Ghulam Mustafa Batt vs Union Territory Of J&K And Others
2022 Latest Caselaw 844 j&K

                                                                      Sr. No. 2
        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU
                             (Through Virtual Mode Srinagar)

                                                WP(C) No. 1372/2021
                                                CM No. 5556/2021
                                                in
                                                WP(C) No. 2005/2021
                                                CM Nos. 7439/2021 & 7440/2021


Ghulam Mustafa Batt                                   .....Appellant(s)/Petitioner(s)


                       Through: Mr. K. S. Johal, Sr. Advocate with
                                Mr. Supreet Singh Johal, Advocate &
                                Mr. Karman Singh Johal, Advocate
                                in WP(C) No. 1372/2021

                                  Mr. M. A. Goni, Sr. Advocate with
                                  Mr. S. Tanzeel Illahi, Advocate
                                  in WP(C) No. 2005/2021

                 Vs


Union Territory of J&K and others                               ..... Respondent(s)

                       Through:   Mr. D. C. Raina, Advocate General with
                                  Mr. K. D. S. Kotwal, Dy. AG for R-1 to 6.
                                  Mr. Sunil Sethi, Sr. Advocate with
                                  Mr. Navyug Sethi, Advocate for R-7.


Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                  JUDGMENT

01. The petitioner is aggrieved of the participation and acceptance of the

technical bid of the private respondent No.7 and subsequently also of acceptance

of the final bid of the private respondent in pursuance to e-NIT No.3 of 2021-

22/East dated 09.06.2021 and therefore preferred two Writ Petitions- one after

acceptance of technical bid of the respondents and the other after the final bid of

the petitioner was accepted by the respondents. The challenge in the two

petitions by the petitioner is more or less on the similar grounds and that is why

both the petitions are taken up for consideration together by this Court.

02. The basic claim put forth by the petitioner for all practical parties in

both the petitions is that the private respondent was not eligible to bid in the

tender as he did not fulfill the terms and conditions of the e-NIT and the relevant

Clauses of the Regulations. The respondent was not eligible to participate in the

tender notice because of his being not eligible as Class A Contractor. The grant

of Class A Contractor certificate and the other certificates issued in favour of the

respondents is illegal as the same were issued in order to make him eligible for

participation in the tender.

03. The objections stand filed in both the writ petitions by the official

respondents as well as the private respondent No.7. Indeed, the respondents have

denied the allegations made in both the petitions of arbitrariness and alleged

illegality committed by the official respondents. The private respondent was

eligible to participate in the tender and the respondent No.7 being the lowest

tenderer his bid was accepted is the crux of the stand taken by the respondents.

The certificate issued in favour of the respondent No.7 is as per Rules and no

arbitrariness is to be found in the manner certificates/documents are issued to the

respondents is the stand taken in the objection.

04. It may be suffice to mention herein that the both sides have placed on

record the documents which are more or less not in dispute. In fact the petitioner

has mainly relied upon the documents placed on file by the private respondent

and has raised the arguments on the strength of the documents placed by the

respondents.

05. The learned counsels appearing for both the sides have raised

extensive arguments in support of their respective pleas taken in the pleadings.

The same shall be referred as per the discussion which is to be made by the

court. The written arguments have been filed by the petitioner wherein the

petitioner has reiterated pleas taken in the writ petition.

06. The key argument raised by the petitioner against the respondents is

that in order to be eligible for participation in the tender, the tenderer has to be

Class A Contractor and that in order to be Class A Contractor certain conditions

are required to be fulfilled. The reference is made to Clause 4 of J&K State

Forest Corporation Registration of Contractors and their Conduct Regulations,

2014 (hereinafter accord the Regulations). The respondent did not fulfill the

criteria as laid down in Clause 4 of the Regulations and therefore was not

eligible to participate in the tender.

07. M/S K. S. Johal and M. A. Goni, learned senior counsels appearing on

behalf of the petitioner have tried to convince the court that the very basic

acceptance of the technical bid of the respondent No.7 by the respondents was

flawed one as the certificate Class A Contractor issued in favour of the private

respondent could not be issued for want of compliance of the requisite

formalities.

08. Learned Advocate General and Mr. Sunil Sethi, learned senior counsel

have argued that the petitioner has raised disputed questions of fact and the

court is debarred from determining the issued raised in the present writ petition.

The official respondents after following procedure and taking into consideration

all the facts issued the certificates to the respondent No.7 and found him entitled

for participation in the tender.

09. The respondents have submitted that the reliance is mainly placed by

the petitioner on the documents which are placed on record by the private

respondent and that the petitioner has not brought any record of his own to

substantiate his pleas. The court is not an agreement with the argument of

learned counsel for the respondents and particularly the learned senior counsel

appearing for the private respondent as the court is not barred from looking into

the documents which are placed on record by the private respondent. The

documents on the record are sufficient or not to adjudicate upon on the pleas

raised by the petitioner is a different question.

10. The learned senior counsel appearing for the petitioner has referred to

the documents in order to substantiate the argument that the documents

explicitly make out that the respondent No.7 did not fulfill the criteria for grant

of Class A Contractor certificate as on the date of issuance of e-NIT or even

when the tender was finally opened. The reference is made to the documents

issued by the Chief General Manager of the respondents department vide

No.654-59/GM/SFC/ECD dated 31.05.2017, wherein the private respondent was

allowed to work out the markings to the tune of Rs. 40 lacs. cft (RV) equal to

(=) 0.02 lacs cft (SV) in compartment No.84/Udil on Amani basis. Another

communication dated 14.07.2018 issued by the General Manager to the

Divisional Manager Ext., J&K SFC Division Kisthwar West (annexure-13) in

the Writ Petition No.1372/2021 mentions for extension of time for completion

of work of left over volume in compartment 84/Udil so that the whole volume

can be extracted and hauled down jointly upto sale depot Jammu by ending

March 2019. Similarly, the order dated 05.07.2021 (annexure-14 of the writ

petition) states of further concession granted to the private respondent so far as

the completion of the work. The payment was also withheld of the work done by

the private respondent is also stated on behalf of the petitioner. The aforesaid

position did not make the respondent eligible to get Class A Certificate

Contractor is the contention of the petitioner. The respondent failed to complete

the allotted work as required as Class B Contractor and the work which was

done by the respondent was only on Amani basis and therefore the respondent

was not even entitled to be classified as Class A Contractor. The respondents

have contended that Class A Certificate has been issued by the respondents after

scrutiny and taking into consideration all the relevant material. The class A

certificate has been issued in favour of the respondent No.7 on 26.06.2021. The

perusal of the file reveals that the respondents have also placed on record the

certificate bearing No.18/SIGDI dated 15.06.2021 issued by Range Manager and

counter signed by Divisional Manager, Forest Corporation, wherein it is

certified that Jaffer Hussain Wani has completed the allotted works in

compartment 84/Udil and compartment 67-C/Udil. In the order No.389-

91/GM/FDC/ECD dated 13.07.2021 from General Manager (Ext) East Circle,

Doda the actual overturn as against projected overturn has been regularized.

11. The emphasis is laid on behalf of the petitioner on Clause 4 of the

regulations wherein conditions have been laid down for eligibility to qualify as

Class A Contractor. The certificate of Class B certificate of the respondent has

been renewed as per certificate dated 11.06.2021 issued by General Manager.

The documents on file and which have been referred to by the petitioner may not

be sufficient themselves to accept the contentions of the petitioner. The class A

certificate has been issued in favour of the respondent No.7 and the presumption

is that the same has been issued after the respondents were satisfied with regard

to eligibility of the respondent No.7 in terms of the Regulations. It is not for the

court in the Writ Petition to determine the eligibility of the respondent No.7 as

class A contractor. The said respondent had done the work on Amani basis only

and the documents mentioned above do not certify that the respondent has

completed the work as required by the Regulations is the aspect which cannot be

finally determined by the Writ Court. The concession, if any, given by the

respondents with regard to the work done by the respondent No.7 justifies for

his being classified as Class A Contractor or that there were other sufficient

reasons to grant concession to the respondent is again the matter which is

required to be seen by the official respondents. The court cannot normally

substitute its own satisfaction for the satisfaction which is arrived at by the

concerned authority before issuing the certificate. The respondents if have taken

some decision the same cannot be questioned unless there is apparent

arbitrariness exercised by the authority. It is trite proposition of law that where

administrative action has been taken by the official and in order to determine its

validity the evidence may be required to be produced by parties and the matter is

required to be trashed after assessing the evidence the challenge to such action

of the official cannot be thrown in the writ petition. The court is not to interpret

the satisfaction of the official respondents in a particular way. The petitioner

cannot seek relief of invalidating the certificate No.78 Class A issued by the

Chief General Manager Forest Department vide dated 26.06.2021 on the

aforesaid ground. The respondent while referring to letter bearing

No.1029/GM/SFC/ECD dated 11.09.2019 issued by General Manager SFC East

Circle Doda, has argued that in fact the petitioner had himself failed to complete

certain works allotted to him and therefore cannot raise finger against the private

respondent qua his eligibility as Class A Contractor. The court is not required to

determine the impact of this communication/letter as the same is not germane to

the issue raised in the present petition.

12. As stated above Clause 4 of the Regulations refers to the conditions to

be fulfilled before the contractor can be classified as class A contractor. Five

conditions have been mentioned in the same. It may be noted herein that except

for condition (V) of Clause 4 which relates to the completion of minimum work

as Class B contractor, the petitioner has not specifically challenged the other

conditions of Clause 4 in the writ petition. However, the learned counsels for

the petitioner have referred to the documents on the file to substantiate their

claim that the respondent No.7 did not fulfill those criteria also which could

make him eligible as Class A Contractor. One of the conditions laid in the

Regulations 4 is that the contractor should have immovable property worth not

less than Rs.75 lakhs free from all encumbrances and to be certified by an

officer not below the rank of Assistant Commissioner, Revenue. The private

respondent has placed on record certificate from the Deputy Commissioner,

Kisthwar bearing No.DCK/SQ/232/2021-22 dated 18.06.21. It is mentioned in

the certificate that the respondent has property valuation of Rs.75 lakhs. The

learned counsel for the petitioner has vehemently argued that the certificate does

not fulfill the criteria and the same is evident from the certificate itself though

the other side has contested the claim of the petitioner that the respondent failed

to fulfill the criteria as required under the Regulations and submits that the

certificate does not either indicate that the property is mortgaged me. The other

condition as envisaged under Clause 4 is that the contractor should have

minimum balance of Rs. 25 laks or more during past six months, the contractor

has furnished a fixed deposit certificate of Rs.1.00 lakh from any of the

scheduled bank pledged to the Managing Director, J&K SFC. None of the

conditions is met by virtue of the documents which are placed on record is

submitted on behalf of the petitioner. The Solvency Certificate dated from the

J&K Bank, Chatroo, speaks of the bank providing secured overdraft facility of

10% to the petitioner to meet their work requirement, if any, contract is to be

allotted to the respondents. The two FDRs dated 20.01.2016 & 16.06.2021

amounting to Rs.1.00 lakh and another certificate from the J&K Bank, Chatroo

dated 19.04.2021 mentions of the balance amount of more than Rs.25 lacs. in

the Saving Account of the respondent as on 18.04.2021are also placed on

record. The argument raised on behalf of the petitioner is that aforesaid

documents do not reflect that they were in force as on date when the tender was

issued is met by the counsel for the private respondent with the argument that

the documents do not necessarily show that their validity had expired on the

crucial date. The court is of the view that in case the official respondents have

relied upon on the aforesaid documents the same must have been done by them

after satisfying that the respondents did possess the aforesaid amount before

issuing the certificate. It is not expected that the respondents who are to issue the

necessary certificate which requires fulfillment of certain conditions will issue

the same without adhering to the formalities which were required to be complied

with as per the Regulations. It is for the petitioner to bring by positive evidence

that the respondent had not that much of amount with him as reflected in the

documents as on date when the certificate was issued in favour of the

respondent.

13. Last but not the least, the petitioner has tried to highlight the issue of

non-availability of the No Objection Certificate (NOC) from the CID

Department as required in terms of Clause 5 of the Regulations and has referred

to the certificate which is issued by Senior Superintending Police, District

Kisthwar vide dated 20.06.2021 to the effect that there is nothing

adverse/incriminating against respondent-Jaffer Hussain Wani. No doubt the

certificate does not mention of the verification from CID, however, the

petitioner has not produced any documents on record that the concerned agency

did not issuance any such certificate in favour of the respondent. It is for the

petitioner to place on record with positive evidence that the respondent was not

having all the criteria which was required to be fulfilled before he could be

issued the Class A Certificate or lacked qualification in pursuance to the tender

issued by the respondent. The petitioner cannot base all his claim mainly on the

strength of the documents which are placed on file by the private respondent.

The deficiency if any occurring in the formalities required to be fulfilled can be

condoned is for the authorities to take all on the same and not for the court to

normally fathom the same. The assessment and the satisfaction of the authorities

cannot be scrutinized by the court very minutely.

14. Admittedly, disputed questions of fact have been raised in the writ

petition which may even require evidence. The court in exercise of its writ

jurisdiction cannot determine the disputed questions of fact.

15. The court cannot normally interfere into the tender and the terms and

conditions which are incorporated in the tender and required to be fulfilled

unless the same appear to be manifestly arbitrary and against public policy.

16. The learned counsels for the parties have relied upon the judgments in

support of their contentions. The petitioner has referred to '2017 0 Supreme SC

1185 titled M/S Sam Built Well Pvt. Limited Vs. Deepak Builders and others',

wherein on facts the Hon'ble Apex Court set aside the judgment of the Division

Bench of the High Court on the ground that the Division Bench had not stated

that the three experts committees had arrived at perverse conclusion and that the

matter which is required to be considered by the technical experts should be left

to those technical experts. The court also took note of the judgment of

Montecarlo Limited Vs. NTPC Limited reported in (2016) 15 SSC 272, and

Afcons Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited and

another reported in (2016) 16 SCC 818. The court had held that the bidder's

expertise, technical capability and capacity is to be assessed by the experts and

further exercised of judicial review would be invoked if the approach is

arbitrary or mala fide or procedure adopted is meant to favour one. The decision

making process should clearly show that said maladies are kept at bay.

17. In Caretel InfoTech Limited Vs. Hindustan Petroleum Corporation

Limited and others, in SLP No.48 of 2019 decided on 9 th April, 2019, the apex

court took note of the earlier decisions and held that the court should not give

interpretation to the contracts and more particularly to the tender terms at the

behest of the third party competing for the tender rather than what is propounded

by the party framing the tender.

18. In celebrated case of Tata Cellular Vs. Union of India reported in

1994 0 Supreme SC 697, the apex court held that it cannot be denied with the

principles of judicial review would apply to the exercise of contractual powers

by government bodies in order to prevent arbitrariness or favoritism. However,

it must be clearly stated that there are inherent limitations in exercise of that

power of judicial review. It was further held that the judicial review is concerned

with reviewing not the merits of the decision in support of which the application

for judicial review is made but the decision making process.

19. In SLP (Civil) No. 2013 of 2022 case titled M/S N.G. Projects Limited

Vs. M/S Vinod Kumar Jain and others decided on 21st March, 2022 it was held

by the Supreme Court that the satisfaction as to whether a bidder satisfies the

tender condition is primarily upon the authority inviting the bids and that such

authority is aware of expectations from the tenderers while evaluating the

consequences of non performance. It was further held that on same set of facts,

different conclusions can be arrived at in a bona-fide manner by the Technical

Evaluation Committee, the court should refrain itself from imposing its decision

over the decision of the employer as to whether or not accept the bid of a tender.

It was also held that the approach of court should not be 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. Further, it was held if the court finds that there is total

arbitrariness or the tender has been granted in a mala fide manner still the court

should refrain from interfering in the grant of tender but relegate the parties to

seek damages for the wrongful claim rather than to inject the execution of the

contract. There can be no dispute with what has been held by the Apex court of

the country in aforesaid judgments. The petitioner has also submitted that nature

of work to be carried out as per tender did not require any special skill or

expertise. The court cannot act as evaluator of the terms and conditions which

are to be acted upon.

20. The learned counsel for the petitioner has vehemently argued that the

manner in which Class A Certificate has been issued by the respondents in

favour of the petitioner manifestly speaks of mala fide on the part of the official

respondents. It is submitted that the respondent No.7 applied for issuance of the

certificate on 19.06.2021 after issuance of tender and the certificate was issued

on 26.06.2021. The counsels appearing for the respondents have denied that any

favoritism was shown to the respondent in this respect. All has been done as per

the rules and regulations and the petitioner has not been able to make out any

arbitrariness or unjustified action on part of the official respondents. Merely

because the certificate has been issued within a short period to the respondent

No.7 of his being class A contractor after the tender was issued by itself does not

present the picture of arbitrariness and therefore no interference by the court on

aforesaid plea of the petitioner. The court cannot substitute the satisfaction of

the authority with its own or on the minimum period which the authority should

take to process the case of the party.

21. The basis of both the petitions is the alleged non fulfillment of the

conditions which are required to be fulfilled to gain qualification as Class A

Contractor and consequently the participation of the petitioner in the tender.

Whereas the first petition challenges the certificate issued by the respondents of

Class A certificate and the decision taken by the respondents in accepting the

technical bid, the second petition in addition to the aforesaid also seeks

quashment of work order issued for compartments 31-AB/Keshwan and 35-

D/Keshwan and the agreements executed in pursuance to the acceptance of

tender of the respondent No.7 and that the respondent be prohibited from

entering the compartments and not to carry the work allotted to the petitioner.

22. As the court has held that the disputed questions of fact have been

raised by the petitioner the same cannot be determined in the present case. The

official respondents committed flaw while granting Class A Contractor

certificate in favour of the respondent No.7 is not otherwise prima facie made

out by the petitioner on the strength of the documents on which the petitioner

has relied upon and moreso when other evidence may be required to be

produced so as to consider the claim set up by the petitioner in the petitions. It

may be pertinent to mention herein that the petitioner has not challenged the

decision of awarding of the works to the petitioner in pursuance to the tender on

the basis that the respondent No.7 was not lowest tender or the official

respondents had otherwise faulted in awarding the tender at the time of taking

final decision on the tender.

23. In view of what has been discussed above both the petitions are liable

to dismissed and are accordingly dismissed. The petitioner is however at liberty

to avail any other remedy which he may have under law. Copy of the judgment

shall be placed on both the files.

(Puneet Gupta) Judge

Jammu 25.05.2022 Shammi

Whether the order is speaking: Yes Whether the order is reportable: Yes