is further evident from their conduct because when appellant filed writ petition, respondents entered a caveat and yet they issued the work order in favour of respondent No.3 the successful bidder. Learned senior counsel for the appellant has argued that the ancillary condition even if satisfied later in point of time, ought not to result in rejection of the tender document and the bid. In support of his argument, learned senior counsel for the appellant cited the judgments of Supreme Court in Tata Cellular Vs. Union of India : (1994) 6 SCC 651, M/s.Poddar Steel Corporation Vs. M/s.Ganesh Engineering Works and others : AIR 1991 SC 1579 and judgment of Gauhati High Court in Bibhu Bhushan Choudhary Vs. Union of India (UOI) and Ors. dated 7/1/2000 passed in Misc.Case No.1340 of 1999 and W.P. (C) No.5952 of 1999.
Shri S.N. Kumawat, learned Additional Advocate General for RSRDC and Shri R.P. Garg, learned counsel for respondent No.3 have opposed the appeal and submitted that when specific condition was provided in Condition Instruction No.16.1 of Section 16 Bid Security Part-C of Section 1 of the bid document requiring the bidder to get the security by way of Demand Draft or Fixed Deposit Receipt payable in the name of Project Director, RSRDC, Unit Merta city, at Merta, no deviation therefrom can be permitted since the appellant has not correctly submitted the Demand Draft indicating the name of beneficiary, his bid was rejected in conformity with Condition Instruction Nos.16.1 & 16.2 of Section 16 Bid Security Part-C of Section 1 of the bid document and the bid was required to be rejected as non-responsive, which is clearly indicated in the aforementioned clause. Learned counsel submitted that plea of the appellant cannot be bonafide because when he submitted Demand Draft of Rs.1,000/- with the tender form in terms of Condition No.2(iii) of the tender document, it was very much indicated therein showing that the Demand Draft shall be drawn in favour of Project Director, RSRDC, Unit Merta city, at Merta. Besides Condition No.5 contained in the same tender document, also required so. Appellant could not have lost sight of condition No.5. Respondents therefore did not make any mistake in rejecting the bid of the appellant. Learned counsel submitted that the learned Single Judge was perfectly justified in holding that the bid of the appellant has rightly been treated as non-responsive by the respondent-RSRDC. Moreover, the work order has been issued to respondent No.3 and he has started the work even during pendency of the writ petition.
Having heard learned counsel for the parties and perused the material available on record, we find that infraction of Condition No.5 of tender document and Instruction Nos.16.1 & 16.3 of Section 16 Bid Security Part-C Preparation of Bids of Section 1 of the tender document, reads as under:-
5. Bid must be accompanied by security amount specified above, payable in favour of Project Director, RSRDC, Unit Merta city, at Merta. Bid security shall have to be in any one form as specified in the bidding document and shall have to be valid for 30 days beyond the validity of the bid.
16.1 The bidder shall furnish, as part of his Bid, a Bid security for the amount shown in IFB for this particular work, in favour of Project Director, RSRDC, Unit Merta city, and may be in one of the following forms:
(a) Bank Guarantee from any Nationalised Indian bank,in the format given in Volume 3.
(b) Fixed Deposit Receipt, issued by any Nationalised Indian Bank.
(c) Demand Draft.
16.3 Any bid not accompanied by an acceptable Bid Security and not secured as per Clauses 16.1 and 16.2 shall be rejected by the Employer as non-responsive.
The appellant ought to have therefore submitted the demand draft correctly in favour of Project Director, RSRDC, Unit Merta city in terms of Condition No.2(ii) of the tender document. It could not have deviated from that condition and if it did so, it was its own mistake. Action of the respondents therefore cannot be faulted if they decided to treat the bid of the appellant as non-responsive because it was very much indicated so in advance. The learned Single Judge in dismissing the writ petition has relied upon the judgment of Supreme Court in Jagdish Mandal Vs. State of Orissa : (2007) 14 SCC 517, wherein the Supreme Court held that judicial review of administrative action is intended to prevent arbitrariness, irrationality and unreasonableness and its purpose is to check whether the decision has been lawfully made and not to check as to whether the decision is sound. Learned Single Judge also relied on the judgment of Supreme Court in Michigan Rubber (India) Limited Vs. State of Karnataka and others : (2012) 8 SCC 216 wherein the Supreme Court held that in the matters of evaluation of tenders and grant of contracts there should be no interference under Article 226 of the Constitution of India until the action of exclusion of a tenderer and grant of contract to another on the basis of comparative evaluation was malafide or a case of misuse of statutory power by the competent authority. Yet, another judgment of Supreme Court on which the learned Single Judge placed reliance is that of Karnataka State Industrial Investment & Development Corporation Limited Vs. Cavalet India Limited and Others : (2005) 4 SCC 456 wherein the Supreme Court held that the doctrine of fairness in administrative action does not turn writ courts into the appellate courts over the decisions taken by the administrative authorities.
Judgment of Supreme Court in Tata Cellular supra on which the learned senior counsel for the appellant placed reliance to contend that condition of submitting FDR payable at Merta City cannot be treated as essential condition and it should be held only an ancillary condition, do not help the appellant because in the present case, the respondents not only indicated the condition in the tender document at two places but also consequence of its failure in clause 16.3 supra by clearly stipulating therein that in the event of document not being found in conformity with tender conditions No.16.1 and 16.2 supra, the bid would be liable to be treated as non-responsive. When such prescription is made in the condition of the tender document, the condition cannot be held to be merely an ancillary, become intention to the contrary is clearly manifested in the tender document. Assurance extended by the bankers of the appellant to respondent-RSRDC of Merta City, would not have the effect of diluting the aforesaid condition or otherwise condoning its infraction by the appellant.
In view of the above discussion, we do not find any infirmity in the impugned judgment of the learned Single Judge and any merit in this appeal.
Appeal is therefore dismissed.
(DR.MEENA V.GOMBER), J. (MOHAMMAD RAFIQ), J. anil/161-supp.
All corrections made in the judgment/order have been incorporated in the judgment/order being e-mailed Anil Kumar Goyal Sr.P.A. Cum JW