Kerala High Court
M/S.Chandragiri Construction Company vs State Of Kerala on 8 April, 2010
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31751 of 2009(L)
1. M/S.CHANDRAGIRI CONSTRUCTION COMPANY,
... Petitioner
Vs
1. STATE OF KERALA, REP.BY THE PRINCIPAL
... Respondent
2. SUPERINTENDING ENGINEER,
3. THE CHIEF ENGINEER,
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent :SRI.T.G.RAJENDRAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :08/04/2010
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) Nos. 31751/2009-L & 1546/2010-P
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Dated this the 8th day of April, 2010.
JUDGMENT
These two writ petitions are filed by the same petitioner challenging the rejection of the tenders at the pre-qualification stage. The facts necessary for the disposal of the writ petitions are the following:
2. The petitioner in both the writ petitions is the same construction company represented by its partner. Since common questions arise for consideration, they are disposed of by this common judgment.
3. In W.P.(C) No.31751/2009, Ext.P1 is the notification issued by the second respondent dated 13.8.2009 inviting pre-qualification tenders for execution of certain specified works. The petitioner submitted pre-
qualification applications for items 4, 6 to 8 and 11 as per Exts.P2(a) to P2
(e). Ext.P3 is the profile of the firm with all necessary documents.
4. Out of the five works, the petitioner was pre-qualified for items 1 and 3 based on the proceedings of the second respondent dated 16.10.2009. What is under challenge in these writ petitions is Ext.P4, copy of the minutes of the Chief Engineers Committee held on 30.10.2009 wherein they decided to disqualify the petitioner for the remaining three works. Ext.P5 wpc 31751/2009 & 1546/10 2 produced in this writ petition is the copy of the pre qualification tender document issued to the petitioner.
5. In W.P.(C) No.1546/2010, the work in question is NH 17 - Improvements to the riding quality of the road from km 63/000 to km 94/000 and the tender notice is Ext.P1. Ext.P3 is the copy of the application for pre-qualification supplied by the third respondent and the petitioner submitted the application, but the petitioner was not pre-qualified and the writ petition was filed before any communication was received by it and later the petitioner was informed by Ext.P8 that the petitioner is not qualified for the work. The same is under challenge in this writ petition.
6. The respondents have filed their counter affidavits and the petitioner has filed reply affidavit in W.P.(C) No.31751/2009. The impleading petitioner has also filed a counter affidavit therein.
7. Heard Shri M.K. Damodaran, learned Senior Counsel appearing for the petitioner in both the writ petitions, Shri M.A. Asif, learned Govt. Pleader and Shri P.C. Sasidharan, learned counsel appearing for the additional respondents 4 and 5. Arguments were heard in detail in respect of W.P.(C) No.31751/2009.
8. It is mainly contended by Shri M.K. Damodaran, learned Senior wpc 31751/2009 & 1546/10 3 Counsel for the petitioner that Ext.P4 in W.P.(C) No.31751/2009, copy of the minutes of the Chief Engineers' Committee will show that the disqualification of the petitioner is on the basis of two reasons which are non existent and therefore the same is arbitrary. It is submitted that both these reasons cannot be supported. With respect to the first one, it is submitted that the reason that the Government is taking steps to black list the petitioner, cannot be one which can be relied upon to disqualify the prequalification bid. What was issued by the Government is only a show cause notice proposing to black list the firm and this Court in the judgment in W.P.(C) No.31712/2009 directed the respondents to issue a notice and to consider the contentions of the petitioner. It is submitted that no final orders have been passed by the Government and therefore that could not have been taken as a ground to disqualify the petitioner. As to the second reason shown in Ext.P4, it is submitted that with regard to Koottikoulam Tholpetty Coorg Road, wherein poor progress is attributed to the petitioner, the department itself has granted sufficient time to complete the work. It is pointed out that the notice itself was issued only on 9.11.2009 by the department, to which the petitioner had duly submitted a reply dated 16.11.2009. It is therefore submitted that as the contract has not been wpc 31751/2009 & 1546/10 4 terminated at all, the same cannot be taken as a ground to disqualify them. It is therefore submitted that as both these grounds are non existing, the disqualification of the petitioner with regard to the three works cannot be supported. Further, it is pointed out that already the petitioner has been treated as qualified in respect of two items of works of the very same notification, the reason subsequently found out, is not having any nexus with the issue in question is concerned and it is a colourable exercise of the power. Learned Senior Counsel Shri M.K. Damodaran relied upon various decisions of the Apex Court and of this Court, viz. Mohinder Singh Gill and another v. The Chief Election commissioner, New Delhi and others (AIR 1978 SC 851), Air India Ltd. v. Cochin International Airport Ltd. and others {(2000) 2 SCC 617}, Reliance Energy Ltd. and another v. Maharashtra State Road Development Corpn. Ltd. and others {(2007) 8 SCC 1}, M/s. Zoom Developers Pvt. Ltd. v. State of Kerala and others (2008 (4) KHC 934) and Nagarjuna Construction Co. Ltd v. Govt. of A.P. and others ( JT 2008 (12) SC 371), in support of the plea. It is contended that the rejection of the tender is arbitrary and in violation of Article 14 of the Constitution of India. The respondents are bound to provide a level playing field and the petitioner has been discriminated wpc 31751/2009 & 1546/10 5 against in that matter. It is submitted that the decision making process is tainted by arbitrariness and the reasons being unsupportable, Ext.P4 is liable to be quashed.
9. The contentions taken by the learned Govt. Pleader, mainly is that a reading of Ext.P4 minutes will show that the petitioner has not furnished the details of their business, financial strength and supporting documents. This is the main reason for rejection of their application. It is submitted that no valid grounds have been urged in the writ petition against this conclusion of the Chief Engineers' Committee. It is pointed out that so many deficiencies were there in the documents produced by the petitioner and therefore the applications were liable to be rejected in the light of clause 9.4 of the instructions to the applicants, contained in the prequalification tender document. It is also submitted that the petitioner has not provided the details regarding the litigations involving them with regard to various items of works which was withheld from the information of the respondents and such non-disclosure is fatal. It is further pointed out that even the E schedule produced along with the documents will show that with respect to various items of work the petitioner has not been able to achieve the target and the same has also considered by the Committee and the decision taken wpc 31751/2009 & 1546/10 6 only promotes public interest. An over all picture of the contractor is crucial in such matters.
10. Shri P.C. Sasidharan, learned counsel for the additional respondents 4 and 5 who are respectively the Presidents of two Panchayats, viz. Mananthavady Grama Panchayat and Thirunelli Grama Panchayat, points out that the various items of works in respect of the petitioner in Wayanad District have not been completed and the progress is so slow and hence the petitioner cannot be said to be a qualified contractor. It is also submitted that the finished works in respect of certain areas within their panchayats, will show that the poor quality of works resulted in the roads remaining in a very poor condition. My attention was invited to various documents produced along with the application for impleading in support of the above plea. Learned counsel for additional respondents 4 and 5 relied upon a decision of the Apex Court in Tata Cellular v. Union of India {(1994) 6 SCC 651} to contend that public interest is involved and this Court under Article 226 of the Constitution of India, should not exercise the discretion in favour of the party who was not successful in completing various works. Learned Govt. Pleader also relied upon a decision of the Apex Court in Raunaq International Ltd. v. I.V.R. wpc 31751/2009 & 1546/10 7 Construction Ltd. and others {(199) 1 SCC 492} in support of various pleas.
11. Ext.P4 is the copy of the minutes of the Chief Engineer's committee held on 30.10.2009 for evaluating the pre qualification of major works. Under Item 2 it is recorded that "all the tenderers except M/s. Chandragiri Construction had furnished the details of their business, financial strength and supporting documents from the Bank to prove their financial strength." Then, two reasons have been shown for disqualification of the petitioner. In items 3 and 4, it is mentioned that "all the tenderers except M/s. Chandragiri Construction had furnished the details of their business, financial strength and supporting documents from the Bank to prove their financial strength. They are not prequalified for this work for the reason furnished above."
12. It can be seen that two reasons mentioned already, have been projected in Ext.P4, for disqualification of the petitioner. The first one relates to construction of new road from Kuttipuram to Puduponnani Phase I & II. What is alleged is that it was terminated at the risk and cost and later it was revoked and thereafter only 35% of the work was completed and hence the Government decided to terminate it and further decided to wpc 31751/2009 & 1546/10 8 blacklist the firm and the decision is pending with the Government.
13. As pointed out by the learned Senior Counsel appearing for the petitioner, the issue of blacklisting the firm has not reached a finality. The question is whether in the absence of an order blacklisting the contractor, the same can be taken as a ground to reject the prequalification bid. As regards this aspect, the counter affidavit does not attempt any answer at all. But it is submitted during arguments that the process for blacklisting initiated against the petitioner has not been concluded and it is in progress and in compliance with the procedure under law the petitioner will be issued necessary notice to show cause against the blacklisting and they will be heard in this regard. Evidently, this is a matter which has not become final as on the date on which the committee met on 30.10.2009. Therefore, it cannot be definitely said that the proposal to blacklist the firm has become final. In that view of the matter, learned Senior Counsel is right in submitting that the same ought not have been taken as a reason for disqualification of the petitioner.
14. The second reason stated therein is regarding the work of Kottikoulam Tholpetty Coorg Road. Therein, it is pointed out that the work was awarded to the petitioner by the Government by proceedings dated wpc 31751/2009 & 1546/10 9 19.12.2007. The time of completion was fixed as 18 months. Even after a lapse of nearly two years the petitioner shows very poor progress of this work. Therein also, it is mentioned that the work in K.S.T. Project is also very slow, hence the firm is facing blacklist by the Government. Shri M.K. Damodaran, learned Senior Counsel brought to my notice a letter No.D3- 1490/06 dated 4.1.2010 of the Superintending Engineer, PWD, NH North Circle, Kozhikode, wherein the supplementary agreement for extension of time for completion of work up to 31.3.2010 has been accepted. A copy of the agreement has also been supplied for perusal. Therein the time is extended upto 31.3.2010. It is therefore pointed out by the learned Senior Counsel that the matter was under correspondence at the time when the Chief Engineers' Committee met and there was no final decision in the matter adverse to the petitioner and therefore the same cannot be taken as a ground to disqualify the petitioner. I find force in the above submission also. On Item No.2 also, it is pointed out that the firm is facing blacklisting by the Government. As already noticed, the process of blacklisting has not become final. That was only in contemplation as on 30.10.2009. Therefore, unless the firm is blacklisted by a final order passed by the Government, the mere proposal cannot be taken as a determinative factor as far as acceptance wpc 31751/2009 & 1546/10 10 of a prequalification tender.
15. Herein, learned Govt. Pleader submitted that actually the tender documents produced by the petitioner are silent on various details as is clear from the minutes of the Chief Engineers' Committee and therefore the rejection of the prequalification tender cannot be said to be illegal. It is pointed out that with regard to this aspect, the pleadings are absent and the petitioner has only taken the grounds in the writ petition on the proposal for blacklisting and sufficient grounds have not been raised in the writ petition on these findings of the Committee which disentitles the petitioner from getting any relief in this writ petition.
16. My attention was taken to various records produced by the petitioner which are incorporated in Ext.P3, at the time of submission of the prequalification bid. It is pointed out that the solvency certificate produced from the Federal Bank, Branch Kasaragod is dated 6.3.2008 and the same is not current, as the notification is of the year 2009 only. The document produced as Bank certificate from the same Bank is undated. The certificate produced from the Catholic Syrian Bank produced is two years prior to the date of notification. It is further pointed out that in the affidavit produced along with Exts.P2(a) to P2(e), no details of the pending cases wpc 31751/2009 & 1546/10 11 have been mentioned by the petitioner even though the petitioner themselves admit that there had been various cases pending, in the writ petitions and in the reply affidavit. Thus, vital information has been withheld from the consideration of the Committee. My attention was also invited to Schedule E produced along with Exts.P2(a) to P2(e), showing the details of various works, the period of completion and the schedule of completed work including the percentage. It is submitted that the percentage of works in respect of various items will show that actually the petitioner has not been able to complete major part of the work. Therefore, this is the record which was assessed by the Committee evidently and therefore the same is a factor which the committee can consider while evaluating the applications of the petitioner. It is submitted that in Ext.P5 under the heading "Instructions to the applicants" it is specifically mentioned in para 9.4 that incomplete offers are liable to be rejected. It is also submitted that under para 9.14, the bidders shall provide evidence satisfactory to the Employer, notwithstanding any previously conducted prequalification of potential bidders of their capacity and adequacy of resources effectively to carry out the subject contract. It is pointed out that as per sub-clause ) of para 9.14, the details of the experience and past wpc 31751/2009 & 1546/10 12 performance of tenderers on works of similar nature within the past five years and the details of current work in hand and other contractual commitments, have to be submitted. It is submitted that the petitioner has not included various items of work in E schedule as detailed in the counter affidavit wherein the progress is too slow and thus there is a suppression of vital details. It is therefore submitted that Schedule E of Ext.P2 is incomplete which also disentitles the petitioner for consideration. It is submitted that these aspects have been considered by the Committee and the same is evident from their findings under items 2, 3 and 4 in Ext.P4 that all tenderers except the petitioner had furnished the details of their business and certificates to prove their financial strength.
17. Shri M.K. Damodaran, learned Senior Counsel submitted that the Bank documents produced along with the applications are sufficient and satisfactory. The allegation that the letter from Federal Bank is undated, is also denied and the copy of a letter with a date seal of the Bank was made available before me for perusal to contend that the Government Pleader's contention cannot be accepted. It is vehemently submitted that none of these reasons are part of the minutes of Ext.P4 and therefore going by the decision of the Apex Court in Mohinder Singh Gill's case (1978 SC 851), wpc 31751/2009 & 1546/10 13 reasons which are not disclosed in the proceedings, cannot be supplemented by filing counter affidavit. It is therefore submitted that such contentions cannot be accepted and they are fished out only now so as to deny the benefit to the petitioner.
18. It is Ground 'D' of the writ petition that is relevant to consider the above point. Therein, the petitioner has taken the stand that the statement contained in Ext.P4 that all the tenderers except the petitioner, has furnished the details of their business and other supporting documents, is absolutely incorrect. Exts.P2(a) to P2(e) are relied upon to show that the petitioner had complied with all the requirements in the instructions contained in the application for prequalification of tender document. After the filing of the counter affidavit raising various specific instances, the petitioner has filed a reply affidavit. In para 5, it is stated that the petitioner had furnished all details and complied with the requirements mentioned in the Instructions to the Applicants contained in the Prequalification Tender document, Ext.P5. In para 6 it is mentioned that the petitioner had produced Ext.P3 profile of the firm which runs to 82 pages and which contains all relevant and necessary details and information, along with the prequalification application form and therefore the stand taken by the wpc 31751/2009 & 1546/10 14 respondents in the counter affidavit that non furnishing of the required details is the plain reason for disqualification of the petitioner, is clearly unsustainable. This, in sum and substance alone is the plea made by the petitioner in the writ petition and the reply affidavit on this aspect.
19. Learned Govt. Pleader, on direction from the Court, made available the originals of the tender document submitted by the petitioner in the light of the plea raised by learned Senior Counsel Shri M.K. Damodaran that the document submitted from the Bank are sufficient and the dates, etc. are clearly mentioned in the letter issued by the Federal Bank. I have gone through the documents in original. All the documents are identical. In respect of three works to which the petitioner was disqualified now, the petitioner has produced two bank certificates and a solvency certificate from the Federal Bank, Kasaragod Branch and also a certificate from Catholic Syrian Bank. A perusal of the tender document in original shows that one of the bank certificates issued from Federal Bank is undated. The solvency certificate is dated 6.3.2008 and another bank certificate is dated 25.2.2009. The certificate from the Catholic Syrian Bank is dated 12.7.2007. Copy of the Bank document produced in the writ petition available in Ext.P3 at page 121 of the Paper Book does not bear any date. It wpc 31751/2009 & 1546/10 15 is seen that these letters are photo copies. The date of Ext.P1 is 13.8.2009. My attention is also invited by the learned Govt. Pleader, to the prequalification documents of successful bidders whose bank certificates are documents as letters in original.
20. The issue therefore is whether the notings of the Chief Engineer's Committee in Ext.P4 that the various documents have not been produced by the petitioner, could be said to be irrational or unreasonable, warranting interference.
21. That these have been taken as grounds against the petitioner, is clear from Ext.P4 itself, even though under the heading "reason for disqualification", the details with regard to two works undertaken by the petitioner have been mentioned. But herein, observations are made by the Committee with regard to the sufficiency of the documents made by the petitioner. Therefore, the stand taken by the Government Pleader is that the petitioner cannot improve the position as these observations are clearly supported by their own records. Since the petitioner cannot supplement any document, later there is no point in directing the Committee to reconsider the matter also.
22. Shri M.K. Damodaran, learned counsel for the petitioner wpc 31751/2009 & 1546/10 16 contended that in the light of para 8 of the decision of the Apex Court in Mohinder Singh Gill's case (AIR 1978 SC 851), reasons which are not mentioned in the proceedings, cannot be introduced in the counter affidavit. Therein, the Apex Court held that "when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise." Herein, the inadequacy of the documents of the petitioner have been commented upon by the Committee, evidently. Their competency in this aspect is not challenged. No malafides have been alleged also and the only ground taken in Ground C is that the decision taken by the Committee is a colourable exercise of power. Therefore, no malafides have been attributed to any of the members of the committee.
23. Hence, in such a scenario, whether this Court can interfere, is the moot question. Shri P.C. Sasidharan, learned counsel appearing for additional respondents 4 and 5 submitted that in the light of the various decisions of this Court and that of the Apex Court, this Court cannot interfere in a matter like this, as public interest is of paramount importance.
24. The earliest of the decision is that of the Apex Court in Tata Cellular's case {(1994) 6 SCC 651}, wherein, from para 75 onwards the wpc 31751/2009 & 1546/10 17 concept of judicial review in such matters, was examined. In para 74, it was held that "judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision -making process itself." It was held in para 77 thus:
"The duty of the court is to confine itself to the question of legality. Its concern should be:
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice.
4. reached a decision which no reasonable tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the the grounds upon which an administrative action is subject to control by judicial review can be classified as illegality, irrationality, namely, Wednesbury unreasonableness and procedural impropriety."
After referring to various decisions of the Apex Court, the principles were deduced in para 94 thus:
"94. The principles deducible from the above are: wpc 31751/2009 & 1546/10 18
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract.
Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
wpc 31751/2009 & 1546/10 19
25. In Raunaq International Ltd.'s case {(1999) 1 SCC 492) also, various aspects with regard to the scope of interference by the Courts in a commercial transaction, have been mentioned. The aspects pointed out in para 9 reads thus:
"9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. These would be:
(1) the price at which the other side is willing to do the work; (2) whether the goods or services offered are of the requisite specifications;
(3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important;
(4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services;
and often wpc 31751/2009 & 1546/10 20 (7) the ability of the tenderer to take follow-up action, rectify defects or to give post-contract services.
Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction."
It was observed in para 11 that "unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers."
26. In Air India Ltd.'s case {(2000) 2 SCC 617}, it was held in para 7 that "Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public wpc 31751/2009 & 1546/10 21 interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene."
27. I may mention here two important decisions of the Apex Court wherein various principles have been restated after review of all the decisions. In Reliance Energy Ltd.'s case {(2007) 8 SCC 1} their Lordships considered the right of every participant in the economy to a level playing field in respect of Government contracts under Article 19(1)(g) & 2 r/w. Article 14. It was held in para 36 that "standards applied by courts in judicial review must be justified by constitutional principles which govern the proper exercise of public power in a democracy............The doctrine of "level playing field" is an important doctrine which is embodied in Article 19(1(g) of the Constitution. This is because the said doctrine provides space within which equally placed competitors are allowed to bid so as to subserve the larger public interest............Decisions or acts which result in unequal and discriminatory treatment, would violate the doctrine of "level playing field" embodied in Article 19(1)(g)."
wpc 31751/2009 & 1546/10 22
28. In a subsequent decision in Nagarjuna Construction Co. Ltd. (JT 2008 (12) SC 371), the thin distinction between the administrative and quasi-judicial action was elaborately considered and it was held in para 31 that "the obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to observe." In para 35 it was also held that "thus it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play."
29. My attention was also invited by Mr. M.K. Damodaran, learned Senior Counsel, to a recent decision of a Division Bench of this Court in M/s. Zoom Developers Pvt. Ltd.'s case (2008 (4) KHC 934) wherein the above decisions were considered in detail. It was held therein that for every Governmental actions reasons should be there and even with regard to the rejection of a tender, unless it is supported by reason, the action is vitiated.
30. The background of this case is thus, to be examined while wpc 31751/2009 & 1546/10 23 considering the applicability of these principles to the fact situation. Evidently, in Ext.P4 the want of details with regard to the business, financial strength and supporting documents from the Bank to prove financial strength on the part of the petitioner, have been attributed. Therefore, the same forms part of the minutes of the committee. It cannot be said that the petitioner was not aware of the same. It is not a case where for the first time in the counter affidavit, reasons have been attributed. What is emphasised in the counter affidavit is by way of an illustration of the same by specifically pointing out certain instances to support the conclusions. Thus, it is not a case where the principle stated in Mohinder Singh Gill's case (AIR 1978 SC 851), is squarely attracted.
31. Then, the question is what is the importance of this in the matter of considering the validity of the tender documents of the petitioner. Herein, learned Senior Counsel Shri M.K. Damodaran contended that this Court cannot go behind the two reasons pointed out under item 2 which alone are relevant to be considered as reasons for rejection of the prequalification document. It is true that under a separate heading, reasons for disqualification of the petitioner, two items have been shown. But these are shown after a finding with regard to the want of details in the wpc 31751/2009 & 1546/10 24 documents of the petitioner. Those two reasons were incorporated obviously by the Chief Engineer's Committee based on other proceedings which were not evidently part of the tender documents. But will it dilute that part of the points covered by the minutes of the Chief Engineer's Committee? is the important question. If we separate these two, it can be seen that the observation by the Committee with regard to the non furnishing of details of various aspects by the petitioner is based on the documents submitted by the petitioner. The observations by the Committee with regard to the two other aspects are based on the documents which were within the knowledge of the Chief Engineer's Committee, from other sources/documents. Therefore, even if the two specific reasons are held to be unsupportable, the other part will project, as the same is part of the minutes of the committee which they have recorded based on the tender documents produced by the petitioner.
32. That this Court's jurisdiction is only concerned with the decision making process, is evident from the various decisions cited above. This Court cannot sit in appeal over the decisions. The original documents produced by the learned Govt. Pleader were perused only in the light of the vehement contention raised by the learned Senior Counsel for the petitioner wpc 31751/2009 & 1546/10 25 that the original documents contain various details and they are not lacking any materials. The question, therefore, is not whether the points raised by the Committee can be set aside by this Court. The only question is whether the Committee has acted bonafide and within their jurisdiction.
33. As already noticed, no malafides have been alleged particularly against the members of the Committee and no grounds as such have been raised in these writ petitions. That the petitioner also understood the importance of these observations, is clear from Ground D of the writ petition wherein, the petitioner, while disputing the said observation, has taken a ground that "the same is absolutely incorrect." But the petitioner has stopped therein, without elaborating. In the reply affidavit also, no attempt is made to elaborate on this aspect. Therefore, as rightly pointed out by the learned Govt. Pleader, no sufficient grounds have been made out in the writ petition by way of pleadings, to show that these observations are so unreasonable and so arbitrarily made in Ext.P4 warranting interference by this Court.
34. This Court cannot obviously sit in appeal over the observations of the Chief Engineer's Committee. A reading of the various decisions of the Apex Court and the principles stated therein will emphasis this aspect. wpc 31751/2009 & 1546/10 26 What is emphasised by the various decisions is that this Court will not be concerned with the decision as such, but only the decision making process. It cannot be said that the petitioner was not given a level playing field or that they were not given any opportunity to submit the tender documents. The petitioner has not been singled out in this matter, in the sense that others were given any undue advantage to produce original documents, etc. The petitioner has also understood the contents of the tender notification while submitting documents and if there is anything lacking in those documents, the petitioner alone can be at fault. The Committee cannot also obviously allow another opportunity to the petitioner to produce or supplement the documents submitted along with the tender documents which will only be termed as favouritism or arbitrary exercise of power, by the other tenderers. The facts herein are not similar to the facts considered by this Court in M/s. Zoom Developers Pvt. Ltd.'s case (2008 (4) KHC
934). A reading of the said judgment shows that therein the evaluation committee did not independently take a decision and they solely relied upon the report of the Law Secretary to reject the tender. It is in those circumstances this Court held that the decision of the Committee is without any reason and liable to be interfered by this Court. Herein, the situation is wpc 31751/2009 & 1546/10 27 not identical, as the Committee itself has given reasons by way of Ext.P4. On a reading of Ext.P4, it cannot be said that it is not a reasoned one. In the counter affidavit also, the position is reiterated.
35. Therefore, even if it can be concluded that the aspects shown under the heading "reasons for disqualification" ought not have been relied upon, this Court cannot direct the Committee to evaluate the tenders submitted by the petitioner afresh in the light of the various defects pointed out. Those are aspects which are part of the tender documents and no improvement can be made by the petitioner, evidently on those, by producing fresh materials to supplement them. The Committee itself is the authority to go through the documents and can find out the inadequacy, if any, of those documents. . Therefore, obviously the decision not to accept the tender of the petitioner had two parts and the first part now remains against the petitioner.
36. For all these reasons, it cannot be said that the disqualification of the petitioner is so unreasonable, illegal and arbitrary warranting interference by this Court.
37. In W.P.(C) No.1546/2010, Ext.P8 is the reply given to the petitioner. It is pointed out that no detailed reasons have been attributed wpc 31751/2009 & 1546/10 28 therein. It is explained in the counter affidavit in para 4 that the tender evaluation committee held on 5.1.2010 decided not to consider the tender document submitted by the petitioner. Therein, items 1 to 3 are poor performance of the petitioner in respect of certain works. Item 4 is that several arbitration for litigation cases are pending before the court related to the work of the said company. Item 5 is that in performa of details of litigations the company submitted a 'nil' report which is not correct and misleading and as per para 4(8) of the instructions to the applicants, the bidders that meet the qualifying criteria, may be disqualified in case misleading/false information are provided in the bidding document. Therefore, it is submitted that this itself is a quite sufficient reason to deny the participation of the tender in dispute.
38. Learned Senior Counsel Shri M.K. Damodaran submitted that Ext.P8 itself shows that it is not supported by any reason. It is further pointed out that the petitioner has not been blacklisted and the proceedings have not become final, especially in the light of the judgment of this Court, Ext.P6, wherein a direction was issued to the respondents to give an opportunity to the petitioner to object to the proposal. The files including the minutes of the Technical Evaluation Committee have been produced wpc 31751/2009 & 1546/10 29 by the learned Govt. Pleader at the time of argument. The sole reason noted by the tender evaluation committee held on 5.1.2010 is the poor performance of the petitioner in respect of certain works and finally it is recorded that it was noted by the Committee that in performa of details of litigations the company submitted a 'nil' report which is not correct and is misleading. As item No.4.(8) of the instructions, it is stipulated that the bidders that meet the qualifying criteria may be disqualified in case misleading/false information are provided in the bidding document. In view of the above stipulation, the Committee decided not to consider their bid for further evaluation.
39. The question is whether in the light of the above, the Committee could be said to have acted arbitrarily. It is not a case where the decision is not supported by any reason at all. In a matter like this, if it is shown that the Committee had deliberated upon the tender document and arrived at a decision after considering various aspects, it cannot be termed that rejection is not supported by any reason. This Court can only look into the question whether the decision making process is tainted by arbitrariness and the rejection is so unreasonable. It is evident that the Committee has considered various aspects in making the observation. Ext.P8 is only a wpc 31751/2009 & 1546/10 30 communication issued to the petitioner with regard to the information that he was not qualified. Therefore, the argument that reasons ought to have been found out a place in Ext.P8, cannot be supported. Evidently, Ext.P8 shows that the petitioner was not qualified. In the counter affidavit also, the same have been reiterated. The petitioner has no case by filing a reply affidavit that the observation of the Committee that the petitioner submitted a 'nil' report with regard to the performa of details of litigation, is wrong. Why such a nil report is furnished, is also not explained in the writ petition. Since this is a factual aspect, this Court cannot therefore go deep into it in the absence of any relevant materials made available in the writ petition to show that the decision was so unreasonable that the authority like the Committee could not have taken such a decision and thus it is tainted by Wednesbury unreasonableness or that the decision is so irrational, warranting interference by this Court. It is not a case where the doctrine of "level playing field" is attracted evidently, as all opportunities have been given to the petitioner and lack of opportunity is not at all a ground of attack also.
40. Shri M.K. Damodaran, learned Senior Counsel appearing for the petitioner in this context, had raised two contentions with respect to W.P. wpc 31751/2009 & 1546/10 31 (C) No.31751/2009: one is that two tenders submitted by the petitioner have been accepted by prequalifying the petitioner and all the documents are similar and identical and therefore it cannot be said that details were lacking, with regard to the other three. With regard to the acceptance of those two tenders it is mentioned in the counter affidavit that it was by mistake. Evidently, those two were accepted in the deliberations of another meeting of the committee dated 16.10.2009 and Ext.P4 is at a later date, viz. namely 30.10.2009. Therefore, the same alone will not help the petitioner to ward off the objections raised by the Committee in the later meeting. It is further pointed out that if any further details were required, the Committee itself could have contacted the Banks in question and the petitioner has given the particulars of the Banks along with the documents. The petitioner cannot obviously compel the Committee to approach the Bank for various details as it was obviously the responsibility of the petitioner to produce various authentic documents from the Bank. Evidently, such a course to be adopted by the Committee would have been only optional but not mandatory. Therefore, the Committee cannot be found fault for not taking recourse to such a method to find out the financial particulars of the petitioner. Therefore, the said argument cannot wpc 31751/2009 & 1546/10 32 be accepted.
Therefore, the writ petitions fail and the same are accordingly dismissed. No costs.
(T.R. Ramachandran Nair, Judge.) kav/