Uttarakhand High Court
WPMS/2652/2021 on 13 December, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 13TH DAY OF DECEMBER, 2021
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (M/S) No. 2652 of 2021
BETWEEN:
M/s Bharat Construction (India) Pvt. Ltd. ...Petitioner
(By Mr. Sagar Kothari, Advocate)
AND:
State of Uttarkahand & others. ...Respondents
(By Mr. Pradeep Hairiya, Standing Counsel for the State of
Uttarakhand/respondents)
JUDGMENT
Petitioner submitted bid pursuant to a
Notice Inviting Tender for road construction work.
Petitioner's bid has been rejected by respondent
nos. 2, 3 & 4, vide order dated 07.12.2021. Thus,
feeling aggrieved, petitioner has approached this
Court.
2. In the impugned rejection order, the
reason assigned for rejecting petitioner's bid is
'non furnishing of affidavit of correctness of the
bid'.
3. It is the contention of learned counsel
for the petitioner that petitioner had duly uploaded
the affidavit of correctness of the bid and also
supplied hard copy of the said affidavit along with
other document, in a sealed envelope, however,
respondents have misplaced the said affidavit and
have rejected petitioner's bid, on unfounded
ground.
4. Learned Standing Counsel was asked to
get instructions. He has produced the written
instructions received from the office of
Superintending Engineer, 8th Circle, Public Works
Department, New Tehri, in Court, which is taken
on record. Based on the instructions, learned
Standing Counsel made a statement that
petitioner had not furnished affidavit of
correctness of the bid with his technical bid, which
was an essential condition, thus, according to
learned Standing Counsel, petitioner's bid was
rightly rejected.
5. Learned counsel appearing for the
petitioner submits that if affidavit was not found
with petitioner's technical bid, then respondents
could have asked the petitioner to furnish the
same within some stipulated time, to ensure
competitive price.
6. Learned Standing Counsel then
submitted that in view of the high valuation of the
work in question, only 'A' Class Contractors could
have submitted bid, while, petitioner is not
registered as 'A' Class Contractor, therefore, he
was not eligible. He further pointed out that
petitioner is not a registered contractor for road
construction work. In such view of the matter
also, he was not qualified for participating in the
bidding process for the work in question.
7. Since the issues raised by learned
Standing Counsel have not been indicated in the
rejection order dated 07.12.2021, therefore, this
Court will not go into the question as to whether
petitioner was qualified to participate in the
bidding process or not. However, this Court is not
impressed by the submission made on behalf of
the petitioner that he should have been given time
for submitting affidavit. Affidavit of correctness of
bid is needed to rule out possibility of false claims
by bidders regarding financial capacity/
infrastructure and also for taking penal action
against recalcitrant bidders, who give incorrect
information. Therefore, non-furnishing of such
affidavit creates doubt over veracity of claims
made/ documents submitted by a bidder.
8. Since petitioner's bid was not supported
by such affidavit, which goes to the root of the
matter, therefore, the contention made on behalf
of petitioner that the employer should have
informed him about the defect/deficiency, to
enable the petitioner to cure the defect, cannot be
accepted.
9. Having regard to the purpose of affidavit
of correctness of bid, due to non-submission of
such affidavit, bid of the petitioner became
substantially non-responsive, therefore, the
employer was under no duty to give opportunity to
the petitioner, to cure the defect by filing an
affidavit.
10. The sole issue which falls for
consideration in the present writ petition, is as to
whether petitioner had uploaded/submitted
affidavit of correctness of bid with his technical
bid.
11. Petitioner contends that he had
submitted such affidavit, while, employer contends
that such affidavit was not submitted/uploaded by
the petitioner.
12. There is no evidence with the petitioner
to show that he had actually submitted such
affidavit. Thus, the writ petition cannot be decided
without recording statement of witnesses, which
would not be proper by this Court while exercising
extraordinary jurisdiction under Article 226 of the
Constitution.
13. Even otherwise also, it is settled position
in law that public remedy under Article 226 of the
Constitution cannot be invoked for adjudication of
disputed question of facts.
14. Having regard to the factual dispute
between the parties, this Court declines to
entertain this writ petition.
15. Accordingly, the writ petition is
dismissed with liberty to the petitioner to approach
an appropriate forum available to him under law.
(MANOJ KUMAR TIWARI, J.)
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