High Court · 2009

The stand of the Corporation is that the petitioner has no legal right to agitate such grievances in a writ proceeding under Article 226 on the facts alleged in the writ petition and the Corporation having reserved its right to accept or reject any tender or to restrict the number of contractors or to c ancel the tender without assigning any reason whatsoever, the corporation is emp owered to ask for issuance of fresh tender. Further stand of the respondent is that the Corporation has righ tly taken the decision to issue fresh tender for the job and the tender of the p etitioner being incomplete and invalid, the action proposed to be taken by the C orporation is not entitled to be challenged by the petitioner by resorting to th e extra-ordinary jurisdiction of this court and in exercise of the power under A rticle 226 of the Constitution.

5. Learned counsel for both sides have argued in support of their r espective pleas on the basis of the materials available on record. The Corporat ion also placed the relevant case records. It is pertinent to note herein that the petitioner has annexed various notes from the notesheet of the related file of the Corporation which is taken as exception by the learned counsel for the Co rporation. It is contended on behalf of the Corporation that although the petit ioner obtained some information resorting to the provision of the Right to Infor mation Act, but he was never supplied with a copy of any note sheet by the Corpo ration and it is strange that how confidential note sheets could be obtained and annexed in the proceeding and how he could have excess to such documents.

6. Submissions of the learned counsels led me to go through the rec ords produced by the Corporation. Scrutiny of the NIT disclosed that provides a good number of clauses mentioning the rights and obligations of the tenderer or power of the Corporation, out of which the following are relevant for the purpo se of adjudication of the dispute raised in this writ petition: At Clause-12.4 of the NIT it is provided that the Corporation re serves its right to accept or reject any/all tender(s) without assigning any rea son whatsoever. It is also contained in Clause-1, interalia, that the participa ting tenderers are advised to read the tender documents carefully and fill-up th e tender as instructed in the documents and any deviation or incomplete informat ion shall lead disqualification of such tender. Clause 1.6.2 provides that the Techno Commercial Bid is to contain all the requisite documents and bids without such documents would be cancelled. As regards signing of the tender, Clause 7. 0 of the NIT provides that the tender documents must be duly signed on each page with the name, designation of the signatory and the seal of the firm and shall be stamped. Clause 7.1 provides that the tender should signed by the tenderer h imself. The list of documents to be furnished along with the Techno Commercial Bid as has been mentioned in Clause.9.

7. The petitioner claims to be a reputed proprietorial firm and sub mitted its tender in terms of the aforesaid NIT. After opening the tender docum ents, the concerned authority prepared a comparative statement of the Techno Com mercial Bids and forwarded the same for technical scrutiny. The tender committ ee scrutinized the tenders of all the 5 tenderers and after such scrutiny, techn ical recommendation was accorded in favour of the petitioner as well as responde nt No.4 and was placed for further deliberation. The matter was, thereafter, re ferred to finance department to consider the financial soundness of the tenderer s and in turn it recommended to open the price bid of both the petitioner and re spondent No.4 as per its note dated 13/5/08. The matter was, thereafter, furthe r placed before the Internal Audit department of the Corporation. The Internal Audit department, however, not having found applied the same yardstick as regard s the consideration of the related tenders submitted by both the tenderers, they were asked to follow the same vide note dated 10/6/08. After consideration in details by the Internal Audit department, it was noticed that there were some de viation in the tender submitted by the petitioner which may lead to its disquali fication and the Internal Audit department opined that the Techno Commercial Bid of both the petitioner and respondent No.4 were found to be disqualified, but b y the same note it also intimated for obtaining necessary legal opinion. In terms of the said note, legal opinion was sought for in resp ect of acceptability of the tender of the petitioner. The said opinion so furni shed disclose that the respondent No.4 has not fulfilled the NIT conditions and submitted the bid without complying with Clause-9 of the general terms and cond itions of the contract. So far the deviation in respect of the petitioner is co ncerned it was pointed out that in the documents submitted by the petitioner alo ng with the tender it endorsed a stamp of M/s Shivam Syndicate wherein the petit ioner was also a partner and he did not put the required stamp in all the pages . It was opined by the legal expert that the intention of the Bidder appears to be clear, but the deviation was there and taking into consideration of the matt eris in its entirety, the deviation is stated to be a minor one. Being minor de viation was appeared in the tender; the legal opinion was given in favour of the petitioner. It is to be noted herein that in view of the deviation noticed i n the tender submitted by the petitioner, a show cause notice dated 14/8/08, was issued to the petitioner asking such clarification and in its reply dated 19/8/ 08, the petitioner has admitted such deviation with certain explanation. Therea fter, the matter was finally placed before the Chief Executive of the Corporatio n. Referring to the aforesaid anomalies in respect of the tender submitted inas much as the tender committee could not arrive in any final decision in view of t he conflicting opinion relating to the suitability of the tender submitted by th e respondent No.4 as provided by the Internal Audit department as well as that o f the legal expert. Thereafter, the Chief Executive, Nagaon Paper Mill referred the matter to the CHQ vide note dated 30/7/08.

8. The note dated 20.12.2008 in the notesheet disclose that the Cor poration could not finalise the tender process even after nine months from the o pening of the Techno Commercial Bid and upon consideration of the views of Inter nal Audit Department, legal opinion and numerous cross notings and comments note d against the tenderers, the Committee recommended for issuing fresh NIT with cl ear and unambiguous tenders without having any scope for deviation in finalizing the tender process. By the said note, the Technical Committee was asked to deli berate and put up suitable recommendation within a week.

9. From the notes which have also been annexed by the writ petition er in the writ petition, it is clearly disclosed that the Corporation could not made up its mind nor could arrived at a conclusive decision for opening the pric e bid offered by the petitioner and the respondent No.4, and in view of deficien cy in their tenders and taking into account the opinion of the Internal Audit de partment and legal expert, the authority decided to issue the fresh NIT. The leaned counsel for the petitioner referring to different off 10. ice notes assailed the decision to issue fresh NIT submitting that such issuance of fresh NIT infringes valuable rights accrued upon the petitioner. Learned cou nsel has referred to the following decisions in support of his arguments- (i) (1994) 6 SCC 651; Tata Cellular -Vs- Union of India. (ii) ur Chenai & Ors. (2005) 7 SCC 627; Hindustan Petroleum Corporation Ltd. -vs- Darieus Shap

11. In Tata Cellular case(supra), the Apex Court held inter-alia tha t if the mistake is in relation to a non-essential, peripheral or collateral mat ter and there was every intention to comply with the terms of the bid and for an accidental omission the tenderer cannot be disqualified. But in the instant ca se, the facts disclose that the present petitioner does not fall in such a categ ory. In the tender notice, it is specifically provided that in case of any viol ation regarding furnishing complete information including violation of the requi rement of Clause-7 and submission of the tender without any signature and seal d uly reflected in each page, the tender may be liable to be rejected the tender. It is specifically provided in Clause-1 that any deviation or uncomplete inform ation lead to disqualification of the tender.

12. The facts of the case as indicated hereinabove does not attract the aforesaid principles of law, inasmuch as, there are ample reasons recorded i n the notesheet disclosing as to why the Corporation proposed to proceed with fr esh NIT for allotment of the contract in question.

13. From overall consideration of the materials as disclosed from re cords, it is found that the different Departments of the Corporation themselves were not unanimous as regards the acceptability of the tender of the petitioner. Admittedly, there was deviation in fulfilling the conditions of the tender noti ce and on such consideration, accepting the views of the Internal Audit Departme nt, the Corporation proposed to issue fresh NIT. Judicial review of the administrative action of respondent Corporation has been sought for in the instant petition based on the notes from the related departmen tal file, annexed in this petition. It is strange, as submitted by the learned c ounsel for the Corporation, as to how the petitioner could get access to the cop ies of such official notes. Necessary information as requested by the petitioner under the RTI Act though has been furnished to him, but no copy of the note we re provided to him. However, it also cannot be denied that without active cooper ation of certain employees of the Corporation, it would not be possible for the petitioner to have access upon such confidential papers. It is open for the Corp oration to take appropriate action, if they so desire, against such employees wh o might be found responsible for supplying such documents to the petitioner with out any authority. I leave that part of the matter to be dealt with by the Corpo ration in its administrative side.

14. The notings in a note of a file do not provide an enforceable ri ght upon a person. Such notings are only expression of feeling by the concerned officer on the subject under review. A mere expression of a view in notes file c annot be the sole basis for action even in a contempt case. (Reference- AIR 1987 SC 1554, State of Bihar -vs- Kripalu Shankar). Again in the case of Bachittar S ingh -vs- State of Punjab and another reported in AIR 1963 SC 395, a constitutio n Bench of the Apex Court, relying on Article 166 of the Constitution, held that the order of a Minister would not amount to an order unless it was expressed in the name of Raj Pramukh and was then communicated to the party concerned. The final decision of the Corporation based on the finding of the Internal Audit Dep artment of the Corporation at no point of time communicated to the petitioner. In the matter of allotment of contract of such nature the author 15. ity is required to consider various aspects, and at various level, the tender do cuments are required to be scrutinized in the light of the conditions mentioned in the NIT. Unless and until a final decision in this regard is taken by the aut hority, it does not bar or prohibit the authority from further scrutinizing the matter at appropriate level. Upon such scrutiny, in the instant case, the author ity in view of the defects in the tenders submitted by the respective parties de cided to re-issue fresh NIT for allotment of the work in question. Although at s ome point of time certain notings were made in the notesheet in favour of the pe titioner but those were not final and conclusive conferring indefeasible right u pon the petitioner. In view of what have been discussed above, in my considered opin 16. ion, the judicial review of administrative action in the case in hand against th e action proposed by the Corporation is not permissible in the manner as alleged in this petition. It is always open for the authority to resile from the tender process on legitimate ground and in the instant case such ground for issuing re -tender having been ex-facie recorded, the same cannot be faulted with at the in stance of a tenderer more so when such decision appears to have taken for better public interest. In view of the aforesaid discussion, I do not find any merit in 17. this writ petition and the same is dismissed. Interim order passed earlier stand s vacated.

18. No costs.