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IN THE HIGH COURT OF DELHI AT NEW DELHI
Satish Chandra Sharma, Subramonium Prasad, JJ.
M/s Ane-NIPL JV – Appellant
Versus
Govt. of NCT of Delhi & Anr. – Respondents
W.P.(C) 1412 of 2023 & CM APPL. 5320 of 2023
Decided On : 24-05-2023
Tender Discharge - Discharge of Tender by Delhi Jal Board - NIT No. 18/EE(T)M-10/2022-23 - [2013, 2021-22, 2022] - The court discussed the discharge of the tender by the Delhi Jal Board and the subsequent actions, including the opening of technical bids, complaints received, and the decision-making process. The court highlighted the principles of fairness, non-arbitrariness, and reasonableness in administrative actions, emphasizing the need to prevent arbitrariness, irrationality, bias, and mala fides in tender processes. The court also referred to the principles established in Jagdish Mandal v. State of Orissa and Ors. and Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited and Anr., emphasizing the limited scope of judicial review in matters of tenders and the need for the State to act validly for a discernible reason. Additionally, the court cited Michigan Rubber (India) Ltd. v. State of Karnataka, emphasizing the importance of fairness, reasonableness, and public interest in awarding contracts and the limited interference by courts unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers.
Fact of the Case:
The petitioner JV firm challenged the discharge of the tender by the Delhi Jal Board (DJB) for the work of Dredging of balance quantity of silt from River Yamuna near intake at Wazirabad water works. The petitioner, a Joint Venture between M/s A N Enterprises and M/s Northern Infradevelopers Private Limited, participated in the e-tendering process and was the only bidder in the second tender. The petitioner alleged mala fide in the discharge of the tender and claimed that the DJB wanted to ensure that the petitioner did not get the contract.
Finding of the Court:
The court found that the DJB's inaction from June 2022 to January 2023, the exclusion of the petitioner from competitive rate requests, and the lack of explanation for not awarding the second tender to the petitioner indicated mala fide on the part of the DJB. The court held that the State had not acted in a fair manner and allowed the writ petition, permitting the petitioner to complete the work awarded to it and directing the balance work to be given to another company through a fresh tender.
Issues: The issues revolved around the discharge of the tender by the DJB, the exclusion of the petitioner from competitive rate requests, and the alleged mala fide actions of the DJB in not awarding the second tender to the petitioner.
Ratio Decidendi: The court's decision was based on the principles of fairness, non-arbitrariness, and reasonableness in administrative actions, as well as the limited scope of judicial review in matters of tenders. The court emphasized the need to prevent arbitrariness, irrationality, bias, and mala fides in tender processes and highlighted the importance of fairness, reasonableness, and public interest in awarding contracts.
Final Decision: The writ petition was allowed, and pending application(s), if any, were disposed of, permitting the petitioner to complete the work awarded to it and directing the balance work to be given to another company through a fresh tender.
JUDGMENT
Satish Chandra Sharma, C.J.
1. The present Writ Petition has been filed by the petitioner JV firm challenging the Letter No. DJB/EE (T) M-10/2022/1138 (Impugned Letter) dated 30.01.2023 issued by the Delhi Jal Board (Respondent No.2) whereby the Respondent No. 2 has discharged/cancelled the tender bearing NIT No. 18/EE(T)M-10/2022-23 tender ID 2022_DJB_222668_1.
2. The Petitioner herein is a Joint Venture between M/s A N Enterprises and M/s Northern Infradevelopers Private Limited, wherein it was agreed that both the parties shall hold equal share in the consortium.
3. The facts necessary for the adjudication of the instant petition are as under:
(i) In the year of 2013, the works at Wazirabad Barrage from where the water is taken for water treatment plant for treatment and supply to Delhi was initiated in stages. Initially, the said work was being carried out by a JV Consortium of M/s Chinar Shipping & Infrastructure (India) Pvt. Ltd. and M/s ASR Dredging Services Pvt. Ltd. However, due to the slow performance of the contractual works by the abovementioned JV Consortium, the contract was terminated in 2022.
(ii) On 03.03.2022, Respondent No.2 had issued NIT No. 02 (2021- 22) bearing Tender ID 2022_DJB_217971_1 for the work of Dredging of balance quantity of 1.63 lac cubic meter of silt from River Yamuna near intake at Wazirabad water works.
(iii) Petitioner had participated in the said e-tendering process, to obtain contract for the work of Dredging of balance quantity of silt from River Yamuna near intake at Wazirabad water works and accordingly submitted the tender through electronic tendering process.
(iv) On 21.03.2022 the technical bid opened. Under the said tender, 5 bids were received as under:
(a) M/s Coastal Consolidated Structures Pvt. Ltd.
(b) M/s A N Enterprises and Northern ExpressInfra Developers Pvt. (JV)
(c) M/s Environmech Dredging India Pvt. Ltd.
(d) M/s BSP Hydro Dredging Works Pvt. Ltd.
(e) M/s Riverine Dredging (India) Ltd.
(v) Out of the 5 bidders, the bids of M/s Environmech Dredging India Pvt. Ltd., and M/s BSP Hydro Dredging Works Pvt. Ltd. were rejected. The financial bids were opened on 16.04.2022 and M/s Riverine Dredging (India) Ltd. was found to be L-1, M/s A N Enterprises and Northernexpress Infradevelopers Pvt. Ltd. was found to be L-2 and M/s Coastal Consolidated Structures Pvt. Ltd. was found to be L-3.
(vi) Complaints were received against M/s Riverine Dredging (India) Ltd. regarding the authenticity of documents submitted at the time of the bidding. It was found that some documents were manipulated by M/s Riverine Dredging (India) Ltd. and some of its equipments were also not fulfilling the technical requirement of the tender. It was decided that M/s Riverine Dredging (India) Ltd. will not be allowed to participate in the re-tendering.
(vii) On 20.05.2022, the Respondent No. 2 once again called for proposals from interested firms/consortium for appointment of private operator for Dredging of balance quantity of silt from River Yamuna near intake at Wazirabad water works project vide NIT No. 18/EE(T) M-10/2022-23 Tender ID 2022_DJB_222668_1(hereinafter Tender 2).
(viii) The Petitioner participated in the E-tendering process qua the said tender and submitted its bid. The technical bids of the said tender were opened on 06.06.2022 wherein it was found that the Petitioner herein is a single bidder.
(ix) Respondent No. 2, the Jal Board, received a letter dated 09.06.2022 from Riverine Dredging (India) Ltd., requesting for issuance of Letter of Intent in its favour and to cancel the second Tender. Respondent No.2 vide letter dated 18.08.2022 declined their request. M/s Riverine Dredging (India) Ltd., once again, vide letter dated 26.08.2022 requested Respondent to allow them to participate in the Bids under the Tender-2 by accepting the Earnest Money already deposited. The said request was again declined.
(x) The Petitioner vide letter dated 23.12.2022 requested DJB to issue Letter of Intent and awar
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