Jharkhand High Court
M/S Bablu Sharma vs Damodar Valley Corporation ... on 5 October, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 809 of 2021
With
W.P.(C) No. 810 of 2021
With
W.P.(C) No. 811 of 2021
With
W.P.(C) No. 812 of 2021
M/s Bablu Sharma, through its proprietor Bablu Sharma, Dohta,
Mokhtiyarpur, Begusarai ... ... Petitioner (In all cases)
Versus
1. Damodar Valley Corporation through its Managing Director-cum-
Chairman, Kolkata
2. The Director (C & M), Damodar Valley Corporation, DVC Tower,
Ultadanga, Kolkata
3. The Deputy General Manager (HR), Damodar Valley Corporation,
Chandrapura Thermal Power Station, Chandrapura, Bokaro
4. The Chief Engineer, Damodar Valley Corporation, Chandrapura
Thermal Power Station, Chandrapura, Bokaro
5. The Superintending Engineer (C & M), Damodar Valley Corporation,
Chandrapura Thermal Power Station, Chandrapura, Bokaro
6. The Estate Officer, Damodar Valley Corporation, Chandrapura
Thermal Power Station, Chandrapura, Bokaro ... Respondents
(In all cases)
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
-----
For the Petitioner : Mr. Lukesh Kumar, Advocate
For the Respondents : Mr. Prashant Kumar Singh, Advocate
-----
Order No. 09 Dated: 05.10.2021
W.P.(C) No. 809 of 2021 has been filed for quashing letter
dated 20.02.2021 (Annexure-9 to the writ petition), whereby the
technical bid of the petitioner in Tender No.
DVC/Tender/CTPS/CIVIL/C&M/Works and Service/00070 dated
18.08.2020 (hereinafter referred to as "the said Tender") has been
rejected with the remarks "Techno-commercially NOT NIT compliant
bidder". Further prayer has been made for issuance of direction upon
the respondents to consider the technical and financial bids of the
petitioner in terms with Clause 8.0 of Techno-commercial Terms and
Conditions of the NIT.
2. W.P.(C) No. 810 of 2021 has been filed for quashing letter
dated 20.02.2021 (Annexure-9 to the writ petition), whereby the
technical bid of the petitioner in Tender No. DVC/Tender/CTPS/
CIVIL/C&M/Works and Service/00073 dated 20.08.2020 (hereinafter
referred to as "the said Tender") has been rejected with the remarks
"Techno-commercially NOT NIT compliant bidder". Further prayer has
been made for issuance of direction upon the respondents to
consider the technical and financial bids of the petitioner in terms
with Clause 21.0 of Techno-commercial Terms and Conditions of the
NIT.
3. W.P.(C) No. 811 of 2021 has been filed for quashing letter
dated 20.02.2021 (Annexure-9 to the writ petition), whereby the
technical bid of the petitioner in Tender No.
DVC/Tender/CTPS/CIVIL/C&M/Works and Service/00074 dated
20.08.2020 (hereinafter referred to as "the said Tender") has been
rejected with the remarks "Techno-commercially NOT NIT compliant
bidder". Further prayer has been made for issuance of direction upon
the respondents to consider the technical and financial bids of the
petitioner in terms with Clause 22.0 of Techno-commercial Terms and
Conditions the NIT.
4. W.P.(C) No. 812 of 2021 has been filed for quashing letter
dated 20.02.2021 (Annexure-9 to the writ petition), whereby the
technical bid of the petitioner in Tender No.
DVC/Tender/CTPS/CIVIL/C&M/Works and Service/00071 dated
18.08.2020 (hereinafter referred to as "the said tender") has been
rejected with the remarks "Techno-commercially NOT NIT compliant
bidder". Further prayer has been made for issuance of direction upon
the respondents to consider the technical and financial bids of the
petitioner in terms with Clause 22.0 of Techno-Commercial Terms and
Conditions the NIT.
5. The aforementioned batch of writ petitions involve similar
issue and as such the same are being heard and decided by this
common judgment taking W.P.(C) No. 809 of 2021 as the lead case.
6. The factual background of the case as stated in the
present batch of writ petitions taking the lead case being W.P.(C) No.
809 of 2021 is that the respondents floated the said tenders (through
open tender enquiry and online reverse auction) for the work "Day to
day cleaning of colony roads, drains etc. in Zone-III as well as
Zone-IV, Zone-II and Zone-I areas of CTPS". The petitioner
participated in the said e-tenders by submitting the technical and
financial bids. The techno-commercial part of NIT mentioned at
Clause 8.0 stipulated that if address of bidders was of any DVC
project, a "No Objection Certificate" from the Estate Officer, DVC of
that project was to be submitted in „Technical‟ envelope (online) to
the effect that they did not have any DVC quarter/building/shop/plot
of land under their unauthorized possession. The address of the
petitioner is of Begusarai, Bihar and as such, it did not submit any „no
objection certificate‟ with his technical bid envelope. The petitioner
also made an application on 17.11.2020 to the respondent no. 6 -
the Estate Officer, Damodar Valley Corporation, Chandrapura Thermal
Power Station, Chandrapura, Bokaro to issue „no objection certificate‟,
however, the same was kept pending. The respondent no. 5 - the
Superintending Engineer (C & M), Damodar Valley Corporation,
Chandrapura Thermal Power Station, Chandrapura, Bokaro issued
letter vide e-mail dated 02.11.2020 mentioning that after scrutiny,
the Tender Evaluation Committee observed following shortfall in
submission of documents by the petitioner as per NIT:
1) The audited accounts for the financial year 2019-20
to check financial credential as per NITs. Note: In
case where audited results for the preceding financial
year (2019-20) are not available, certification of
financial statements from a practicing Chartered
Accountant shall also be considered acceptable.
2) NOC as per NIT or an affidavit in form of
undertaking, if address of bidder is outside of any DVC
project, that they do not have any DVC
quarter/building/shop plot of land under their
un-authorized possession.
7. The petitioner was further directed to meet the shortfall of
the aforesaid documents within 10 days for finalization of the tender.
The petitioner on the same date i.e., on 02.11.2020 submitted the
aforesaid documents i.e., affidavit and certificate of chartered
accountant through e-mail to the respondent no. 5, who again issued
letter no. CT/C&M/49 dated 10.02.2021 to the petitioner raising
objection that proprietorship address of the petitioner was of
Begusarai, Bihar, but the address shown in other documents like EPF
registration, GST registration, ESI registration, MSME, audited annual
turnover documents were of Chandrapura/CTPS i.e., CTPS project
area or its immediate vicinity creating doubt regarding possible
unauthorized occupancy of DVC property at CTPS. Hence, the
petitioner was asked to submit NOC issued from the Estate Officer,
CTPS Chandrapura. The proprietor of the petitioner was further asked
to clarify as to why his father‟s name mentioned in PAN card and
proprietorship document was different. Thereafter, the petitioner
wrote letter dated 11.02.2021 to the respondent no. 6 for issuance of
NOC giving reference of his earlier letter dated 17.11.2020, however,
no action was taken from his end. The petitioner made application to
the respondent no. 3 - the Deputy General Manager (HR), Damodar
Valley Corporation, Chandrapura Thermal Power Station,
Chandrapura, Bokaro on 13.02.2021 for issuance of NOC. The
petitioner also wrote letter to the respondent no. 5 drawing attention
towards his earlier letter dated 10.02.2021, whereby NOC was
demanded from it. The petitioner stated that only its branch office is
situated at Chandrapura/CTPS that too, outside the peripheral area of
DVC project. The petitioner also requested some time to shift its
office from there to other place so that it could change the address of
its branch office. It was also mentioned that application for grant of
NOC was already given to the respondent no. 6, but no action was
taken by him. So far as the second query relating to the father‟s
name of the proprietor of the petitioner is concerned, it was stated
that Sri Sudhir Sharma and Sri Sudhir Bipath Sharma is the same
person and the affidavit in this regard was also sworn by his father.
However, the petitioner received letter dated 20.02.2021 informing
inter alia that its technical bid was rejected during technical
evaluation by a duly constituted committee with the remarks
"Techno-commercially not NIT compliant bidder".
8. The learned counsel for the petitioner submits that the
impugned letters have been issued with absolute biasness on the part
of the respondent authorities which manifests colorable exercise of
power by them while dealing with the tenders submitted by the
petitioner. As per the letter dated 02.11.2020, the bidders were
required to submit any of the two documents i.e., NOC as per NIT or
an affidavit in the form of undertaking that they did not have any
DVC quarter/building/shop/plot of land under their un-authorized
possession. The petitioner applied before the respondent no. 6 for
issuance of NOC in terms with the NIT before the tender process, but
the same was not considered and no order was passed as to whether
the same would be applicable in its case or not. On the other hand,
the respondent authorities with utmost biasness against the
petitioner continued to issue letters one after another for submission
of NOC to be issued from the respondent no. 6. The petitioner also
informed the respondent nos. 3 and 5 regarding inaction on the part
of the respondent no. 6, but nothing was done. It is further
submitted that the petitioner was not at fault in non-submission of
NOC, rather the respondents being biased against it as also with a
view to favour other candidates, intentionally did not issue NOC of
the concerned department as a result of which the techno-
commercial bids of the petitioner were rejected for want of the same.
It is also submitted that on plain reading of Clause 8.0(1)(f) of the
Techno-commercial Terms and Conditions of NIT, it would appear that
NOC was required to be submitted only by those persons or bidders
whose address was within the Project area, but in the present cases,
the fact situation is entirely different as the petitioner‟s address is of
Bihar and it has only a branch office at Chandrapura that too outside
the Project Area of DVC, still the petitioner was pressurized by the
DVC authorities to bring NOC from the respondent no. 6, who was
adamant not to issue the same to the petitioner with a malafide
motive to prevent it from participating in the tender process. The
petitioner is an outside agency and it has only a branch office at
Chandrapura which is outside the DVC project area and it has also
not occupied any quarter/building or any other premise of DVC. The
respondents have no authority to go beyond the conditions and
clauses of the NIT just to prevent the petitioner from participating in
financial bid of the tender. It is further submitted that the petitioner
was earlier awarded the work of same nature by the respondents
vide Work Order No. DVC/Contract/CTPS/CIVIL/C&M/ Works and
Service/00054 dated 10.12.2019 and in the said NIT, neither the
CTPS Tender Committee had demanded NOC at the time of opening
of tender nor the service user section had demanded the same at the
time of executing agreement for the awarded work for obvious
reason that the petitioner‟s principal office was situated at the given
address of Bihar. However, in the tenders in question, the said
objection is being unnecessarily raised only to stop the petitioner
from participating in the financial bids.
9. Per contra, the learned counsel for the respondents
submits that after opening of Techno-commercial bid, it was observed
in the Tender Committee meeting held on 05.02.2021 that the
proprietorship address of the petitioner was shown as Begusarai,
Bihar, but in other documents like EPF, GST, ESI registrations, MSME
and audited annual turnover documents, the address was shown as
Chandrapura/CTPS i.e., CTPS project area or its immediate vicinity.
Therefore, the Tender Committee recommended for obtaining NOC
from the Estate Officer, CTPS within seven days and the said decision
was communicated to the petitioner vide letter dated 10.02.2021. It
is further submitted that the bids of the petitioner were techno-
commercially non-compliant of NIT and as such the Tender
Committee decided not to open its price bids. The tenders were
relating to work of day to day cleaning of colony roads and drains
etc. of Zone-III as well as Zone-IV, Zone-II and Zone-I areas of CTPS
which were urgent in nature, hence the price bids of techno-
commercially compliant bidders were opened and contracts were
awarded to the L1 bidders. DVC is having its own "works and
procurement manual" based on the rules and guidelines of the
Central Vigilance Commission issued from time to time and the terms
of NIT were framed as per the manual and guidelines. It is also
submitted that the Tender Committee scrutinized the bids
transparently and recorded their observations the recommendations
of which were subsequently approved by the appropriate authority.
The petitioner was given ample opportunity to submit NOC, failing
which the bids were found techno-commercially non-compliant of
NIT. Hence, the price bids of the qualified bidders were opened and
contracts were finalized. NOC is issued by the respondent no. 6 only
in the cases where no unauthorized possession of any DVC
quarter/building/shop/plot of land is found. Though the proprietor of
the petitioner swore affidavit stating that no unauthorized possession
of the DVC quarter/accommodation/shop/plot of land at CTPS was
made by him, yet on the contrary, an observation was made by the
respondent no. 6 in his letter no. CT/CD/ES/5/2889 dated 22.03.2021
that the proprietor of the petitioner used to reside in a house under
illegal occupation over DVC land in continuation to illegal heritage of
his father which was suppressed by him in his affidavit. The NOC was
not issued by the respondent no. 6 in the light of OM no.
Sectt/Unauth.occupation/98-082 dated 30.09.1999 as the proprietor
of the petitioner was found to have given wrong information in the
affidavit submitted by him. The petitioner was given ample
opportunity to submit NOC which was mandatory for fulfillment of
clauses 8 of Techno-commercial Terms and Conditions of NIT. The
process of scrutiny of technical bids was carried out as per the terms
and conditions of the NIT and the action was taken in unbiased and
justified manner within the ambit of set rules.
10. Heard learned counsel for the parties and perused the
materials available on record. The petitioner is aggrieved with the
rejection of its technical bids mentioning the reason that those were
techno-commercially not NIT compliant.
11. Before coming to the merit of the case, it would be
relevant to refer few judgments of the Hon‟ble Supreme Court
dealing with the scope of interference by the writ court in contract
matters.
12. In the case of "Jagdish Mandal Vs. State of Orissa &
Ors.", reported in (2007) 14 SCC 517, the Hon‟ble Supreme Court
after referring various earlier judgments has held as under:
"22. Judicial review of administrative action is
intended to prevent arbitrariness, irrationality,
unreasonableness, bias and mala fides. Its purpose is
to check whether choice or decision is made "lawfully"
and not to check whether choice or decision is
"sound". When the power of judicial review is invoked
in matters relating to tenders or award of contracts,
certain special features should be borne in mind. A
contract is a commercial transaction. Evaluating
tenders and awarding contracts are essentially
commercial functions. Principles of equity and natural
justice stay at a distance. If the decision relating to
award of contract is bona fide and is in public interest,
courts will not, in exercise of power of judicial review,
interfere even if a procedural aberration or error in
assessment or prejudice to a tenderer, is made out.
The power of judicial review will not be permitted to
be invoked to protect private interest at the cost of
public interest, or to decide contractual disputes. The
tenderer or contractor with a grievance can always
seek damages in a civil court. Attempts by
unsuccessful tenderers with imaginary grievances,
wounded pride and business rivalry, to make
mountains out of molehills of some
technical/procedural violation or some prejudice to
self, and persuade courts to interfere by exercising
power of judicial review, should be resisted. Such
interferences, either interim or final, may hold up
public works for years, or delay relief and succour to
thousands and millions and may increase the project
cost manifold. Therefore, a court before interfering in
tender or contractual matters in exercise of power of
judicial review, should pose to itself the following
questions:
(i) Whether the process adopted or decision made by
the authority is mala fide or intended to favour
someone;
Or
Whether the process adopted or decision made is so
arbitrary and irrational that the court can say: "the
decision is such that no responsible authority acting
reasonably and in accordance with relevant law could
have reached";
(ii) Whether public interest is affected.
If the answers are in the negative, there should be no
interference under Article 226. Cases involving
blacklisting or imposition of penal consequences on a
tenderer/contractor or distribution of State largesse
(allotment of sites/shops, grant of licences,
dealerships and franchises) stand on a different
footing as they may require a higher degree of
fairness in action.
13. In the case of "Central Coalfields Limited and Anr.
Vs. SLL-SML (Joint Venture Consortium) & Ors.", reported in
(2016) 8 SCC 622, the Hon‟ble Supreme Court has held as under:
"32. The core issue in these appeals is not of judicial
review of the administrative action of CCL in adhering
to the terms of NIT and the GTC prescribed by it while
dealing with bids furnished by participants in the
bidding process. The core issue is whether CCL acted
perversely enough in rejecting the bank guarantee of
JVC on the ground that it was not in the prescribed
format, thereby calling for judicial review by a
constitutional court and interfering with CCL's
decision.
37. For JVC to say that its bank guarantee was in
terms stricter than the prescribed format is neither
here nor there. It is not for the employer or this Court
to scrutinise every bank guarantee to determine
whether it is stricter than the prescribed format or less
rigorous. The fact is that a format was prescribed and
there was no reason not to adhere to it. The goalposts
cannot be rearranged or asked to be rearranged
during the bidding process to affect the right of some
or deny a privilege to some.
47. The result of this discussion is that the issue of
the acceptance or rejection of a bid or a bidder should
be looked at not only from the point of view of the
unsuccessful party but also from the point of view of
the employer. As held in Ramana Dayaram
Shetty v. International Airport Authority of India,
[(1979) 3 SCC 489] the terms of NIT cannot be
ignored as being redundant or superfluous. They must
be given a meaning and the necessary significance. As
pointed out in [Tata Cellular v. Union of India, (1994)
6 SCC 651] there must be judicial restraint in
interfering with administrative action. Ordinarily, the
soundness of the decision taken by the employer
ought not to be questioned but the decision-making
process can certainly be subject to judicial review. The
soundness of the decision may be questioned if it is
irrational or mala fide or intended to favour someone
or a decision "that no responsible authority acting
reasonably and inaccordance with relevant law could
have reached" as held in JagdishMandal v. State of
Orissa, (2007) 14 SCC 517followed in Michigan Rubber
(India) Ltd. v. State of Karnataka, (2012) 8 SCC 216."
14. In the case of "Joshi Technologies International Inc.
Vs. Union of India & Ors.", reported in (2015) 7 SCC 728, the
Hon‟ble Supreme Court has held thus:
69. The position thus summarised in the aforesaid
principles has to be understood in the context of
discussion that preceded which we have pointed out
above. As per this, no doubt, there is no absolute bar
to the maintainability of the writ petition even in
contractual matters or where there are disputed
questions of fact or even when monetary claim is
raised. At the same time, discretion lies with the High
Court which under certain circumstances, it can refuse
to exercise. It also follows that under the following
circumstances, "normally", the Court would not
exercise such a discretion:
69.1. The Court may not examine the issue unless
the action has some public law character attached to
it.
69.2. Whenever a particular mode of settlement of
dispute is provided in the contract, the High Court
would refuse to exercise its discretion under Article
226 of the Constitution and relegate the party to the
said mode of settlement, particularly when settlement
of disputes is to be resorted to through the means of
arbitration.
69.3. If there are very serious disputed questions of
fact which are of complex nature and require oral
evidence for their determination.
69.4. Money claims per se particularly arising out of
contractual obligations are normally not to be
entertained except in exceptional circumstances.
70. Further, the legal position which emerges from
various judgments of this Court dealing with different
situations/aspects relating to contracts entered into by
the State/public authority with private parties, can be
summarised as under:
70.1. At the stage of entering into a contract, the
State acts purely in its executive capacity and is bound
by the obligations of fairness.
70.2. State in its executive capacity, even in the
contractual field, is under obligation to act fairly and
cannot practise some discrimination.
70.3. Even in cases where question is of choice or
consideration of competing claims before entering into
the field of contract, facts have to be investigated and
found before the question of a violation of Article 14
of the Constitution could arise. If those facts are
disputed and require assessment of evidence the
correctness of which can only be tested satisfactorily
by taking detailed evidence, involving examination and
cross-examination of witnesses, the case could not be
conveniently or satisfactorily decided in proceedings
under Article 226 of the Constitution. In such cases
the Court can direct the aggrieved party to resort to
alternate remedy of civil suit, etc.
70.4. Writ jurisdiction of the High Court under Article
226 of the Constitution was not intended to facilitate
avoidance of obligation voluntarily incurred.
70.5. Writ petition was not maintainable to avoid
contractual obligation. Occurrence of commercial
difficulty, inconvenience or hardship in performance of
the conditions agreed to in the contract can provide
no justification in not complying with the terms of
contract which the parties had accepted with open
eyes. It cannot ever be that a licensee can work out
the licence if he finds it profitable to do so: and he
can challenge the conditions under which he agreed to
take the licence, if he finds it commercially
inexpedient to conduct his business.
70.6. Ordinarily, where a breach of contract is
complained of, the party complaining of such breach
may sue for specific performance of the contract, if
contract is capable of being specifically performed.
Otherwise, the party may sue for damages.
70.7. Writ can be issued where there is executive
action unsupported by law or even in respect of a
corporation there is denial of equality before law or
equal protection of law or if it can be shown that
action of the public authorities was without giving any
hearing and violation of principles of natural justice
after holding that action could not have been taken
without observing principles of natural justice.
70.8. If the contract between private party and the
State/instrumentality and/or agency of the State is
under the realm of a private law and there is no
element of public law, the normal course for the
aggrieved party, is to invoke the remedies provided
under ordinary civil law rather than approaching the
High Court under Article 226 of the Constitution of
India and invoking its extraordinary jurisdiction.
70.9. The distinction between public law and private
law element in the contract with the State is getting
blurred. However, it has not been totally obliterated
and where the matter falls purely in private field of
contract, this Court has maintained the position that
writ petition is not maintainable. The dichotomy
between public law and private law rights and
remedies would depend on the factual matrix of each
case and the distinction between the public law
remedies and private law field, cannot be demarcated
with precision. In fact, each case has to be examined,
on its facts whether the contractual relations between
the parties bear insignia of public element. Once on
the facts of a particular case it is found that nature of
the activity or controversy involves public law element,
then the matter can be examined by the High Court in
writ petitions under Article 226 of the Constitution of
India to see whether action of the State and/or
instrumentality or agency of the State is fair, just and
equitable or that relevant factors are taken into
consideration and irrelevant factors have not gone into
the decision-making process or that the decision is not
arbitrary.
70.10. Mere reasonable or legitimate
expectation of a citizen, in such a situation, may not
by itself be a distinct enforceable right, but failure to
consider and give due weight to it may render the
decision arbitrary, and this is how the requirements of
due consideration of a legitimate expectation forms
part of the principle of non-arbitrariness.
70.11. The scope of judicial review in respect of
disputes falling within the domain of contractual
obligations may be more limited and in doubtful cases
the parties may be relegated to adjudication of their
rights by resort to remedies provided for adjudication
of purely contractual disputes.
71. Keeping in mind the aforesaid principles and
after considering the arguments of the respective
parties, we are of the view that on the facts of the
present case, it is not a fit case where the High Court
should have exercised discretionary jurisdiction under
Article 226 of the Constitution. First, the matter is in
the realm of pure contract. It is not a case where any
statutory contract is awarded.
15. It is a trite law that in exercise of power of judicial review,
the High Court is not expected to act as a court of appeal while
examining an administrative decision and to record a finding as to
whether any different decision could have been taken in the given
facts and circumstances of the case. The writ court, by way of judicial
review should ordinarily refrain from examining the details of the
terms of contract, which are entered into by the public bodies of the
State. The writ court has its inherent limitation on the scope of such
enquiry. However, it can certainly examine as to whether "decision
making process" is unreasonable, irrational, arbitrary and violative of
Article 14 of the Constitution of India. Once the procedure adopted
by an authority in the matter of contract is held to be against the
mandate of Article 14 of the Constitution of India, the writ court
cannot ignore such action on the pretext that the State authorities
should have certain latitude or liberty in contractual matters and any
interference by the writ court would amount to encroachment upon
the exclusive right of the authorities to take such decision.
16. The issue before this Court is as to whether any
arbitrariness, unreasonableness, mala fide and biasness was there in
the decision making process of the respondent authorities so as to
make any interference with the tender process.
17. The thrust of the argument of the learned counsel for the
petitioner is that the petitioner had applied for NOC before the
respondent no. 6, however, in spite of its repeated request, the same
was not supplied. Otherwise also, the office address of the proprietor
of the petitioner was shown to be situated at Begusarai, Bihar and as
such he was not required to furnish any NOC.
18. On the contrary, the learned counsel for the respondents
has submitted that as per the observation of the respondent no. 6,
the proprietor of the petitioner resides in a house under illegal
occupation over DVC land in continuation to illegal heritage of his
father which was suppressed by him in his affidavit and as such the
respondent no. 6 did not issue NOC and finally, the technical bids of
the petitioner were rejected.
19. To appreciate the rival contentions of both the parties, it
would be appropriate to refer Clause 8(1)(f) of the NIT under the
heading of Techno-commercial Terms and Conditions, which reads as
under:
8.0 DOCUMENTS TO BE SUBMITTED IN TECHNICAL
ENVELOPE (ONLINE)
1. All the STATUTORY DOCUMENTS
------------
f. If address of bidders is of any DVC project, a NO
OBJECTION CERTIFICATE from the Estate Officer, DVC of
that project to the effect that they do not have any DVC
quarter/Building/Shop/Plot of land under their
un-authorized possession.
20. Thus, a bidder who has his address in any DVC project
was required to obtain no objection certificate from the Estate
Officer, DVC and submit the same to SE (C&M) office, DVC, CTPS
before opening of the bid.
21. The respondents have brought on record a copy of letter
dated 22.03.2021 written by the respondent no. 6, which reads as
under:
1. Sri Bablu Sharma applied for NOC from Estate
section swearing an Affidavit (copy enclosed).
2. In the affidavit he swore no occupation of
unauthorized land, shop or quarter at CTPS, residing
alone as well as having no business relation with his
father Shri Sudhir Sharma.
3. Shri Sudhir Sharma, father of Shri Bablu Sharma is
under illegal possession of DVC land at CTPS by
building a house.
4. A three member committee comprising higher
officials of DVC in an investigation of a related case
stated," By virtue of father-son relationship, the
residing and visiting of Shri Bablu Sharma, a civil
contractor in illegally constructed and occupied house
of Shri Sudhir Sharma behind the Quarter no.D-50
(near Officers Club), CTPS cannot be ruled out".
5. Shri Bablu Sharma in his affidavit swore of having
no unauthorized occupation of DVC land at CTPS
which is contrary to the fact that Shri Bablu Sharma
resides in house under illegal occupation on DVC land
in continuation to illegal heritage of his father.
6. Estate section in the light of OM No.
Sectt/Unauth.occupation/98-082 dtd. 30.09.1999
found the information swore in affidavit (Sl. No.03 of
affidavit) contrary with the facts in case of Shri Bablu
Sharma, thus NOC from Estate section was not issued.
22. On perusal of the aforesaid letter, it appears that the
respondent no. 6 did not issue NOC to the proprietor of the petitioner
on the ground that during enquiry made by a Three Members
Committee comprising of higher officials of DVC, it was found that
the father of the proprietor of the petitioner was under illegal
possession of DVC land at CTPS by building a house and by virtue of
father-son relationship, the residing and visiting of the proprietor of
the petitioner in the said illegally occupied house could not be ruled
out. It was further found that the affidavit given by the proprietor of
the petitioner was contrary to the fact that he used to reside in the
house under illegal occupation over DVC‟s land in continuation of
heritage of his father. The proprietor of the petitioner has, however,
controverted the said fact by stating that only his branch office is
situated at Chandrapura that too outside the peripheral area of DVC
project.
23. Thus, both the parties have raised disputed question of
fact which cannot be entertained by this Court under writ jurisdiction.
Moreover, the petitioner has failed to show any infirmity in the
decision making process in rejecting the technical bids submitted by
it. The respondents have already explained the reason for not issuing
NOC to the proprietor of the petitioner. The Tender Committee
rejected the technical bids of the petitioner on the ground that in
spite of repeated demand of NOC as mandated under Clause 8.0 of
Techno-commercial Terms and Conditions of the NIT, it failed to
furnish the same. The specific stand of the respondents is that the
tender was allotted to a bidder whose bid was techno-commercially
compliant and the said decision was taken as per the DVC Works and
Procurement Manual as well as CVC guidelines. It is a settled law that
the power of judicial review cannot be exercised to check soundness
of decision in the matter of awarding a contract. The petitioner has
though alleged biasness in rejecting its technical bids, but has failed
to prove it with sufficient documents. Mere allegation of biasness
cannot be a ground to entertain a writ petition in absence of any
such document/evidence in support of such plea.
24. In view of the aforesaid discussion, I am of the considered
view that the petitioner has failed to show sufficient ground before
this Court so as to invoke writ jurisdiction requiring interference with
the impugned letters whereby technical bids submitted by the
petitioner have been rejected by the Tender Committee of the
respondents.
25. The writ petitions being devoid of merit are accordingly
dismissed.
Consequently, all pending interlocutory applications also
stand dismissed.
(Rajesh Shankar, J.)
Manish/AFR
