Chattisgarh High Court
M/S R.D. Construction vs State Of Chhattisgarh on 23 February, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (C) No. 4045 of 2021
M/s. R.D. Construction through its partner Satish Chhugani S/o Late
Shri K.L.Chhugani, aged about 47 years, R/o A-10, Gayatri Nagar,
Raipur, Tehsil Raipur, PS Telibandha, District Raipur, Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh, through the Secretary, Agriculture Department,
Mahanadi Bhawan, Naya Raipur, District Raipur, Chhattisgarh.
2. State of Chhattisgarh, through the Secretary, Public Works
Department, Mahanadi Bhawan, Naya Raipur, District Raipur,
Chhattisgarh.
3. Indira Gandhi Krishi Vishwavidyalaya, through the Registrar, Krishak
Nagar, Raipur, District Raipur, Chhattisgarh.
4. Vice Chancellor, Indira Gandhi Krishi Vishwavidyalaya, Krishak
Nagar, Raipur, District Raipur, Chhattisgarh.
5. Superintendent, Physical Plant, Indira Gandhi Krishi
Vishwavidyalaya, Krishak Nagar, Raipur, District Raipur,
Chhattisgarh.
6. M/s. Shubhaakriti, through its partner M.G.Road, Banaras Chowk,
Jawahar Nagar, Ambikapur, District Sarguja, Chhattisgarh.
---- Respondents
(Cause Title taken from Case Information System)
For Petitioner : Mr. Prateek Sharma, Advocate.
For Respondent No. 1 & 2 : Mr. Vikram Sharma Deputy Government
Advocate.
For Respondent No. 3 to 5 : Mr. Shashank Thakur, Advocate
For Respondent No. 6 : Mr. Sharad Mishra, Advocate
Date of Hearing : 25.01.2022
Date of Judgment : 23.02.2022
Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. N.K.Chandravanshi, Judge
C A V Judgment
Per Arup Kumar Goswami, Chief Justice
Heard Mr. Prateek Sharma, learned counsel for the petitioner.
Also heard Mr. Vikram Sharma, learned counsel for the respondent Nos.
1 and 2, Mr. Shashank Thakur, learned counsel for the respondents Nos.
3 to 5 as well as Mr. Sharda Mishra, learned counsel for the respondent
No. 6.
2. By this writ petition, the petitioner, which is a partnership firm,
has prayed for setting aside (i) the order dated 03.08.2021 (Annexure
P/2) whereby the technical bid of the petitioner was held to be non-
responsive, (ii) opening of the financial bid on 16.09.2021 as well as (iii)
all further proceedings on the basis of opening of the financial bid.
Prayer is also made to direct the respondents to open the financial bid of
the petitioner declaring him eligible in the technical bid.
3. This Court, by order dated 08.10.2021 had issued an order of
status quo as it existed on that date in respect of the subject tender
process till the next date of hearing which was fixed on 28.10.2021. The
said interim order is subsisting as on date as the same has been
extended from time to time.
4. The Department of Biotechnology, Ministry of Science and
Technology, Government of India, after obtaining sanction of the
President of India, had issued an order dated 05.07.2018 sanctioning
establishment of a Biotechnology Park in the State of Chhattisgarh with
the object of providing facilities for interface of Research Institute with
Industry for better utilization of technology and available resources. The
Chhattisgarh Biotech Society Raipur was chosen as the implementing
institute and the Indira Gandhi Krishi Vishvavidyalaya, Raipur (for short,
the University), respondent No. 3, was entrusted with the task of
providing technical support to the proposed Biotech Incubation Center.
The Department of Agriculture, Farmers Welfare and Biotechnology
Development, Government of Chattisgarh issued an order on 30.06.2020
by which administrative approval of Rs.13,49,84,000/- was sanctioned
for construction of a Biotechnology Incubation Center. It was consequent
upon grant of such administrative approval and sanction, the University
issued a notice inviting tender (for short, NIT), inviting submission of
online bids till 20.02.2021.
5. Four firms including the petitioner submitted their bids and on
evaluation, the technical bid of all the four firms was rejected, and
thereafter, the instant NIT dated 10.03.2021 was issued. The last date
for online submission of the tender and the last date for submitting the
same physically was fixed on 20.03.2021 and 22.03.2021, respectively.
The technical bid was scheduled to be opened at 4:00 pm on
22.03.2021.
6. The letter dated 03.08.2021, whereby the petitioner was
informed that its technical bid was rejected, recited two grounds for such
rejection: (i) the petitioner failed to furnish the experience certificate of
having successfully completed laboratory designing and laboratory
construction of minimum 30,000 sq.ft of lab work as mandated in point
No. 2 of the eligibility criteria of the NIT, and (ii) the proforma for integrity
pact submitted by the petitioner along with the technical bid was blank.
7. Mr. Prateek Sharma, learned counsel for the petitioner submits
that a perusal of the averments made in paragraph 8 of the reply of
respondents No. 3 to 5 would go to show that while the technical bid
submitted by the respondent No. 6 was found to be in order, the tenders
submitted by the other three firms including the petitioner were not found
to be technically responsive and yet, vide letter dated 20.07.2021, the
petitioner was asked to extend the validity period of the bid till
24.07.2021, failing which it was indicated that the tender of the petitioner
will not be considered. It is submitted that when the tenders were already
opened and the technical bid of the petitioner was found to be non-
responsive, which decision was not communicated immediately but
communicated after more than four months by letter dated 03.08.2021, it
is not understood why the letter dated 20.07.2021 was issued requesting
the petitioner for extension of the validity period of the bid. Though there
was no justification for seeking extension of the validity period, without
prejudice to the rights and contentions, it had given consent for
extension of the validity period by letter dated 22.07.2021. Mr. Sharma
submits that the petitioner had expressed apprehension that the
University was trying to show undue favour to a party and the tenders of
other tenderers might be rejected on flimsy grounds.
8. Drawing attention of the Court to Annexure-P/12 (page No. 206
and 207 of the writ petition), Mr. Sharma submits that the contention of
the University that the petitioner failed to furnish the requisite experience
certificate is palpably wrong and the Annexure-P/12 documents would
demonstrate without any ambiguity that the petitioner had successfully
completed laboratory design and laboratory construction of minimum
30,000 sq.ft of laboratory work as required under clause (2) of the
'eligibility criteria'. Drawing attention to Annexure P/10 (page 191 of the
writ petition), which is a proforma for integrity pact, he submits that there
is no infirmity in the integrity pact as a signed copy was submitted as
was done previously, and based on submission of such integrity pact,
the petitioner and other contractors were awarded contracts earlier,
without the University ever raising any objection. It is on the above
premises, it is submitted that the authorities of the University acted
illegally, arbitrarily and discriminatorily in rejecting the technical bid of the
petitioner and other contractors to eliminate competition only to sub-
serve the interest of its blue-eyed tenderer.
9. He further submits that while the technical bid of the petitioner
was rejected on wholly untenable grounds, the technical bid of the
respondent No. 6 was held to be responsive despite there being glaring
omissions and commissions which necessarily should have warranted
rejection of the technical bid. The term of the Vice-Chancellor of the
University was due to expire on 31.10.2021 and to grant undue favours
to the respondent No. 6, the technical bid of the respondent No. 6 was
held to be responsive and the contract was also awarded on 01.10.2021
in haste. It is submitted that the respondent No. 6 had quoted a sum of
Rs.14,36,89,300/- while the estimated cost was fixed at
Rs.13,17,00,000/-. The amount quoted by the respondent No. 6 was
higher than the amount sanctioned, i.e. Rs. 13,49,84,000/-. Therefore, a
request was made by the University to the State Government to sanction
a further sum of Rs. 1 Crore. But before any response was received, by
way of negotiations, in order to benefit the respondent No. 6, contract
was awarded to respondent No. 6 at Rs. 13,49,84,000/-. It is submitted
that though a plea was taken that prompt action was taken to settle the
contract because of the directions issued by the Chief Executive Officer
of the Chhattisgarh Biotechnology Promotion Society vide letter dated
25.09.2021, perusal of the said letter would go to show that there was
no such direction for early conclusion of the process.
10. It is submitted that the registration certificate submitted by
respondent No. 6 is dated 18.07.2018 and the same was issued by the
office of Engineer in Chief, PWD as Class 'A' contractor indicating the
names of the partners including that of Sandeep Patni. However, the
respondent No. 6 firm was re-constituted on 21.06.2020 and the
Registrar of Firms and Societies was duly intimated that Sandeep Patni
was removed from the partnership and Bharat Singh Rajput was added
as a partner. But there was no change in the registration certificate
issued by the office of the Engineer-in-Chief and in that view of the
matter, the tender submitted by the respondent No. 6 is not a valid
tender inasmuch as the Engineer-in-Chief, PWD was not informed within
a period of 15 days of such reconstitution as required under clauses (5)
and (14) of the affidavit at page 176 of the writ petition. It is submitted
that undue favour was shown to respondent No. 6 even at the time of
receiving tender documents as tender documents were received on
20.03.2021, which was a holiday on account of it being a third Saturday.
Drawing attention of the Court to page 91 of the writ petition, Mr. Sharma
contends that if identical documents are submitted online and offline,
then only comparative chart of technical parameters in respect of a
tenderer was to be prepared and in this context, he submits that the
affidavit submitted in the prescribed proforma 'J' and 'M (12)', submitted
online and offline are not similar as both sides of the affidavits were not
submitted online. He draws attention to clause 3.8.1 at pages 97 and 98
of the writ petition, which provides that the financial capacity certificate
(solvency certificate) shall have to be in the prescribed format, i.e.,
Annexure 'H'. He further draws attention to pages 185 and 186 of the
writ petition to contend that the solvency certificate submitted by the
respondent N. 6 at Annexure-P/8 is not in terms of Annexure 'H'. Inviting
attention to the memorandum of understanding dated 17.03.2021, it is
submitted by him that the said document was executed at Ahmedabad
and notarised on 18.03.2021 at Surguja, Ambikapur and because of the
distance in between the two places, it is apparent that the memorandum
of understanding dated 17.03.2021 was notarized in absence of the
signatories and as such tender of respondent No.6 was invalid. When
the affidavits submitted were dated 16.03.2021, at any rate, subsequent
document executed on 17th or 18th March, 2021 could not have been
taken into consideration. The integrity pact, Annexure-I, submitted by the
respondent No. 6 is signed by only respondent No. 6 and yet notarized
without any signature of other parties and therefore, the said document
could not have been executed as clause (3) of the 'bidding process'
required that ink-signed copy of the integrity pact only should be
submitted.
11. It is submitted that Annexure 'M' of the tender document
required the tenderer to enclose, amongst others, Income Tax Return,
Balance Sheet, Profit and Loss Account including audit report of
Chartered Accountant for the last 5 years, which are pre-qualification
documents for contracts for which the estimated cost of work is above
Rs. 5 Crores, but the respondent No. 6 had furnished documents for only
four years and therefore, the tender of the respondent No. 6 should not
have been held to be responsive. In support of his submission, Mr.
Sharma places reliance on the decision of the Hon'ble Supreme Court in
the case of Haffkine Bio-Pharmaceutical Corporation Limited, A
Government of Maharashtra Undertaking through Manager v. Nirlac
Chemicals, through its Manager & Others, reported in (2018) 12
SCC 790, with particular reference to paragraph 10.
12. Mr. Shashank Thakur, learned counsel for the respondents
No. 3 to 5 submits that though the technical bids were opened on
22.03.2021, owing to Covid-19 pandemic, the tenders could not be
evaluated and process could not be completed and therefore, consent
was sought for from the tenderers for extending the validity of the bids.
The tender committee held its meeting on 24.07.2021 and it was only on
that date that the technical bids were considered and evaluated and the
bid of the petitioner being found to be invalid, letter dated 03.08.2021
was issued. Opportunity was granted to all the tenderers whose bids
were rejected to present their case before the University up to
06.08.2021 and the petitioner had submitted its response. The response
was placed before the tender committee and on due consideration,
rejection of the technical bid of the petitioner was maintained.
13. It is submitted by Mr. Thakur that the experience certificates
submitted by the petitioner do not meet the eligibility criteria. Change of
constitution of a firm has no relevance as the change of partnership was
duly endorsed by the Registrar of Firms and Societies. It is submitted
that the tender of the respondent No. 6 was delivered by the Department
of Post on 20.03.2021 and the same was received by daily wage
employees who are present even on holidays and therefore, it is not
understood what is sought to be contended by the petitioner that the
University had sought to favour the respondent No. 6 by receiving the
documents on 20.03.2021.
14. The allegation made in respect of the affidavit is denied. It is
submitted that though a format is prescribed for producing solvency
certificate, when the core aspect relating to the solvency is indicated in
the certificate, the same is accepted. Even the solvency certificate
submitted by the petitioner is not as per Form 'H'. A mountain of a mole
hill is sought to be made with regard to execution of the agreement on
17.03.2021 which was notarized on 18.03.2021 and the petitioner has
resorted to surmises and conjectures for the purpose of this case for
illegal gain and wrongful bargain. It is submitted that there is no embargo
to enter into negotiations with the successful tenderer for getting the best
deal and as a result of the negotiations, there was reduction of rate to
the tune of Rs. 41,23,770/- in civil works and Rs. 45,80,749/- in non-SOR
work. He, however, submits that the respondent No.6 had submitted
Income Tax Return for four years. He had relied on a decision of the
Hon'ble Supreme Court in Bakshi Security and Personnel Services
Private Limited vs. Devkishan Computed Private Limited and Others,
reported in (2016) 8 SCC 446.
15. Mr. Sharad Mishra, learned counsel for the respondent No.6,
while adopting the submission of Mr. Shashank Thakur, learned counsel
appearing for respondent Nos. 3 to 5, submits that respondent No.6 had
initiated the execution of work by purchasing materials, equipments, etc.,
and therefore, no interference is called for with regard to the work order
issued in favour of the respondent No.6. He has submitted that the
allegations made with regard to the re-constitution of the firm is without
any basis as the firm has been duly re-constituted and the said fact was
duly informed to the University. The allegation with regard to undue
favour is also totally baseless and the respondent No.6 has been
awarded the work, as the tender submitted by the respondent No.6 was
a valid tender in all respects. While submitting that the respondent No.6
had submitted Income Tax Return only for four years, he contends on
the basis of the abstract terms and conditions of the tender as well
as detailed terms and conditions of the tender, that Income Tax Return
certificate of three years out of any last four financial years,
is the requirement. He has placed reliance in precedents in Afcons
Infrastructure Limited vs. Nagpur Metro Rail Corporation Limited and
Another, reported in (2016) 16 SCC 818, and Montecarlo Limited vs.
National Thermal Power Corporation Limited , reported in (2016) 15 SCC
272.
16. Mr. Vikram Sharma, learned counsel for the respondent Nos. 1
and 2, submits that the respondent Nos. 1 and 2 are only formal parties
and have no role to play in regard to a dispute relating to the University,
which is an independent autonomous body.
17. We have considered the submissions of the learned counsel for
the parties and have perused the materials on record.
18. Before proceeding further, it will be appropriate to take note of
the decisions cited by the learned counsel for the parties.
19. In Haffkine Bio-Pharmaceutical Corporation Limited (supra), the
Hon'ble Supreme Court observed that when the technical bid is opened,
it is the right of the rival bidders to see whether the documents attached
by a bidder meet technical requirements or not and that the same can
only be done if the documents attached to bid are shown to the other
side.
20. In Afcons Infrastructure Limited (supra), the Hon'ble Supreme
Court had observed that interference with the decision-making process
of the employer or owner of the project in accepting or rejecting of the
bid of a tenderer should not be interfered with unless the decision-
making process is mala fide or is intended to favour some one or unless
the decision is so arbitrary or irrational that the Court could say that the
decision is one which no responsible authority acting reasonably and in
accordance with law could have reached. It was further observed that
the decision-making process or the decision should be perverse and not
merely faulty or incorrect or erroneous.
21. In Montecarlo Limited (supra), the Hon'ble Supreme Court
observed that exercise of power of judicial review would be called for in
the matter of discrimination of state largess if the approach is arbitrary or
mala fide or procedure adopted is meant to favour one and that technical
evaluation or comparison by the Court would be impermissible.
22. In Bakshi Security and Personnel Services (supra), though the
authority did not disclose the minimum wage figure, which was very
relevant, even in the second round of litigation, having regard to the fact
that there was no mala fide involved and the calculation of minimum
wage, otherwise, was justified, the Hon'ble Supreme Court, instead of
directing restarting of the tendering process, allowed the authority to
proceed with finalising the tender with the appellant.
23. Though the technical bid was opened on 22.03.2021, materials
on record go to show that due to lock-down imposed on account of
Covid-19 pandemic, evaluation of technical bid was conducted by the
tender committee on 24.07.2021 and as the bid validity period was to
expire, consent was sought from the parties to extend the validity period
by another 120 days. It is not the case of the petitioner that the tenderers
were debarred from being present at the time of opening of the technical
bid. Therefore, the contention of Mr. Sharma that result of evaluation of
technical bid was communicated after more than four months with
oblique motive is found to be not substantiated.
24. Clause 2 of the eligibility criteria for the work in question reads
as follows :
"The contractor should have experience of
having successfully completed Laboratory design
and laboratory construction of minimum of 30000
square feet of Lab work, covering either one or all of
the works mentioned in the BOQ."
25. Certificates submitted by the petitioner to satisfy the aforesaid
requirement are extracted hereunder :
"LabGuard
WORK COMPLETION CERTIFICATES DETAILS OF ORDERS
FOR SIMILAR SUPPLY SUCCESSFULLY COMPLETED DURING
THE LAST 5 YEARS"
SL. Name of Client with full Order details Value
No. address, telephone such as quantity
numbers and nature of etc.
work
1 Indian Institute of Developed lab Rs.6,98,31,561/-
Technology - of approximate
Kharagpur. 40000 Sq.ft.
Contact Person : Prof.
K. Biradha
Tel : 03222-282216
Handover Certificate to IIT - Kharagpur is enclosed.
Yours faithfully,
Sd/-
For M/s. LabGaurd India Pvt. Ltd.
03.01.2000
26. The abstract of certificate of handover, reads as follows :
"LabGuard
CERTIFICATE OF HANDOVER
PROJECT NO.:3359
CLIENT : INDIAN INSTITUTE OF TECHNOLOGY, KHARAGPUR
DEPARTMENT OF/COST CENTRER (CY) CHEMISTRY
SCOPE OF WORK : Supply and installation of Laboratory furniture and fume hood in
Chemistry Laboratory at IIT Kharagpur On trunkey Basis.
PURCHASE ORDER No.: PO/ORD/2018-2019/IIT/2641/1 DATE:26/12/2019
TOTAL PURCHASE ORDER VALUE OF WORK 69,831,561.00
ACTUAL EXECUTED VALUE OF WORK AGAINST 37,422,343.00
INVOICE NO.: 034/19-20 (ANNEXURE ATTACHED
FOR REF.)
DECLARATION ON EXECUTION OF WORKS
This is to certify that all above mentioned scope of work as per the PO has been
carried out and completed satisfactorily as per stipulated period in phase wise.
Since the above project work covers laboratory area as mentioned in attached
invoice (034/19-20) and annexure.
The above project has been inspected by the signatories on this certificate and is
taken over on behalf of the client on 08.08.2019.
Signature Ineligible Signature Ineligible
foHkkxk/;{[email protected]
Name : jlk;u'kkL= foHkkx Name : Ineligible
Department of Chemistry
Designation Hkk-izkS-la- [[email protected] Kharagpur Designation:Eng. Projects & BD.
FOR- (CUSTOMER NAME) FOR-LABGUARD INDIA PVT LTD.
Email id for future correspondences.
Contact No. :-
27. A perusal of the above would go show that contract was
awarded by the IIT, Kharagpur, but the document is that of one
Labguard. It is not understood what is the connection of the petitioner,
namely, M/s. R.D. Construction, with Labguard. Be that as it may.
Though in the work completion certificate at page No. 206, it is stated
that lab of approximately 40,000 sq.ft. was developed, the same is by
way of self certification of Labguard. No documentary evidence was
submitted demonstrating that any work order of 30,000 sq.ft. or above
was issued to or completed by the petitioner. The work completion
certificate at page No. 206 (Annexure-P/12) cannot be construed to be a
work completion certificate issued by the authority by which contract was
awarded. Similarly, the certificate of handover is under the letter head of
Labguard. Total purchase value of work was shown as
Rs.69,831,561.00, whereas actual executed value of work against
Invoice No.: 034/19-20 was Rs. 37,422,343.00. The attached Invoice
(034/19-20), where laboratory area is stated to have been mentioned or
the purchase order, had not been submitted.
28. In view of the above, the rejection of the technical bid of the
petitioner on the ground that it had failed to furnish the experience
certificate of having successfully completed laboratory designing and
laboratory construction of 30,000 sq.ft. cannot be said to be perverse,
arbitrary or irrational and therefore, such decision cannot be faulted with.
29. Clause 1.3 of the detailed terms and conditions under the
heading Instructions for bidding and tender opening, provides that ink
signed copy of integrity pact should be placed in Envelope-B. The
proforma of the integrity pact is attached as Annexure-I.
30. So far as integrity pact is concerned, the same was submitted
blank in clause 1.1 under the heading 'General' as well as under clause
14 of the integrity pact. The space for signatures of witnesses were also
blank.
31. Clause 1.1 basically is a recital referring to when the agreement
is made and by and in between whom.
32. Clause 14 of the integrity pact reads as follows :
"14. The parties hereby sign this Integrity Pact
at ............................. on ..................................."
The "buyer" as is referred to in the integrity pact could not have
signed when the "bidder" submitted the integrity pact. At best, the
petitioner could have filled up the name of the bidder. When the NIT was
issued by the University, it is not understood why the buyer is referred to
as the Government of Chhattisgarh.
33. For the purpose of present case, it is not necessary for us to go
into the question as to whether the technical bid could have been
rejected because of blank submission of integrity pact as we have
already held that the technical bid of the petitioner was rightly rejected
for failure to furnish experience certificate and we keep the point open to
be considered in a more appropriate case.
34. Having held that technical bid of the petitioner was rightly
rejected, we will now consider as to whether the respondent No.6 fulfilled
the eligibility criteria.
35. We find no merit in the contention of the petitioner that technical
bid of respondent No.6 was liable to be rejected because re-constitution
had not been informed to the Engineer-in-Chief within a period of 15
days. The change of constitution of firm, which is a legal entity, was duly
attested by the Registrar of Firm and Societies and was duly informed to
the University and therefore, even if the change of re-constitution was
not informed to the Engineer-in-Chief, the same would not have any
bearing in the tendering process. The allegation of showing undue
favour to respondent No.6 even at the time of acceptance of submission
of tender physically as tender was received on a holiday, merits no
discussion. Suffice it is to say that the delivery was effected by the
postal department as the documents were sent by speed post. That
apart, the last date of submission of tender in physical mode was
22.03.2021 and therefore, receipt of tender in physical mode by the daily
wage employees of the University two days' before the last date of
submission of tender in physical mode does not in any manner indicate
that any favouritism was shown to the respondent No.6.
36. The contention advanced with regard to proforma 'J' and
proforma 'M' (12) submitted online and offline being not similar is also
without any substance. Solvency certificate submitted by the respondent
No.6 and that also by the petitioner is not strictly in terms of the format
prescribed. What cannot be lost sight of the fact is that the Banks, which
issue solvency certificates, are independent agencies and have their
own format of issuing such certificate. The object behind the solvency
certificate is to ascertain the financial capability of the tenderer and the
purpose for seeking solvency certificate is met when requisite
information regarding solvency of the person or the entity concerned is
properly reflected in such certificate.
37. The argument advanced with regard to execution of the
agreement on 07.03.2021 and notarized on 18.03.2021 are allegations
without any substance, and as rightly submitted by Mr. Mishra, are result
of surmises and conjunctures. Same goes with regard to the contention
advanced with regard to the affidavit vis-a-vis the memorandum of
understanding. The affidavit, which was sworn on 16.03.2021,
essentially, is to the effect that all documents and information furnished
are true and correct in all respects. The memorandum of understanding
is dated 17.03.2021 / 18.03.2021, which was also submitted by the
respondent No.6 as part of tender documents. The affidavit will certainly
include and cover the memorandum of understanding though the same
is subsequent to the date of swearing of the affidavit.
38. However, the submission of Mr. Sharma that the respondent
No.6 did not submit Income Tax Return for five years, will require a close
examination. The plea that respondent No.6 had not submitted Income
Tax Return for five years was not taken in the writ petition, but was
specifically taken in the rejoinder-affidavit filed on 15.11.2021, copy of
which was received on behalf of respondent Nos. 3 to 5 and respondent
No. 6 on that very date. During the interregnum period till the hearing of
the writ petition such an assertion was not controverted and rather,
during the course of submission, both Mr. Thakur and Mr. Mishra had
admitted that the respondent No.6 had submitted Income Tax Return for
four years.
39. The abstract terms and conditions of the tender at page 89 and
detailed terms and conditions at page 92 of the writ petition required that
Envelope-B should contain, amongst others, Income Tax Return
certificate of three years out of any last four financial years.
40. Annexure - 'M' is in respect of pre-qualification document for
estimated cost of work of above 5 crore. Clause 2(a)(i), under
'Qualification Criteria', reads as follows :
"2(a) Each tenderer must enclose
(i) Copy of certificate issued by competent authority
of the department in respect of Income Tax return,
Balance Sheet, Profit & Loss Account including
audit report of chartered accountant for the last 5
years."
41. Admittedly, estimated cost of work of the subject NIT is
Rs.13,17,00,000/- and thus, the aforesaid qualification criteria would
come into play. Why the respondent No.6 had submitted Income Tax
Return for four years is not known. The respondent Nos. 3 to 5 as well
as the tender committee overlooked the aforesaid requirement and in
absence of Income Tax Return for five years, it could not have been
concluded that the tender of the respondent No.6 is valid in all respects.
In substance, the tender of the respondent No.6 is also an invalid one
and therefore, work order could not have been awarded to the
respondent No.6. This Court will not hazard a guess as to whether the
requirement of submission of Income Tax Return for five years, a
material clause regarding eligibility criteria, was inadvertently overlooked
or such a requirement was ignored in order to grant the contract in
favour of respondent No.6.
42. In view of the above discussions, this writ petition is partly
allowed by interfering with the work order issued in favour of the
respondent No.6 and by providing that the University may initiate fresh
NIT, in accordance with law. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (N.K.Chandravanshi)
CHIEF JUSTICE JUDGE
Amit/Chandra
