Gujarat High Court

Ashish Kalubhai Tarpara vs Surat Municipal Corporation on 5 September, 2022

Bench: Ashutosh J. Shastri

     C/WPPIL/27/2022                                CAV ORDER DATED: 05/09/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/WRIT PETITION (PIL) NO. 27 of 2022

=============================================

ASHISH KALUBHAI TARPARA Versus SURAT MUNICIPAL CORPORATION & 2 other(s) ============================================= Appearance:

KRUSHALKUMAR D SHELADIYA(8017) for the Applicant(s) No. 1 for the Opponent(s) No. 1,2,3 =============================================

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 05/09/2022

CAV ORDER

(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)

1. Petitioner, is said to be a social worker and a well-known

businessman, though not stated in petition, but has stated orally

before the Court that he is in the business of printing press in

city of Surat. By way of this Public Interest Litigation, petitioner

appearing as party-in-person has questioned the issuance of

Tender by Municipal School Board managed by Surat Municipal

Corporation, being Tender No. 508594 dated 28.02.2022 on

various grounds enumerated in the petition.

2. A Tender came to be floated by respondent - Corporation

C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

for the purpose of supply of School Stitched Uniform for Boys

and Girls and according to petitioner Tender Notice was

published in the local daily newspaper, in which, the last date of

online submission of bids had been fixed as 14.03.2022 till 5:50

pm whereas, the date of opening of the technical bid and other

documents in the form of hard copy was fixed as 21.03.2022 and

the date for issuance of necessary price list through Online

portal was fixed as 22.03.2022.

2.1. Petitioner has further asserted that price of Tender No.

508594 is around Rs.12,00,00,000/- (Rupees Twelve Crores

only) which is for one set and for such process, two sets are

required to be given. The price offered under the said Tender

was to be valid for a period of two years and according to

petitioner, the value of the entire Tender runs into

Rs.48,00,00,000/- (Rupees Forty Eight Crores only). It has been

asserted that some illegal activities, corruption in the tender

process is going on at Surat Municipal Board and such illegal

activities perpetrated in the tender system are contrary to

Gujarat State Procurement Policy, 2016. Having received

C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

information about such malpractice, the petitioner claims to

have been constrained to approach this Court by way of present

Public Interest Litigation.

2.2. According to the petitioner the entire Tender process is ill-

founded and is violative of the Gujarat State Procurement

Policy, 2016 and as such, the same may not be allowed to be

precipitated any further. It has been further submitted that

Tender is filed by one person only, who is authorized by all

companies and the Surat Municipal Corporation cannot demand

any material from the selected companies and that is how, the

tender process is going on in an irregular manner. It has been

further submitted that in view of clause 12 of the Gujarat State

Procurement Policy, 2016 the Surat Municipal Board has not

specified the brand items in the Tender and has also violated

certain other provisions of the Policy. By giving brief details

about some items, namely, Leather Sports Shoes, Cotton

Garments, Clothes, Apparels, which are indexed, it has been

contended that same are reserved for State Cottage Industries.

However, the process in respect of these items has also been

C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

undertaken and as such, there appears to be a mistake in

issuance of the Tender itself. An example has been given that

the price of Shoes for Children in the Tender is fixed at Rs.800/-

whereas the market price of the said Shoes is Rs.350/- only. It

is alleged in this manner irregularity is taking place on large

scale. It has been further submitted that 'Doenar' is the Group

Company with GBTL, OCM and Graviera as its subsidiaries, but

the Surat Municipal Board has given chance to only these three

companies in the Tender. The representative of all the

companies is one person only and as such, it has been submitted

that process, which has been undertaken, is in conflict with the

policy and, therefore, the reliefs prayed for in the petition

deserves to be granted. No other submissions have been made.

3. Having heard the petitioner - party-in-person in the

present proceedings, ex-facie, we find that petition is bereft of

material particulars, as bald and vague allegations are made

about illegal activities and corruption. However it is not

specified in what manner such illegality is occurring in the

present proceedings. The averments which are made, are also of

C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

casual nature, on the basis of which it is not proper on the part

of the Court to presume illegality or any irregularity.

3.1. A perusal of the averments made in the petition indicate

that petitioner claims to be a social worker and a well-known

business person and it appears that petitioner has conveniently

concealed his identity as to in which business he is a well-known

person. To a pointed query raised by the Court about the nature

of petitioner's business, petitioner appearing as party, has

stated that he is in the business of printing press for which, no

details are provided at all. Hence, on the basis of vague

averments and allegations and on account of inadequate

particulars furnished in the petition, this Court is not inclined to

exercise extraordinary jurisdiction to entertain this Public

Interest Litigation in the present form.

4. Additionally, it has also been found by this Court that

averments though have been made in the petition that Tender

clauses are being violated by respondents, but the manner in

which it is violated is not stated and as such, on the basis of

C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

such inadequate particulars, we are not inclined to entertain the

present Public Interest Litigation, as the same appears to be

with hidden agenda and on account of clear details not

forthcoming in the petition.

5. Further, the law on the issue of interference in Contract

matters and issues related to it, by now is too well settled. The

Hon'ble Apex Court has clearly propounded that scope is very

limited and only the decision making process will have to be

examined and not the decision of the notice inviting authority.

What terms and conditions are to be stipulated is normally left

to the Tender Inviting Authority, as they are the best judge to

prescribe the appropriate conditions. In a very recent decision

delivered by Hon'ble Apex Court in the case of M/s. N.G.

Projects Limited v. M/s. Vinod Kumar Jain & Ors., in Civil

Appeal No. 1846 of 2022 on 21.03.2022, has held thus:

"22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-

performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the

C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.

23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.

26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim

C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone."

6. In the context of the aforesaid proposition of law laid down

by the Hon'ble Apex Court, we have perused the facts of the

case on hand and it clearly emerges that petitioner has failed to

make out any case either of unreasonableness or arbitrariness

in respect of the process of Tender, which has been floated by

the respondent authority and as such, we are satisfied that no

prejudice is likely to be caused to the public interest. Hence,

the present petition is found to be devoid of merits.

7. Yet another angle, which is tried to be projected before us,

is with respect to clauses contained in the Tender being

contrary to the Gujarat State Procurement Policy, 2016. But,

having gone through the Policy contents, we find that Tender

conditions, which are prescribed by the authority are, prima

facie, not being in conflict. We are at loss to understand as to in

what context such Policy is breached by the respondent while

inviting Tender. Hence, in the absence of any clear-cut

C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

particulars having been brought to our notice, we are unable to

exercise the discretion in favour of the petitioner. Nothing

prevented the petitioner from producing on record the specific

policy and furnished the details of its violation if any. However,

no such attempt has been made even till date. On the basis of

bald assertions, petitioner has filed the present petition. Hence,

we are not inclined to exercise our discretion. The significance

of pleadings is time and again insisted by the Hon'ble Apex

Court and the purpose of such pleadings cannot be given a go-

bye. In the instant case petitioner has neither placed any proper

pleadings to the effect that condition of Procurement Policy

having been violated and as such, we deem it proper to dismiss

the petition. Petitioner happens to be an activist and is said to

have been in the business of printing press. As such, he must

have secured the Policy if the action of the respondent authority

in inviting tender was in conflict with the same. However, no

such attempt has been made. Even during the course of hearing

also, no such assistance was provided to us. On the contrary,

petition was dismissed for non prosecution vide order dated

23.03.2022 and even after application for restoration of petition

C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

was filed, no such attempt has been made to place the

Procurement Policy on record.

8. The Hon'ble Apex Court on the issue of proper particulars

to be placed before the Court has held in the decision in the

matter of Madiraju Venkata Ramana Raju v.

Peddireddigari Ramchandra Reddy & Ors., reported in

(2018) 14 SCC 1, to the following effect. Of course, said

observations have been made while taking up the proceedings

related to election petition, but observations related to "material

facts and material particulars" has its significance in the

background of nature of pleadings and as such, this Court

deems it proper to reproduce the relevant paragraphs of said

judgment. It reads thus:

"40. In Harkirat Singh xxx xxx

"51. A distinction between material facts and particulars, however, must not be overlooked. Material facts are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars thus ensure conduct of fair trial and would

C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

not take the opposite party by surprise.

52. All material facts must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial."

9. In addition to this, the scope of judicial review in respect

of Government Contracts have been propounded long back in

the decision right from (2007) 8 SCC 1 in the case of

Reliance Energy Ltd., & Anr., v. Maharashtra State Road

Development Corpn. Ltd., & Ors., and the observations

contained in paragraphs 36, 37 and 38 clearly indicate that

terms and conditions are imposed by the tender inviting

authority with legal certainty, norms and benchmarks. This

"legal certainty" is an important aspect of the rule of law. If

there is vagueness or subjectivity in the said norms it may result

in unequal and discriminatory treatment, which may violate the

doctrine of "level playing field". Here, no such contingencies