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IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SATHYANARAYANAN, P. RAJAMANICKAM, JJ.
K.M. Mustafa - Appellant
Versus
The Indian Railway Catering and Tourism Corporation (IRCTC) Ltd. and Ors. - Respondents
W.A. Nos. 2785, 2786 of 2018, C.M.P. Nos. 23034 and 23037 of 2018
Decided On : 18-12-2018
Constitution of India,1950 - Article 226 - Quashing of Order - Challenge - Indian Railway Catering and Tourism Corporation Limited - Grant license for setting up operation and management of food plaza at Chennai Central pursuant - Railway Contractor and respondent namely Indian Railway Catering and Tourism Corporation Limited has floated a notice inviting Tender for setting up operation and management of food plazas at railway stations all over India including Chennai Central Railway Station at Chennai in Tamil Nadu - Bids have to be submitted in two parts namely consisting of Technical and other conditions as laid down in bid document - Consisting of financial bid as per conditions laid down in bid document - Bidders have to submit Earnest Money Deposit of along with bids and successful bidder would be informed about award of license within days of opening of bid - It is further averred in affidavit that scope of works is to provide a space on as-is-where-is basis and Licencee have to construct building or renovate space as case may be in consonance with existing Building Bye-Laws of State and said superstructure will have standard characteristics as prescribed in Tender - Last date and time for submission of Tender was at - Opening of Tenders was at - Whether process adopted or decision made by authority is mala fide or intended to favour someone - Whether process adopted or decision made is so arbitrary and irrational that court can say decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached Whether public interest is affected - Whether opportunity has been given to petitioner before rejecting technical bid by respondent or not - Whether rejection of technical bid was correct or not cannot be gone into by this Court and citing said reasons dismissing both writ petitions - Whether petitioner is quoted higher sum of amount - Whether choice or decision is made lawfully and not to check whether choice or decision is sound - Held, When power of judicial review is invoked in matters relating to tenders or award of contracts certain special features should be borne in mind - A contract is a commercial transaction - Evaluating tenders and awarding contracts are essentially commercial functions - If answers are in negative there should be no interference under Article 226 - Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse stand on a different footing as they may require a higher degree of fairness in action - Controversy in this case has arisen at threshold - It cannot be disputed that this is an bidders have or should have assistance of technical experts - Degree of care required in such a bidding is greater than in ordinary local bids for small works - It is essential to maintain sanctity and integrity of process of tender/bid and also award of a contract - Appellant Respondents are all bound by ITB which should be complied with scrupulously - In a work of this nature and magnitude where bidders who fulfill prequalification alone are invited to bid adherence to instructions cannot be given a go-by by branding it as a pedantic approach otherwise it will encourage and provide scope for discrimination arbitrariness and favouritism which are totally opposed to rule of law and our constitutional values - Very purpose of issuing rules/instructions is to ensure their enforcement lest rule of law should be a casualty - Relaxation or waiver of a rule or condition unless so provided under ITB by State or its agencies in favour of one bidder would create justifiable doubts in minds of other bidders would impair rule of transparency and fairness and provide room for manipulation to suit whims of State agencies in picking and choosing a bidder for awarding contracts as in case of distributing bounty or charity - In Court view such approach should always be avoided - In considered opinion of this Court propositions laid down in said judgment would squarely applicable to facts of this case for reason that from scrutiny and analyses of materials placed appellant/writ petitioner has failed to fulfill essential conditions and he had taken steps to comply with same belatedly after last date for submission of tender - It is also an admitted fact that appellant had clarified split up income through his communication and it is also beyond prescribed time limit for submission of tender - It is also brought to knowledge of this Court that respondent viz Hotels Pvt Ltd in and Sweets India Private Limited in became successful bidder - Writ Appeals Stand Dismissed
JUDGMENT :
M. Sathyanarayanan, J.
1. By consent, both the writ appeals are taken up for final disposal and disposed of by this common judgment, as the impugned order passed in the writ petition is also a common one.
W.A. No. 2785 of 2018 against W.P. No. 13266 of 2018:
2.1. The appellant claims that he is a Railway Contractor and the 1st respondent namely Indian Railway Catering and Tourism Corporation Limited (IRCTC) has floated a notice inviting Tender for setting up operation and management of food plazas at 24 railway stations all over India including Chennai Central Railway Station at Chennai in Tamil Nadu. The Bids have to be submitted in two parts namely Part 'A' consisting of Technical and other conditions as laid down in the bid document. Part 'B' consisting of financial bid as per the conditions laid down in the bid document. The bidders have to submit the Earnest Money Deposit of Rs. 3,00,000/- along with the bids and the successful bidder would be informed about the award of license within 150 days of opening of the bid. It is further averred in the affidavit that the scope of the works is to provide a space on “as-is-where-is” basis and the Licencee have to construct the building or renovate the space, as the case may be, in consonance with the existing Building Bye-Laws of the State and the said superstructure will have standard characteristics as prescribed in the Tender. The last date and time for submission of the Tender was 15.02.2018 at 12.00 hrs. The opening of the Tenders was on 15.02.2018 at 12.15 hrs.
2.2. It is the case of the appellant/petitioner that he has satisfied all the eligibility criteria which was prescribed under the notice inviting Tender and the technical bids were opened on 15.02.2018 and he was qualified and he was sent a communication as to the qualification and thereafter, financial bid was opened on 30.05.2018. However, to the shock and surprise of the writ petitioner/appellant herein, on 30.05.2018 at 3.55 p.m., he was informed through E-mail that he was disqualified due to non-fulfillment of eligibility criteria as defined in Annexure B of the tender document.
2.3. According to the appellant/writ petitioner, he is fully qualified as per the eligibility criteria and he had quoted a sum of Rs. 5,27,57,786/- and the second highest bidder was the third respondent, who had quoted a sum of Rs. 3,51,00,000/- and though he was the highest bidder, in order to avoid him or prevent him from becoming the successful tenderer, the 1st respondent thought fit to send a communication through E-mail as if he did not fulfill the eligibility criteria. Therefore, the appellant/writ petitioner came forward to challenge the said communication of the 1st respondent dated 30.05.2018, by filing W.P. No. 13266 of 2018 praying for a writ of Certiorarified Mandamus to call for the records of the 1st respondent relating to E-mail dated 30.05.2018 sent to him and quash the same with a consequential direction directing the respondents 1 and 2 to grant license for setting up operation and management of food plaza at Chennai Central pursuant to the Tender Notification of the 1st respondent.
W.A. No. 2786 of 2018 against W.P. No. 13265 of 2018:
3. The appellant/writ petitioner in the affidavit filed in support of the writ petition, made the same averments as that of the facts made in W.P. No. 13266 of 2018 and according to him, he applied for setting up operation and management of Food Plazas at Chennai Central (concourse) and he has fulfilled all the necessary and eligible criteria. He would further aver that he has quoted a sum of Rs. 2,33,57,786/- and the second highest bidder was the third respondent, who has quoted for Rs. 2,16,00,000/- and the appellant/writ petitioner would further aver that the Technical bids were opened on 09.02.2018 and thereafter financial bid was opened on 30.05.2018 and however, to his shock and surprise, he was informed through the E-mail at about 3.55 p.m. on 30.05.2018 stating that the appella
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