Himachal Pradesh High Court
Construction Pvt. Ltd vs Unknown on 16 September, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 16th DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
Between:-
r to
CIVIL WRIT PETITION No.5199 of 2021
M/S DINESH KUMAR SHARMA
CONSTRUCTION PVT. LTD.,
#331/13, 3rd FLOOR, NAKO
BUILDING, OPPOSITE RTO OFFICE,
SAULIKHAD, MANDI, H.P. THROUGH
ITS MANAGING DIRECTOR,
SH. DINESH KUMAR SHARMA ......PETITIONER
(BY MS. SHALINI THAKUR, ADVOCATE)
AND
1. BORDER ROAD ORGANIZATION,
UNDER MINISTRY OF DEFENCE,
GOVERNMENT OF INDIA HQ (N/W)
NEAR MARKET ROAD, SECTOR 48 C
CHANDIGARH, 160047 THROUGH
ITS ADDITIONAL DIRECTOR GENERAL.
2. CHIEF ENGINEER, PROJECT ROHTANG
TUNNEL BORDER ROADS, HQCE (P)
ROHTANG TUNNEL C/O 56 APO,
DISTRICT KULLU, H.P. ......RESPONDENTS
(SH.BALRAM SHARMA, ASSISTANT
SOLICITOR GENERAL OF INDIA,
FOR RESPONDENTS-1 &2)
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2
(SH. PRANAY PRATAP SINGH,
ADVOCATE, FOR THE APPLICANT
IN CMP NO. 10857/2021)
.
This petition coming on for admission before
notice this day, Hon'ble Mr. Justice Tarlok Singh
Chauhan, passed the following:
ORDER
The instant petition has been filed for grant of
the following reliefs:-
"i)
r Quashing the decision taken by the
Respondent at Annexure P-3 for disqualifying the
petitioner on technical evaluation.
ii) For quashing the rejection of representation
Annexure P-5 and directing the respondent to open
financial bid of the Petitioner too."
2. The respondents invited bids for the construction
of 3.00 kilometres temporary access road to 'Seri Nallah
Site' over Atal Tunnel Rohtang.
3. The petitioner applied for the same. His bid was
rejected at the technical stage itself (Annexure P-3) with
the remarks 'technically not viable'. The petitioner
thereafter preferred a representation before the
respondents, but the same came to be rejected vide order
dated 02.09.2021 ( Annexure P-5) on the ground that the
petitioner did not fulfill the requirements of Clause 6.3.1(A)
of the subject tender.
.
4. It is vehemently argued by Ms. Shalini Thakur,
Advocate, for the petitioner that the order of rejection as
communicated by the respondents is illegal as the
petitioner fulfills all the requirements of the tender
conditions.
5. We have heard the learned counsel for the
parties and have gone through the documents placed on
record.
6. At the outset, it needs to be observed that under
the scope of judicial review, this Court would not ordinarily
interfere with the judgment of the expert consultant on the
issue of technical qualifications of a bidder when the
consultant takes into consideration the various factors
including the eligibility of the bidder.
7. In Montecarlo Ltd. vs. NTPC Ltd., (2016) 15
SCC 272, the Hon'ble Supreme Court held as under:-
".....Bidder's expertise and technical capability and
capacity must be assessed by the experts. In the
matters of financial assessment, consultants are
appointed. It is because to check and ascertain that
technical ability and the financial feasibility have
sanguinity and are workable and realistic. There is a
multi-prong complex approach; highly technical in
.
nature. The tenders where public largesse is put to
auction stand on a different compartment. Tender
with which we are concerned, is not comparable to
any scheme for allotment. This arena which we have
referred requires technical expertise. Parameters
applied are different. Its aim is to achieve high
degree of perfection in execution and adherence to
the time schedule. But, that does not mean, these
tenders will escape scrutiny of judicial review.
Exercise of power of judicial review would be called
for if the approach is arbitrary or malafide or
procedure adopted is meant to favour one. The
decision making process should clearly show that
the said maladies are kept at bay. But where a
decision is taken that is manifestly in consonance
with the language of the tender document or
subserves the purpose for which the tender is
floated, the court should follow the principle of
restraint. Technical evaluation or comparison by the
court would be impermissible....."
8. The Hon'ble Supreme Court in The Silppi
Constructions Contractors vs. Union of India (2019)
11 SCALE 592, observed as under:-
"19.....In contracts involving technical issues the
courts should be even more reluctant because most
of us in judges' robes do not have the necessary
expertise to adjudicate upon technical issues beyond
our domain. As laid down in the judgments cited
above the courts should not use a magnifying glass
.
while scanning the tenders and make every small
mistake appear like a big blunder. In fact, the courts
must give "fair play in the joints" to the government
and public sector undertakings in matters of
contract. Courts must also not interfere where such
interference will cause unnecessary loss to the
public exchequer.
20. The essence of the law laid down in the
judgments referred to above is the exercise of
restraint and caution; the need for overwhelming
public interest to justify judicial intervention in
matters of contract involving the state
instrumentalities; the courts should give way to the
opinion of the experts unless the decision is totally
arbitrary or unreasonable; the court does not sit like
a court of appeal over the appropriate authority; the
court must realise that the authority floating the
tender is the best judge of its requirements and,
therefore, the court's interference should be
minimal. The authority which floats the contract or
tender, and has authored the tender documents is
the best judge as to how the documents have to be
interpreted. If two interpretations are possible then
the interpretation of the author must be accepted.
The courts will only interfere to prevent
arbitrariness, irrationality, bias, mala fides or
perversity...."
9. The next aspect is with respect to centering
material possessed by the bidder, the tender documents
specially indicate the minimum construction equipments,
tools and plants which are available with the tenderer. The
same are contained in Clause 6.3 of the tender document
.
which read as under:-
"6.3 Vehicles, Equipments and Plants(VEP):-
6.3.1 Tenderer should own or have assured access
(through hire/lease/purchase agreement/other
commercial means) to the requisite Equipment,
Plants and vehicles in good working condition
(complete usage life not more than 7 years except
stone crusher)given hereunder:
(A) Critical Equipment to be owned by the tenderer:
E.g.:-
S/No. Name of VEP Requirement in Remarks
Nos.
(iii) Dumper/Tipper (8-10 06
Cum)
breaker 20 Ton Capacity
Loader/Backhoe
(vi) Mechanical Broomer/Air 01
Compressor
(8-10 Ton Capacity)
(ix) Water Tanker 10 KL 01
Capacity
Electronic Sensor For
flexible pavement
(xi) Grader with hydraulic 01
controls
.
(xiii) Emulsion Pressure 01
Distributor
Note:-
1. The bidder shall have necessary mining,
environmental and pollution clearances to
operate, quarrying operation, crushing
operation and Bituminous works.
2 Any other equipment if required as per
requirement of work to be arranged by
contractor on their own cost.
6.3.2 Tenderer shall indicate source of equipments,
Plants and vehicles long with vintage required for
execution of work in following format.
(i) Item
(ii) Year of Manufacturer
(iii) Source from where to be arranged
(Owned/leased agreement etc.)
(iv) Location presently deployed
(v) Based on known commitments, whether
will be available for use in the proposed
contract.
Copy of documentary support of ownership/assured
access to be satisfaction of the Accepting Officer.
Note: Tenderer should own critical V/E/P hired
agreement as per specific requirement of the work
as decided/specified by the tender issuing
authority/Accepting Officer in the tender."
10. It would be noticed that in terms of Clause
6.3.1(A), certain critical equipments (13 numbers) are
required to be owned by the tenderer and for this purpose,
the petitioner has filed an affidavit dated 02.08.2021 which
.
reads as under:-
"Affidavit
I, Dinesh Kumar Sharma (MD) M/s Dinesh
Kumar Sharma Const.(P) Limited aged 62 years #
3rd Floor, Nako Building, near RTO Office Saulikhad,
Tehsil Sadar Distt. Mandi, H.P. do hereby solemnly
affirm and declare that:-
I am owner in possession for the following
machinery & equipments:-
breaker 20 Ton Capacity
(8-10 Ton Capacity)
9 Water Tanker 10 KL 1
Capacity
electronic sensor for
flexible pavement
controls
.
13 Emulsion Pressure 1
Distributor
Verification
I further declare on oath that the contents of this
affidavit are true to the best of my knowledge and belief,
nothing has been concealed therein. Verified at Mandi on this
2nd day of August, 2021.
Item Year of Source from Location Whether
Manufactur- where to Presently will be
er arranged deployed available
r for use in
the
proposed
contract
HMP (Min 2007 Swami Agro Kullu Working in
20-30 TPH) Industry good
condition
Stone 2021 Dhiman Kullu Working in
Crusher Engineering good
works condition
Tipper (8- 2020, Behl Motor & Kullu Working in
10 Cum) 2018, Supreme good
2017, Automobiles condition
2017,
2017,
2013,
Excavator 2017 Kobelco Kullu Working in
with rock Construction good
breaker 20 Equipment & condition
Ton Tappan Ind.
capacity
Front wheel 2019 & Krishana Kullu Working in
loader 2014 Automobiles good
condition
Air 2016 & Manglam Kullu Working in
compressor 2014 Sales & good
Service condition
.
Tandem 2015 Escort Kullu Working in
vibratory Limited good
roller (8-10 condition
Ton
Capacity)
Static roller 2018 & GS Kalsi Ent. Kullu Working in
2018 good
condition
Water 2021 Gokul & Kullu Working in
Tanker 10 Company good
KL capacity condition
Mechanical 2015 Amman Kullu Working in
paver with Applo India good
electronic Pvt. Ltd. condition
sensor for
flexible
pavement
Grader with 2021 Gainwell Cat Kullu Working in
hydraulic good
controls condition
Tar Boiler 2016 Mansa Ind. Kullu Working in
good
condition
Emulsion 2015 Kirti Kullu Working in
pressure Manufacturi- good
distributor ng & Trading condition
Co.
11. However, the contents of this affidavit are not
true and are rather false as the petitioner admittedly is
only possessing one equipment out of 13 specified in
Clause 6.3.1(A) (supra).
12. Confronted with this, learned counsel for the
petitioner would vehemently argue that then in terms of
Clause 6.3, the equipment was not required to be owned,
but could even be hired.
.
13. However, we find no merit in this contention
for the simple reason that the critical equipments as
specified in Clause 6.3.1(A) are required to be owned by
the tenderer and it is only when any other equipment is
required as per the requirement of the contract, the same
would be arranged by the contractor at his own costs.
14. That apart, each of the terms of the contract has
to be construed and given effect to in its plain and simple
meaning, even if, that may act harshly against any of the
bidders. This Court does not exercise any appellate
jurisdiction over the decision of the Tender Committee and
the Competent Authority.
15. The decision making process in the instant case
is absolutely transparent. Even otherwise, it would not be
safe to award the contract to the petitioner due to non-
availability of requisite infrastructure, machinery and
equipment that is currently owned by the petitioner.
16. The decision making process, in our considered
view, is not vitiated for any reason whatsoever. As
repeatedly held by the Hon'ble Supreme Court, the decision
making process of the employer or owner of the project in
accepting and rejecting the bid of the tenderer should not
.
be interfered with except on the grounds of malafides, bias
or when it is intended to favour someone. The decision can
be interfered only when the same is arbitrary or irrational
and the decision is taken based on unreasonable grounds.
The decision must be perverse so as to call for the
interference. r
17. In view of the aforesaid discussion, we find no
merit in this petition and the same is dismissed, leaving the
parties to bear their own costs. Pending application, if any,
also stands disposed of.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
Judge
16th September, 2021.
(krt)
