Gujarat High Court
Ashirwad vs State on 13 July, 2010
Author: D.H.Waghela
Bench: D.H.Waghela
Gujarat High Court Case Information System
Print
SCA/6437/2010 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6437 of 2010
======================================
ASHIRWAD
INDUSTRIES
Versus
STATE
OF GUJARAT AND OTHERS
======================================
Appearance
:
MR PREMAL R JOSHI for
Petitioner.
MR HK PATEL, AGP for Respondent Nos.1, 2, 3.
MR
MIHIR THAKOR, Senior Counsel with MR CHETAN K PANDYA for Respondent
No.4.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 13/07/2010
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE D.H.WAGHELA)
1. The petition was heard in extenso.
The petitioner firm has invoked Articles 14, 16, 19 (1) (g) and 226 of the Constitution for the prayers to set aside decision of the respondent authorities in declaring respondent no.4 as highest bidder pursuant to notice inviting bid No.12 of 2009, which was the tender notice for collection of toll-tax from toll plaza near Bamanbore Junction on National Highway No.8A. The petitioner was one of the bidders and its grievance, in substance, is that respondent no.4 has been awarded the contract in violation of the conditions of tender insofar as the instructions contained in Chapter-1-(Instructions to the Bidders) were violated in accepting and considering the bid of respondent no.4.
2. Learned counsel, Mr.Premal Joshi, appearing for the petitioner pointed out from instructions to the bidders that the bid was required to be submitted by the bidders on-line along with the documents as prescribed and there were specific instructions that non-submission of any of the specified documents, either in full or part, would render disqualification of bid, and that such bid would be summarily rejected without asking for submission of missing documents. It was pointed out from record that all the bidders were invited by letter dated 11.3.2010 to supply missing documents, and then respondent no.4 was appointed for collection of the toll-tax on the basis of his highest bid. He submitted that the petitioner was given to understand that respondent no.4 would stand disqualified and in absence of such understanding the petitioner could have increased his bid to an even higher amount.
3. By filing affidavit-in-reply of the Executive Engineer, National Highway Division, Rajkot, it is submitted that the State Government has issued guidelines in Circular dated 18.1.2008, but they could not be applied automatically to any of the tender floated by the Government or its agency. That no assurance was given and no announcement was made about disqualification of any of the bidders as alleged by the petitioner. It is also averred that equal opportunity was given to all the bidders to supply necessary documents. Although the authority could have rejected all the bids on the ground of one or the other document having not been supplied or not being in order, it would not have been prudent to do so, according to the submission.
4. Learned Senior Counsel, Mr.Thakore appearing on behalf of respondent no.4 submitted, on the basis of affidavit made on behalf of respondent no.4, that after scrutiny of tender documents, the Executive Engineer concerned had informed all the parties about missing documents and/or details required and asked of them. That the petitioner never objected to such opportunity, but instead availed of the opportunity by supplying the document which was missing in his case. It was on that basis submitted that, the petitioner having participated in the tender process and having availed of same relaxation or facility of supplying necessary document afterwards, he cannot be heard to raise an objection out of it, particularly when the contract was awarded to the highest bidder in public interest and when the petitioner was admittedly not the highest bidder.
5. Following observations recently made by the Apex Court in B.S.N. Joshi & Sons Limited v. Nair Coal Services Ltd. and Others [(2006) 11 SCC 548] and in Jagdish Mandal v. State of Orissa and Others [(2007) 14 SCC 517], in our view completely cover the issue sought to be raised in present petition.
66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarized as under :
(i) if there are essential conditions, the same must be adhered to;
(ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;
(iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing
(iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance of another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction..
(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with.
(vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority.
(vii) Where a decision has been taken purely on public interest, the Court ordinarily should exercise judicial restraint.
22.............
When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, Courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.........
6. Applying the above dicta, it has to be held that even if equal relaxation of tender condition were to be treated as an error or procedural aberration, it may not, by itself, be a ground to set aside the tender process, which is, by now, already concluded and which appears to have been carried out in public interest. It is found that although a deviation is made, the norm of equality is not violated by the authorities and the ultimate decision is taken in public interest. Therefore, the prayers made in the petition could not be granted. Accordingly, the petition is summarily dismissed and Notice is discharged with no order as to costs.
(D.H.Waghela, J.) (Bankim N.Mehta, J.) *malek Top