Uttarakhand High Court
Nainital Zila Shram Nirman And Vipnan ... vs State Of Uttarakhand And Others on 17 November, 2017
Author: Manoj K. Tiwari
Bench: Manoj K. Tiwari
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 2446 of 2017
Nainital Zila Shram Nirman
And Vipnan Sahkari Sangh Limited ... Petitioner
Vs
State of Uttarakhand & others ... Respondents
Mr. M.S. Pal, Sr. Advocate, assisted by Mr. Jitendra Chaudhary and Mr. M.S. Dangi, Advocates for the
petitioner.
Mr. N.S. Pundir, Deputy Advocate General for the State.
Mr. Rakesh Thapliyal, Advocate assisted by Mr. V.K. Kaparwan, Advocate for respondent Nos. 2 and 3.
Mr. D.S. Patni and Mr. Piyush Garg, Advocates for respondent No. 4.
Mr. Ahrar Baig, Advocate for respondent No. 5.
Hon'ble Manoj K. Tiwari, J. (Oral)
Petitioner is a Co-operative Society, which participated in the tender process pursuant to a notice inviting tender issued by Uttarakhand Forest Development Corporation (hereinafter referred to as 'the Corporation') on 20.08.2017.
2. By the said notice, tenders were invited from eligible persons in two bid system for supply, establishment, maintenance and operation of Electronic Weighing Bridges at various gates of River Gaula in District Nainital for the purpose of weighing the trucks carrying river bed material from River Gaula. According to the said notice, technical bids were to be opened on 18.09.2017 and financial bid of only those bidders were to be opened whose technical bid is declared responsive. In response to the said notice inviting tender, petitioner also submitted his bid in two bid system, however, technical bid of the petitioner has been rejected due to non-fulfillment of the condition contained in clause 11 of part 4 of the tender document.
3. Part 4 of the tender document is the format in which technical bid has to be submitted and the documents which are to be enclosed with the technical bid are also mentioned therein. According to clause 11 thereof, a bidder should have three years experience of operation/maintenance of Electronic Weighing Bridges for which attested copy of Registration Certificate with Weights and Measures Department should be enclosed. Every 2 bidder is further required to supply other information as indicated against clause 11 in part 4 of the tender document.
4. According to the petitioner, he had submitted his technical bid supported by all necessary documents including Experience Certificate and Registration Certificate as required in clause 11 of part 4 of the tender document. In para 4 of the writ petition, it is stated that experience certificate of one member of petitioner Co-operative Society was enclosed with his technical bid. Thus, it is the case of the petitioner that rejection of his technical bid by the Corporation is unjust.
5. The stand taken by the Corporation in para 7 of its counter affidavit is that the Registration Certificate submitted by the petitioner was not in his name but was in the name of M/s Haldwani Dharmakanta and Uttarakhand Stone Products, which is not in terms of clause 11 of part 4 of the tender document. It has further been stated in para 11 of the counter affidavit that the Experience Certificate submitted by petitioner is in the name of some other person namely Mahesh Chandra Sharma. Thus, the Corporation has defended rejection of technical bid of the petitioner.
6. It is the contention of learned counsel for the petitioner that one member of petitioner Co-operative Society namely Sri Pradeep Airen has experience of operating and maintaining Electronic Weighing Bridge, therefore, the experience earned by a member has to be treated as experience earned by the Society. Thus, according to learned counsel, rejection of petitioner's technical bid is unjust and unsustainable.
7. In my humble opinion, the submission made by learned counsel for the petitioner that experience earned by a member of Co-operative Society should be treated as experience earned by the Co-operative Society cannot be accepted. Unlike a partnership firm, a Co-operative Society has a legal personality, distinct from its members. Reference to Section 9 of Uttarakhand Co-operative Societies Act, 2003 would be apposite here, which is extracted below:-
3"9. Co-operative societies to be bodies corporate - The registration of a society shall render it a body corporate by the name under which it is registered, having perpetual succession and a common seal, and with power to hold property, enter into contracts, institute and defend suits and other legal proceedings and to do all things necessary for the purpose for which it was constituted.
8. The only question which falls for consideration of this Court is that whether respondent No. 3 was justified in ignoring the experience certificate of a member of petitioner Co-operative society. In other words, whether experience earned by a member can be treated as experience of a Co-operative Society.
9. Since, Co-operative Society is a body corporate with distinct legal personality, therefore, experience, if any, acquired by one of its member cannot be treated as experience of the petitioner Co-operative Society. Therefore, petitioner did not fulfill the requirement of clause 11 of part 4 of the tender document. In such view of the matter, I do not find any infirmity in rejection of technical bid of the petitioner by the Corporation.
10. Hon'ble Supreme Court in the case of AFCONS Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited (2016) 16 SCC 818 has summarized legal position in para 15 of the judgment, which is extracted below:-
"15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given."
11. Lastly, learned counsel for the petitioner submits that petitioner has been subjected to hostile discrimination inasmuch as certain conditions of eligibility were relaxed in favour of other bidders while such relaxation was not given to the petitioner in the condition contained in clause 11 of part 4 of the tender document. He has also contended that it is a case of mala-fide exercise of power to favour some bidders at the cost of the petitioner. However, in the absence of any pleading to this effect in the writ petition, this question cannot be adjudicated. Malice is a question 4 of fact, which has to be specifically pleaded and plea of malice cannot be raised during the course of argument in the absence of any foundation in the pleadings. In such view of the matter, the submission made by learned Senior Counsel for the petitioner is rejected.
12. For the reasons indicated above, I find no force in the writ petition and the writ petition is liable to be dismissed and is hereby dismissed. No order as to costs.
(Manoj K. Tiwari, J.) 17.11.2017 Ujjwal