M/S. T.B.S. Banchhor vs State Of Chhattisgarh
2021 Latest Caselaw 3323 Chatt

                                              1




                                                                                  NAFR

                    HIGH COURT OF CHHATTISGARH AT BILASPUR

                                    WPC No. 4801 of 2021

             M/s. T.B.S. Banchhor, Having Office At 29, Kadambari Nagar, Durg (Cg)
             Through Its Partner Shri. Nivedit Banchhor S/o. Shri T.B.S. Banchhor, Aged
             About 43 Years, R/o. 29, Kadambari Nagar, Durg Chhattisgarh

                                                                        ---- Petitioner

                                           Versus

          1. State Of Chhattisgarh Through Secretary, Water Resource Department,
             Mantralaya, Mahanadi Bhawan, Atal Nagar, Raipur Chhattisgarh

          2. Engineer - In - Chief, Mahanadi Godavari Basin, Water Resource
             Department, Shivnath Bhawan, Atal Nagar, Raipur Chhattisgarh

          3. Chief Engineer, Water Resource Department, Shivnath Bhawan, Atal Nagar,
             Raipur Chhattisgarh

          4. Chief Engineer (Tender Cell) O/o. The Engineer-In- Chief, Water Resource
             Department, Shivnath Bhawan, Atal Nagar, Raipur Chhattisgarh., District :
             Raipur, Chhattisgarh

                                                                     ---- Respondents

For Petitioner : Mr. Shishir Dixit, Advocate For Respondent : Mr. Gagan Tiwari, GA

Hon'ble Mr. Justice P. Sam Koshy Hon'ble Mr. Justice Arvind Singh Chandel Judgment on Board by Hon'ble Mr. P. Sam Koshy

26/11/2021

1. Aggrieved by the Annexure P-5 dated 02.11.2021 disqualifying the

petitioner from participating in the general proceedings vide Tender no.

81826/NIT No.12/SAC/2021-22, the present writ petition has been filed.

2. The tender was invited for the "Akoli Tank", the scope of said work was

of Renovation of Akoli Tank and Remodeling and lining of the Main

Canal and and 02 Nos. Minor with Construction of 09 Nos V.R.B. 1 Nos

Aquaduct, 01 Nos. D.C., 06 Nos. Fall and 30 Nos. Colaba fixing in Block

Dhamdha and District Durg". The probable amount of contract was of

Rs. 650.05 Lakhs. The documents were to be submitted by the

24.09.2021.

3. During the scrutiny, the respondents found the petitioner to be

disqualified as he did not fulfill the required bid capacity and he was

found short of the bid capacity criteria. Accordingly the impugned e-mail

Annexure P-5 was issued intimating the petitioner in respect of his

disqualification. The letter of disqualification clearly envisaged that in

case, if the petitioner has any explanation to the decision arrived at by

the respondents, he could make a suitable representation to the Tender

Cell within a period of two days. It was further cautioned to the petitioner

that in the event, if the petitioner fails to make a representation or to

provide for an explanation, the authorities would be at liberty to proceed

further with the tender presuming that the petitioner does not have any

objection.

4. Today, when the matter is taken up for hearing, learned State counsel

intimates the Court that subsequent to the petitioner being declared

disqualified and further that for the reason that there was no

representation or an explanation provided by the petitioner within the

stipulated period, the authorities have further proceeded with the tender

and bid have already been opened and L-1 has also been declared and

as such much water has since flown and there is hardly any scope for

this Court left with the tender.

5. It is the further objection of the State counsel since the L-one has

already been declared, a right has been accrued in favour of the L-1, in

case, the writ petition at this juncture is entertained or interfered, the

right of the said L-1 would adversely get affected and the said L-1 has

not been made a party in the present writ petition. Therefore, also the

writ petition would not be sustainable.

6. Though, learned counsel for the petitioner tried to give an explanation

that immediately after receiving the e-mail on 02.11.2021 i.e. the

impugned order Annexure P-5, the petitioner had personally approached

the Chief Engineer of the Tender Cell on the very next day and had

given their explanation orally which was rejected by the Chief Engineer

and it is only thereafter that the petitioner has made a fresh

representation vide Annexure P-6 dated 17.11.2021. However, perusal

of the record would show that there is no evidence of the fact that

petitioner did meet the Chief Engineer, Tender Cell immediately after the

impugned e-mail dated 02.11.2021 was received by him.

7. To further add to it, if we look at Annexure P-6, the first representation

which the petitioner has made again is after a period of well over 15

days from the date the impugned e-mail was served upon to the

petitioner. It is not the case of the petitioner that they have not been

served with the impugned e-mail dated 02.11.2021 on the same day

itself, the petitioner accepts the fact that it has been duly received by

them on 02.11.2021 itself. If that be so, the contents of that e-mail

becomes more relevant at this juncture. For ready reference, contents of

the e-mail dated 02.11.2021 is reproduced hereinunder :-

" During the scrutiny of your documents downloaded for tender numbers shown in the subject above, You are found disqualified due to not fulfilling Bid Capacity Criteria.

Any explanation in this regard may please be presented to the Tender Cell within 2(Two) days. Failing which the process

shall be carried forward presuming that you have nothing to say."

8. Plain perusal of the aforesaid content of the e-mail dated 02.11.2021

would clearly reflect that the Authorities holding the petitioner disqualified

on the specific ground of not fulfilling the Bid Capacity Criteria had given

the opportunity for the petitioner to represent before the Tender Cell

within a period of two days giving their explanation in respect of the

decision taken by the respondents.

9. Apparently, the petitioner has not availed the said opportunity of

submitting an explanation within two days. In a tender proceeding, it is

the time which is the essence of the contract and therefore the tender

proceedings have to be initiated and concluded as per schedule and that

is the reason why while declaring the petitioner disqualified, he was

permitted to make a representation within two days. The petitioner

having not done so and thereafter making a representation after a period

of well over two weeks' time, the same cannot be accepted to be a

genuine grievance raised by the petitioner at a belated stage. He cannot

be permitted to cry foul after having failed to avail the opportunity at the

given time and there being no cogent reason for not approaching the

authorities within the prescribed period.

10. Moreover, during the intervening period as per the contents of the e-mail

dated 02.11.2021 the respondents have in fact proceeded with the

tender, bids were opened and the L-1 have also been declared.

11. Further taking note of the objection raised by the State counsel, the L-1

has also not been made a party to the present petition in spite of the

petition being filed after L-1 was declared. For all the aforesaid reasons,

we are not inclined to entertain the writ petition as no sufficient cause

has been shown by the petitioner for not having approached the

authorities concerned as per the requirement of impugned e-mail itself.

12. The writ petition therefore deserves to be and is accordingly rejected.

                    Sd/-                                              Sd/-
              (P. Sam Koshy)                                (Arvind Singh Chandel)
                   Judge                                           Judge


Rohit