M/S Satya Sai Transport vs M.P. State Civil Supplies ...
2021 Latest Caselaw 6702 MP

                                      1

                 The High Court of Madhya Pradesh
                          W.P No. 17218/2021


Jabalpur, Dated : 23.10.2021

      Shri Sankalp Kochar, learned counsel for the petitioner.

      Shri Shobhit Aditya, learned counsel for the respondent no.1 and 2.

Shri D.K Dixit, learned counsel for the respondent no.3.

This petition is filed by the petitioner being aggrieved of the fact

that his techanical bid has been rejected in the matter of the

transportation of essential food grain materials for which bid was invited

by M.P State Civil Supplies Corporation Limited.

2. Petitioner's contention is two fold. Firstly, that his techanical bid

was wrongly rejected only on the ground that the petitioner has failed to

furnish the details of the vehicles enagaged by him under the contract

and according to the petitioner, he had filed a document enclosed along

with the rejoinder at page 55, but due to inadvertenace subsequent pages

of that document could not be scanned. That default was curable in terms

of clause 15.2 of the bid document.

3. Second ground taken by learned counsel for the petitioner is that

the respondent no.3 was once disqualified for the Betul Sector as he had

not given preference, then his bid could not have been accepted for

Betul-Multai Sector, in absence of preference being furnished for Betul

Sector in as much as preference was required to be filed for bidded

sectors in one preference document.

4. Learned counsel for the petitioner has placed reliance on the

judgment of Nagar Nigam, Meerut Vs. Al Faheem Meat Exports (P)

Ltd & others (2006) 13 SCC 382 and also in the case of Meerut

Development Authority Vs. Association of Management Studies &

another (2009) 6 SCC 171. Placing reliance on the judgment of Nagar

Nigam, Meerut, it is submitted that Hon'ble Supreme Court has held that

in rare and exceptional cases, having regard to the nature of the trade or

largesses or for some other good reason, a contract may have to be

granted by private negotiation, but normally that should not be done as it

shakes the public confidence.

5. It is submitted that the award of government contracts

through public auction/public tender is to ensure transparency in the

public procurement, to maximise economy and efficiency in government

procurements, to promote healthy competition among the tenderers, to

provide for fair and equitable treatment of all tenderers, and to eliminate

irregularities, interference and corrupt practice by the authorities

concerned, thus submits that the petitioner has been unfairly treated in

the matter of award of the contract.

6. Learned counsel has placed reliance on the judgment of

Meerut Development Authority (supra), wherein attention is drawn to

paragraphs 26 and 27, wherein the Hon'ble Supreme Court has held as

under:-

"26. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must

be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all other from participating in the bidding process."

27. The bidders participating in the tender process have no other right except the right to equality and fair treatement in the matter of evaluation of competative bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda.

7. Placing reliance on the aforesaid judgment, it is submitted

that it was open to the respondent nos.1 and 2 to have accepted the

contract documents, which were not scanned along with the offer

furnished by the petitioner. It is submitted that there is lack of fair

treatment and transparency qua the petitioner.

8. It is further submitted that since the respondent no.3 was not

qualified for award of the contract, therefore, respondent nos.1 and 2

should not have awarded tender in favour of the respondent no.3.

9. Shri Shobhit Aditya, learned counsel for respondent nos.1

and 2 in his turn submits that as per Clause 7.8 of the bid document,

petitioner was not only required to furnish copy of one agreement but

four agreements as mentioned in the Column 4 of Clause 7.8 of NIT,

therefore even though plea of the indavertance of scanning of document

is accepted, though not accepted by respondent nos.1 and 2, then also

merely on the strength of one document, petitioner will not be entitled to

furnish new documents as that will violate Clause 15.2, which deals with

the analysis of the tender bid. Shri Aditya further submits that Para 8 of

the NIT provides for grounds of rejection of a bid. It is submitted that

case of the petitioner is squarely covered under Clause-(ix) therefore, no

interference is required in the matter.

10. It is pointed out that as per Annexure 8 to the NIT contract

was to be produced on a non-judicial stamp of Rs.500/- giving details of

the contracted vehicles along with their capacity, date of permit and other

details etc. Since these details were not furnished by the petitioner, now

he cannot cry foul that procedure was not transparently followed.

11. Shri Shobhit Aditya has placed reliance on the judgment of

the Supreme Court in the case of Sterling Computers Ltd. Vs. United

Database (India) Pvt. Ltd. (AIR 1996 SCC 51), Raunaq International

Ltd. Vs. I.V.R Contruction Ltd & ors (AIR 1999 SCC 393), Siemens

Public Communication Networks Private Limited & anr Vs. Union of

India & orthers (2008) 16 SCC 215, and also in the case of H.P

Housing and Urban Development Authority Vs. Universal Estate &

anr (AIR 2011 SCC 887) and points out that scope of judicial review is

very limited and court cannot act as appellate authority and examine

details of terms of the contract. The scope of the judicial review is very

limited where primarily the court can see whether there is infirmity in the

decision making process or not. Further placing reliance on the aforesaid

judgments, it is submitted that there is no infirmity in the decision

making process, petitioner was duly communicated about his lapse as per

the requirement of NIT. Once communication was made to the petitioner

about his lapse as is evident from the document enclosed with the

rejoinder as Annexure R-J/2 dated 13/08/2021, where petitioner accepted

that because of his fault two copies of the contract document could not

be scanned and could not be produced, then as per clause 15 no

indulgence is to be shown in favour of the petitioner.

12. Shri Dixit, learned counsel for the respondent no.3 submits

that as far as preference is concerned, petitioner had not given preference

for Betul Sector, but gave preference for Betul-Multai Sector, therefore

no infirmity can be read into the document showing preference for Betul-

Multai Sector, merely because of rejection of bid for Betul Sector.

13. After hearing learned counsel for the parties and going

through the record, it is necesssary to reproduce Clause 15 of the Tender

Document, which reads as under:-

15- rduhdh fcM dk fo'ys"k.k %& 15-1 rduhdh fcM esa fufonkdkjksa ds vfuok;Z nLrkostksa dk ijh{k.k fu/kkZfjr Ldzhfuax lfefr ds Lrj ij fd;k tk;sxkA Ldzhfuax lfefr lHkh vlQy fufonkvksa ds vlQy gksus ds dkj.kksa dks dk;Zokgh fooj.k esa mYysf[kr djsxhA rduhdh fcM esa tks fufonkdkj vlQy ik;s tkosaxs] mUgsa bl vk'k; dh lwpuk lacaf/kr Ldzhfuax lfefr }kjk nh tk;sxhA fd os fdu vfuok;Z nLrkostksa dh iwfrZ u djus ds dkj.k vlQy gq;s gSa o bl lac/a k esa ,sls fufonkdkjksa dks viuk i{k Ldzhfuax lfefr ds le{k

izLrqr djus gsrq vf/kdre 24 ?kaVs dk le; iznku fd;k tk,xkA fufonkdkj }kjk izLrqr i{k djus ds i'pkr vf/kdre 48 ?kaVs esa Ldzhfuax lfefr }kjk fu.kZ; ysrs gq;s gh lQy fufonkdkjksa dh Qk;usaf'k,y fcM [kksyh tk,xhA vlQy fufonkdkjksa dh Qk;usf'k;y fcM Ldzhfuax lfefr }kjk ugha [kksyh tkosxhA Ldzhfuax lfefr dk fu.kZ; ca/kudkjh gksxk rFkk bl Lrj ij dksbZ Hkh vkchZVªs'ku ;k vihy ekU; ugha gksxhA 15-2 rduhdh fcM [kksys tkus gsrq fu/kkZfjr Ldzhfuax lfefr dk foosdkf/kdkj gksxk fd og fufonkdkj }kjk rduhdh fcM esa izLrqr fdlh nLrkost ds lanHkZ esa lacaf/kr fufonkdkj ls fyf[kr esa Li"Vhdj.k izkIr dj ldrh gSa] ijUrq lfefr }kjk bl ek/;e ls u, o i`Fkd nLrkost izkIr ugha fd, tk ldsaxsA ,sls Li"Vhdj.k dk tokc] Ldzhfuax lfefr } kjk foRrh; fcM [kksyus ds fu;r le; ds iwoZ gh izkIr dj fy;k tk;sA fufonkdkj }kjk Li"Vhdj.k fu;r le; rd vizkIr jgus ij fufonkdkj dk mDRk Li"Vhdj.k nsus dk vf/kdkj lekIr ekuk tk,xkA 15-3 Ldzhfuax lfefr ds lHkh lnL;ksa ds }kjk rduhdh fcM esa layXu lHkh nLrkostksa ij vius in uke o frfFk vafdr djrs gq,] gLrk{kj djuk vfuok;Z gksxkA

14. A bare perusal of the Clause 15 of the tender document

reveals that screening committee was entitled to analyse all the bid

documents and were required to give reasons for rejection, granting 24

hours' time to a unsuccessful bidder to submit their explaination and after

this it is provided that within maximum 48 hours screening committee

shall take decision and will open the financial bid of the successful

bidder.

15. Clause 15.2, that provides that it is within the competence of

the screening committee that if it receives written explanation from the

bidder explaining the reasons with regard to non-production of any

document then that committe can accept that explanation, but the

committee will not be entitled to accept any new or separate documents.

Thus, it is evident that screening committee has been granted very

limited jurisdiction to accept explanation in regard to document which

were already part of the bid, but has been preculded from accepting any

document. It is evident from Annexure R-J/2 that the petitioner himself

admitted that the document could not be scanned and therefore they

could not be filed along with the bid documents. Even perusal of the first

page of the stamp reveals that this stamp was issued on 05/08/2021 in

favour of the petitioner Shivram Sahu but it does not give details of the

vehicle which were contracted for which the petitioner entered into the

contract in compliance of the Clause 7.8, thus once the petitioner fails to

supply necessary documents then the Screening Committee was

precluded from accepting any new document, therefore, the action of the

Committee in not accepting explanation and contract document

pertaining to 4 vehicles, which is mandatory cannot be faulted with.

16. As far as law laid down in the cases of Nagar Nigam, Meerut

(supra) and Meerut Development Authority (supra) are concerned. In

paragraph 14 of Nagar Nigam Meerut's case, it is held that "it is well

settled that ordinarily the State or its instrumentalities should not give

contracts by private negotiation but by open public auction/tender after

wide publicity." Thus it is evident that the ratio of law deals with those

cases where contracts are given by private negotiation and not by open

public auction/tender.

17. In the present case, petitioner has not disputed this fact that

public auction/tender process was adopted and followed.

18. Similarly, it is held that "the award of govenment contracts

through public auction/public tender is to ensure transparency in the

public procurement, to maximise economy and efficiency in government

procurement, to promote healthy competition among the tenderers, to

provide for fair and equitable treatment of all tenderers, and to eliminate

irregularities, interference and corrupt practices by the authorities

concerned. This aspect has special signifiance to the facts of the present

case, if the contentions of the petitioner is accepted and he is permitted to

furnish documents which were not already part of the bid submitted, then

that will amount to commission of irregularities and promoting corrupt

practice by the authorities granting them with wide discretion and that

will amount to violation of the stipulations made in Clause 15.2 of the

contract document, therefore the judgment in the case of Nagar Nigam,

Meerut is of no assistance or help to the petitioner.

19. As far as law laid in the case of Meerut Development

Authority (supra) is concerned, the ratio of the said judgment is that the

terms of the inviting tender cannot be open to judicial scrutiny because

inviting of tender is in the realm of contract. This judgment specifically

provides for limited judicial scrutiny as held by the Hon'ble Supreme

Court in the case of Sterling Computers Ltd (supra), where it is held that

the court cannot act as appellate authority and examine details of terms

of the contract. It is not the contention of the petitioner and petitioner

has not challenged the terms and conditions of the tender document, but

is only challenging the action of the authorities in not permitting him to

cure admitted default, therefore the judgement of the Hon'ble Supreme

Court in the case of Meerut Development Authority (supra) will also not

help the petitioner.

20. Thus in view of the law laid down by the Hon'ble Supreme

Court and taking into consideration that scope of the judicial scrutiny is

very limited, I am of the opinion that there are no irregularities in the acts

of respondent no.1 and 2 in rejecting the techanical bid of the petitioner

specifically when it could not have been entertained in the terms of the

Sub Para (ix) of para 8 of the NIT giving grounds for rejection of a bid.

Thus, once the case of the petitioner is covered under Sub Para (ix) of

para 8 of the bid document and that the default is not curable in terms of

the stipulation in clause 15.2 of the bid document, action of respondent

no.1 and 2 cannot be faulted with calling for judicial scrutiny or

interference. Therefore, this petition fails and is dismissed.

(Vivek Agarwal) Judge

Digitally signed by tarun TARUN KUMAR SALUNKE Date: 2021.10.26 11:49:21 +05'30'