Himachal Pradesh High Court
Dalip Singh Rathore vs Himachal Pradesh Housing And ... on 8 January, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP Nos. 3021 of 2018 & 363 of 2019
Reserved on: January 4, 2021
Decided on: January 8, 2021
.
________________________________________________________________
1. CWP No. 3021 of 2018
Dalip Singh Rathore .. Petitioner
Versus
Himachal Pradesh Housing and Urban Development Authority
and others
..........Respondents
2. CWP No. 363 of 2019
M/s Level 9 Biz Pvt. Ltd. .. Petitioner
Versus
Himachal Pradesh Housing and Urban Development Authority
and others
..........Respondents
________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
________________________________________________________________
CWP No. 3021 of 2018
For the petitioner : Mr. K.D. Shreedhar, Senior
Advocate with Mr. Sameer
Thakur, Advocate.
For the respondents : Mr. Ajay Vaidya, Advocate, for
respondent No.1.
Mr. Shrawan Dogra, Senior
Advocate with Mr. Sameer Thakur
and Mr. Tejasvi Dogra, Advocates,
for respondent No.2.
None for respondent No.3.
CWP No. 363 of 2019
For the petitioner : Mr. K.D. Shreedhar, Senior
Advocate with Mr. Sameer
Thakur, Advocate.
Whether the reporters of the local papers may be allowed to see the judgment?
For the respondents : Mr. Ajay Vaidya, Advocate, for
respondents Nos. 1 and 2.
Mr. Shrawan Dogra, Senior
Advocate with Mr. Sameer Thakur
.
and Mr. Tejasvi Dogra, Advocates,
for respondent No.3.
Mr. Anoop Rattan, Advocate, for
Mr. Sandeep Sen, Executive
Engineer, in both the petitions.
________________________________________________________________
Sandeep Sharma, Judge:
Since both the petitions arise out of same tender
process, same were clubbed together and are being disposed
of vide this common judgment.
2. Precisely the facts relevant for the adjudication of the
cases at hand are that the Himachal Pradesh Housing and
Urban Development Authority (hereinafter, 'HIMUDA') in the
year 2017 floated tenders vide Notice Inviting Tender
(hereinafter, 'NIT') dated 5.8.2017 for the work "Construction
of proposed Commercial Complex at Vikas Nagar (near Petrol
Pump) Shimla HP (SH:- Construction of 102 Nos Shops, 7 Nos
Kiosk, Food Court, Offices, Coffee Shop, Stores, Multiplex
halls, Parking floors for 217 Nos. Vehicles, development of land
Scaping area, Boundary wall including internal & external
services, fire fighting works (internal & external), Electrical
works (internal & external), HVAC work (air Conditioning),
BMS (Building Management System) and Lifts & escalator etc.
(Eleven storied Pre-fabricated building using E.P.S.
Technology)". The estimated cost of tender was
Rs.85,30,43,091/-. However, for the reasons best known to
HIMUDA, aforesaid NIT was not taken to its logical end, rather
HIMUDA, vide NIT dated 4.10.2018 (page 17 of CWP No. 363 of
.
2019), invited e-tender for the aforesaid work, putting the
estimated cost of Rs.45,44,66,273/- only. Though, as per the
terms and conditions contained in the NIT, contractors
enlisted with the Government of Himachal Pradesh and its
agencies as well as neighbourng States of Punjab and Haryana
and Chandigarh (UT) could participate in the aforesaid
tendering process of HIMUDA, but, subsequently, the
successful bidder was required to get itself registered with
HIMUDA under appropriate class before signing the contract.
3. Respondent HIMUDA yet again did not take any action
pursuant to aforesaid NIT dated 4.10.2018, rather issued
another NIT for the same work but eligibility condition of
participation in tender came to be changed/modified.
Pursuant to tender of November 2018, petitioners Dalip Singh
Rathore, M/s Level 9 Biz Pvt. Ltd. and respondent No.2 M/s
Vasu Construction Company participated in the tender
process alongwith other eligible contractors. Technical bid
submitted by the petitioner Dalip Singh Rathore primarily
came to be rejected on the ground that he has only submitted
work done certificate qua civil engineering work and not qua
the works executed by him, if any, under E.P.S. technology.
Technical Bids submitted by respondent No.2 Vasu
Construction Company and other contractor M/s Level 9 Biz
Pvt. Ltd., were accepted as a consequence of which Financial
.
Bids submitted by aforesaid parties were approved by the
Tender Evaluation Committee (hereinafter, 'TEC') Respondent
Vasu Construction Company being lowest bidder became
entitled for award of work in question. Petitioner in CWP No.
3021 of 2018, being aggrieved on account of rejection of
Technical Bid approached this court in the instant proceedings
with following reliefs:
"i) Quashing the Notice Inviting Tender issued by the
respondent no. 1 at annexure P-5.
ii) Quashing the decisions of the respondent taken pursuant to
the NIT at annexure P-5.
iii) For holding that condition of having carried out construction
work in past using EPS technology and similar such
conditions cannot be incorporated as an essential eligibility
condition of bidding for the work involved in annexure P-5,
in view of submissions made in the writ petition.
iv) For holding that condition of having carried out 1 work of
80%, 2 works of 50% and 3 works of 40% of the estimated
value of tender work could not be diluted to just 1 work of
40% of estimated value of tender work in question.
v) For holding that the respondents cannot remove the general
required condition from the tender that a bidder should not
have Non Performing Assets or disputes with banks, which
was also there in the original tender at annexure P-1.
vi) For directing the respondent to produce the entire record of
tender in question and bids made by the tenderers in the
Hon'ble Court and to see the compliance of conditions by
those who have been declared as qualified as to the
knowledge of the petitioners even those who are declared as
qualified do not satisfy the eligibility conditions and had not
submitted the required documents including the Joint
Venture documents at the time of submission of the bids."
.
4. M/s Level 9 Biz Pvt. Ltd., which was declared successful
in Technical Bid alongwith M/s Vasu Construction Company
also filed CWP No. 363 of 2019, praying therein for rejection of
Technical and Financial Bids of the successful bidder i.e. M/s
Vasu Construction Company. Besides this, above named
contractor also prayed in its petition that after rejection of
Technical r Bid/Financial Bid of M/s Vasu Construction
Company, it be awarded work being successful bidder.
5. Hon'ble Division Bench of this Court, while issuing
notice in the petitions, directed HIMUDA to make available
record of Vasu Construction Company and Level 9 Biz Pvt. Ltd.
alongwith their applications. On 1.1.2019, Hon'ble Division
Bench having perused the record, observed that "The nature of
bilateral agreement between Vasu Constructions and Birdshell,
to which HIMUDA is not a party and there is no commitment by
Birshell by way of an agreement with HIMUDA, has also
minutely been perused." Subsequently, the case at hand came
to be clubbed with the petition having been filed by M/s Level
9 Biz Pvt. Ltd. and, vide order dated 9.4.2019, Hon'ble Division
Bench of this court stayed the allotment of tender till next
date of hearing. After admission, both the matters came to be
listed before this court for hearing.
6. On 22.9.2020, case at hand alongwith other petition
came to be heard at length. Since during proceedings of the
case, this Court found lot of discrepancies and illegalities
.
committed by the HIMUDA, while evaluating tender in
question, this Court deemed it necessary to cause presence of
Chief Executive Officer, HIMUDA as well as Superintending
Engineer, HIMUDA in the court. On 24.9.2020, this court
again scanned record made available to this court in the
presence of abovesaid officers and matter came to be
adjourned for 25.9.2020, on the request of Mr. Ajay Vaidya,
learned counsel for HIMUDA.
7. On 25.9.2020, while this court was in the process of
hearing submissions made by Mr. Ramakant Sharma, learned
Senior Advocate earlier appearing for respondent No.2 i.e. M/s
Vasu Construction Company, Mr. Ajay Vaidya, learned counsel
for respondent-HIMUDA, made available communication dated
24.9.2020 addressed to him by Chief Executive Officer-cum-
Secretary, HIMUDA, perusal whereof revealed that HIMUDA,
after having reviewed the matter and perused the record of the
case, has decided to cancel the tender in question. However,
this court, after having taken aforesaid communication on
record, passed following order on 25.9.2020:
"Mr. Ramakant Sharma, learned Senior Counsel
representing respondent No.2 i.e. Vasu Constructions Co.,
have completed his arguments, but before matter could be
heard further, Mr. Ajay Vaidya, learned counsel for HIMUDA
made available communication dated 24.9.2020, addressed
to him by CEO-cum-Secretary, HIMUDA, perusal whereof
reveals that HIMUDA has reviewed the matter after going
.
through the records of the case and has proposed to cancel
the tender in question. Though aforesaid communication is
taken on record, but before considering aforesaid proposal
made on behalf of HIMUDA, this Court deems it necessary to
peruse the record so that responsibility of erring officials, if
any, is fixed and it is ascertained whether matter needs to be
investigated by an independent agency and as such, learned
counsel representing HIMUDA is directed to make available
complete records of the case on the next date of hearing.
Mr. Sandeep Sain, Executive Engineer, HIMUDA, who
is present in the Court categorically states before this court
that letter dated 17.12.2018, whereby M/s Vasu
Construction Company was given letter of intent to
commence the work in question, was issued after having
obtained necessary permission from CEO-cum-Secretary
HIMUDA. He further states that letter dated 2.1.2019,
whereby letter of intent issued in favour of the Vasu
Construction Co., was withdrawn, was also issued by him
under the instructions of CEO-cumSecretary HIMUDA. Since
CEO cum Secretary, HIMUDA, who had authorized Mr.
Sandeep Sain, Executive Engineer, HIMUDA to write
aforesaid communication has retired, let Mr. Sandeep Sain
place aforesaid facts on record by way of an affidavit on or
before the next date of hearing.
Ms. Anjoori Kapoor, Superintending Engineer (South),
HIMUDA, who is also present in the Court states that report
of preliminary inquiry placed on record along with reply filed
by the HIMUDA (Annexure R1-C) is not the report, which
was submitted by the committee constituted under her
chairmanship, rather she by way of her report had informed
the CEO cum Secretary HIMUDA that either tender of M/s
Vasu constructions can be considered for awarding the work
subject to clarification as suggested by the Committee in bid
capacity, work done & J.V. agreement or the entire bid
process may be cancelled and fresh bids be called. Let
aforesaid facts be also placed on record by Ms. Anjoori
Kapoor, Superintending Engineer (South), HIMUDA, by way
of an affidavit, on or before the next date of hearing. While
.
filing affidavit, as referred herein above, officer concerned
may also place on record report submitted by her to the CEO
cum Secretary, HIMUDA, copy whereof was made available
to this Court during the proceedings of the case.
List on 12.10.2020."
8. Vide aforesaid order, this court also directed the officers
involved in the evaluation of tender to file their respective
affidavits. Pursuant to aforesaid order dated 25.9.2020,
officers as detailed in the aforesaid order, filed their respective
affidavits, which are on record. Besides above officers, Mr.
Surender Vashisht, Superintending Engineer, North as well as
Mr. Umesh Sharma, the then Chief Executive Officer-cum-
Secretary, HIMUDA also filed their respective affidavits
pursuant to the directions issued by this Court. This court
after having scanned the records and perused various
affidavits filed by the officers as detailed in earlier part of
judgment, deemed it necessary to constitute a committee to
look into the illegalities and irregularities committed by
members of Tender Evaluation Committee as well as officers
manning responsible positions in HIMUDA and the allegations
and counter-allegations made by the officers of HIMUDA
against each other, and to fix the responsibility of such
officers. But before any order in this regard could be passed by
this Court, respondent HIMUDA, while seeking permission of
this court to cancel the NIT in question, proposed to constitute
a committee to look into the illegalities and irregularities, if
.
any committed in the tender in question. However, this Court
having realized that great injustice to public at large and
public exchequer would be caused, in case the illegalities and
irregularities, if any, committed by officer of HIMUDA are not
brought to the fore and they are not held accountable for the
same, passed a detailed order on 25.11.2020, constituting an
enquiry committee. It would be apt to reproduce relevant
portion of the order dated 25.11.2020 herein-below:
"43. It is quite appreciable that the HIMUDA, at its own level
has decided to constitute an internal Committee, as has been
averred in the application, as referred to supra, but this
Court, with a view to instill confidence in the general public
and to ensure transparency in the system, deems it fit to
Constitute an independent Committee to enquire into the
tender process in question. Since this court lacks technical
expertise in tender matters of higher magnitude as well as
crimes related thereto, following committee is hereby
constituted:
1. Chief Executive Officer-cum-Secretary, HIMUDA
as Chairman
2. Inspector-General rank officer of State Vigilance
and Anti Corruption Bureau to be nominated by
Director-General, State Vigilance and Anti
Corruption Bureau as Member
3. Engineer-in-Chief, Himachal Pradesh Public
Works Department, as Member
4. Engineer-in-Chief, Irrigation and Public Health,
Himachal Pradesh as Member
44. Aforesaid Committee, while working under the
.
Chairmanship of the Chief Executive Officer-cum-Secretary,
HIMUDA, would conduct an in-depth enquiry in the tender
process of commercial complex, Kasumpti as well as other
aspects of the matter, as have been discussed in the instant
order, within a period of four weeks from the date of receipt of
this order. Committee, while fixing responsibility of officers
found responsible for the lapses, would also suggest remedial
measures/steps to prevent such lapses in tender/bidding
evaluation in future, so that the system is improved for the
times to come and no loss is caused to the public exchequer.
The Committee, after conclusion of the enquiry, would submit
its report in a sealed cover to this Court, enabling it to pass
appropriate orders on the next date of hearing. Needless to
say, the Committee, while conducting enquiry in terms of
instant order, would not be influenced by the
observations/findings, if any, made by this Court, in the
instant order, with regard to illegalities and irregularities and
conduct of any officer, rather, it would conduct enquiry on
the basis of record available with HIMUDA as well as
affidavits and counter affidavits filed by the officers in the
case at hand, pursuant to directions issued by this Court.
Decision, if any, with regard to recalling of tender, shall be
taken after receipt of enquiry report from the Committee on
the next date of hearing.
44. Chairman of the Committee would coordinate with all
the members of the Committee, so that needful is done well
within the stipulated time.
45. Registry of this court to supply copies of this order to
the Chief Secretary to the Government of Himachal Pradesh,
Director-General of Police and the Chairman/members of the
Committee constituted by this Court, immediately, enabling
the Committee to take further action. Needless to say, the
Committee may apply to this court for the documents,
especially the affidavits filed by the officers/officials of
.
HIMUDA, which are on record of the present writ petitions
and Registry shall supply the same to the Committee,
expeditiously.
List on 29.12.2020."
9. In the aforesaid order, this court categorically observed
that the permission sought by HIMUDA for cancellation of
tender would be considered after receipt of report of enquiry
committee.r
10. Pursuant to order dated 29.11.2020, report of enquiry
committee came to be placed on record, perusal whereof
reveals that the aforesaid Committee arrived at a definite
conclusion that the officers responsible for evaluation of tender
have not acted responsibly and fairly as a consequence of
which both, M/s Vasu Construction Company (respondent
No.2 in CWP No. 3021 of 2018) and M/s Level 9 Biz Pvt. Ltd.
(petitioner in CWP No. 363 of 2019) wrongly came to be
declared eligible in the Technical Bid. Committee has
concluded that since both the bidders were not technically
qualified as per terms and condition of the NIT, tender needs
to be cancelled. On 30.12.2020, this Court after having
perused report of enquiry committee, which runs into 17 pages
directed registry to make available copies of enquiry report to
all the stake-holders and posted the matter for hearing on
4.1.2021.
11. Today, during the proceedings of the case, learned
.
Counsel appearing for the petitioner(s) in both the petitions,
stated before this Court that since all the irregularities and
illegalities allegedly committed by HIMUDA while evaluating
tender, save and except, deletion of condition with regard to
NPA, have been accepted by enquiry committee, and pursuant
to that recommendation has been made to cancel the tender,
their petitions have been rendered infructuous and same may
be disposed of accordingly. However, Ms. Shalini Thakur,
learned Counsel appearing for the petitioner in CWP No. 3021
of 2018, further contended that since it is compulsory under
CVC guidelines to incorporate condition of NPA, especially in
tenders of this magnitude, necessary directions may be issued
to HIMUDA to incorporate the same in tenders of higher
magnitude. However, learned Counsel appearing for the
petitioner in CWP No. 363 of 2019, states that his petition may
be disposed of reserving liberty to lay challenge, if any, to the
decision proposed to be taken by HIMUDA with regard to
cancellation of tender.
12. Mr. Shrawan Dogra, learned Senior Advocate appearing
for M/s Vasu Construction Company, while opposing proposal
of HIMUDA to cancel the tender in question, vehemently
argued that since the findings returned by enquiry committee
with regard to eligibility of successful bidder i.e. Vasu
Construction Company are totally contrary to record, great
.
prejudice would be caused to respondent M/s Vasu
Construction Company, in case tender in question is allowed
to be cancelled at this stage. With a view to substantiate his
aforesaid argument, Mr. Dogra, apprised this court that an
application enclosing there with certain documents has been
filed but same is not on record. Besides above, Mr. Dogra,
learned senior counsel, while inviting attention of this Court to
judgments reported in (2007) 14 SCC 1035, (2016) 15 SCC
272, (2019) 14 SCC 81, (2016) 15 SCC 272 and (2020) SCC
Online 1035, contended that a writ court, while exercising
power under Art. 226 of the Constitution of India, cannot
question the terms and conditions of Notice Inviting Tender
and also cannot interpret the terms and conditions of a tender.
13. There cannot be any quarrel qua the aforesaid
proposition of law laid down in the judgments referred to by
learned senior counsel appearing for M/s Vasu Construction
Company, as such, this Court, while proceeding to constitute
the enquiry committee vide order dated 25.11.2020, has very
carefully concluded in para 33 of its order that it is the
exclusive domain of the tender inviting authority to prescribe
terms and conditions of the tender and Court cannot question
the terms and conditions incorporated in the tender document,
unless the same are totally unreasonable and unexecutable.
But, definitely, this Court, while exercising power under Art.
.
226 of the Constitution of India, is within its power to
ascertain whether the TEC has evaluated the tender in
question in light of the terms and conditions contained in the
tender document or not and whether or not the same have
been interpreted with a view to benefit someone? Otherwise
also, if order dated 25.11.2020 is read in its entirety, it
nowhere reveals that this court directed enquiry committee to
conduct enquiry in terms of observations/findings given in the
aforesaid order, rather, in para 44 of said order, this court
categorically observed that the Committee, while conducting
enquiry in terms of instant order, would not be influenced by
the observations/findings, if any, made by this Court, in the
instant order, with regard to illegalities and irregularities and
conduct of any officer, rather, it would conduct enquiry on the
basis of record available with HIMUDA as well as affidavits and
counter affidavits filed by the officers in the case at hand,
pursuant to directions issued by this Court.
14. Since the committee, after having perused the records,
has arrived at a definite conclusion that on account of
shortcomings/irregularities, tender in question requires to be
cancelled, nothing much is left for this court to adjudicate in
these matters. Leaving everything aside, learned counsel for
the petitioners in both the petitions, being satisfied with the
findings of enquiry committee as well as suggestions made
.
therein, are not willing to prosecute the cases further and have
prayed to dispose of the same as having been rendered
infructuous.
15. In view of aforesaid, both the petitions are disposed of as
infructuous alongwith all pending applications. Interim
directions, if any, stand vacated. However, liberty is reserved
to the parties to file fresh petition(s), if any, if they still remain
aggrieved.
16. However, this court, having taken note of the fact that
the enquiry committee despite having found officers lacking in
discharge of their duties, has failed to fix responsibility and
recommend action, criminal or departmental, deems it
necessary to direct the Registry of this Court to register
separate proceedings, enabling this Court to pass appropriate
orders so as to ensure strict compliance of recommendations
given in the report of enquiry committee and pass appropriate
orders with regard to initiation of criminal/departmental
proceedings against the erring officials. Registry is directed to
register separate proceedings and list the same on 17.3.2021.
The order dated 25.9.2020, this judgment and the enquiry
report submitted by the committee constituted by this Court,
shall form part of the fresh proceedings.
.
(Sandeep Sharma)
Judge
January 8, 2021
(vikrant)
r to
