The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 6448 of 2023 ---- OM-AC-SCDPL(JV), ( A Joint Venture Entity) having its office at 504-Mangal Murti Heights, Rani Bagan, Harmu Road, Harmu, P.O. Harmu, P.S. Kotwali, District-Ranchi, PIN-834001, Jharkhand, through its Authorized Signatory namely Seth Kumar, son of Gopal Prasad Gupta, Resident of House No.F- 105, Ashok Vihar, Ashok Nagar, Argora, Doranda, P.O. & P.S. Argora, District-Ranchi, PIN-834002, Jharkhand. .…..Petitioner Versus 1. The State of Jharkhand through its Secretary, Road Construction Department, having its office at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi, PIN-834004 (Jharkhand). 2. Engineer-in-Chief, Road Construction Department, having its office at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District- Ranchi, PIN-834004 (Jharkhand). 3. Joint Secretary, Road Construction Department, having its office at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District- Ranchi, PIN-834004 (Jharkhand). 4. Chief Engineer (Transport) Road Construction Department, having its office at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi, PIN-834004 (Jharkhand). 5. Executive Engineer, Road Construction Department, Road Division, Giridih, P.O. & P.S. Giridih, District-Giridih, Jharkhand. ………..Respondents With W.P.(C) No. 6854 of 2023 M/s M & S Company, a partnership firm, having its office at M.S. Tower, Khutaband, Dumka, P.O. P.S., & District-Dumka, Jharkhand, represented through its Partner Manoj Kumar Deo, Son of Chhote Lal Deo, Resident of M.S. Tower, Khutabandh, Dumka, P.O. P.S. & District-Dumka, Jharkhand. Versus ……Petitioner 1. State of Jharkhand through its Secretary, Road Construction Department, Government of Jharkhand having his office at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi, Jharkhand. 2. Engineer-in-Chief, Road Construction Department, Government of Jharkhand having his office at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi, Jharkhand. Joint Secretary, Road Construction Department, Government of Jharkhand having his office at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi, Jharkhand. 3. 4. Chief Engineer (Transport) Road Construction Department, 1 W.P.( C) No. 6448 of 2023 With W.P.( C) No. 6854 of 2023 Government of Jharkhand, having his office at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District-Ranchi, Jharkhand. 5. Executive Engineer, Road Construction Department, Road Division, Giridih, P.O. & P.S. Giridih, District-Giridih, Jharkhand. 6. OM-AC-SCDPL(JV), through its Authorized Signatory namely Seth Kumar, having office at 504-Mangal Murti Heights, Rani Bagan, Harmu Road, Harmu, P.O. Harmu, P.S. Kotwali, District-Ranchi, Jharkhand ---- ………..Respondents
Legal Reasoning
Coram: THE HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY THE HON’BLE MR. JUSTICE DEEPAK ROSHAN -------- For the Petitioner For the Respondents-State For Respondent No. 6 : Mr. Sumeet Gadodia, Advocate : Mrs. Shilpi Sandil Gadodia, Advocate : Mr. Rajiv Ranjan, Advocate General : Mr. Indrajit Sinha, Advocate C.A.V. On 22.02.2024 -------- Pronounced on _ 3/04/2024 Heard Mr. Sumeet Gadodia, learned counsel appearing on behalf of the petitioner in W.P.C. No. 6448 of 2023, Mr. Rajiv Ranjan, learned Advocate General for the State of Jharkhand, Mr. Indrajit Sinha, learned counsel appearing for the respondent no. 6 and Mr. Indrajit Sinha, learned counsel appearing for the petitioner in W.P.C. No.6854 of 2023, Mr. Rajiv Ranjan, learned Advocate General appearing for the State of Jharkhand and Mr. Sumeet Gadodia, learned counsel appearing for the respondent no. 6. In W.P.C. No. 6448 of 2023, the petitioner has prayed for the following 2. reliefs:- (i) For issuance of an appropriate writ/order/direction, including Writ of Certiorari for quashing/setting aside the decision of the Departmental Tender Committee as contained in Memo No. 5224(S) WE dated 14.11.2023 ( Annexure-7) wherein pursuant to a representation filed by one of the bidders, tender invited by the Respondent-authorities being Tender Reference No. RCD/GIRIDIH/578 dated 26.05.2023 ( Annexure-3) pertaining to the work of “Widening, Strengthening/Reconstruction of Banpura (on Bagodar-Sariya Road, MDR-116) TO Gorhar ( NH- 19) Via Manrukudar Road and Link Road (i) Kadhwar to Ghanghri Road (Length-3.37K.M.) and (ii)Dondlo link Road (Length-1.155 Km.) (Total Length-28.795 Km.) (Including Construction of Bridge) for the year 2023-24 has been W.P.( C) No. 6448 of 2023 2 With W.P.( C) No. 6854 of 2023 cancelled despite the fact that the petitioner pursuant to Tender Evaluation being undertaken by the Respondents was already declared as the Lowest Bidder. (ii) For issuance of further appropriate writ/order/direction, including Writ of Mandamus directing the Respondent- authorities to award the work in question pursuant to Tender Reference No. RCD/GIRIDIH/578 dated 26.05.2023 (Annexure-3) pertaining to the work of “Widening, Strengthening/Reconstruction of Banpura (on Bagodar-Sariya Road, MDR-116) TO Gorhar (NH-19) Via Manrukudar Road and Link Road (i) Kadhwar to Ghanghri Road (Length- 3.37K.M.) and (ii)Dondlo link Road ( Length-1.155 Km.) ( Total Length-28.795 Km.)( Including Construction of Bridge) for the year 2023-24 in favour of the petitioner especially because the petitioner has been declared successful both in technical and financial bid pursuant to the Technical Evaluation undertaken by the Respondent themselves but merely on the representation filed by one of the bidders in a most arbitrary, illegal and irrational manner, the entire tender in question has been cancelled. (iii) For issuance of further appropriate writ/order/direction for quashing/setting aside the e-procurement notice dated 16.11.2023 (Annexure-8) wherein extremely urgent Notice Inviting Tender has been again published by the Respondents for the work of construction of “Widening, Strengthening/Reconstruction of Banpura (on Bagodar-Sariya Road, MDR-116) TO Gorhar ( NH-19) Via Manrukudar Road and Link Road (i) Kadhwar to Ghanghri Road (Length- 3.37K.M.) and (ii)Dondlo link Road ( Length-1.155 Km.) ( Total Length-28.795 Km.)( Including Construction of Bridge) for the year 2023-24 as being wholly illegal, arbitrary and violative of Articles 14 & 19(1)(g) of the Constitution of India. In W.P.C. No. 6854 of 2023, the petitioner has prayed for the following 3. reliefs:- (a) For quashing the decision of the tender committee taken in its meeting dated 9.11.2023 ( Annexure-3 hereto)n whereby the W.P.( C) No. 6448 of 2023 3 With W.P.( C) No. 6854 of 2023 petitioner’s technical bid for the Tender Reference No. RCD/GIRIDIH/578 dt. 26.05.2023 has been declared non- responsive and decision has been taken to financial bidders of the other two bidders including the Respondent No. 6 herein; (b) For quashing the opening of the financial bids of the tender in question (Annexure-5 hereto) and thereafter directing the Respondents to re-consider the technical bid of the petitioner, declare the petitioner technically responsive and thereafter reopen the financial bids of the technically responsive bidders including the petitioner and the respondent no. 6 herein; (c) For quashing the decision of the tender committee taken in its meeting dated 14.11.2023 (Annexure-6 hereto) whereby decision has been taken to cancel the tender in question and proceed for re-tender; (d) For quashing the re-tender notice dated 16.11.2023 bearing reference no. RCD/GIRIDIH/1431(Annexure-7 hereto) whereby the work in question has been re-tendered. AND (e) During the pendency of the instant writ petition, for an appropriate interim order restraining the Respondents from proceeding further with the re-tender notice dated 16.11.2023/awarding the work under the said re-tender notice (Annexure-7hereto); 4. Since both these writ applications are interconnected and intertwined as the issue appears to be concerned with the decision of the Departmental Tender Committee dated 14.11.2023 both the writ applications are being
Decision
disposed of by this common order. 5. Briefly stated the facts which are common in both the writ applications are that the respondent-State of Jharkhand had published an E-Tender vide Tender Reference No. RCD/GIRIDIH/578 dated 26.5.2023 pertaining to the work of “Widening, Strengthening/Reconstruction of Banpura (on Bagodar- Sariya Road, MDR-116) TO Gorhar (NH-19) Via Manrukudar Road and Link Road (i) Kadhwar to Ghanghri Road (Length-3.37K.M.) and (ii)Dondlo link Road (Length-1.155 Km.) (Total Length-28.795 Km.)( Including Construction of Bridge) for the year 2023-24. 6. The following bidders had participated in the tender in question. 4 W.P.( C) No. 6448 of 2023 With W.P.( C) No. 6854 of 2023 (i) East India Construction Company. (ii) M & S Company (Petitioner in W.P.C. No.6854/2023). (iii) M.S. OM Namo Siwai Construction (Petitioner in WPC No. 6448 of 2023). 7. Subsequent to the participation of the bidders, the Departmental Tender Committee had opened the technical bid of all the bidders and two out of the four bidders namely East India Construction Company and M/s M & S Company (petitioner in W.P.C. No. 6854 of 2023) were found as technically non responsive and the remaining two bidders namely M/s OM- AC-SCDPL(Petitioner in W.P.C. No. 6448 of 2023) and Shri Ram Enterprises, Bhagalpur, Bihar were declared as substantially responsive. After opening of the price bid on 10/11.11.2023 M/s OM-AC-SCDPL (Petitioner in W.P.C. No. 6448 of 2023) was declared as the lowest bidder. However, M/s M & S Company (petitioner in W.P.C. No. 6854 of 2023) had filed a representation before the authorities claiming therein that the said bidder being a partnership firm was not required to submit a Power of Attorney. Pursuant to the representations submitted by M/s M & S Company a review Departmental Tender Committee meeting was held on 14.11.2023 and on the basis of the representation preferred by M/s M & S Company, Dumka the entire tender process was cancelled. After cancellation of the tender pursuant to the review Departmental Tender Committee meeting dated 14.11.2023 the respondents State of Jharkhand has issued an E Procurement Notice dated 16.11.2023 inviting tender pertaining to the same work, for which the earlier tender process was cancelled. 8. It has been submitted by Mr. Sumeet Gadodia, learned counsel appearing for the petitioner in WPC No. 6448 of 2023 and for the respondent no. 6 in W.P.C. No. 6854 of 2023 that the decision of the Departmental Tender Committee dated 14.11.2023 is illegal and actuated with malice as the decision has been taken without assigning any reasons whatsoever. Learned counsel submits that the action of the respondent authorities in cancelling the entire tender merely on the basis of the representation submitted by one of the bidders namely M.& S. Company, Dumka is actuated with malice in law, arbitrary, unreasonable and irrational specially when the entire tender process has already been completed and the petitioner in W.P.C. No. 6448 of 2023 has been declared as the L-1 bidder. Mr. Gadodia has submitted that on account of the non-submission of the requisite power W.P.( C) No. 6448 of 2023 5 With W.P.( C) No. 6854 of 2023 of attorney by M/s M.& S. Company, Dumka the bid of the said firm was disqualified but at the same time on account of the representations submitted by the said bidder, the entire tender process has been cancelled which speaks of mala fide on the part of the respondent authorities in favouring one or other bidder. It has been submitted that cancelling the tender and assigning a reason pursuant to the representations submitted by M/s M& S Company, Dumka on the face of it is arbitrary and violative of Articles 14 and 19 (i) (g) of the Constitution of India. Mr. Gadodia has referred to the counter affidavit filed by the respondents-State while submitting that the decision of the Departmental Tender Committee dated 14.11.2023 has been sought to be supplemented by reasons which cannot at all be permitted. He has also referred to the Standard Bidding document specifically with respect to clause 4.3(A) which mandates the bidders to submit a Power of Attorney. Reference has also been made to clause 4.7 of the Standard Bid document which reveals that the bidders who meet the minimum qualification criteria will be qualified only if there available bid capacity is more than the total bid value. It has been submitted that the respondent no. 6 in WPC No. 6448 of 2023 not only failed to submit the Power of Attorney but also did not state correctly the details of its pending works with the respondent-Road Construction Department, which was required, thereby making the bid liable to be rejected. As per clause 4.7 of the tender document, all the bidders were requested to submit the details with respect to “ existing commitments and ongoing works” in the prescribed format which has a direct bearing in assessing the available bid capacity of the petitioner in WPC No. 6854 of 2023. It had disclosed only three tenders/works which it was allegedly performing on the date of submission of the bids i.e. 21.6.2023. Mr. Gadodia has referred to letter no. 484 dated 17.10.2023 which was with respect to another work and the respondent department placing reliance on clause 4.8 disqualified the bidder which had not furnished true and correct facts of the existing bids. Once the bid has been opened and the petitioner in WPC No. 6448 of 2023 has been declared L-1 the respondent authorities were precluded from cancelling the tender process itself on the basis of a frivolous representations and in support of such contention reference has been made to the case of State of Jharkhand & Others Vs. CWE-Soma Consortium reported in (2016) 14 SCC 172, the relevant of which reads as follows:- 6 W.P.( C) No. 6448 of 2023 With W.P.( C) No. 6854 of 2023 “13. In case of a tender, there is no obligation on the part of the person issuing tender notice to accept any of the tenders or even the lowest tender. After a tender is called for and on seeing the rates or the status of the contractors who have given tenders that there is no competition, the person issuing tender may decide not to enter into any contract and thereby cancel the tender. It is well settled that so long as the bid has not been accepted, the highest bidder acquires no vested right to have the auction concluded in his favour (vide Laxmikant v. Satyawan, Rajasthan Housing Board v. G.S. Investments and U.P. Avas Evam Vikash Parishad v. Om Prakash Sharma).” 9. The scope of judicial review has been dealt with and considered in the case of Amarendra Kumar Pandey Vs. Union of India and others reported in 2022 SCC Online SC 881 and Mr. Gadodia has in support of his contention referred to the following:- “ 30. The action based on the subjective opinion or satisfaction, in our opinion, can judicially be reviewed first to find out the existence of the facts or circumstances on the basis of which the authority is alleged to have formed the opinion. It is true that ordinarily the court should not inquire into the correctness or otherwise of the facts found except in a case where it is alleged that the facts which have been found existing were not supported by any evidence at all or that the finding in regard to circumstances or material is so perverse that no reasonable man would say that the facts and circumstances exist. The courts will not readily defer to the conclusiveness of the authority’s opinion as to the existence of matter of law or fact upon which the validity of the exercise of the power is predicated. 31. The doctrine of reasonableness thus may be invoked. Where there are no reasonable grounds for the formation of the authority’s opinion, judicial review [See Director of Public Prosecutions v. Head, [1959] A.C. 83 (Lord Denning). in such a case is permissible. 32. When we say that where the circumstances or material or state of affairs does not at all exist to form an opinion and the action based on such opinion can be quashed by the courts, we mean that in effect there is no evidence whatsoever to form or support the opinion. The distinction between insufficiency or inadequacy of evidence and no evidence must of course be borne in mind. A finding based on no evidence as opposed to a finding which is merely against the weight of the evidence is an abuse of the power which courts naturally are loath to tolerate. Whether or not there is evidence to support a particular decision has always been considered as a question of law. [See Reg. v. Governor of Brixton Prison, Armah, Ex Parte, [1966] 3 WLR 828 at p. 841].