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2019 Supreme(Guj) 585
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
K.M. THAKER, V.P. PATEL, JJ.
Cube Construction Engineering Ltd - Appellant
Versus
National High Speed Rail Corporation Ltd. - Respondent
R/Special Civil Application No. 1740 of 2019
Decided On : 25-02-2019
For the Appellant : Mr. Mihir Joshi, Sr. Counsel, With Mr. Dipen C. Shah
For the Respondent: Mr. Mihir Thakore, Sr. Counse, With Mr. V.M. Patel With Mr. Harshrajsinh S. Vaghela, Mr. S.I. Nanavati, Sr. Counsel, With Mr. S.A. Mehta, With Mr. Krishal Patel For Nanavati And Nanavati.
Headnote:
Constitution of India,1949.Art.226.-Securitisation and Reconstruction of financial assets and enforcement of security interest Act.2002 – Tender Process – Petitioner aggrieved by Examination, Comparision, Evaluation of price bids-process undertaken and carried out in contravention laid down in tender – Petitioner submitted its bid to NIT and respondent, submitted same to NIT – Price bid of respondent lower than petitioner’s price - Provision the respondent made it clear that the tender process will be conducted in new Delhi - Petition not maintainable before this court and petition is disposed-notice discharged – Petition is dismissed.
Facts of Case:
Tender Process – Petitioner aggrieved by Examination, Comparision, Evaluation of price bids-process undertaken and carried out in contravention laid down in tender
Finding of Court:
Petitioner submitted its bid to NIT and respondent, submitted same to NIT – Price bid of respondent lower than petitioner’s price - Provision the respondent made it clear that the tender process will be conducted in new Delhi - Petition not maintainable before this court and petition is disposed-notice discharge
Result: Petition is dismissed
ORDER :
K.M. Thaker, J.
1. Heard Mr. Mihir Joshi, learned senior counsel for the petitioner, Mr. Sudhir I. Nanavati, learned senior counsel for respondent No.1 and Mr. Mihir J. Thakore, learned senior counsel for respondent No.2.
2. In present petition the petitioner has prayed for below quoted reliefs:
“17A. That the Honourable court be please to issue appropriate writ under Article 226 of Constitution of India against Respondent No.1, quashing and setting aside of award of tender bearing No.NHSRCL/CO/SBIHUB/2018/7 to Respondent 2 as Illegal, Arbitrary, Irrational and Unreasonable and violative of Article 14 and Article 19(1)(G) of the Constitution of India in addition to, being in contravention of procedure laid down in tender for examination, comparison and evaluation of price bids.
B. That the Honourable court be please to issue appropriate orders or directions under Article 226 of the Constitution of India against Respondent No.1 and call for the entire record of tender Process and the minutes of the meeting of tender committee and the bid documents submitted by Respondent 2 and further be please to declare the price bid of Respondent No.2 as being in noncompliance of mandatory tender conditions and therefore disqualified and liable to be rejected.
C. That the Honourable court be please to direct Constitution of an independent tender evaluation committee comprising of experts and be further be please to issue appropriate directions for examination, evaluation and comparison of technical and Financial bids for award of tender and further be please to direct the said tender committee to record reasons for its recommendation to Respondent No.1 and that pursuant to the said recommendation being received Respondent No.1 shall take decision qua award of tender de novo.
D. That the Honourable court be please to direct Respondent no.1 and Respondent No.2 to maintain status quo in regard to execution of works under the subject tender and further be pleased to stay letter of intent awarded to Respondent no.2 till the pendency of present petition.
E. That the Honourable Court be please to set aside the entire tender as the same incorporates ambiguous evaluation criteria which are neither in consonance with CVC Guidelines nor with the principles of equality and certainty as enshrined in Article 14 of Constitution of India.”
3. As is evident from the relief prayed for in present petition (para 17A), the petitioner is aggrieved by 'examination, comparison and evaluation of price bids'. According to the petitioner said process was undertaken and carried out in contravention of the process laid down in the tender.
4. So far as the factual backdrop is concerned, the petitioner has, so as to support and justify reliefs prayed for, averred and stated that:
“2. The petitioner states that respondent No.1 National high speed rail Corporation ltd (NHRCL) is a Government Company and a state within the meaning of article 12 of the Constitution of India. That National High-Speed Rail Corporation Ltd (NHRCL) – Respondent No.1 invited bids for construction of high-speed rail terminal building vide Tender No.NHSRCL/CO/SBIHUB/2018/7 on 7th August 2018. The petitioner subscribed to the bid package No.NHSRCL/CO/SBIHUB/2018/7 and thereafter submitted technical and financial bid in strict compliance to the tender conditions. The bidding documents consisted of part 1, 2 & 3 and the bidding procedure along with bidding forms were contained in part 1 of the bidding document. The petitioner herein produces part 1 of the bidding document containing instructions to the bidders and evaluation and qualification criteria in consideration of the bid. The copy of part 1 of document is annexed and marked with as Annexure-A.
3. The petitioner states that the technical bid was required to be submitted along with the financial bid in a sealed cover (as it was a single-stage Two
