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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH AT KOHIMA BENCH
SONGKHUPCHUNG SERTO, S. HUKATO SWU, JJ.
M/s TTC Infra India – Petitioner
Versus
M/s K.C. Angami and Sons Consortium – Respondent
W.A. No. 2 of 2021, I.A. (Civil) No. 27 of 2021
Decided On : 23-06-2021
Constitution of India, 1950 - Article 226 - Tender - Bid Selection in Dispute - State of Nagaland floated an NIT wherein bids were invited for strengthening of NH 61 (New NH 2) from zero Km to 6 Km, which was to have been carried out between 2019-2020 - In NIT, processing fee was given as Rs. 10,000/- Appellant along with 3(three) others submitted their bids - Committee found bids of 3(three) out of 4(four) including that of appellant and respondent No. 1 (the writ petitioner) responsive in technical bid - Committee examined financial bids of 3(three) bidders and, bid of appellant herein was found to be lowest and that of respondent No. 1 as second lowest - They selected appellant for awarding contract work - Being aggrieved by decision of Committee respondent No. 1 filed W. Pchallenging decision of Committee mainly on ground that, decision making process of Committee was vitiated because appellant who had not even submitted his processing fee was selected - Writ petition was disposed of vide judgment and order wherein minutes of bid evaluation committee as far as it concerns with recommendation of appellant for allotment of work mentioned above is concerned was quashed and set aside and, consequent thereto technical bid and financial bid of appellant were also quashed and set aside and a direction was issued to consider bid of respondent No. 1 - Being aggrieved by said judgment and order, appellant is before this Court on appeal.
Finding of the Court:
In a case like present one where dispute is between bidders, what Court must see is whether substantial amount of public interest is involved or not - Unless Court is satisfied that there is substantial amount of public interest involved and the transaction was entered into mala-fide, it would not intervene in such dispute under Article 226 of constitution - Court is of view that payment of process fee at any time but before issuance of LOA will not in any way affect public interest - Public interest in a contract for construction of road would be that same is constructed as per specifications and completed in time, and for that a suitable or a competent contractor is chosen, but not payment of the process fee - Court is also of view that by allowing appellant to pay process fee at any time before issuance of LOA non of rights of writ petitioner would have been affected or violated - Court can only conclude that writ petitioner has no grievance or cause of action to even file the same - In fact his bid was also considered along with bid of appellant and others on merit - No one including him was deprived of right to be considered fairly and without any favour - Court is also of the view that, by not having insisted upon payment of process fee by appellant before the bids were evaluated, authority cannot be accused of having shown any favour to him and of being bias against the other bidders - Because, selection process was based only on merit which are related to objectives to be achieved i.e. construction of road as per specification and within time frame given - It is not case of petitioner that he was unfairly treated and discriminated when authorities considered competing bids or process has affected public interest - Court have examined decision making process of the authorities who issued tender but, we have not found public interest having been affected and process adopted and decision made mala-fide or done with intension to favour appellant - Court is compelled to interfere with impugned judgment and order.
Result: Writ Appeal Allowed.
ORDER :
1. Heard Mr. A. Zhimomi, learned counsel appearing for the appellant assisted by Ms. Lhousino, learned counsel. We have also heard Mr. Kekhriengulie, learned Addl. Advocate General appearing for the State respondents and Mr. R. Iralu, learned Sr. counsel appearing for the private respondent No. 1 assisted by Mr. L. Iralu, learned counsel.
2. This is a writ appeal directed against the judgment and order dated 05.03.2021 passed in W.P. (C) No. 97/2020.
3. The State of Nagaland floated an NIT bearing No. CE/NH/NG/2019-2020 wherein bids were invited for strengthening of the NH 61 (New NH 2) from zero Km to 6 Km, which was to have been carried out between 2019-2020, under National Highway Division No. 1 Kohima, on EEC mode with fund provided by the Ministry of Road Transport and Highway, Government of India. In the NIT, processing fee was given as Rs. 10,000/-. The appellant along with 3(three) others submitted their bids. The Committee found the bids of 3(three) out of the 4(four) including that of the appellant and the respondent No. 1 (the writ petitioner) responsive in the technical bid. Thereafter, the Committee examined the financial bids of the 3(three) bidders and, the bid of the appellant herein was found to be the lowest and that of the respondent No. 1 (the writ petitioner) as the second lowest. Therefore, they selected the appellant for awarding the contract work. Being aggrieved by the decision of the Committee the respondent No. 1 (the writ petitioner) filed W.P. (C) 97/2020 challenging the decision of the Committee mainly on the ground that, the decision making process of the Committee was vitiated because the appellant who had not even submitted his processing fee was selected. The writ petition was disposed of vide judgment and order dated 05.03.2021 wherein the minutes of the bid evaluation committee as far as it concerns with the recommendation of the appellant for allotment of the work mentioned above is concerned was quashed and set aside and, consequent thereto the technical bid and the financial bid of the appellant were also quashed and set aside and a direction was issued to consider the bid of the respondent No. 1 (the writ petitioner). Being aggrieved by the said judgment and order, the appellant is before this Court on appeal.
4. Mr. A. Zhimomi, learned counsel for the appellant submitted that process fee was never a part of the RFP (request for proposal) framed by the Ministry of Road Transport and Highways but it was a condition added by the State Government. The leaned counsel further submitted that the payment of the process fee was not one of the pre conditions or a condition precedent for accepting bids of the contesting contractors as per the NIT and, even if it is assumed to be one, at best, it would be subsidiary or ancillary which can be waived or relaxed by the authorities. Therefore, non submission of the process fee of Rs. 10,000/- by a demand draft by the appellant at the time of submission of his bids would not disqualify him.
The learned counsel also submitted that the NIT did not mention anywhere that the payment of process fee is a pre condition or a condition precedent for eligibility and it also did not mention as to when the same should be deposited, therefore, it can be deposited at any time before the issuance of LOA.
In support of his submission, the learned counsel referred to the judgment of the Hon’ble Supreme Court passed in the case of Poddar Steel Corporation vs. Ganesh Engineering Works and Others, (1991) 3 SCC 273. The relevant paragraph- 6 to 8 are reproduced herein-below:
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