M/S Rajeev & Company Barabanki ... vs State Of ...
2013 Latest Caselaw 1987 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 

 
Case :- MISC. BENCH No. - 3900 of 2013
 

 
Petitioner :- M/S Rajeev & Company Barabanki Thr.Partner Rajeev Tandon &Or
 
Respondent :- State Of U.P.Thr.Prin.Secy.Rural Development Lucknow & Ors.
 
Petitioner Counsel :- Kapil Misra,Sunil Kumar Chaudhary
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Uma Nath Singh,J.

Hon'ble Mahendra Dayal,J.

Order (Oral)

We have heard learned counsel for parties and perused the pleadings of writ petition.

This Court vide order dated 22.02.2013 in Writ Petition No.1403 (MB) of 2013 filed by the petitioner herein passed the following order:

"We have heard learned counsel for parties and perused the pleadings of writ petition.

Brief facts giving rise to filing of this Writ Petition are that the Superintending Engineer, Rural Development Department, Faizabad Circle, Faizabad, respondent no.6, issued e-procurement notice under Pradhanmantri Gramin Sadak Yojna (hereinafter referred to as the 'PMGSY') on 5.12.2012 for construction of roads in District Barabanki through e-tendering process. The e-procurement notice has been published in various newspapers. From the e-procurement notice dated 5.12.2012 it would be evident that bid documents had to be loaded and submitted online between 18.12.2012 to 18.01.2013. The respondents on 29.12.2012 issued a corrigendum of e-procurement notice and certain amendments were circulated through newspapers. Then the place of opening of tenders was changed and the corrigendum issued by the respondents has also been circulated. The petitioners who are the registered contractors, submitted their tenders through e-tender process and also submitted their originals as per requirement of clause 4(c) and e-procurement notice dated 5.12.2012. Petitioner no.1 submitted its tender for package Nos.13117, 13137 & 13109. The petitioner no.2 submitted its tender for package No.13113, 13116, 13122 and 13124 and petitioner no.3 has submitted its tender for package Nos.13121 and 13127. The petitioners have completed all the formalities and submitted their original documents as required, and as per the schedule, the evaluation of bid had to be done on 8.2.2013. The Executive Engineer, P.I.U. Rural Engineering Department, District Barabanki wrote a letter to the Superintending Engineer, mentioning therein the deficiency as noticed in some of the tenders and asked for guidance from the Superintending Engineer. The Executive Engineer, PMGSY, Rural Engineering Department, Barabanki instead of verifying the bid documents wrote a letter to the Superintending Engineer, Rural Engineering, Faizabad Circle, Faizabad informing that certain tenderers have made complaints that despite the fact that they have submitted the original documents with their bid documents yet the same were not found during opening of envelops and thus he recommended that the whole tender process be cancelled. The Superintending Engineer, Rural Engineering Services, Faizabad Circle, Faizabad, thus wrote a letter bringing to the notice of Director and Chief Engineer, Rural Engineering Department, U.P.Lucknow the complaints made by the said tenderers. It was also informed that out of 96 tenders, in 51, the original documents submitted were not found. Therefore, the Superintending Engineer suggested that the tenders be cancelled.

Shri S.C.Mishra, learned Senior Counsel, appearing for the petitioners submitted that the respondents may not proceed in respect of items/packages in respect whereof there is only one valid tender or there is no valid tender but with regard to other packages where there is more than one tender, there is no reason to cancel and the respondents should proceed further with the process. However, after some arguments, there is a consensus between learned counsel for parties that this writ petition can be disposed of with direction to treat it as a representation to Competent Authority, namely, opposite party no.3, with further direction to decide and dispose of the same on merit within a time frame.

Accordingly, the Writ Petition is disposed of with liberty to submit a copy of this petition as representation to the Competent Authority, which shall decide the matter on merit and in accordance with law within a period of two weeks from the date of receiving a copy of this order. Till then, in respect of these packages against which there is more than one bid, the respondents shall not proceed with re-tendering process."

In compliance of the order, the respondents have passed the order vide Annexure No.1. The operative portion of the order, apposite for adjudication of the case, which is in Hindi, on reproduction reads as:

"vizkIr izi=ksa dh fLFkfr ds dkj.k mijksDr leLr iSdstksa ij ,dy fufonk dh fLFkfr mRiUu gqbZ gS] tks fufonk dh LoLFk izfrLi/kkZ dh izfdz;k ds nwf"kr gksus dk vkHkkl djkrh gSA

;kstuk ds fn'kkfunsZ'kksa dk vuqikyu lqfuf'pr u djus ds QyLo:i mRiUu gq;s fookn dks n`f"Vxr j[krs gq, vfHkdj.k }kjk nks"kh vf/kdkfj;ksa dks fpfUgr djus ,oa vuq'kklukRed dk;Zokgh fd;s tkus dh laLrqfr dh x;h FkhA vfHkdj.k }kjk dh x;h laLrqfr ds vkyksd esa 'kklu }kjk xaHkhj :[k viukrs gq;s rRdkyhu vf/k'kklh vfHk;Urk ,oa v/kh{k.k vfHk;Urk dks fuyfEcr djus dh dk;Zokgh laLFkr dh x;h FkhA vfHkdj.k }kjk dh x;h laLrqfr ds vkyksd esa 'kklu }kjk xaHkhj :[k viukrs gq;s rRdkyhu vf/k'kklh vfHk;Urk ,oa v/kh{k.k vfHk;Urk dks fuyfEcr djus dh dk;Zokgh laLFkr dh x;hA lkFk gh tuin esa iqu% fufonk vkeaf=r djus ds vkns'k l'krZ ikfjr fd;s x;s fd fufonk izfdz;k esa vfu;ferrk cjrus okys vf/kdkjh iqu% fufonk izfdz;k ls izfrcaf/kr jgsaxsA fufonk izfdz;k dh ikjnf'kZrk ,oa lR;rk (Sanctity) cuk;s j[kus ,oa Hkfo"; esa bl izdkj dh nqjfHlaf/k;ksa dh iqujko`fRr jksdus gsrq iqu% fufonk dk fu.kZ; lehphu ,oa U;k;ksfpr gSA

mDr ifjn`'; esa ;kph la[;k 1] 2 ,oa 3 dze'k% esa jktho ,.M dEiuh ckjkcadh] esa vkj- ds- dULVªD'ku izk- fyfeVsM ,oa esa- fueZy dULVªD'ku] y[kuÅ dk ;kfpdk Lo:i izR;kosnu dks ek0 mPp U;k;ky; bykgkckn y[kuÅ csap y[kuÅ ds ;kfpdk la[;k 1403 ,[email protected] esa ikfjr vkns'k fnukWd 22-02-2013 ds vkyksd esa ,rn~~}kjk fuLrkfjr fd;k tkrk gSA

eq[; dk;Zikyd vf/kdkjh

m0iz0 xzke lM+d fodkl vfHkdj.k

y[kuÅ"

It appears that during the pendency of the representation submitted by the petitioner, he also filed an application under the Right to Information Act to find out as to whether in any such case where the single bid was finally processed, the contract has been granted in favour of the bidder. Vide Annexure 23, the reply was given by the Executive Engineer of the project with the following information:

iz/kkuea=h xzke lM+d ;kstuk vUrZxr QStkckn esa ,dy fufonk izkIr ,oa Lohd`r fd;s x;[email protected]`r djk;s tk jgs iSdstksa dh lwphA

dz0la0

Tkuin dk uke

iSdst dk [email protected] la[;k

fufonk [kksyus dh frfFk

fufonk Lohd`r dh frfFk

QStkckn

;w0ih& 2361

04/02/13

25-03-2013

QStkckn

;w0ih& 2366

04/02/13

25-03-2013

QStkckn

;w0ih& 2368

04/02/13

25-03-2013

QStkckn

;w0ih& 2369

04/02/13

25-03-2013

QStkckn

;w0ih& 13139

04/02/13

25-03-2013

vf/k'kk"kh vfHk;Urk

ih0vkbZ0;w0] ih0,e0th0,l0okbZ0]

xzkeh.k vfHk;U=.k foHkkx] QStkckn"

It is noticeable that the procedure for procuring the bid on line and its opening has been prescribed vide Annexure 20. The same, called 'the procurement notice (corrigendum)', prescribes the modes of procurement and opening of bid as under:

"PRADHAN MANTRI GRAM SADAK YOJANA (PMGSY)

e-Procurement Notice (Corrigendum)

Due to unavoidable circumstances e-Procurement Notice letter No.5207/RED/e-Pro.Notice/Phase-10 (WB)/Upgradation/ 2nd Call/2012-13 Dated 11-02-2013, e-Procurement Notice (Corrigendum) letter No.5456/RED/e-Pro. Notice / Phase-10(WB)/Upgradation/ 2nd Call/ 2012-13 dated 19-02-2013, e-Procurement Notice (Corrigendum) letter No.6028/RED/e-Pro. Notice / Phase-10(WB)/ Upgradation/ 2nd Call/ 2012-13 dated 12-03-2013 & e-Procurement Notice (Corrigendum) letter No.6419/RED/e-Pro. Notice / Phase-10(WB)/Upgradation/ 2nd Call/ 2012-13 dated 25-03-2013 is here by amended as follows -

1. Receiving of Bids on line:

Bids will be received up to 14-05-2013 up to 12.00 Noon instead of 25-04-2013 up to 12.00 Noon

Opening of bids: Part 1 (The Technical Qualification Part):

14-05-2013 from 01.00 PM instead of 25-04-2013 from 01.00 PM

2.As per NIT Clause 4(c) all Original Documents will be received upto 14-05-2013 & time up to 5.00 PM instead of 25-04-2013 at notified place.

3.Remaining conditions will remain the same.

Superintending Engineer

Rural Engineering Department

Circle Faizabad (U.P.)"

In this background, learned Senior Advocate, Shri S.C. Mishra, submitted that rejection of petitioner's bid on the ground that the original documents as required to be submitted were not made available within the time prescribed, and secondly, that the acceptance of single bid would vitiate the entire tender process, is not sustainable on facts as well as in law, particularly in view of the fact that under the same Superintending Engineer in respect of Faizabad District, in five such cases, the single bid was admittedly accepted whereas in the case of the petitioner, for Barabank District, they have been arbitrarily rejected.

Shri D.K. Pathak, learned Additional Chief Standing Counsel appearing for the State, contends that in order to maintain the element of transparency and to invite more bids, it was thought necessary to cancel the earlier e-tender, and to invite fresh bids.

On due consideration of rival submissions, we are inclined to allow the writ petition for the reasons that this Court had given liberty to respondents to consider the case of the petitioner on merit but instead of applying the mind independently and dispassionately, they have passed the impugned order contrary to the fact that in the similar cases of five bids of district Faizabad under the same Superintending Engineer, the single bidders were granted the contract. Moreover, vide Annexure 20, as per the corrected e-procurement notice, the time for depositing the original documents was provided up to 5.00 O'clock and during that period the petitioner claims to have deposited the required documents. That apart, it is not the case of inviting bids in closed envelops; it is a case of e-procurement where any person can open the website and see the details of the bids. Therefore, we do not find any ground to hold that the procedure adopted in procuring the e-tenders in question suffers from the lack of transparency.

In view of the aforesaid discussions, we allow the writ petition and quash the impugned order as well as the subsequent tender notice. Consequently, the respondents shall complete the tender process  of the e-procurement in question and finalize it at the earliest.

Order Date :- 13.5.2013

A. Katiyar