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2020 Supreme(Chh) 420
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
P.R. Ramachandra Menon, Parth Prateem Sahu, JJ.
Kanhaiya Lal Agrawal - Appellant
Versus
State Of Chhattisgarh - Respondent
Writ Petition (Civil) No. 1395 of 2020
Decided On : 22-07-2020
Rajkamal Singh, Advocate, Vikram Sharma, Advocate
The main legal point established in the judgment is the authority of the employer to interpret the clauses of the tender document and the requirement for the petitioner to disclose the work in hand as per the tender document.
Headnote:
Retendering - Construction and Maintenance of Rural Road - NIT-513, NIT-518 - Clause 1.3.3, Partnership Act, 1932 - Silppi Constructions Contractors v. Union of India,2019 SCCOnline 1133 - Kamlesh Vadilal Mehta v. Comptroller & Auditor- General, (2003) 2 SCC 349 - Consortium of Titagarh Firema Alder S.P.A.-Titagarh Wagons Ltd., through Authorised Signatory v. Nagpur Metro Rail Corporation Limited (NMRCL) through its General Manager (Procurement) and Another, (2017) 7 SCC 486 - Tata Cellular v. Union of India, (1994) 6 SCC 651 - Michigan Rubber (India) Limited v. State of Karnataka and others, (2012) 8 SCC 216
Fact of the Case:
The petitioner participated in tender proceedings for construction and maintenance of rural roads. After becoming L1 in both tender proceedings, the petitioner's bids were not accepted due to non-disclosure of work in hand by the petitioner. The petitioner approached the court seeking various reliefs.
Finding of the Court:
The court found that the petitioner failed to disclose the work in hand as required under the tender document. The court rejected the petitioner's claim that the joint venture firm had a separate legal entity and held that the petitioner, as a lead partner, was liable for the work awarded to the joint venture firm. The court also emphasized the authority of the employer to interpret the clauses of the tender document and held that the decision making process of the respondent was not arbitrary or unreasonable.
Issues: Non-disclosure of work in hand, Interpretation of tender document clauses, Authority of the employer in tender proceedings
Ratio Decidendi: The court held that the petitioner's failure to disclose the work in hand as required under the tender document justified the decision of the respondent to retender the work. The court emphasized the authority of the employer to interpret the clauses of the tender document and found no arbitrariness or unreasonableness in the decision making process of the respondent.
Final Decision: The petition was dismissed as the court found no tenable ground for interfering with the decision of the respondent to retender the subject work.
JUDGMENT
Parth Prateem Sahu, J. - This petition has been filed challenging the action on the part of the 3rd respondent whereby the 3rd respondent has decided to retender the work as mentioned in NIT-513 for system tender No.61986 and NIT-518 for system tender No.63368 respectively vide Annexure P/1.
2. The facts relevant for disposal of this petition, are that, Respondent No.3 had issued tender notification bearing Nos. NIT513 for system tender No.61986 and NIT-518 for system tender No.63368 for construction and maintenance of rural road in Mungeli vide Package No.CG02-131 including 4 roads admeasuring 29.41 kms and construction and maintenance of rural road in Bilaspur/Takhatpur vide Package No.CG02-132 including 7 roads admeasuring 50.16 kms. respectively. The petitioner participated in the tender proceedings and submitted his bid for both the tender notifications. He became successful upon opening of his techno commercial bid and upon opening of the financial bid, he became L1 in both the tender proceedings upon amongst tenderers who participated and qualified in techno commercial bid. Subsequently, the petitioner was served with a letter on 08.06.2020 issued by the 3rd respondent mentioning that a complaint was received by his office making allegation against the petitioner that he has not shown the entire work at hand i.e. PWD/ADB Pali-Silli Road Package No.23, valuing about Rs.55.09 Crore, of which, work order was issued in favour of the petitioner on 08.05.2020. On account of aforementioned work, which was not disclosed, the petitioner is not having required bid capacity. The letter issued by the 3rd respondent was replied by the petitioner stating therein that the work which has been shown to as not disclosed in a complaint, was in fact awarded not to the petitioner, but to a joint venture firm, namely "M/s. Kanhaiya Lal Agrawal-Vinod Kumar Jain JV", which is a separate legal entity, but as per terms and conditions of the tender document, there is no requirement of disclosing the work of other joint venture in which the petitioner is one of the member/partner.
3. The respondents have considered the reply submitted by the petitioner and after considering the contents of the reply as also considering the terms and conditions of NITs, held that the petitioner has not disclosed the work order issued by the PWD. It is also considered that in the said joint venture, the petitioner is having 95% share and the other person of joint venture i.e. Vinod Kumar Jain is having only 5% share. This information was suppressed by not mentioning in the tender document submitted by the petitioner and after taking note of the clause 28 and 28.1, decided to re-tender of both the works i.e. NITs No.513 and 518 respectively.
4. Issuance of letter dated 19.06.2020 (Annexure P/1) in not accepting the bid of the petitioner and a decision of re-tendering of the work made the petitioner to approach this Court with following reliefs:
"10.1 This Hon''ble Court may please be kind enough in calling the entire records of the subject Tender & a detailed report from the respondents in respect of the impugned decision; Annexure P-1 and the re-tender
(Annexure P-8).
10.2 This Hon''ble Court may please be kind enough in quashing and setting aside the impugned decision taken by the respondent No.5 & communicated by respondent No.3 vide Letter No.6817/14400/R.C.-04/Nxxzklfov/2020 Raipur dated 19.06.2020 (Annexure P-1).
10.3 This Hon''ble Court may please be kind enough in quashing and setting aside the re-tenders vide NIT No.537 (Tender No.65477 & 65481) (Annexure P-8).
10.4 This Hon''ble Court may please be kind enough in directing the respondents to award the subject works to the petitioner.
10.5 This Hon''ble Court may please be kind enough in granting the cost, damages, compensation and any other relief to petitioner."
5. Shri Rajkamal Singh, the learned counsel for the petitioner submits that decision taken by the 3rd respondent vide Annexure P/1 in not
