Karnataka High Court
D.B. Masur vs The Karnatak University, Dharwad And ... on 7 December, 2001
Equivalent citations: ILR2002KAR292, 2002(2)KARLJ473
Author: N. Kumar
Bench: N. Kumar
JUDGMENT J.K. Jain, C.J.
1. These writ appeals have been filed against the order of the learned Single Judge dated 21-9-2001 passed in Writ Petition No. 9865 of 2001 (M.K. Hegde Constructions Private Limited, Dharwad v. The Karnatak University, Dharwad and Ors., 2002(2) Kar. L.J. 581), whereby the writ petition was allowed and a direction was issued to consider the case of the petitioner therein, in accordance with law.
2. The facts which are necessary for disposal of this case are, that in order to commemorate the Golden Jubilee of the Karnataka University, Dharwad, the 1st respondent issued a notification dated 24-11-2000, inviting pre-qualification tenders and in response to that 15 contractors including D.B. Masur and M.K. Hegde Constructions Private Limited submitted the pre-qualification tenders. Out of them 10 tenderers were found qualified. The third respondent issued a communication dated 12-2-2001 (Annexure-D) calling upon the interested contractors desirous of taking part in the above works to submit an application along with prescribed fee of Rs. 6,264A by way of DD and shall obtain blank Lender forms on or before 19-2-2001 and the tender documents shall be submitted within 4 p.m. on or before 26-2-2001. It is made clear a demand draft for a sum of Rs. 2,09,520/- from any Scheduled Bank or other Banks by way of EMD in favour of Finance Officer, Karnataka University, Dharwad, should be in the first cover and in the second cover they should submit the original and duplicate tender forms duly filled upon along with documents. In pursuance of Annexure-D, seven tenders were received; out of them five tenders were received in two covers as required and M.K. Hegde Constructions Private Limited had submitted only one cover containing both the demand draft as well as the tender forms.
3. The grievance of M.K. Hegde Constructions Private Limited was that the Building Committee has accepted the tender of D.B. Masur without opening its tenders. Hence, M.K. Hegde Constructions Private Limited, filed a writ petition in W.P. No. 9865 of 2001 for a mandamus directing the respondents 1 to 3 to consider the tender submitted by the petitioner and to evaluate the same along with others and to award the tender to the petitioner as it is the lowest tender.
4. On consideration, the learned Single Judge found that in the absence of any stipulation for rejection for non-compliance of any tender notice, there is no violation of the terms and conditions of the tender and allowed the writ petition directing the respondents to consider the case of the petitioner, in accordance with law.
5. Against the order of the learned Single Judge, Writ Appeal No. 6618 of 2001 has been filed by the Karnataka University, Dharwad and Writ Appeal No. 6588 of 2001 has been filed by D.B. Masur. This Court admitted the appeals on 18-10-2001 and granted the interim order and further directed that the matter be posted for final hearing. The cases have come up before us for final hearing.
6. Since the points in controversy are similar, we consider the respective averments of the parties.
7. The learned Counsel for D.B. Masur submits that the learned Single Judge has erred in allowing the writ petition considering the fact that there was no violation of the terms and conditions of the tender by not complying with the conditions in Annexure-D i.e., furnishing of DD and original and duplicate tender forms in two separate covers. He has also submitted that the learned Single Judge wrongly applied the decision in Kumari Shrilekha Vidyarthi and Ors. v. State of Uttar Pradesh and Ors., , to the facts of the case on hand and erred in not considering that ruling in right perspective. He has relied on the decisions in M.D., Kerala State Beverages (M and M) Corporation Limited and Anr. v. K.M.K. Salim and Ors., , and Air India Limited v. Cochin International Airport Limited and Ors.,
8. On the other hand, the learned Counsel for the unsuccessful bidder M.K. Hegde Constructions Private Limited, has submitted that the learned Single Judge has rightly found that there was no violation of terms of tender notification and was right in allowing the writ petition. He has also submitted that non-consideration of his tender is bad, as the same cannot be rejected merely on the ground that the conditions in Annexure-D have not been followed. He further submitted that a tender can be rejected if the tender stipulation provides for rejection for non-compliance, but there was no such stipulation in the tender notice and therefore the order of the learned Single Judge does not call for any interference. He has relied on the decisions in Ramana Dayaram Shetty v. The International Airport Authority of India, ; Poddar Steel Corporation v. Ganesh Engineering Works and Ors., ; Dutta Associates (Private) Limited v. Indo Merchantiles (Private) Limited and Ors., and Rajesekhar Gogoi v. State of Assam .
9. We have heard the learned Counsels for the parties and perused the materials placed on record and case-law on the point.
10. No doubt, it is well-settled that a 'Public Authority' is under the duty to act fairly, justly and reasonably while exercising its power and that power has been extended to contractual matters also and one has to consider the matter keeping in mind the touchstone of Article 14 of the Constitution.
11. The learned Counsel for D.B. Masur submits that once the formalities have been completed and the construction work has been done to some extent, i.e., the construction of roof work has come up, which is clear from the photographs, the learned Single Judge ought not to have allowed the writ petition merely on ground that there is no violation of terms of tender notice by not submitting the documents in two separate covers. He has also submitted that it is always open to the concerned person to negotiate and arrive at viable and mutually acceptable price, as there is no obligation to award the tender only to the lowest bidder. As such it is not necessary to award the tender to the M.K. Hegde Constructions Private Limited, the alleged lowest bidder, when he had full knowledge of Annexure-D at that point of time and more so no illegality or prejudice has been shown, and therefore, the order of the learned Single Judge is liable to be set aside.
12. In the instant case, the question that arises for consideration is, what is the effect of Annexure-D. Admittedly, Annexure-D has been issued to all the 10 pre-qualified contractors requiring them to obtain the blank tender forms by 19-2-2001 and to submit the same within 4.00 p.m. on or before 26-2-2001. M.K. Hegde Constructions Private Limited has not followed the instructions and therefore there is no illegality in not considering its tender form and under such circumstances, it cannot be construed that non-consideration of his tender is unjust, unfair and arbitrary. No doubt, the eligibility and qualification should be as per the tender notice. It is in pursuance of Annexure-D the tenders were submitted including M.K. Hegde Constructions Private Limited. When they have partly complied with the terms stipulated in the said Annexure-D they cannot complain that non-compliance of other conditions by them would not disqualify them. Their contention that the said conditions are not part of the tender form or notification as such they did not give any importance to the said letter as they are not necessary or relevant to be complied with cannot be accepted. Admittedly, they have received the communication Annexure-D along with others. They did not object to it nor sought any clarification when according to them there was a conflict between Annexure-D and Clause 14 of the tender. On the contrary it is in pursuance of Annexure-D he has submitted the tender and therefore they are estopped from saying that their tender should not have been rejected for non-compliance of the two conditions mentioned in Annexure-D. But, at the same time, as stated, once the letter Annexure-D has been issued to all the persons who are pre-qualified, M.K. Hegde Constructions Private Limited has also complied to some extent with the tender conditions. Thereafter, he cannot say that he should not be held to be disqualified for non-fulfilling the conditions mentioned in Annexure-D. The contention that conditions mentioned in Annexure-D are not necessary or relevant, and that there is no violation of the conditions mentioned in the tender notice will not be of any help when, admittedly, he received the communication (Annexure-D) along with 10 tenderers and did not object to it nor put forth his grievance of any kind that it was not necessary to issue Annexure-D stipulating the two conditions, at that point of time, and as such he could not contend that his tender could not be rejected for want of not complying with the two conditions mentioned in the Annexure-D. More particularly, M.K. Hegde Constructions Private Limited obtained the blank tender form for compliance and under such circumstances it is estopped from saying that its tender should not have been rejected for non-compliance of the two conditions mentioned in Annexure-D within stipulated time.
The contention of the learned Counsel for the respondent that when there is an inconsistency between the terms of the tender and Annexure-D it is the terms of the tender which should prevail is concerned we do not find any merit in the same. The terms of Annexure-D and the terms of the tender have to be read together harmoniously and when even before issuing of tender forms it is expressly stated how the tender form is to be obtained and submitted and when accordingly the said tender form is submitted by paying the required fee and when a demand draft is obtained as required in Annexure-D the tender should have been submitted in manner prescribed in Annexure-D and not in terms of conditions stipulated in the tender form. Therefore, when the 1st respondent has not submitted the tender as required under Annexure-D the authorities were justified in not opening the tender of the 1st respondent and in not considering the tender of the 4th respondent. No exception could be taken to this. M.K. Hegde Constructions cannot take advantage of the fact that it has quoted the lowest amount and in our view the learned Single Judge has wrongly interfered in this contractual matter exercising the extraordinary jurisdiction of this Court under Article 226 of the Constitution. It is well-settled that an administrative decision can only be impeached if it is arbitrary or violative of Article 14 of the Constitution or the same is biased or vitiated by mala fides. As stated in the instant case, nothing has been placed by M.K. Hegde Constructions on record to substantiate that its application has been deliberately not considered by putting the two conditions in Annexure-D. As the facts reveal, all the tenderers have complied with Annexure-D. The argument on the basis of mere apprehension that a person approached him and he has quoted the lower price cannot be a ground for interference on account of mala fides on alleged extraneous considerations.
13. It has also come on record that ex parte interim order was granted on 16-3-2001 not to issue contract work, and after hearing the parties, it was vacated on 19-4-2001 by the learned Single Judge. Against the order of the learned Single Judge vacating the order of temporary injunction a writ appeal was filed which was also dismissed. Pending writ petition, the work was in progress and D.B. Masur had received substantial amount from the University in lieu of work and thereafter also the work had come up to lintel level when the writ petition was allowed and it is at the stage of completion, and the same has also not been considered by the learned Single Judge. This Court has stayed the order of the learned Single Judge on 18-10-2001, and now the work has come up to roof level, which is apparent from the photographs and also not disputed, as the appellant is challenging the non-consideration of its application and awarding of contract to 4th respondent. As stated and under the circumstances, the order of the learned Single Judge is not sustainable. In the facts of the given case, it is not necessary to discuss elaborately on the case-law cited by the unsuccessful bidder as the same are not helpful.
14. As per the facts culled out and as discussed above, nothing as been placed on record to show that the action of the authority is arbitrary and capricious nor any mala fides has been averred. The learned Counsel has not been able to show any arbitrariness which touches the conscience of this Court to invoke Article 226 of the Constitution to interfere in a contractual matter as already stated. Under the circumstances, in our opinion, it will be proper to set aside the order of the learned Single Judge wherein the respondents were directed to consider the case of M.K. Hegde Constructions Private Limited, supra.
15. In view of the above discussion, the order of the learned Single Judge is not sustainable and the same is liable to be set aside. Accordingly, writ appeals are allowed. In the facts and circumstances of the appeals, the costs are made easy.