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2014 Supreme(Pat) 1031
IN THE HIGH COURT OF JUDICATURE AT PATNA
I.A. ANSARI AND ANJANA MISHRA, JJ.
B.B.Q. CONSTRUCTION - Appellant
Versus
THE STATE OF BIHAR - Respondents
LPA No.558 of 2014 In Civil Writ Jurisdiction Case No. 3208 of 2014
Decided on : 11-07-2014
Advocate Appeared:
For the Appellant :Mr. Y. V. Giri, Senior Advocate Mr. Pranav Kumar, Advocate
For Intervenor :Mr. Ashish Giri, Advocate
For Res. Nos. 1 to 5 :Mr. D. K. Sinha, Mr. Rajendra Prasad, Advocate (Mines), Mr. Alok Kumar Rahi.
For Intervenor :Mr. Ashok Kumar Singh, Mr. Priyank Deepak, Mr. Prem Ranjan Raj, Advocate
Headnote:
SAND MINING RIGHTS - TENDER PROCESS - TECHNICAL BID - FINANCIAL BID - ENVELOPE A - ENVELOPE B - ENVELOPE C - BANK DRAFT - ESSENTIAL CONDITION - RELAXATION OF CONDITION - JUDICIAL REVIEW - PUBLIC INTEREST - ARBITRARINESS - IRRATIONALITY - UNREASONABLENESS - BIAS - MALA FIDES - CONTRACTUAL DISPUTES - PRIVATE INTEREST - ADMINISTRATIVE DECISION - SCOPE OF JUDICIAL REVIEW - CONDITIONS OF NIT - STRICT COMPLIANCE - MANDATORY CONDITION - ESSENTIAL CONDITION - DIRECTORY CONDITION - WAIVER OF CONDITION - DEVIATION FROM CONDITION - NON-COMPLIANCE OF CONDITION - DISQUALIFICATION OF TENDERER - SELECTION OF SUCCESSFUL BIDDER - FINANCIAL BID - RESERVED PRICE - TECHNICAL BID QUALIFICATION - BANK CERTIFICATE - EARNEST MONEY - INCOMPLETE TENDER DOCUMENTS - F futile EXERCISE - REASONABLE DECISION - LEGAL DECISION - FAIR DECISION - JUST DECISION - PROPER DECISION - INTERFERENCE BY COURT - EXTRA-ORDINARY JURISDICTION - ARTICLE 226 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
The appellant, in order to obtain settlement of sand ghat for Banka Group No. III, purchased tender documents. The appellant claims to have submitted, on 18.12.2013, its tender documents. However, the appellant had not, admittedly, submitted the requisite bank draft and certificate from the bank as were required under the NIT. The appellant’s explanation is that there was an all India strike by banks and the appellant could not, on account of the strike, obtained the bank draft. The appellant, then, made an application before the Divisional Commissioner, Bhagalpur, by his letter, dated 18.12.2013, requesting the latter to grant time to deposit the bank draft until opening of the financial bid on the ground that the appellant could not prepare the bank draft due to all India strike of the banks on 18.12.2013. The Divisional Commissioner, Bhagalpur, wrote to the District Magistrate, Banka, to take necessary action in the matter. The appellant submitted a copy of the said representation, dated 18.12.2013, in the Office of the District Magistrate, Banka, for doing the needful, but no action was taken thereon. However, on 19.12.2013, the respondents published a notification extending the last date of submission of the tender documents to 19.12.2013 till 5:00 PM and accordingly extended the last date of opening of the technical bid from 19.12.2013 at 11:00 AM to 20.12.2013 at 11:00 AM. The respondents also extended, in the light of the changes, which had taken place as indicated hereinbefore, the last date of opening of the financial bid to 21.12.2013 at 11:00 AM and the auction came to be re-scheduled on the same day, i.e. on 21.12.2013, at 12 noon.
Finding of the Court:
The appellant was treated as disqualified in the technical bid and was, therefore, dealt with as a tenderer, who was not eligible to participate in the financial bid. The appellant alleges that the respondents have, unreasonably and arbitrarily, rejected the technical bid of the appellant despite their knowledge that the appellant could not have obtained the bank draft on 18.12.2013 and had, therefore, obtained the same on 19.12.2013 and offered to deposit the same, on 19.12.2013, as a part of the appellant’s documents relating to technical bid in the Envelope marked A. The learned single Judge, therefore, concluded that no right had accrued in favour of the petitioner (i.e., appellant herein) to have its tender documents accepted on the basis of the facts as had surfaced from the record and the writ petition was devoid of merit. With the conclusions so reached, the writ petition was dismissed by order, dated 21.2.2014, aforementioned.
Issues: None
Ratio Decidendi: The decision, in present case, had been taken in terms of the requirements of a condition, embodied in the NIT, which was essential in nature, the question of relaxing the requirement and allowing the writ petitioner-appellant to participate in the tender process would have been wholly illegal.
Final Decision: This appeal accordingly stands dismissed.
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
For settlement of mining rights of sand from river beds, in the State of Bihar, its Department of Mines and Geology, issued, on 05.12.2013, Notice Inviting Tender, which is hereinafter referred to as “NIT”.
2. The tenders, so invited, were to be submitted in two parts. While Part-A consisted of technical bid, Part-B involved financial bid. While the papers/documents/materials, which formed part of the technical bid, were required to be put inside an envelope to be marked A’, the papers/documents/materials, which formed part of the financial bid, were required to be put inside an envelope to be marked B’. Both these envelopes were required to be put inside a third envelope, which was to be marked C’.
3. Thus, both the bids, namely, technical as well as financial, were required to be kept separately in two different envelopes marked A and B respectively and while envelope, marked A, was required to contain all the papers/documents/materials relating to the technical bid, envelope, bearing the mark B, was to contain all the papers/documents/materials relating to financial bid and, then, both the envelopes, namely, A and B, were to be put in a third envelope to be marked C’.
4. In terms of the NIT, envelope A’ was required to contain, apart from other documents relating to technical bid, a bank draft of 10 per cent of the value of the bid amount as earnest money along with a certificate to be issued by the bank concerned stating therein that the bank draft had been prepared from the amount available in the account held by the tenderer concerned.
5. Coupled with the above, while Clause 5(4) of the NIT, dated 05.12.2013, required that on all the envelopes, name and address of the bidder shall be mentioned, Clause 5(5) of the NIT stated, in clear terms, that no separate documents would be considered except the envelopes aforementioned, namely, A’, B’ and C’.
6. Clause 7 of the NIT, dated 05.12.2013, aforementioned embodied the conditions of selection of successful bidder and Clause 7 (1) thereof stated, “The financial bid, only of the persons/Society/Company, who qualify in the technical qualifications bid and whose bid is not less than reserved price will be opened for taking part in the auction and will be given opportunity to participate in the auction”, making it clear, thus, that financial bid of a tenderer would be opened only and only if the tenderer is one, who qualifies in the technical bid and whose bid is not less than the reserved price.
7. In other words, for taking part in the auction, a tenderer was required to qualify in both the bids, namely, technical bid as well as financial bid and one, who was disqualified in technical bid and whose bid was found less than reserved price, could not have been permitted to participate in the financial bid and, consequently, in auction.
8. In short, the financial bid of a tenderer, who did not qualify in the technical bid, was not to be opened at all.
9. Bearing in mind the condition of the NIT, dated 05.12.2013, aforementioned that no tenderer, who failed to qualify in the technical bid, would be allowed to participate in the financial bid, let us proceed with further details of the tender process.
10. The date of submission of tender documents was 18.12.2013 till 5:00 PM. While the date of opening of the technical bid was 19.12.2013 at 11:00 AM, the date of opening of the financial bid was 20.12.2013 at 11:00 AM and it was on the day of the opening of the financial bid, i.e. 20.12.2013, at 12 O’clock, that public auction of the sand ghats were scheduled to take place.
11. The appellant, in order to obtain settlement of sand ghat for Banka Group No. III, purchased tender documents. The appellant claims to have submitted, on 18.12.2013, its tender documents. However, the appellant had not, admittedly, submitted the requisite bank draft and certificate from the bank as were required under the NIT. The appellant’s explanation is tha
