Kishan Datt Sharma vs State Of Uttarakhand And Others
2023 Latest Caselaw 2924 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                              AND
             HON'BLE SRI JUSTICE ALOK KUMAR VERMA


                          03rd OCTOBER, 2023

          WRIT PETITION (M/B) No. 181 OF 2023

Kishan Datt Sharma.
                                                                ...Petitioner

                                   Versus

State of Uttarakhand and others.
                                                            ...Respondents

Counsel for the petitioner. : Mr. Sandeep Kothari, learned counsel.

Counsel for the State of : Mr. Amarendra Pratap Singh, learned Uttarakhand/ respondents. Additional Advocate General for the State of Uttarakhand.

JUDGMENT : (per Sri Vipin Sanghi, C.J.)

We have heard learned counsels, and proceed to

dispose of the Writ Petition, since counter affidavit has

already been filed by respondent nos. 2 and 3.

2. The petitioner has preferred the present Writ

Petition to assail the order dated 11.07.2023 passed by

respondent no. 3, i.e. the Superintending Engineer, 9th

Circle, Public Works Department, Dehradun, whereby the

Superintending Engineer cancelled the Tender ID No.

2023_pwd_58405_1, which was opened on 12.06.2023, for "unavoidable reasons". The petitioner participated in

the aforesaid tender invited by the respondents for the

work, namely "Under One Time Maintenance Head, the

Maintenance Work of Kyarapul Damta to Kota Mudha

Motor Road". The tender was initiated on 08.05.2023, and

the last date for submission of the bids, and for opening of

the bids, was fixed as 12.06.2023. The bids were invited

through the e-tendering process, and the bidders were

also required to submit their bids physically by the last

date of submission, i.e. 12.06.2023 by 03:00 P.M. The

bids were opened immediately thereafter. The case of the

petitioner is that the petitioner emerged as the lowest

bidder upon opening of the tender. On 14.06.2023, the

respondents also required the petitioner to submit a

clarification, which communication reads as follows :-

"उपरो� िवषयक स�िभ�त पत्र के क्रम म� अवगत करवाना है िक िदनांक 12.06.2023 को उपरो� काय� की Financial Bid खोली गई िजसमे आपकी िनिवदा प्रथम �ूनतम पाई गई है। इस काय� की BOQ के मद सं�ा 2 म� Unit म� त्रुिटवंश Cum की जगह Rmt हो गया था, यिद आप मद सं�ा 2 म� "Cum" Unit से काय� करने को सहमत है तो पत्र के मा�म से अपनी सहमित िवभाग को प्रेिषत करना सुिनशिचत करे, तािक िनिवदा िन�ारण की अिग्रम काय�वाही की जा सक�।"

3. The petitioner provided the clarification on the

same day, as desired. Thereafter, the respondents have

issued the impugned communication.

4. Upon service of notice, requiring the

respondents to explain their said conduct, they have filed

their counter affidavit. The stand of the respondents, in

their counter affidavit, is that a total of 120 online bids

were received for the work in question. However, only 09

physical bids were submitted by the bidders up till 03:00

P.M. on 12.06.2023. In relation to another work, namely

"One time Anurakshan Maintenance Work Radu Mundhol

Motor Road", for which e-bids were also invited, up till

12.06.2023, 03:00 P.M., 107 e-bids were received, and 14

physical bids were received. The stand of the respondents

is that on 12.06.2023, 09 bidders, who had submitted

their e-bids in response to the tender in question, made a

complaint that some persons prevented them from

submitting their physical bids, when they sought to do so

on 12.06.2023. The stand of the respondents is that, in

the light of the said complaints, the order was issued by

respondent no. 3, cancelling the tendering process for

"unavoidable reasons".

5. Mr. Kothari, learned counsel for the petitioner

points out that the said complaint, which is annexed as

Annexure No. CA-3 along with the counter affidavit, is

completely vague. It does not name any person, or

describe any person, who physically obstructed the

complainants from submitting their bids. No complaint to

Police was made by any of the said bidders

contemporaneously by calling Dial 100 Number. No officer

of the respondents was contacted for that purpose on the

same day, on real time basis. He submits that the office

of the respondents, where the bid was to be submitted, is

situated in Dehradun, and if the complaint of the said 09

bidders is to be believed, it would follow that in broad

daylight, the said 09 bidders were prevented from

submitting their bids by some unknown persons. Even the

number of such persons is not named. It is not explained,

as to how 09 bidders, including the petitioner, were able to

submit the physical copies of their bids. It is also argued

that if the complaint of these complainants were to be

ignored, there were still 102 bidders, who had submitted

their e-bids, and had not submitted their physical bids by

03:00 P.M. on 12.06.2023, who did not raise a grievance

like the 09 bidders, who made the complaint.

6. Counsel for the petitioner further submits that

the respondents proceeded to cancel the tender in

question, without undertaking any inquiry whatsoever, and

without identifying any person, who may have allegedly

obstructed the 09 complainants from submitting their

physical bids. He further submits that if this modus

operandi of the complainants were allowed to succeed,

and if this becomes the norm, it would become practically

impossible for any tender to proceed, as any bidder, or

even a non-bidder, may file a complaint of being

prevented from submitting the bid, by making a vague and

unsubstantiated complaint. Mr. Kothari submits that the

cancellation of the tender, after opening of the bids is

mindless, unreasonable, and arbitrary. The fact that the

respondents proceeded to open the bids, shows that

sufficient number of bids had been received, and there

was healthy competition.

7. On the other hand, the submission of Mr.

Amarendra Pratap Singh - learned Additional Advocate

General for the State, is that the cancellation of the tender

has been undertaken for good reasons, on the basis of the

complaint received by the respondents. He submits that it

is only 09 out of 120 bidders - who had submitted their e-

bids, who were able to submit their physical bids, and this

probabilizes the complaint made, and grievance raised by

the said 09 bidders.

8. We have considered these submissions of the

parties, and examined the records. We find merit in the

submission of Mr. Kothari that, merely because some of

the bidders (09 of them), made a complaint that they

were not able to submit their physical bids, on being

obstructed physically by some unknown persons, the

tendering process could not have been cancelled,

particularly, when there was absolutely no substantiation

of the said complaint, and no inquiry whatsoever was

conducted by the respondents, before taking the decision

to cancel the tendering process. The complaint is vague,

inasmuch as, it neither names any person, or describe

anyone, who may have caused such alleged obstruction.

The number of such persons; the place where the

obstruction took place, and; the manner of such

obstruction, are not disclosed. The complaint appears to

be as vague, as could be. The police was not called, and

no officer of the respondents was contacted, who may

have been manning the office, where the bids were

required to be submitted. It is not explained, as to how

09 bidders were actually allowed to submit their bids in

respect of the tender in question, and how in respect of

another tender, out of 107 bidders, who had submitted

their e-bids, 14 physical bids were permitted to be

submitted. The complainants do not even name any

person, who may have been behind the alleged

obstruction. It is not that such a complaint was supported

by any statement by any officer of the respondents, who

was posted in the office, where the bids were being

received. It is not explained, as to why only 09

complainants submitted the complaint, when a total of 120

e-bids were received. Even if the 09 bidders, who had

submitted their physical bids, and the 09 bidders, who had

submitted their complaints, were to be excluded, that

would still leave 102 bidders, who had submitted their e-

bids, but not submitted their physical bids, and it is not

explained as to why such a large number of bidders, or a

majority of them, had not made a similar complaint.

9. The submission of Mr. Amarendra Pratap Singh,

that only 09 bidders had submitted their physical bids out

of 120, and this fact probabilizes the complaint, has no

merit, since a vast majority of the bidders, who had

submitted their e-bids, did not similarly complain to the

respondents. It could well be, that the said bidders after

submitting their online bids, may have subsequently

decided not to proceed with their participation.

10. We also find merit in the submission of Mr.

Kothari that if this modus operandi - adopted by the 09

complainant-bidders, were to be allowed to succeed,

without there being any credible material to substantiate

such a complaint, it would become very easy for any

person to scuttle the tendering process, which is

undertaken with a lot of prior preparation and expense.

11. The works in question are time-sensitive in

nature. They have to be executed on time, and public

interest demands that such works are not delayed. The

whole tendering process has been cancelled, which would

mean that the respondents would have to reinitiate the

same. No one can guarantee that a similar complaint

would not be received in respect of the same, or other

tenders in future. The approach adopted by the

respondent-authorities would be completely destructive of

the tendering process, and ensure that it never succeeds,

if this yardstick were to be adopted by them. We could

have appreciated if the complaints were substantiated, or

there was any other cogent material to probabilize the

truth of the same. However, there is none at all in the

present case. The impugned decision taken by the

respondents, in the facts and circumstances of the case, is

completely baseless, mindless and arbitrary and,

therefore, cannot be sustained.

12. We, accordingly, quash the impugned Office

Memorandum dated 11.07.2023 issued by the

respondents. The Writ Petition is allowed in the aforesaid

terms, with costs quantified at Rs. 20,000/- to be paid by

the respondents.

13. Consequently, pending application(s), if any,

also stand disposed of, accordingly.

________________ VIPIN SANGHI, C.J.

___________________ ALOK KUMAR VERMA, J.

Dt: 13th SEPTEMBER, 2023 Rahul