Gujarat High Court
Ronak Traders vs State Of Gujarat on 25 January, 2021
Bench: R.M.Chhaya, R.P.Dholaria
C/SCA/8935/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8935 of 2020
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RONAK TRADERS
Versus
STATE OF GUJARAT
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Appearance:
MR JAYESH A KOTECHA(5293) for the Petitioner(s) No. 1
MR TIRTHRAJ PANDYA, AGP (99) for the Respondent(s) No. 1
MR. JAIMIN R DAVE(7022) for the Respondent(s) No. 3
MS HIRVA R DAVE(10742) for the Respondent(s) No. 3
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE R.P.DHOLARIA
Date : 25/01/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Heard Mr. Jayesh Kotecha, learned advocate for
the petitioner, Mr. Tirthraj Pandya, learned AGP
for respondents no.1 and 2 and Mr. Jaimin Dave,
learned advocate for respondent no.3.
2. By way of this petition under Article 226 of the
Constitution of India, the petitioner has prayed
for the following reliefs -
"(A)Your Lordships may be pleased to issue
a writ of mandamus and or any other
appropriate writ/order/direction by way of
declaring the petitioner as successfully
bidder of old tender "20202021" (ANNEXURE
A) and further be pleased to quashed and
set aside the decision on the part of
respondent no.2 to issued a new tender
dated 01/07/2020 (ANNEXURED) as the same
C/SCA/8935/2020 ORDER
is illegal and arbitrary.
(B) That till the pendency of the present
petition as well as the final hearing, your
lordship may be pleased to stay the
implementation and operation of the new
tender dated 01/07/2020 (ANNEXURED), ion
the interest of justice."
3. The following facts emerge from the record of
the petition -
3.1 It is the case of the petitioner that through
etender notice dated 21.05.2020 issued by the
respondent no.2, for providing vehicles for
towing for the year 20202021, the petitioner
applied for the same along with other bidders,
one of it being respondent no.3 Rushiraj
Travels and Giriraj Travels. When the
petition was filed, it was alleged that
respondents are in the verge of diluting the
tender bid proceedings in favour of some third
person due to the vested interest.
3.2 It is the case of the petitioner that on such
apprehension, the petitioner addressed a
letter to respondent no.2 on 24.06.2020 and
without replying to the same, a new tender
notice dated 01.07.2020 came to be issued by
the respondent authorities. It is contended
that such action of the respondent no.2 is
arbitrary, illegal and beyond the authority of
law.
C/SCA/8935/2020 ORDER
3.3 It is also alleged that the respondent
authorities have not bothered to reply to the
communication dated 24.06.2020 which speaks
volume of ill intention on the part of the
respondent no.2. It is the case of the
petitioner that in the first tender, every
bidder had quoted their rates and the
petitioner was the lowest bidder. The
respondent no.3 had quoted nil (0) rates which
suggests that respondent no.2 is trying to
assist someone. It is the case of the
petitioner that rates of the earlier bidding
are open to access by the third party and
prospective bidders and hence, there are all
probable chances that the lowest bid may be
overreached. It is contended that the action
on the part of the respondent no.2 is ill
action and dehors the well settled principles
of law. On the aforesaid grounds, the
petition is preferred.
4. In response to the notice issued by this Court
vide order dated 31.07.2020, the learned
Government Pleader informed this Court on
18.08.2020 that respondent no.3 has been awarded
the contract and hence, respondent no.3 was
added as party respondent vide order dated
18.08.2020. In response to notice issued by
this Court, the respondent no.2 has filed an
affidavit. It is contended by respondent no.2
that the petitioner has no locus to file the
C/SCA/8935/2020 ORDER
present petition and that there is no privity of
contract between the petitioner and the
respondent authority. It is contended that in
absence of any fundamental or legal right
accrued in favour of the present petitioner, the
present petition under Article 226 of the
Constitution of India is not maintainable. It
is contended that the contentions and
allegations attributed by the petitioner are
absolutely baseless, unsubstantiated and
frivolous. Denying all the contentions, it is
contended that the respondent no.2 floated
tender dated 21.05.2020 and also published the
said notice in local newspaper of 21.05.2020 and
therefore, it is not an undated Etender notice
as alleged by the petitioner. The respondent
no.2 has further contended that the last date of
filing of the tender was scheduled on 22.06.2020
and the tenders were to be opened on 23.06.2020
in presence of all the four bidders including
the petitioner and it was found that all the
four bidders qualified themselves in technical
criteria and accordingly, the price bids were
opened. The respondent no.2 has submitted that
on 23.06.2020, when the price bids were opened,
due to technical glitch in the ETender portal
run by nprocure, the price bid of respondent
no.3 could not be opened. Objection was raised
by respondent no.3, where the present petitioner
was present all throughout, which can be seen
from the attendance sheet annexed at AnnexureR4
C/SCA/8935/2020 ORDER
to the affidavit of respondent no.2. Respondent
no.2 further averred that even though the
petitioner was conscious about such technical
error, a communication dated 24.06.2020 was sent
by the petitioner to respondent no.2 to issue
work order in its favour as according to the
petitioner, he had emerged as lowest bidder.
Referring to the communication dated 24.06.2020,
it is contended by respondent authority that the
petitioner was also aware that the respondent
no.3 has not submitted its price bid. It is
contended that the petitioner was conscious all
throughout of the fact that due to technical
error, the price bid of respondent no.3 could
not be opened up. It is contended that in such
eventuality, the respondent no.2 addressed an
email to all nprocure on 31.08.2020 and made
inquiry about the technical error faced by
respondent no.3. Vide communication dated
01.09.2020, nprocure forwarded the copy of the
logs processes by respondent no.3 which clearly
indicates that respondent no.3 had submitted its
price bids through etendering. The respondent
no.2 has further contended that in case of any
impromptu or unresolved technical glitches
during the etendering process, it would render
the entire tendering process as invalid.
Accordingly, the tender in question dated
21.05.2020 is rendered invalid due to technical
error cropped up at the last stage of tender
process and therefore, the respondent no.2
C/SCA/8935/2020 ORDER
authority could not finalise the tender. It
is further averred that the tender committee was
constituted vide order dated 09.06.2020 and
after due deliberation and upon subjective
satisfaction, the committee did not proceed
further with the tender in question as the
finalization of the tender would have caused a
great prejudice to a bidder for no fault on his
part and therefore, it was decided to cancel the
tender. It is averred by respondent no.2 that
such action cannot be tainted as arbitrary,
illegal or malicious and the same does not
amount to favouritism. It is therefore alleged
that the petitioner has failed to substantiate
that the action of the respondent no.2 authority
was to facilitate respondent no.3 and such
allegation is contrary to the claim of the
petitioner. It is therefore contended that the
present petition is a clear abuse of process of
law and the same deserves to be dismissed.
5. The respondent no.3 has also filed the affidavit
and has denied the contentions raised by the
petitioner. Relying upon the ratio laid down by
the Apex Court in the case of Maa Binda Express
Carrier vs. Northeast Frontier Railway reported
in AIR 2014 SC 390, it is contended that the
tenderer or bidder who submits an offer does not
get a vested right to get tender even if its bid
is found to be the lowest. It is further
contended by respondent no.3 that the action of
C/SCA/8935/2020 ORDER
respondent no.2 authority of cancelling first
tender is neither malafide, unfair, arbitrary or
illegal. It is contended that respondent no.2
was compelled to cancel earlier tender on
account of technical error. It is submitted by
respondent no.3 that the tender had to be
cancelled as at the time of opening of the bid
and more particularly price bid, the price of
respondent no.3 was shown as "Nil" despite the
fact that respondent no.3 had filled in their
bids. It is further contended by respondent
no.3 that on account of technical problem, all
the bidders were called for meeting by the
competent authority on the same day and it was
mutually decided to cancel the tender process
and initiate fresh tender process and therefore,
on mutual understanding of all the bidders,
competent authority cancelled tender process
initiated under ETender Notice bearing tender
ID 409159 for supply of towing vehicles between
the duration of 20202021 and under such
circumstances, the decision of respondent no.2
cannot be said to be malafide, unreasonable or
arbitrary.
6. It is averred by respondent no.3 that the
petitioner herein has not participated in the
new tender issued on 01.07.2020 and has chosen
not to submit any bids in second tender.
Relying upon the email of (n) Procure Tender
Management System, it is contended by respondent
C/SCA/8935/2020 ORDER
no.3 that due to some technical defect, when the
tender bids were opened on 23.06.2020, the bid
of respondent no.3 was reflected 'Nil". The
respondent no.3 has further averred that
respondent no.3 or any other bidder cannot
submit a bid or tender on online portal (n)
Procure Tender Management System with "Nil"
rates and such bid would not be accepted unless
and until they fill some rates for the bid. It
is submitted that in order to ensure equal, fair
and nondiscriminatory opportunity to all the
prospective bidders, a meeting was called of all
the four bidders and as observed earlier, it was
decided to issue fresh etender notice after
consulting all of them and accordingly, a fresh
etender notice was issued on 01.07.2020. It is
submitted by the respondent no.3 that with a
malafide intention to take undue advantage of
the situation, the petitioner seems to have
addressed a letter dated 24.06.2020 to
respondent no.2 for grant of work order on the
basis of first tender. It is submitted that no
vested right has accrued in favour of the
petitioner only because the bid of the
petitioner was lowest in the earlier tender. It
is submitted that respondent no.2 has
unqualified right to cancel etender notice and
such action does not violate fundamental right
of the petitioner and in such circumstances, the
action taken by respondent no.2 as a tenderer
cannot be termed as unreasonable as the tender
C/SCA/8935/2020 ORDER
was cancelled because of legitimate and
objective ground. Relying upon the judgment of
the Apex Court in the case of South Delhi
Municipal Corporation Vs. Ravinder Kumar and
Ors. Reported in(2015) 15 SCC 545, it was
contended that the Government authority has the
right to refuse the lowest or any other tender
bid or bids submitted provided its decision is
neither arbitrary nor unreasonable. It is
contended that respondent no.2 authority has
acted in reasonable, fair and objective manner.
It is also contended that the present petition
deserves to be dismissed on the ground of
estoppel and waiver. It is contended by
respondent no.3 that on 23.06.2020, the
petitioner along with all other bidders have
consented for retendering or issuance of fresh
tender on account of technical problem and
therefore, the petitioner is estopped from
challenging the action of respondent no.2 in
issuing fresh tender.
7. It is reiterated that the petitioner has failed
to participate in the etender process initiated
on 01.07.2020. In case if the petitioner
believed that his prices were lowest or
competitive, he ought to have bidded in second
tender. However, for the reasons best known to
it, it has failed to participate in the said
tender process. All the contentions raised by
the petitioner have been denied by the
C/SCA/8935/2020 ORDER
respondent no.3. It is submitted that the
petitioner herein has challenged the tender
notice dated 01.07.2020 on 20.07.2020, i.e.,
after three weeks. It is also averred by
respondent no.3 that the authority has assigned
work pursuant to the tender dated 01.07.2020 and
hence, the petitioner is not entitled to any
relief much less any interim relief. It is
reiterated that the petition deserves to be
rejected with heavy cost as it is nothing but an
abuse of process of law.
8. At this stage, it may be noted that this Court
deemed it fit to give opportunity to the
petitioner to file rejoinder. However, even on
the date of hearing, i.e., 18.01.2021, this
Court gave an opportunity to the petitioner to
file rejoinder and controvert the contention
made in the affidavit. However, Mr. Kotecha,
learned advocate appearing for the petitioner
stated that the petitioner does not intend to
file any rejoinder.
9. Mr. Kotecha, learned advocate appearing for the
petitioner has taken this Court through the
factual matrix arising out of this petition and
has reiterated the contention raised in the
petition. Mr. Kotecha contended that rates of
the petitioner are lowest than respondent no.3
and hence, new tendering process has resulted
into loss to the exchequer. Mr. Kotecha also
C/SCA/8935/2020 ORDER
further contended that even though the
respondent no.3 had not quoted any rates, only
in order to accommodate respondent no.3, the
fresh notice was issued and the earlier tender
process was abruptly stopped in between without
any reason and therefore, such an action of the
respondent authority is per se malafide. Mr.
Kotecha contended that as the earlier tender
notice still subsists, there was no reason or
occasion for the petitioner to apply again in
response to the tender notice dated 01.07.2020.
It was contended by Mr. Kotecha that even though
by communication dated 24.06.2020, addressed by
the petitioner, the petitioner requested the
respondent authority to accept the bid of the
petitioner and issue work order, the same was
not replied to and in the meantime, a fresh
tender notice came to be issued on 01.07.2020
which itself is arbitrary, illegal and the same
was issued only with a view to accommodate
respondent no.3 and to overreach the bid of the
petitioner.
10. Mr. Tirthraj Pandya, learned AGP has
submitted that the petition is misconceived.
Mr. Pandya, learned AGP contended that the price
bids were opened on 23.06.2020. The petitioner
was very much present in the meeting and he was
well aware that because of technical glitch, the
price bid of the respondent no.3 could not be
opened and therefore, it was decided to issue a
C/SCA/8935/2020 ORDER
fresh tender. Mr. Pandya, learned AGP contended
that even though the petitioner was aware that
the fresh notice is to be issued, the
communication dated 24.06.2020 was addressed by
the petitioner on the very next day and the
petitioner preferred not to participate in
response to the fresh tender notice dated
01.07.2020. Mr. Pandya contended that the
petitioner was conscious all throughout of the
fact that due to technical error, the price bid
of respondent no.3 could not be opened and the
respondent authority took a decision that
because of technical glitch during the e
tendering process, the entire tendering process
would be rendered invalid and therefore, it
decided not to finalise the tender as per the
earlier etender notice. Mr. Pandya, learned
AGP contended that the petition is misconceived
and an afterthought and the same is filed after
about three weeks of the issuance of the second
etender notice. Relying upon the affidavit, it
was contended by Mr. Pandya that the petition
deserves to be dismissed.
11. Mr. Jaimin Dave, learned advocate appearing
for the petitioner submitted that no right is
created in favour of the petitioner. It was
also contended by Mr. Dave that the petitioner
was well aware that because of technical glitch,
the price bid of the respondent no.3 could not
be opened and the respondent no.2 authority has
C/SCA/8935/2020 ORDER
also verified the fact that there was technical
glitch and in fact, the price was offered by
respondent no.3 even in the earlier tender
process. Mr. Dave contended that the contention
raised by the petitioner are misconceived and
the petition deserves to be dismissed. Mr. Dave
also relied upon the judgment of the Maa Binda
Express Carrier (supra) as well as South Delhi
Municipal Corporation (supra) and contended that
the respondent authority has right to refuse the
lowest or any other tender bid or bids
submitted, provided its decision is neither
arbitrary nor unreasonable. Mr. Dave contended
that in the present fact situation, an
impression is created by the petitioner to
misdirect the Court as if the respondent
authority has halfway cancelled and/or the
authority did not proceed with the first tender
process only in order to accommodate respondent
no.3. Denying all the contentions and
allegations made by the petitioner, Mr. Dave
contended that the petition being misconceived,
deserves to be dismissed.
12. No other or further submissions have been
made by the learned advocates appearing for the
respective parties.
13. At the outset, it deserves to be noted that
the respondent no.3 has been successful bidder
for providing vehicles for towing for the year
C/SCA/8935/2020 ORDER
20202021 in response to the tender notice dated
01.07.2020 wherein admittedly the petitioner has
not participated. Upon examining the record of
this petition, it clearly transpires that
pursuant to the first tender notice dated
21.05.2020, four tenderers, viz., Agrawal
Agency, Respondent no.3 herein, Giriraj
Tractors, Gondal, Ronak Traders, Ahmedabad and
Rushiraj Travels, Jamnagar applied for the same.
Respondent no.2 authority by office order dated
09.06.2020 (Annexure R7 to the affidavit of
respondent no.2), convened a meeting on
23.06.2020 at 12 hrs., whereby the tender
committee consisting of Joint Police
Commissioner, Rajkot City, Asst. Commissioner of
Police, Traffic Branch, Rajkot City and Deputy
Administrative Officer, Rajkot City came to be
constituted and accordingly, the meeting was
held on 23.06.2020 wherein the petitioner was
represented by one Mr. V.D. Khamaan. The
respondent no.2 in its affidavit, in para 9, has
clearly averred, which is uncontroverted, that
the petitioner was also present throughout when
the technical issue encountered by respondent
no.3 was discussed by respondent no.2. It is
also averred by the respondent no.2 which is not
controverted by the petitioner that the
petitioner was conscious all throughout that due
to technical error, the price bid of respondent
no.3 could not be opened up. These facts even
though within the knowledge of the petitioner,
C/SCA/8935/2020 ORDER
have not been averred in the petition by the
petitioner. It also appears from the
communication addressed by respondent no.3 on
23.06.2020, which is annexed at Annexure - R3 to
the affidavit of respondent no.2 that the rates
of respondent no.3 could not be opened. An e
mail communication dated 21.308.2020 was
addressed by respondent no.2 authority to
[email protected] and it was requested to the
portal service provider to provide verified copy
of the action taken log with date and time and
in response thereto, the portal service provider
has provided details of the bid submitted by
respondent no.3 with price bids which could not
be opened. In such circumstances, the decision
taken by respondent no.2 authority not to
finalise the tender pursuant to the etender
notice dated 21.05.2020 cannot be termed and/or
labelled in any manner as arbitrary or illegal.
14. The contention raised by the petitioner
that the respondent no.2 has acted beyond the
authority of law deserves to be negatived. In
opinion of this Court, in the event of any such
technical glitch, all bidders have equal right
and the respondent no.2 authority as a tenderer
has the right to cancel the tender process which
is in consonance with the ratio laid down by the
Apex Court in the case of Maa Binda Express
Carrier (supra) and the action of respondent
no.2 to cancel tender process was in no way
C/SCA/8935/2020 ORDER
discriminatory or malafide. In addition to
that, it bornes out from the record that the
petitioner participated through its
representative in the bidding process on
23.06.2020 and was well aware of the technical
glitch which has resulted into the cancellation
of the earlier tender process and issuance of
fresh etender notice on 01.07.2020. The facts
stated in the affidavitinreply which is based
on the record of respondent no.2, which is not
controverted by the petitioner, on the contrary
shows that even though the petitioner was aware
and it was within the knowledge of the
petitioner that all the tenderer who remained
present including the petitioner on 23.06.2020
mutually agreed for cancellation of the earlier
tender notice, has not stated such facts in the
petition. Under such circumstances, it cannot
be said that the respondent no.2 has tried to
assist someone because of the said reason. It
is also a matter of fact that the petitioner was
aware that a fresh tender notice is issued on
01.07.2020 and the present petition is filed on
20.07.2020, i.e., after almost three weeks. On
the contrary, it is found that the respondent
no.2 has taken a conscious decision in presence
of all the four original bidders to go for a
fresh tender which cannot by any stretch of
imagination be termed as malafide or arbitrary
action on the part of respondent no.2 and it
cannot be said that same was done to favour or
C/SCA/8935/2020 ORDER
accommodate respondent no.3. The whole tenor of
the petition indicates as if the petitioner is
unaware about the meeting of 23.06.2020. In
addition to that the petitioner has not
participated in the tender process pursuant to
the fresh etender notice dated 01.07.2020 and
therefore, the petitioner has no vested right or
any legal right in it. The communication dated
24.06.2020 addressed by the petitioner was his
own voluntary action and that its bid was never
accepted and no concluded contract has ever
taken place. It is also noteworthy that the
petitioner was very much present in the meeting
of 23.06.2020 when the technical glitch was
noticed and therefore the action taken by
respondent no.2 to drop the earlier tender
notice and issue a fresh etender notice would
further the object of competition. The conduct
of the petitioner on the contrary shows that he
preferred not to participate in the tender
process initiated pursuant to the fresh etender
process dated 01.07.2020 and cannot now be
permitted to raise objection to the same.
Considering the stand taken by respondent no.2
in its affidavit, which are uncontroverted and
which are based on the original record, this
Court finds that the action taken by respondent
authority is in no way arbitrary, illegal or
malafide. The respondent no.2 authority has the
responsibility of regulating the traffic in the
city of Rajkot, which is declared as one of the
C/SCA/8935/2020 ORDER
smart city of India and is a major commercial
hub of Gujarat and such important public duty
has to be performed by respondents no.1 and 2
and therefore, the work order which is given in
favour of respondent no.3 does not require to be
interfered with. Only because the petitioner
had quoted lower rate in pursuance to the
cancelled etender notice dated 21.05.2020, it
cannot be said that the action of the respondent
authority is in any manner bad or dehors of law.
15. The petitioner has also not mentioned the
date of the earlier etender notice in the
petition claiming to be unaware about the same
even though the petitioner had knowledge of the
same as the said tender notice was also
published in daily newspaper which has wide
circulation. Overall, it is found that the
respondent authority has acted in legal and
bonafide manner and therefore, all the
contentions raised by the petitioner deserves to
be negatived. The petition therefore fails and
is hereby dismissed. However, there shall be no
order as to costs.
(R.M.CHHAYA, J)
(R.P.DHOLARIA, J)
BIJOY B. PILLAI
