2016 Supreme(Raj) 406

IN THE HIGH COURT OF RAJASTHAN
P.K. Lohra, J.
M/s. GVPR-DARA JV 8-2-273/82/A, Plot No. 739-A, Road No. 37, Jubilee Hills, Hyderabad through Power of Attorney Holder - Petitioner
Versus
State of Rajasthan & Ors. - Respondents
Civil Writ Petition Nos. 9188, 9186 of 2015
Decided On : 02-02-2016

Headnote:

Civil Procedure Code , 1908 - Order 6 - Rule 2 - Order 6 - Rule 1 - Constitution of India - Articles 21 , 311 , 19 , 14 , 226 , 32 , 298 and 299 - Rajasthan Transparency Public Procurement Act, 2012 - Sections 39 , 2,ii , 7, 14, 18 , 25 , 49 , 25 , 40 and 22 - Rajasthan Transparency in Public Procurement Rules, 2013 - Rules 83 , 79,F , 41 , 39 , 59 , 42 , 38 and 62 - Public Procurement Rules, 2015 - Seeking certain clarifications - Eligibility criteria - Eligibility of Joint Venture to participate in tender process, detailed submissions are made in writ petition pertaining to fulfilling experience criteria with a positive assertion that as both are enlisted as Class AA Contractor, therefore, in terms of Note-10 of NIT, they are required to deposit 0.5% of estimated costs of NIT as earnest money - Requisite certificates about experience which were enclosed with tender document are also placed on record by petitioner - After issuance of advertisement a corrigendum was issued by respondent-Department extending last date for on-line submission of tender - After receipt of tender form of petitioner, third respondent addressed a communication to it seeking certain clarifications - While responding to that letter, petitioner submitted its clarification Annexure-9 - Third respondent vide Annexure-8 solicited clarifications from petitioner on six points upon examination of its technical bid - Most of clarifications sought for were pertaining to first party of Joint Venture - While submitting its clarification, petitioner enclosed bank certificates issued by Andhra Bank and Induslnd Bank - In order to show financial stability, affidavit of authorised signatory of first party is also enclosed besides communication received from Executive Engineer, KNNL, SLIS, Division along with work experience certificate and work experience certificate issued to second party to JV by Executive Engineer, PHED Dn - Petitioner has submitted with emphasis that vide Annexure-9, it has furnished desired clarification and documents to prove its eligibility to participate in tender process and that being so, it harboured a legitimate expectation that its technical bid would be evaluated for declaring responsive to participate for price offer i.e. opening of envelope - However, petitioner was conveyed letter issued by third respondent whereby technical bids of only two bidders were considered responsive for opening of ir envelope B – price offer – Held , Argument of petitioner in this behalf appears to be quite attractive but not of substance - Moreover, in entire pleadings, no motive has been imputed against any officials of respondents - Element of lack of bona fide by respondents is conspicuously missing in considered opinion of this Court - It may be true that in order impugned, detailed reasons are not assigned for declaring technical bid of petitioner non-responsive but then, said order cannot be read and construed in isolation to communication addressed to petitioner - Moreover, if impugned order is tested on touchstone, Court at loss to say that same cannot be categorised as infirm or against mandatory provisions of Act - Object of observance of principles of natural justice is to test fairness of procedure adopted by decision-maker - If fairness is shown by decision-maker to man proceeded against, form, features and fundamentals of such essential processual propriety being conditioned by facts and circumstances of each situation, no breach of natural justice can be complained of - There cannot be two opinions that principles of natural justice are not inflexible and may differ in different circumstances - present one is a contractual matter wherein even upon delving deep into matter, Court has not been able to find out any unfairness in decision making, therefore, by applying limited scope of judicial review, it is not desirable to overstretch principles of natural justice - There is yet another aspect of matter that when only one conclusion is possible, observance of principles of natural justice can be dispensed with in a given case - May it be that impugned order is not a reasoned order but on basis of materials available on record, it is not possible to draw an inference that procuring entity has not examined tender of petitioner for declaring its technical bid non-responsive - That apart, in want of any specific allegation against any of officers of respondents, proceedings undertaken by procuring entity and recording reasons for issuance of impugned order cannot be doubted - This aspect also deserves examination on anvil of lack of eligibility of petitioner to fulfil eligibility criteria in terms of Clause 6,B,1,c of NIT. Therefore, Court unable to concur with petitioner that impugned order is vitiated in want of reasons - Petitioner has submitted an application for taking additional documents on record after conclusion of final arguments and reserving of judgment/order - Learned Additional Advocate General has conceded for taking those documents on record without going into technicalities that after conclusion of arguments when matter is posted for pronouncement of order, there is no hiatus so as to entertain any application or document - Therefore, sans technicalities, Court has made endeavour to examine documents - Endeavour of petitioner to place on record these documents is to persuade this Court that lead partner of petitioner-JV is fulfilling eligibility criteria - Documents are pertaining to NIT floated by Additional Chief Engineer PHED - Eligibility criteria prescribed under NIT issued by Additional Chief Engineer PHED, is different and even otherwise any decision taken by said authority vis-a-vis lead partner of petitioner-JV cannot be cited as a precedent - What consideration has prevailed upon competent authority in that project cannot be made subject-matter of judicial scrutiny in instant petitions and these petitions are required to be examined on basis of material available on record - Therefore, in totality, documents tendered by petitioner by application are of no avail and consequence - Writ petition dismissed