Jharkhand High Court
Ms Vinod Kumar Jain Through Its Partner ... vs Road Construction on 10 August, 2017
Author: Amitav K. Gupta
Bench: Amitav K. Gupta
1
IN THE HIGH COURT OF JHARKHAND AT
RANCHI
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W.P(C) No. 3103 of 2017
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In the matter of application under Article 226 of the
Constitution of India.
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M/s. Vinod Kumar Jain, a registered partnership firm,
having its Head Office at College Road, Jashpur
Nagar,,P.O.Jashpur Nagar,P.S.Jashpur Nagar, District
Jashpur(Chhattisgarh)-496331 through its partner, Vinod
Kumar Jain, s/o Sri Hanuman Jain, r/o College Road,
Jashpur Nagar, P.O.Jashpur Nagar, P.S. Jashpur Nagar,
District-Jashpur(Chhattisgarh)-496331.
.... Petitioner.
-Versus-
1.The State of Jharkhand through the Secretary, Road
Construction Department, Government of Jharkhadn,
Jharkhand Mantralaya, Project Building, Dhurwa, P.O. and
P.S. Dhurwa, District-Ranchi.
2.The Engineer-in-Chief, Road Construction Department,
Government of Jharkhand, Jharkhand Mantralaya, Project
Building, Dhurwa,P.O. And P.S. Dhurwa, District-Ranchi.
3.The Chief Engineer(C), Road Construction Department,
Government of Jharkhand, Jharkhand Mantralaya, Project
Building, Dhurwa, P.O. and P.S. Dhurwa, District-Ranchi.
4. The Executive Engineer, Road Division, Ranchi(Rural),
Road Construction Department, P.O.,GPO,P.S.Kotwali,
District-Ranchi.
5. M/s. K.K.Builders(P) Ltd. through its Director Vikash
Singh,, having its office at 27,Kalimati Road,P.S.Sakchi,
Jamshedpur, District- Singhbhum East.
..... Respondents.
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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Petitioner : Mr. Sumeet Gadodia, Advocate
For the Respondent-State: Mr.Ajit Kumar,A.G.
For the Respondent No.5 :M/s.M.A.Niyazi & M.K.Roy.
Advocates
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12/10.08.2017The petitioner has prayed for issuance of appropriate writ for quashing/setting aside the decision of the Tender Committee dated 25.05.2017 as contained in Memo No.2929(S) WE, dated 29.05.2017, declaring the technical bid of the petitioner as non-responsive and for issuance of direction upon the respondent/State of 2 Jharkhand to declare the technical bid of the petitioner as responsive, consequent thereto, to open the price bid of the petitioner and to award the work to him by issuance of letter of intent/work order if the financial bid of the petitioner is found to be the lowest. In the alternative the petitioner has prayed for issuance of an order/direction for quashing and setting aside the words " litigation history", inserted in Clause 4.8 of the Standard Bidding Document (in short SBD) to the extent that it confers unbridled power to reject a bid of a qualified bidder in an arbitrary manner.
2. The case of the petitioner is that it is a registered partnership firm engaged in the business of civil construction including the construction of road, etc. The respondent/ Road Construction Department, issued an E- procurement notice dated 20.03.2017 inviting the bids for the work of "widening & strengthening of Bundu Sonahatu- Jamudag-Jariya Road(MDR-026) from km 0.00 to 30.005 including construction of bridges for the year 2017-18". The E-procurement notice along with standard bidding document(for short 'SBD') was uploaded on the web-site of the State Government. The eligibility criteria was prescribed in Clause 4 of the said SBD. The petitioner was fulfilling the prescribed eligibility criteria. He was desirous for undertaking the work in question and participated in the tender process along with 10 other bidders, however, the technical bid of the petitioner was declared as non- responsive, by the Tender Committee in the meeting held on 25.05.2017 vide Annexure-2.
3. Learned counsel for the petitioner has urged that the bid of the petitioner was found to be non-responsive in terms of Clause 4.8 of the SBD on the ground that the petitioner has "litigation history". It is contended that such declaration of the bid of the petitioner as non-responsive is actuated with bias and malice in law.
4. It is submitted that petitioner had disclosed that F.I.R No.45 of 2015 dated 26.07.2015 was instituted against him as well as the officials of the State of Chattisgarh. In the said FIR no allegation was levelled with respect to the quality of the work rather the allegation was that sanction 3 was granted in respect of non-schedule items at a higher amount ( photocopy of the FIR is appended as Annexure-3 ). It is argued that till date charge-sheet has not been submitted and the government officials named in the FIR are discharging their duty and no action has been taken against them by the State of Chhattisgarh.
5. It is urged that the petitioner had no role to play in the sanction of rates of non-schedule items and the contract awarded to him. It is contended that mere lodging of an FIR cannot be a ground for disqualifying the petitioner on the ground that he has "litigation history" in terms of the words and condition in Clause 4.8 of the SBD. It is argued that the expression and word "litigation history" in clause 4.8 has been inserted with an intent and object to confer unbridled power for rejecting the bid of an otherwise qualified bidder in an arbitrary, malafide and discriminatory manner.
6. Learned counsel has referred to the meaning of the word 'litigate and litigation' as defined in the Black's Dictionary, 10th Edition, and New Webster's Dictionary. It is submitted that the term "litigate" means 'to contest in law; to carry on a law suit' and argued that considering the meaning and definition of the term 'litigation' or 'litigate' it is manifest that mere pendency of FIR cannot be termed as "litigation history" and the said term in Clause 4.8 of SBD cannot be resorted to for declaring the petitioner's bid as non- responsive.
7. Learned counsel has submitted that the Tender Committee in the minutes has stated that the petitioner had participated in an earlier tender but he had concealed the fact about the pendency of the aforesaid FIR and the pendency of the FIR is covered under the term "litigation history". It is contended that such action and order of the authority in declaring the petitioner's bid as non- responsive is actuated with malice. It is submitted that in fact, the petitioner had sworn an affidavit at the time of submission of the bid regarding the pendency of the FIR (Annexure-4). That the reasons for declaring the bid of the petitioner as non-responsive on the ground that since the 4 petitioner had concealed about the pendency of FIR in earlier tender process, is irrational.
8. It is submitted that the petitioner has been awarded several works, by respective State Governments, including the undertakings of Government of India despite the pendency of the FIR which is evident from Annexures-5 and 5/1, whereby IRCON International Ltd.,(a Government of India Undertaking), has awarded the tender for construction of road under the Pradhan Mantri Gram Sadak Yojna, wherein the question was raised regarding the pendency of the FIR against the petitioner, whereafter a clarification was sought and pursuant to the clarification submitted by the State of Chhattisgarh IRCON International Ltd., awarded the work order in favour of the petitioner.
9. Learned counsel has drawn attention to Annexure-6 series and submitted that it is evident that petitioner has been awarded civil works by the said Government of India Undertaking even after institution of the FIR. Moreover the State of Jharkhand has allotted work order valued at approximately Rs.56 crores to the petitioner during pendency of the FIR and the said work has been successfully implemented by the petitioner in the State of Jharkhand ( Annexure-7).
10. Learned counsel has emphatically reiterated the argument that the term 'litigation history' has not been defined in the SBD therefore the condition inserted in Clause 4.8 of the SBD for disqualification of a bidder on the ground of "litigation history" without elucidating the meaning of "litigation history" is arbitrary and it tantamounts to bestowing the authority with unlimited power to interpret the said words and expression 'litigation history' as per their whims and desire in violation of Article 14 of the Constitution of India. It is argued that it is the fundamental right of a person to institute any litigation for protection of his constitutional and statutory right and such exercise of fundamental right cannot be termed as "litigation history"
for disqualifying the bid of the petitioner.
11. Learned counsel has referred to Annexure-8, the bid document of IRCON International, Ltd. and pointed out 5 that clause similar to Clause 4.8 of the present SBD document has been incorporated in the SBD of IRCON. It is submitted that perusal of the clauses will reveal that they are verbatim the same, save and except that in the bid document of IRCON International Ltd., "litigation history" has not been included as a condition as mentioned in clause 4.8 of SBD of the State Government. It is argued that this exposes the arbitrariness and malafide intention of the Tender Committee.
12. It is argued that technical bids of 5 bidders have been declared as responsive inclusive of respondent no.5,i.e.,K.K.Builders Pvt. Ltd. It is contended that several proceedings were initiated against respondent no.5 by the respondent/State of Jharkhand, through Road Construction Department, for termination of on going project which was challenged by respondent no.5 before this High Court as would be evident from Annexure-9 series, i.e. the orders dated 10.12.2015 and 08.02.2016 passed in W.P(C) NO.403/2014 but the Tender Committee with an oblique motive have not disqualified respondent no.5 inspite of the fact that it has "litigation history" whereas they have disqualified the bid of the petitioner merely because of pendency of the FIR. That such dual standard and yardstick employed and adopted by the Tender Committee smacks of arbitrariness and amounts to malice in law and is violative of Article 14 of the Constitution of India.
13. It is submitted that as per the status reflected on the web portal, in connection with the present tender, the financial bid only have been opened but the financial evaluation has not been undertaken and no work order or any letter of intent/work has been issued in favour of any bidder. Therefore the petitioner has no other efficacious and alternative remedy for redressal of his grievance save and except to invoke the jurisdiction under Article 226 for issuance of appropriate writ/ direction/ order for the reliefs sought for.
14. To buttress his argument that pendency of FIR does not constitute "litigation history" learned counsel has relied on the decision of Calcutta High Court in the case 6 of Abhijit Sen Vs. Superintendent(Administration) Regional Passport Officer, Kolkata and Ors.; (2004 Cr.LJ 1281) and submitted that in the said case it was held that a criminal proceeding can be initiated, on the basis of FIR, only when cognizance of the police report is taken under Section 190 Cr.P.C. That as far as the petitioner's case is concerned though the FIR has been lodged against him but till date investigation is still going on and until and unless the chargesheet is submitted and cognizance is taken it cannot be said that any proceeding is pending against the petitioner, therefore, the disqualification of the petitioner on the ground that the petitioner has "litigation history" is not tenable. It is suibmitted that the Pubjab and Haryana High Court in the case of Daler Singh vs. Union of India in the judgment rendered on Ist October, 2015, has also reierated the same view. Learned counsel has also placed reliance in the case of Roop Singh Negi vs. Punjab National Bank, ( (2009) 2 SCC 570) and submitted that, in the said case, the Apex Court has held that evidence which were collected during investigation cannot be said to be an evidence for taking action against the person. Relying on the decision, in the case of Basayya Prabhayya Hallur vs. State of Karnataka, ( (2009) 17 SCC 55), it is argued that it has been held by the Apex Court that the fundamental principles of criminal jurisprudence is that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Thus, lodging of the FIR cannot be an evidence or proof that the petitioner is guilty for the offence under the Prevention of Corruption Act. Learned counsel has also placed reliance on the decision of the Apex Court in the case of Union of India and ors. vs. K.V.Jankiraman and Ors, (1991) 4 SCC 109) and contended that only when charge-
sheet is submitted the criminal prosecution can be said to be initiated.
On the basis of the aforesaid decisions it is contended that the impugned order is against the settled proposition of law and is fit to be set aside.
715. Learned counsel referred to the decision in the case of B.C.Biyani Projects Pvt. Ltd. vs. State of Madhya Pradesh (Civil Appeal No.6632/2016) and submitted that debarment of the petitioner cannot be permanent. The period of debarment would invariably depend upon the nature of the offence committed by the erring contractor. It is urged that in the aforesaid case, it was observed that since the petitioner was blacklisted for more than three years, hence taking into consideration the fact that three out of the six contracts have been completed by the appellant, the period of blacklisting suffered by the appellant was found to be sufficient to meet the ends of justice.
16. Learned counsel has further submitted that even if the petitioner has accepted the terms of the SBD he cannot be stopped or prevented from challenging the legality and vires of the expression or word "litigation history" as incorporated in Clause 4.8 of the SBD which is violative of Article 14 of the Constitution of India. In support of the contention reliance has been placed on the decision in the case of Panchanand Choudhary vs. State of Jharkhand and Ors. (W.P(C) NO.179/2012) which was affirmed in L.P.A.NO.132 of 2013 wherein, it was held that the petitioner is entitled to challenge the provisions of the NIT which are in the teeth of the Constitutional provision or in violation of fundamental rights.
17. Learned counsel has also relied on the decision in the case of Basheshar Nath vs. Commissioner of Income Tax Delhi and Rajasthan and Anr., ( AIR 1959 SC 149), and argued that the Apex Court has held that a breach of fundamental right flowing from Article 14 cannot be waived as the obligation has been imposed on the State, by Article 14 of the Constitution of India, that all the persons enjoy equality before the law and the benefit of the Article is not only available to a citizen but it is available to any person and an executive order which denies or waives equal protection of law is not sustainable in law, as Article 14 is a command by the Constitution to the State, as a matter of public policy, to ensure the equality of status and opportunity to every person 8 and the same cannot be waived even if a person consents to do an act which is violative of the fundamental right. Reliance has also been placed on the decision in the case of H.Lakshmaiah Reddy vs. L. Venkatesh Reddy, ((2015) 14 SCC 784 ) and in the case of Olga Tellis & Ors. vs. Bombay Municipal Corporation & ors., ( (1985) 3 SCC
545) and canvassed that the legal position has been well settled and crystalised that no estoppel can be claimed against enforcement of fundamental rights, even in cases where the petitioners concede that they would not claim any fundamental right they cannot be stopped from claiming the same before the Court.
18. Learned counsel has submitted that Hon'ble Supreme Court in the case of Anita Kushwaha vs. Pushap Sudan, ( (2016) 8 SCC 509 ) has held that access of justice is an integral part of the guarantee contained in Article 21 and 14 of the Constitution of India which guarantees equality before law and equal protection of law to not only citizens but non-citizens also. Relying on the decision of the Hon'ble Supreme Court in Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corp. Ltd., ( (2016) 16 SCC 818), it has been argued that no doubt the courts normally do not interfere with the decision regarding acceptance or rejection of a bid of a tenderer, however, the interference is permissible when the decision making process is malafide or intended to favour someone. It is submitted that in the case of Maa Binda Express Carrier & Anr. vs. North East Frontier Railway and Os.;(2014) 3 SCC 760 it has been 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. That the bidder/tenderer has an enforceable right in the court which is competent to examine whether the aggrieved party has been treated unfairly or discriminated against to the detriment of public interest.
19. Learned counsel has also relied on the decision in the case of Bafna Healthcare (P) Ltd. vs. State of Jharkhand and Ors.(W.P(C) NO.6418/2016) wherein the learned Single Judge, while relying on catena of decisions of 9 the Apex Court held that the decision of the Tender Committee suffers in law and on facts warranting interference in exercise of powers of judicial review and accordingly quashed the decision of the Tender Committee.
20. Learned counsel has contended that the decision making process was not in consonance with the terms of the clause of NIT. The action of the Tender Committee is actuated with malice as evidenced from the delineated facts as narrated, therefore, the expression "litigation history" incorporated in clause 4.8 of the SBD has been resorted to as a ploy for exercise of power in an arbitrary and discriminatory manner in violation of Article 14 of the Constitution of India.
21. Learned counsel has also relied on the decision of the Apex court in the case of Estate Officer, UT, Chandigarh & Ors. vs. Esys Information Technologies (P) Ltd., ( (2016) 12 SCC 582 ) and in the case of Chkandrakant Hargovindas Shah vs. Deputy Commissioner of Police and Anr., ( (2009) 7 SCC 186 ) and argued that respondent no.5, had suppressed material facts regarding the cases instituted by him and this amounted to false representation and he is guilty of 'suppressio veri' and 'suggestio falsi'. That the Tender Committee has conveniently over-looked this aspect that respondent no.5 has "litigation history" which is indicative of the malafide and bias attitude of the Committee. Learned counsel cited the decision in the case of Union of India vs. Vasavi Cooperative Housing Society Ltd., ( (2014) 2 SCC 269) and submitted that respondent no.5 failed to discharge the burden by producing the relevant documents.
On the above grounds it is contended that the obtaining facts leave no room for doubt that the order declaring the bid of the petitioner as non-responsive is capricious, arbitrary and malafide and fit to be quashed and the petitioner is entitled to the reliefs as prayed for in this writ petition.
22. Learned counsel for respondent no.5, M/s. K.K.Builders, the successful bidder, has countered that the 10 petitioner cannot allege that the case of respondent no.5 comes within the purview of expression 'litigation history' and respondent no.5 is guilty of 'suppressio veri' and 'sugggestio falsi'.
23. It is argued that it would be evident from the writ petitions and arbitration applications, as brought on record by the respondent no.5, that the petitioner has also suppressed the material fact about the writ petitions and arbitration applications filed by the petitioner before the High Court of Chhattisgarh. It is argued that non-disclosure of the said details by the petitioner is suggestive and indicative of the fact that the petitioner was well aware that the litigations or cases filed by way of writ or arbitration application do not constitute 'litigation history' in terms of the word incorporated as condition in clause 4.8 of the SBD. It is argued that the petitioner cannot blow hot and cold at the same time because if respondent no.5 is guilty of suppressing material facts then the petitioner too is a bird of the same feather, as he has deliberately suppressed the litigation which he had pursued by the aforesaid writ and the arbitration applications before the High Court of Chhattisgarh.
24. It is contended that the petitioner and respondent no.5 have understood the meaning and import of the word "litigation history" and the intent for which it was incorporated in the SBD. Both of them were aware that the legal proceeding which have been pursued by the parties for redressal of the grievance do not come within the purview of "litigation history". In fact, the word "litigation history"
means that there could be litigation against the party and not the litigation agitated by the party.
25. Learned counsel has argued that the copy of the FIR, at Annexure-3, would reveal that petitioner is an accused for the offence under Sections 420/120B IPC and Sections 13(i)(d) and 13(ii) of the Prevention of Corruption Act, 1988 which has been lodged by the Anti Corruption Bureau, Chhattisgarh. The allegation in the FIR is that he, in conspiracy with the government officials, had siphoned off Rs.4 crores from the public exchequer. In fact the petitioner 11 has not disclosed the factual details of the FIR in the affidavit filed before the Tender Committee rather he has made a bland statement to the effect that his name has been mentioned only as a passing reference in the said FIR.
26. It is submitted by the learned counsel for respondent no.5, that SBD was notified on 20.03.2017 itself and technical bid was evaluated on 25.05.2017. The petitioner had participated and filled up the tender document but had not lodged any protest and it is only after his bid was declared non-responsive, the petitioner has approached the Court challenging the terms and conditions of the tender. It is contended that in fact the principle of estoppel and sub- silentio bars the petitioner from questioning the vires of the words 'litigation history' incorporated in Clause 4.8 of SBD, because the petitioner had full knowledge of the terms and conditions of SBD and it has only been challenged after his disqualification in the technical bid evaluation.
27. It is argued that no material disclosing arbitrariness or malafide on the part of any member in evaluation of the technical bid has been placed or brought on record to substantiate the said allegation. It is evident that out of 11 tenderers, 5 were declared responsive and after opening of the financial bid, respondent no.5 was declared as L1 and there was no scope of any manipulation with respect to the financial bids of the concerned parties.
28. It is contended that petitioner has argued that NIT of IRCON International Ltd. does not contain the term "litigation history" and the petitioner had been awarded the contract by different authorities and departments even after lodging of the FIR, hence, declaring the bid of the petitioner as non-responsive by the respondent/State by taking umbrage under the term and condition "litigation history" is patently fallacious for the simple reason that the department is free to incorporate its own terms in the tender and the bidders cannot dictate as to what word or term should be incorporated by the employer.
29. Learned counsel has placed reliance on the decision in the case of Siemens Aktiengeselischaft and 12 Siemens Limited vs. Delhi Metro Rail Corporation Limited, ( (2014) 11 SCC 288 ) wherein the Apex Court, while referring to catena of decisions has held that in exercise of power of judicial review in the matter of tenders and contracts the State is free to protect its interest, as a guardian of its finances, and the scope of judicial review is confined to the following aspects:-
"(i) Whether there was any illegality in the decision which would imply whether decision making authority has understood correctly the law that regulates his decision making power and whether it has given effect to it;
(ii) Whether there was any irrationality in the decision taken by the authority implying thereby whether the decision is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at the same; and
(iii) Whether there was any procedural impropriety committed by the decision making authority while arriving at the decision."
30. Learned counsel has relied on the decision of the Apex Court in the case of "Michigan Rubber(India) Limited vs. State of Karnataka, ( (2012) 8 SCC 216 ) Central Coalfields Ltd. vs. SLL-SML, ( (2016) 8 SCC 622) wherein it has been held that the parties issuing the tender(the employer) has the right to punctiliously and rigidly enforce the terms of the tender. If a party approaches a Court for an order restraining the employer from strict enforcement of the terms of the tender, the Court would decline to do so. It was observed that deviation from term and conditions of tender is permissible so long as the level playing field is maintained and it does not result in any arbitrariness or discrimination in the Ramana Dayaram Shetty sense. The case of Tata Cellular vs. Union of India, ( (1994)6 SCC
651), gives importance to the lawfulness of a decision and 13 not its soundness and it was observed that the courts will not judicially review the decision at the behest of an unsuccessful bidder of technical or procedural violation. This principle has been reiterated in the case of Jagdish Mandal vs. State of Orissa, ((2007) 14 SCC 517).
31. While concluding his argument, learned counsel, for respondent no.5, has submitted that from the sequence of events and the exposited facts it is abundantly clear that the petitioner has not been able to enunciate that the decision of Tender Committee was actuated by bias or arbitrariness on the part of any government officials or the word "litigation history" was incorporated to the advantage of one and disadvantage of other bidders. It is argued that by taking into account the gravity of the allegation in the FIR, the Committee had sufficient cause for declaring the bid of the petitioner as non-responsive in terms of the condition incorporated in Clause 4.8. Therefore, the writ is devoid of merit and petitioner is not entitled to the relief as prayed for.
32. Learned A.A.G has adopted the arguments of respondent no.5 and submitted that the Tender Committee found that the petitioner in the previous tender invited by the department with respect to the work "widening & strengthening the work "E-Tendering No.RCD Garhwa/1125 and widening and strenghtening of Konga-Bakspur Govinda- Kara Road no.RCD/Khunti/830" had submitted his "litigation history" as nil and the petitioner had concealed the fact of allegation of corruption against him by the Economic Offence Wing of Anti Corruption Bureau, Chhattisgarh. The department had asked the petitioner about the same and the petitioner by letter no.0 dated 08.04.2016 had denied of any action taken by the Anti Corruption Bureau, Chhattisgarh.
33. It is submitted that Clause 4.8 of SBD prescribes the disqualification of bid on the ground of "litigation history". The petitioner was well aware regarding the terms and conditions enumerated in the SBD as well as the word "litigation history" as incorporated in clause 4.8 of the SBD and submitted an affidavit about the pendency of the case in the High Court of Chhattisgarh wherein the 14 petitioner had moved for quashing and setting aside of the FIR No.45/2015 dated 26.07.2015. It is urged that out of 11 bidders, 6 were found to be technically non-responsive and 5 bidders were declared as responsive and respondent no.5 was declared L1 after opening of the financial bid as would be evident from the decision dated 09.06.2017 i.e. Annexure-C. In fact, the petitioner had moved the High Court of Chhattisgarh for quashing of the FIR and such action of the petitioner comes within the purview of carrying out legal action and defending himself against a complaint made in the FIR, hence the contention of the petitioner that such defending of the petitioner does not fall within the domain of "litigation history" is misconceived.
34. Learned counsel has contended that every tender floated by the government authority is guided by the terms and conditions enumerated therein, hence the plea of the petitioner that he has been awarded work by other State and Central Government agencies cannot be a ground for agitating the issue that his bid has been declared non- responsive, on the basis of "litigation history" and the order is arbitrary and capricious.
It is submitted that the argument of the learned counsel for the petitioner that the performance of respondent no.5 was of a poor quality and had not completed the work in time, is rather misplaced because at the time of issuance of NIT the said respondent no.5 i.e. K.K.Builders had completed the work in compliance with the direction and liberty given by the High Court vide order dated 10.12.2015 passed in W.P(C) NO.403/2014(Annexure-1 to the writ petition) is fallacious, as it is evident that there was no litigation pending against K.K.Builders at the time of issuance of NIT and the same is reflected in the declaration of K.K.Builders vide Annexure-E, to the counter affidavit.
35. Heard. In view of the arguments advanced by the learned counsel for the parties and emphatically and strenuously argued by the learned counsel for the petitioner, one of the primary questions which requires to be answered in the present writ is whether the expression "litigation history" averred in clause 4.8 of SBD 15 gives unbridled, unrestricted and arbitrary power to the Tender Committee for declaring a bid as non-responsive and is violative of Article 14.
36. Learned counsel for the petitioner has argued that the term "litigation history" has not been defined in the SBD or NIT therefore, it confers unbridled and arbitrary power to the Committee.
Though the argument appears to be attractive, however, when tested on the bedrock of the facts it lacks in conviction because the petitioner alongwith 10(ten) other bidders had participated in the tender and submitted the documents as per the terms and conditions of the bid. The bidders were fully aware about the terms and condition of SBD. The petitioner had disclosed about the FIR lodged against him by the Anti-Corruption Bureau of the State of Chhattisgarh. Evidently, neither the petitioner nor the respondent no.5, had given details of the writ or arbitration application filed by them in the High Court of Chhattisgarh or High Court of Jharkhand. The non-disclosure by the petitioner about the writ application filed by him in Chhattisgarh High Court for redressal of his grievances is indicative of the fact that the petitioner was fully aware that such writ or arbitration applications filed by him do not constitute "litigation history". Accordingly, he did not furnish the details of the aforesaid cases. In the attending circumstances, the inference and conclusion can be drawn that the petitioner had understood that the words and expresion "litigation history" meant that he had to disclose about the cases instituted against him and not the cases which were filed or instituted by him for redressal of his grievances. Had the petitioner not understood the import and meaning of the word "litigation history" then he would have disclosed about all the cases instituted and pursued by him by way of writ applications and arbitration cases.
37. The petitioner has also raised the plea that respondent no.5 is guilty of 'supressio veri' and 'sugggestio falsi' as respondent no.5 had not disclosed about the writ petitions filed by him in the High Court and the Tender Committee has acted in a biased manner by not considering 16 this aspect of the matter. In this context it is pertinent to take note that 'suppressio vari' and 'suggestio falsi' in plain language connotes about suppression of truth equivalent to suggestion of what is false.
The doctrine or maxim 'suppressio vari' and 'suggestio falsi' has been elaborately dealt in the American Jurisprudence (2nd) Vol.37, Para 144, page. 196, the extract of which is as hereinunder:-
"...............unquestionably, the concealment of material facts that one is, under the circumstances, bound to disclose may constitute actionable fraud. Indeed one of the fundamental tenants of Anglo-Americal law of fraud is that fraud may be committed by suppression of truth(suppressio vari) as well as by suggestion of falsehood (suggestio falsi). (See Strong V/s. Repide, 213 U.S. 419; Tylar V/s. Savage, 143 U.S. 79; Griswold V/s. Hazard, 141 SC 260). The Chancellors developed the doctrine that disclosure was the duty of one standing in a trust or confidential relations to another and that suppressio veri may be equally fraudulent as suggestio falsi. (See Crosby V/s. Buchanan, 23 Wall(U.S.) 420, Smith V/s. Richards, 13 Pet(U.S.) 26; 10 L.Ed. 42, page 197)".
38. In Lazarus Estates Ltd. V/s. Beasley, (1956) 1 All E.R.341, it was observed by Denning L.J. as extracted hereinunder:-
"no Court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of Court, no order of Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved, but once it is proved it vitiates the judgments, contracts and all transactions whatsoever."17
Thus, in view of the settled principle with respect to the meaning of 'suppressio vari' and 'suggestio falsi', it is abundantly clear that the argument or the plea of the petitioner that Tender Committee had adopted dual standards and different yardsticks in declaring the bid of the petitioner as non-responsive and accepting the bid of respondent no.5 despite the cases, i.e., the writ application filed by respondent no.5, is without substance for the simple reason that the plea of the petitioner is self-contradictory and self-destructive as he has argued that the term "litigation history" covers the cases instituted by a person in the Court and in the same breath, he has adopted the stance that lodging of FIR does not come within the purview of "litigation history". Such dual and contradictory stance is untenable and is fit to be rejected.
39. This Court is in agreement with the contention of the learned counsels for the respondents, that non inclusion of the term "litigation history" in the NIT(SBD) of IRCON Intentional Ltd., and incorporation of the term 'litigation history' in the SBD of the State Government cannot be termed to be arbitrary and discriminatory. In this context, it is necessary to reiterate the settled principle that the government or the department is free to incorporate its own terms and conditions in the tender and the bidders cannot dictate as to what word or term should be incorporated by the department or government in the tender.
40. As noticed, the petitioner has not been able to explain as to why the petitioner did not lodge any protest at the stage of filing of the tender documents, rather he has challenged the terms and conditions of 'litigation history' after his bid has been declared as non-responsive.
41. In view of the submissions and decisions relied on by the counsel, it is amply clear that in exercise of power of judicial review, by the Court in the matter of tender, the settled legal position is that when reviewing an administrative action, the Court has to see whether the choice or decision is made lawfully and not to check whether choice or decision is sound. If the decision relating to award of contract, is in public interest, then the Court, in its 18 exercise of the power of judicial review can interfere only if a procedural error in assessment or prejudice to a tenderer is made out. The Court cannot review or examine the evidence with a view to forming its own view about the substantial merits of the case or challenge of award of contract. In fact what is to be examined is the legality and regularity of the process leading to award of contract in such economic and commercial matters keeping in mind that it is not sitting in an appeal over the soundness of the decision and it is only to see that the decision making process is fair, reasonable and transparent.
42. The established principle is that the appropriate stage to raise objection about any apprehended illegality, in terms of the contract and in the decision making process is when the validity of the project is under consideration at the government level and if such objection is ignored then the Court's intervention should be sought without delay.
43. In the attending facts of the instant case, it is crystal clear that the interpretation of the words or clause has to be made on the principle of parity of reasoning or by rule of natural discretion and by structure of logic, on the basis of the materials brought forth. It is evident that the tenderer understood and interpreted the word "litigation history" by parity of reasoning and the fact that the petitioner did not disclose or give details about the writ petitions and arbitration applications filed by him in the High Court of Chhattisgarh, leads to the logical conclusion that he understood and was fully aware about the import and meaning of the term "litigation history" incorporated as one of the condtions in Clause 4.8 of SBD.
44. Admittedly, five(5) bidders were declared responsive and six(6) were declared non-responsive by the Tender Committee which has considered the bids and the offers of the tenderers and after scrutiny of the said declaration they called for the verification report and thereafter they have taken a decision that petitioner's technical bid was non-responsive due to the "litigation history", i.e., the F.I.R registered under Sections 420/120B 19 IPC and Sections 13(i)(d) and 13(ii) of the Prevention of Corruption Act, 1988.
45. It is also noticed that petitioner has made a bald assertion of malafide but no specific allegation has been made against any member of the Committee in awarding of the contract. The terms and conditions were applicable equally to all the bidders. Learned counsel for the petitioner has not stated that there was any FIR or any case of moral turpitude registered against respondent no.5.
Evidently, there was kindle playing field for all the tenderers and fair play in this joints thus the argument that the decision is arbitrary and violative of Article 14 of Constitution of India is frivolous. At this stage it is relevant to reiterate that it goes without saying that Article 14 is attracted when there is discrimination among the equally placed citizens or non-citizens and it does not operate amongst the equals.
46. The work order was with respect to widening and strengthening of the road from Bundu Sonahatu- Jamudag-Jariya Road(MDR-026) from km 0.00 to 30.005 and the Tender Committee realised that the said road was for the public purpose and the public at large is interested in the quality of the work. The allegation made in the FIR instituted against the petitioner is that he, in connivance with the government officials, had siphoned Rs.4 Crores to public fund. The Committee must have considered this aspect and accordingly they took a decision declaring the technical bid of the petitioner as non-responsive. It is well settled that price is not the sole criteria for awarding a contract. It must be one of the criterion but the past record of the tenderers and the quality of goods and services which have been rendered by the tenderers in the past are also the factor to be considered in awarding of contract. If the reputation of a tenderer is tainted then the employer will definitely not award the contract to such a person as this could bring flake of the public at large and hence would only lead to further litigation.
47. It is well settled principle that burden of proving malafide is on the person who makes such an 20 allegation and malice cannot be inferred and it is settled principle that such a charge can easily be made than made out and the court has to be very cautious in such matters specially when no cogent material is brought on record and only vague allegations have been made thus, merely pleading that the action was malafide and malicious is not enough. It goes without saying that in the absence of any material particular the court is not required to make a roving inquiry into the matter. In such circumstance, in a catena of decisions it has been observed by the Apex Court that these are the cases of last refuge of a loosing litigant/tenderer.
It is settled that the employer prescribes particular format incorporating the criteria which is applicable to all the participants and the court should be restricted to give its own interpretation to the language of the documents, rather it should be kept in mind and inclined to support every word, intended is used for having very sound effect or for the use by the person who have understood and participated in a work as per the terms and the language used in the tender.
In this aspect observation of the Supreme Court in the case of Central Coalfields Ltd. vs. SLL- SML(Joint Venture Consortium) and Ors. , reported in (2016) 8 SCC 622 can be taken note of where it has been observed that the court must as far as possible avoid an interpretation which would render the words used by the author of the document meaningless and futile and reduce to silence any part of the document or making it altogether inapplicable.
The evaluation of tender and awarding contract are essentially commercial functions and the principle of equity and natural justice are kept apart and if the decision does not smack of capriciousness or arbitrary exercise of power, judicial review cannot be permitted to be invoked to subserve the private interest at the cost of public interest. The soundness of the decision can only be questioned when they are found to be irrational, bias, 21 malafide and were intended to favour some one and has outraged the reasoning of any prudent man.
48. In the case of Jagdish Mandal vs. State of Orissa;(2007) 14 SCC 517, the established principle has been reiterated that the scope of judicial review of administrative action is only to the extent to prevent arbitrariness, irrationality, unreasonableness, bias, malafide and to check whether choice of decision is made arbitrarily and not to check whether the choice of decision is sound. It has also been held that when the decision to awarding of contract is bonafide and is in public interest, the court should not interfere in exercise of power of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer is made out.
49. Considering the broad features of the case as elucidated in the foregoing paragraphs and at the cost of repetition, the stark reality evidenced is that the petitioner had comprehended and understood the import and meaning of the words "litigation history" incorporated in the SBD, in its proper sense and accordingly had disclosed that FIR was pending against him. The Tender Committee has considered the matter in terms of the SBD and declared the technical bid of the petitioner as non-responsive. Therefore, in the considered opinion of this Court it is held that the terms "litigation history" incorporated in the bid document is neither discriminatory nor violative of Article 14 of the Constitution of India.
50. The upshot of the discussions made hereinabove, leads to the conclusion that the writ petition is devoid of merit.
51. In the result it stands dismissed.
(Amitav K. Gupta, J) Biswas.