Punjab-Haryana High Court
Roshan Lal vs Food Corporation Of India And Another on 17 September, 2024
Author: Arun Palli
Bench: Arun Palli
Neutral Citation No:=2024:PHHC:122111-DB
CWP-21994-2024
CWP-22011-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(i) CWP-21994-2024
M/s Roshan Lal & Co. ...... Petitioner
Versus
Food Corporation of India and another ...... Respondents
(ii) CWP-22011-2024
Mahinder Pal and another ...... Petitioners
Versus
Food Corporation of India and another ...... Respondents
Reserved on : 03.09.2024
Pronounced on : 17.09.2024
CORAM : HON'BLE MR. JUSTICE ARUN PALLI
HON'BLE MR. JUSTICE VIKRAM AGGARWAL
***
Present : Mr. H.P.S.Binder, Advocate
for the petitioner in CWP No.21994 of 2024.
Mr. D.S.Patwalia, Senior Advocate with
Mr. Gauravjit Singh Patwalia, Advocate
for the petitioners in CWP-22011 of 2024.
Mr. Sunish Bindlish, Advocate
for the respondent(s).
***
VIKRAM AGGARWAL, J
1. The issue raised in both the afore-titled writ petitions being
identical, they are being disposed of by way of a common judgment. The
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facts are being extracted from CWP No.21994-2024.
2. The petitioner has impugned the order dated 24.08.2024 (Annexure
P-15), passed by respondent No.1-Food Corporation of India (hereinafter
referred to as 'the respondent-Corporation') vide which the objections raised
by the petitioner to respondent No.2 having been declared technically
responsive have been rejected.
3. A Notice Inviting Tender (NIT) (Annexure P-1) was issued on
06.05.2024 by the respondent-Corporation for appointment of a Handling
and Transport Contractor (HTC) at Sultanpur Lodhi Centre, District
Kapurthala (Punjab). There were eight applicants including the petitioner
and respondent No.2 in CWP No.21994-2024 and both petitioners in CWP
No.22011 of 2024.
4. It is the case of the petitioner that respondent No.2 had submitted
various documents alongwith his bid in the shape of income tax returns,
Udyam Registration Certificate, GST Registration Certificate, Aadhar Card,
EPF Registration Certificate, Experience Certificate etc. and in many of the
aforesaid documents, different addresses were mentioned indicating that the
documents were false, having fraudulent business addresses. It is the case of
the petitioner that in the letter dated 09.04.2015 (Annexure P-2) vide which
provident fund code number was stated to have been issued to respondent
No.2, the address of the Regional Office of the establishment was mentioned
as House No.530/2, Model Town, Ward No.1, Ludhiana. In the GST
Registration Certificate (Annexure P-3), the address mentioned was Rahon
Road, Model Town, Samrala Road, Khanna, District Ludhiana. Similarly, in
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the Udyam Registration Certificate (Annexure P-4), the address given was
Booth No.28, Grain Market, Khanna, District Ludhiana and Form No.5-A
(Annexure P-5) generated through the Web portal Employees' Organization,
mentioned the address of the establishment of respondent No.2 as House
No.530/2, Model Town, Ward No.1, Khanna, District Ludhiana. The Aadhar
Card (Annexure P-6) also mentioned this very address whereas the
Forwarding Letter dated 06.05.2024 (Annexure P-7) with the Appendix-I at
the time of participation in the e-tender process mentioned the address as
booth No.28, Grain Market, Khanna, District Ludhiana which was the
address mentioned in Appendix-II (Annexure P-8) also.
5. When the aforesaid fact came to the knowledge of the other
bidders, petitioner No.2 Vijay Kumar in CWP No.22011 of 2024 submitted a
complaint dated 27.06.2024 (Annexure P-9) to the respondent-Corporation
bringing to its notice the said discrepancies in the documents submitted by
respondent No.2.
6. Thereafter, technical evaluation of the bids was carried out in
which two bidders were held to be non-responsive whereas the remaining six
bidders including the petitioners and respondent No.2 in both the petitions
were held to be technically responsive and were, therefore, held to be
qualified for evaluation of their financial bids.
7. Upon evaluation of the financial bids, respondent No.2 was
declared L-1, petitioner No.1 in CWP No.22011 of 2024 namely Mohinder
Pal was declared L-2, petitioner M/s Roshan Lal and Company in CWP
No.21994-2024 was declared L-3 and petitioner No.2 Vijay Kumar in CWP
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CWP-21994-2024
No.22011 of 2024 was declared L-4 whereas the remaining bidders were
declared as L-5 and L-6 respectively. The result of the technical evaluation
and the financial evaluation of the bids have been placed on record as
Annexures P-10 and P-11 respectively.
8. Instead of acting on the complaint submitted by Vijay Kumar, the
respondent-Corporation permitted respondent No.2 to submit an undertaking
(Annexure P-12) that he was having two addresses i.e. House No.530, Model
Town, Khanna, District Ludhiana which was his residential address and the
same was used for participating in the tender process whereas his office
address was Booth No.28, Grain Market, Khanna.
9. Aggrieved by this action, the petitioner preferred CWP No.16680
of 2024 which was disposed of by this Court vide order dated 19.07.2024
(Annexure P-13) with a direction to the respondent-Corporation to decide the
representation submitted by Vijay Kumar by passing a speaking order after
affording an opportunity to all stake-holders.
10. Pursuant to the order dated 19.07.2024, written submissions dated
29.07.2024 (Annexure P-14) were submitted by the petitioner. However, the
respondent-Corporation passed an order dated 24.08.2024 (Annexure P-15)
holding the bid of respondent No.2 as valid and responsive, leading to the
filing of the instant writ petition.
11. Learned counsel for the petitioners and Mr. Sunish Bindlish,
Advocate, learned counsel representing the respondent-Corporation, who had
caused appearance on advance copy having been served, were heard.
12. It was strenuously urged by Sh. D.S.Patwalia, learned Senior
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Counsel representing the petitioners in CWP No.22011 of 2024 and Sh.
H.P.S.Bhinder, learned counsel representing the petitioner in CWP No.21994
of 2024 that the action of the respondent-Corporation in ignoring the glaring
discrepancies in the documents submitted by respondent No.2 clearly
indicates that the respondent-Corporation was bent upon awarding the
contract to respondent No.2 and ignored the discrepancies in an illegal and
arbitrary manner. Reference was made to the documents (Annexures P-2 to
P-8) submitted by respondent No.2, the result of the technical evaluation of
bids (Annexure P-10), the order dated 19.07.2024 (Annexure P-13) passed by
this Court and the impugned order dated 24.08.2024 (Annexure P-15) and it
was submitted that the action of the respondent-Corporation is not
sustainable and, therefore, deserves to be quashed. It was also submitted that
under similar circumstances, the respondent-Corporation had disqualified
various bidders including the petitioner in CWP No.22011-2024 on account
of documents submitted with the bids having minor discrepancies such as
different dates of birth etc. It was submitted that the respondent-Corporation
was expected to adopt the same yardstick for all bidders and should not adopt
a pick and choose policy to the detriment of other bidders.
13. Per contra, it was submitted by learned counsel representing the
respondent-Corporation that the documents annexed by respondent No.2 with
the bids were not ingenuine nor had they been cancelled by any authority and
under the circumstances, a view had been taken by the respondent-
Corporation vide which the documents were accepted and the discrepancies
were not found to be of such a nature which would entail rejection of the
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technical bid of respondent No.2. It was submitted that as regards the other
cases pointed out by learned Senior Counsel, there were different dates of
birth in different documents which is a serious discrepancy and under the
circumstances, those bids were rejected. It was submitted that in any case, it
cannot be said that because bids in those cases had not been held to be
technically responsive, the same principle would have to be applied in the
present cases because each case has to be tested on its own facts and
documents. No general principle can be laid down to be made uniformly
applicable to all cases.
14. We have considered the submissions made by learned counsel for
the parties and have also perused the paper book.
15. The Notice Inviting Tender (NIT) is on record as Annexure P-1.
These were e-tenders, invited under the two bid system from financially
sound parties having business competence for appointment of Regular
Handling and Transport Contractor (HTC) for a period of two years for the
Sultanpur Lodhi Centre, District Kapurthala. The estimated contract value
was Rs.8,75,76,000/- and the HTC was to be appointed for two years.
Admittedly, there were eight bidders. The whole dispute is as regards the
documents submitted by respondent No.2 with his bids which have been
placed on record as Annexures P-2 to P-8. A perusal of the said documents
would show that essentially, the petitioner has given three addresses in these
documents, the first one being House No.530/2, Model Town, Wards No.1,
Khanna, District Ludhiana, the second being Rahon Road, Model Town,
Samrala Road, Khanna, District Ludhiana and the third one being Booth
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No.28, Grain Market, Khanna, District Ludhiana. Annexure P-2 is the
document issued by the Employees' Provident Fund indicating the Provident
fund code number to respondent No.2 which mentions the address of the firm
of respondent No.2 as House No.530/2, Model Town, Ward No.1, Khanna,
Ludhiana. Same is the address given on Form 5-A issued by the Employees'
Provident Fund Registration (Annexure P-5) and the Aadhar Card (Annexure
P-6). On the GST Registration Certificate, the address mentioned is Rahon
Road, Model Town, Samrala Road, Khanna, District Ludhiana and the
registration was from 2019 onwards. In the Udyam Registration Certificate
(Annexure P-4) and the Forwarding letter (Annexure P-7) issued by
respondent No.2 alongwith the appendix-I and appendix-II, the address was
mentioned as Booth No.28, Grain Market, Khanna, District Ludhiana. When
the issue was raked up by the bidders, as per the petitioner, no action was
taken leading to the filing of CWP No.16680 of 2024 which was disposed of
by this Court vide order dated 19.07.2024 calling upon the respondents to
hear the stake holders and pass a speaking order. The parties were duly heard
and a speaking order was passed on 24.08.2024 in which the objections
raised by the petitioners were duly noted. As regards alleged violation of
Clause 5 (a) and Clause 13 of the MTF, after examining all aspects, the
respondent-Corporation came to the conclusion that there were minor
variations in individual documents and the bidder could have more than one
address which could not be taken as a major discrepancy. It was also
observed that ultimately the bidder was to submit SD @ 5% and BG @ 10%
of the contract value within 15 days of receiving the award letter and could
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initiate work only after that. It was also observed that respondent No.2 was
not a new bidder and was already working with the respondent-Corporation.
The contention as regards rejection of other bids on account of discrepancies
was also noticed and was also held that rejection of separate bidders in
separate tenders on different grounds could not be compared. It was,
therefore, held that bids were not to be rejected on trivial and frivolous
grounds;
"The petitioners have alleged violation of Clause 5(a)
and Clause 13 of MTF:
Clause 5 (a)
"The Tenderer must fill up and sign the forwarding
letter in the format given in Appendix-I and also
furnish full, precise and accurate details in respect of
information asked for in Appendix-II attached to the
form of tender. The filled and signed Appendices I
and II are to be scanned and uploaded at the space
provided in the GeM Portal."
Clause 13:
"If the information given by the Tenderer/Party in
the Tender Document and its Annexures &
Appendices is found to be false/incorrect or has
violated/breached any of the terms & conditions of
the contract, at any stage, Food Corporation of India
shall have the right to disqualify/summarily terminate
the contract, forfeit EMD/SD/BG, make good any
other losses caused to the Corporation and debar the
party for two years, without prejudice to any other
rights that the Corporation may have under the
Contract and law."
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The petitioners have stated that while submitting his
bid Sh Satnam Singh filled the checklist pertaining to
the clause 3(a), "Experienced Bidder" but has not
checked option (ix) thereof to indicate that other
supporting documents have been uploaded and
therefore in absence of such indication, the aforesaid
undertaking, which is otherwise not part of the
documents to be uploaded by the bidder is not liable
to be taken into consideration. Further the
undertaking is liable to be discarded as the same is
not as per the prescribed format, not on any stamp
paper, not addressed to anyone and neither signed nor
dated.
Further, the petitioners have alleged that
Sh. Satnam Singh has dishonest intent and submitted
documents with different addresses intentionally to
avoid civil and other legal liabilities in case of any
dispute related to the contract.
In reference to above allegations made by
petitioner, pointwise reply/clarification was submitted
by Sh. Satnam Singh which is as under:
1. It is submitted that all allegation made by
petitioner are wrong and baseless as all the
valid documents are furnished by Sh.
Satnam Singh.
2. With the regard to the addresses
mentioned on the documents like EPF no.,
Form 5A and GST, the tender had given his
home address as the place of business to
EPF and GST authorities for any further
correspondence with him.
3. Further, address on Udyam Registration
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certificate is concerned, at the time of
applying above said certificate he started his
business from booth no. 28, Grain Market,
Khanna District Ludhiana. So he is
conducting business from his home as well
as above mentioned address Booth no. 28,
Grain Market. Khanna District Ludhiana.
4. Furthermore, in undertaking uploaded by
Sh. Satnam Singh, he specifically mentioned
his house address as House no. 530, Model
Town, Samrala Road Khanna, District
Ludhiana and Business address as Booth no.
28, Grain Market, Khanna District
Ludhiana, with the request to FCI to accept
his both addresses.
5. Additionally, with regard to allegation of
escaping from civil liability is concerned,
hereby it is submitted that he is working
with FCI since, 2021. He was awarded his
tender in the year of 2021 for HTC
Garhshankar, HTC Bhadson & HTC
Khanna and he duly completed the above
said tender work to the satisfaction of FCI.
Presently he is working as HTC Mehal
Kalan and performing the work to the
satisfaction of FCI. Further, in the present
tender process (HTC Sultanpur Lodhi) he
had submitted the Bank Guarantee of
Rs. 87,57,600/- and Security amount of
Rs. 22 Lakh, so there is no question of
liability.
The above allegations of the petitioners with
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submission of Sh. Satnam Singh have been examined
by the undersigned. The petitioners have alleged that
there is great variation in the addresses of Sh. Satnam
Singh in various documents. From the documents, it
is seen that Sh Satnam Singh has mentioned only two
addresses. H. No. 530/2, Model Town, Ward No.1,
Khanna, Ludhiana and Booth No. 28, Grain Market
Khanna, Ludhiana, with minor variation in
individual documents. A bidder can have more than
one address and such variation in the addresses in the
various documents is not a major discrepancy. The
contention regarding the wrong format of the
undertaking submitted by Sh. Satnam Singh does not
have merit since the MTF does not provide format for
such undertakings. Moreover, the undertaking was
not unsigned as alleged. The non-checking of option
(ix) to indicate that other supporting documents have
been uploaded was only a minor omission which was
not worth considering.
To avoid any loss to the Corporation in case
of any dispute that might arise during the currency of
contract, the bidder has to submit SD @ 5% and BG
@ 10% of the contract value within 15 days of
receiving the award letter and can initiate work post
that only. Further, Sh Satnam Singh is not a new
bidder and is already working with FCI The
petitioner has contended that FCI has rejected bids
because of discrepancies in the tender documents in
the past. The rejection of separate bidders in separate
tenders on different grounds cannot obviously be
compared
The information submitted by Sh. Satnam
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Singh has been scrutinized by the Technical
Evaluation Committee at this office in a transparent
manner and was found to be in order and as per the
requirements of the NIT/MTF. Further, as per FCI
HQ Circular No. F1 (Misc) /2014/Cont
(209)/Circular/Vol I dated bids are not to be rejected
on trivial and frivolous grounds.
In view of the abovementioned facts and in
compliance of the order of Hon'ble High Court in
respect of CWP 16680-2024 the representation/
written submission of Sh. Vijay Kumar is found to be
without merit and accordingly disposed of. "
16. A perusal of the aforesaid order does not reflect any illegality or
arbitrariness and respondent No.2 was not to be adjudged technically non-
responsive on the mere objections raised by the petitioner. We have not
found any semblance of malafides in the decision making process of the
respondents and are, therefore, not inclined to interfere. While arriving at
this conclusion, we are reminded of the principles enunciated in the cases of
Jagdish Mandal versus State of Orissa and others 2007 (14) SCC 517,
Silppi Constructions Contractors versus Union of India and Anr. Etc.
Etc. 2020 (16) SCC 489, State of Punjab and others versus Mehardin
2022 (5) SCC 648, TATA Cellular versus Union of India (1994) 6 SCC
651, Rajeev Suri Versus Delhi Development Authority 2022 (11) SCC 1,
Balaji Ventures Pvt. Ltd. Versus Maharashtra State Power Generation
Company Ltd. & Anr. 2022 LiveLaw (SC) 295 and Netai Bag and others
versus State of W.B. and others (2000) 8 Supreme Court Cases 262.
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In view of the aforementioned facts and circumstance, we do not
find any merit in both the writ petitions and the same are hereby dismissed.
(ARUN PALLI) (VIKRAM AGGARWAL)
JUDGE JUDGE
Reserved on : 03.09.2024
Pronounced on : 17.09.2024
mamta
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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