Himachal Pradesh High Court
Billu vs State Of H.P. & Ors on 30 November, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 7458 of 2022 .
Reserved on: 22.11.2022
Decided on: 30.11.2022
Billu ...Petitioner
Versus
State of H.P. & Ors. ...Respondents
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Hon'ble Mr. Justice Virender Singh, Judge.
Yes.
Whether approved for reporting? 1 For the Petitioner : Mr. Ankush Dass Sood, Sr. Advocate with Mr. Ankit Dhiman, Advocate, for the petitioner.
For the Respondents :Mr. Ashok Sharma, A.G. with Mr. Rajinder Dogra, Sr. Addl. A.G., Mr. J. S. Guleria, Mr. Bhupinder Thakur, Dy. A.Gs. And Mr. Rajat Chauhan, Law Officer, for respondents No. 1 and 2.
Mr. S. C. Sharma, Sr. Advocate with Mr. Arvind Negi, Advocate, for respondent No. 3.
Mr. Dushyant Dadwal, Advocate, for
respondent No. 4.
Tarlok Singh Chauhan, Judge
As per the pleaded case, the petitioner is a registered government contractor and licence holder under 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 30/11/2022 20:34:33 :::CIS 2 Section 12 (1) of the Contractor Labour (Regulation and Abolition) Act, 1970 and a licence has been granted by .
respondent No. 3 i.e. Municipal Council, Manali, for collection and segregation of garbage. The petitioner was also a GST certificate holder. Respondent No. 3 invited online bids items in electronic tendering system in two (2) covers system for door to door collection of solid waste alongwith transportation to the Solid Waste Management (for short 'SWM') site Rangari from Wards No. 1 to 7, for which vehicles were required to be provided by the contractor. These vehicles were further required to contain different containers containing wet (bio-degradable) and dry (non-biodegradable) separately including transportation of garbage collected from street sweeping for a total costs of Rs.
8,68,000/- vide tender notice dated 20.09.2022.
2. In terms of the tender, the last date for applying was fixed as 28.09.2022 and the date for opening the tender was fixed as 29.09.2022. It is the further case of the petitioner that respondent No.3 while inviting tender did not follow the provisions of the H.P. Financial Rules and also the Manual for Procurement of Works, 2019 and despite this awarded the work in favour of respondent No. 4.
3. Hence, the present petition for grant of the following substantive reliefs:-
::: Downloaded on - 30/11/2022 20:34:33 :::CIS 3I) That the impugned tender work in question allotted to respondent No. 4 (Annexure P-9) for respondent No. 3 .
Council invited online bids item rates in electronic tendering system in 2 covers system for door to door collection of solid waste alongwith transportation tot he SWM site Rangari from Ward No. 1 to 7 (vehicle to be provided by the contractor allottee and transported in different containers containing wet (bio-degradable) and dry (non biodegradable) separately including transportation of garbage, may kindly be quashed and the respondents may kindly be directed to re-publish the same in accordance with law, in the interest of justice and fair play.
ii) That the respondents may kindly be directed to re-
publish the above mentioned tender with wide publication as per law.
4. Only respondents No. 3 and 4 i.e. Municipal Council, Manali and Triotap Technologies in whose favour the tender has been allotted, have contested the instant petition.
5. In the reply filed by respondent No. 3, various preliminary objections have been raised, questioning the locus standi and the right of the petitioner to file and maintain the instant petition and the petitioner having not approached the court with clean hands and the petition being based on false, frivolous and vexatious allegations.
6. On merits, it has been contended, that in addition to the online tender invited on the e-Procurement System of H.P. Government, the same was also sent for publication in two ::: Downloaded on - 30/11/2022 20:34:33 :::CIS 4 newspapers, Amar Ujala and Dainik Jagran, but the same was not published in the Dainik Jagran for the reasons best known to the .
Dainik Jagran, however, it is published in the Amar Ujala. It has been further averred that the entire tender process and thereafter the allotment of work has been conducted in a fair and transparent manner, that too, after completing all codal formalities and, therefore, requires no interference.
7. As regards the Contractor i.e. respondent No. 4, it too, in its reply raised various preliminary objections questioning the locus standi of the petitioner to file and maintain the present petition, he neither has the licence nor he participated in the tender process. It has further been averred that in absence of any prejudice being caused to the petitioner, he has no locus standi to file and maintain the present petition.
8. Lastly, it has been averred that the licence issued in favour of the petitioner under the provisions of Contract Labour (Regulation & Abolition) Act, 1970 was valid till 10.07.2021, whereas the present tender online bids were invited in September, 2022, therefore, also the petitioner has no cause of action to maintain the present petition.
9. On merits, it has been stated that since all codal formalities and procedural requirements have been followed, therefore, calls for no interference. Additionally, it has further ::: Downloaded on - 30/11/2022 20:34:33 :::CIS 5 been stated that the present petition is not maintainable as the petitioner was a representative of the Nextgen Chemicals, who .
happened to be the Contractor for the period 2021-22 in Municipal Council, Manali and, in substance, the instant petition was only a proxy litigation at the behest of Nextgen Chemicals.
10. In rejoinder to the response of respondent No. 3, while rebutting the contention of locus standi, it has been pointed out that the petitioner has not demanded any award of work in his favour but he is merely praying to uphold the spirit of law, which has been violated at every steps by the Municipal Council.
11. Likewise, in rejoinder to the reply filed by respondent No. 4, it has been stated that the tender floated by it is arbitrary, illegal, unreasonable and irrational and contrary to the principles of natural justice.
12. Before proceeding further to determine the case on merits, this Court is required to first adjudicate upon the locus standi of the petitioner to file the instant petition. It needs to be noticed that the petitioner claimed that he is a licence holder under Section 12 (1) of the Contractor Labour (Regulation and Abolition) Act, 1970 and being a licence holder, he is entitled to maintain the instant petition. However, the fact remains that the petitioner has not participated in any bid and that apart, the ::: Downloaded on - 30/11/2022 20:34:33 :::CIS 6 petitioner is a former representative of Nextgen Chemicals, who happened to be the contractor for the period 2021-22 and the .
instant petition, therefore, is nothing short of proxy litigation at the behest and on behalf of Nextgen Chemicals.
13. As observed by three-Judge Bench of the Hon'ble Supreme Court in its latest decision in Rajeev Suri vs. Delhi Development Authority & Ors. 2021 (1) Scale 1, that tender is essentially a contract between two parties and merely because a party is State, the basic character of the transaction does not change. As a general rule, there is no locus for a third person to question a free contractual relationship.
14. It shall be apt to reproduce relevant observations as contained in paras 388-389, which read as under:-
388. A tender is essentially a contract between two parties and merely because one party to the contract is the State, the basic character of the transaction does not change. In India, we follow the principle of privity of contract and the law relating to contracts and specific relief provides ample remedy to an aggrieved party to the contractual transaction. The principle of privity of contract has sound basis in law. It is owing to the basic character of a commercial relation wherein two parties of sound mind choose to enter into a legal relationship with each other and decide mutual rights and liabilities in accordance with the needs of the transaction with their free consent. There is an element of consensus ad idem. In a free commercial transaction, it is the foremost desire of the parties to keep third person interference away.::: Downloaded on - 30/11/2022 20:34:33 :::CIS 7
389. As a general rule, there is no locus for a third person to question a free contractual relationship. In special .
circumstances, no doubt, the Specific Relief Act, 1963380 provides for circumstances when "any person" could initiate action for recission of contracts or cancellation of instruments. However, this action is available only if the initiator is able to show that the contract/instrument is detrimental to its interests. Moreover, that is a remedy to be pursued in civil Court or the Court of first instance.
There is no basis in law to permit an absolutely unaffected person to shake a settled transaction between two parties.
15. It needs to be noticed that the grievance of the petitioner is not based on violation of Articles 14 and 19 of the Constitution of India in so far as he is concerned. Further, it is also not his case that he has not been allowed to participate in the tender process or he was treated differentially or denied equity of opportunity. Once there is no denial of opportunity to the petitioner, in any manner, to participate in the tender process and he with his eyes open did not choose to participate in the same, then he has no occasion to complain, as the instant petition has been filed only to subserve individual interest as against the public interest and is rather a proxy litigation set-up as a stooge to vindicate the grievance and not his right but apparently the so-called cause of the erstwhile contractor.
16. Apart from the above, even if the allegations as set out by the petitioner, are gone into, even then, we find no reason to interfere.
::: Downloaded on - 30/11/2022 20:34:33 :::CIS 817. As regards the first contention regarding the violation of the provisions of the Himachal Pradesh Financial Rules, 1971, .
the relevant Rules as contained in Rules 102 and 115, read as under:-
102. Advertised Tender System.- (1) Subject to exceptions under these rules, this method shall be used for procurement of goods of estimated value of Rs. 10 lacs (ten lacs rupees) and above or such limit as may be prescribed. Advertisement in such cases shall be given in the Official Gazette of Himachal Pradesh and at least in two leading daily news papers having wide circulation.
(2) A Procurement Entity having its web site shall also publish all its advertised tender enquiries on the web site and provide a link with web site of the Controller of Stores. It shall also give its web site address in the advertisements in the Official Gazette of Himachal Pradesh and newspapers as mentioned in sub-rule (1).
&
115. Invitation of bids through advertised tender system - (1) Subject to exceptions under these rules, this method shall be used for outsourcing of services of Rs. 10 lacs (ten lacs rupees) and above or such limit as may be prescribed. Advertisement in such cases shall be given in the Official Gazette of Himachal Pradesh and at least in two leading daily news papers having wide circulation. (2) A Department having its website shall also publish all its advertised tender enquiries on the website. It shall also give its website address in the advertisement in the official gazette.
18. Record appended by respondent No. 3 goes to reveal that after respondent No. 3 has decided to float online tender on ::: Downloaded on - 30/11/2022 20:34:33 :::CIS 9 20.09.2022, copy of the notice inviting tender was sent to two vernacular newspaper i.e. Amar Ujala and Dainik Jagran. As .
regards, Dainik Jagran, it did not choose to publish the notice but Amar Ujala did publish the notice though belatedly on 27.09.2022.
19. Nonetheless, the fact remains that it was pursuant to the online as also offline tender notice that as many as six parties participated. The response in the case of Nextgen is found to be non-responsive, while in the cases of five other parties, the same was found to be responsive. Thus, it cannot, in any manner be concluded that respondent No. 3 did not make an endeavour to comply with the provisions. If the Dainik Jagran did not choose to publish the notice or for that matter if the Daily Amar Ujala publish the notice belatedly, no fault can be attributed to respondent No. 3, more particularly, when the earlier contractor i.e. Nextgen Chemicals contract had come to an end and Manali being a tourist season, the tender process had to be completed expeditiously.
20. Now, adverting to the other contention raised by the petitioner that respondent No. 4 had not purchased the vehicles within the stipulated time i.e. before 15.10.2022, even this contention is not sustainable because respondent No. 4 had promptly purchased eight new vehicles after spending almost Rs.
::: Downloaded on - 30/11/2022 20:34:33 :::CIS 1085,00,000/- and had also altered the same as per the requirement of the tender documents by 01.11.2022.
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21. Clearly, therefore, the instant petition is nothing but a gross abuse of the process of the law. The petitioner could have very well participated in the tender process and come to this Court by way of writ petition but the petitioner has deliberately chosen not to participate in the tender process nor approached the Court till the tender had been finalised. If the petitioner really feels that the tender had been invited without following due process, then he should have come to the Court at the threshold and, as observed above, not waited for the tender process has been finalised.
22. In view of the aforesaid discussion, we not only do not find any merit in this petition but find the same to be a gross abuse of the process of the Court The petitioner without spending a single paisa and without participating in the tender process has unnecessarily dragged respondent No. 4 into avoidable litigation. Therefore, the present petition is dismissed with costs of Rs. 60,000/- out of which Rs. 20,000/- to be paid to respondent No. 3-Municipal Council, Manali, Rs.20,000/- to respondent No. 4-The Triotap Technologies Pvt. Ltd. and Rs.20,000/- to H.P. High Court Advocates' Welfare Fund within a ::: Downloaded on - 30/11/2022 20:34:33 :::CIS 11 period of four weeks. Pending application(s), if any, also stands disposed of.
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For compliance to come up on 01.03.2023.
(Tarlok Singh Chauhan) Judge (Virender Singh) Judge 30th November, 2022 (sanjeev) ::: Downloaded on - 30/11/2022 20:34:33 :::CIS