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2017 Supreme(UK) 354
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
MANOJ K. TIWARI, J.
Pratap Trading Company - Petitioner
Vs
The State of Uttarakhand & others - Respondents
Writ Petition (M/S) No. 2191, 2060, 2243, 2190, 1990 of 2017
Decided on : 17-11-2017
For the Appellant :Mr. Arvind Vashisth, Senior Advocate with Mr. Subhash Upadhyaya, Mr. S.R.S. Gill, Mr. S.K. Mandal and Mr. Shiv Pande, Advocates
For the Respondent:Mr. S.N. Babulkar, Advocate General with Mr. Paresh Tripathi, Chief Standing Counsel, Mr. Yogesh Pacholia, Advocate, Mr. Rakesh Thapliyal, Advocate
Headnote:
(A) Contract – In contractual matters, scope of judicial review is very limited. (Paras 15 to 20, 51 to 53)
(B) Constitution of India, 1950, Art. 226 – Principles of – Equity and Natural Justice – A contract is a commercial transaction and evaluating tenders and awarding contracts are essentially commercial functions – In such cases principles of equity and natural justice stay at a distance – If the decision relating to award of contracts is bonafide and is in public interest, Courts will not exercise the power of judicial review and interfere – An interference is called for only when terms and conditions of the tender are arbitrary, discriminatory, mala fide or actuated by bias – (2012) 8 SCC 216 relied on.
(Paras 27, 28, 30 to 34, 51 to 53)
(C) Bid – Where bids are invited in two-bid system, the envelope containing Financial Bid can be opened only when a Technical Bid is declared responsive – Since validity of the technical Bid of the petitioner has to be assessed on the basis of documents enclosed with the Technical Bid – And any document enclosed with the Financial Bid cannot be read in support of Technical Bid – Therefore, rejection of petitioner’s bid by respondent No. 2 does not suffer from any infirmity or illegality. (Paras 38 to 40, 45 to 48)
(D) Constitution of India, 1950, Art. 19(1)(g) – Fundamental Right guaranteed to every citizen under – Held the right guaranteed u/Art. 19(1)(g), Constitution is not an absolute right – Qualifications, if any, prescribed in a tender notice do not violate the right available to the petitioner u/Art. 19(1)(g), Constitution of India. (Paras 51 to 59)
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1. In this batch of writ petitions, challenge has been made to the tender process for award of contract in respect of Fishing Rights over Baigul Reservoir and Dhaura Reservoir in District Udham Singh Nagar. All the petitioners in these writ petitions are aggrieved by rejection of their Technical Bids for non-fulfillment of one condition or the other of the notice inviting tender.
2. Uttarakhand State Fisheries Development Board (from hereinafter referred to as “Board”), which is a Government Agency, issued a notice inviting tender on 04.08.2017 for grant of Fishing Rights over two reservoirs in District Udham Singh Nagar, namely, (i) Baigul and (ii) Dhaura. According to the said notice, contract was to be granted for a period of five years and the minimum reserve price was also indicated as (i) Rs.63.35 Lakh for Baigul Reservoir and (ii) Rs.23.49 Lakh for Dhaura Reservoir. According to the said notice, tenders could be submitted till 04:00 pm on 26.08.2017 and the tenders were to be opened at 04:30 pm on the same day i.e. 26.08.2017.
3. In the tender notice, General conditions of contract are common for both the reservoirs, however, main conditions of contract have been enumerated separately. According to the tender notice, tenders were to be submitted in two bid system, i.e. the bidders were required to submit Technical Bid and Financial Bid separately. It was further provided that Financial Bid will be opened only when Technical Bid of a bidder is found to be in order. In other words, only those bidders, who fulfill all the conditions of eligibility and furnish requisite documents mentioned in the notice inviting tenders, would be permitted to go to the second round of tender process, namely, opening of Financial Bid.
WPMS No. 2191 of 2017
4. Petitioner (M/s Pratap Trading Company) responded to the notice inviting tender, issued by the Board, and submitted a bid for Baigul Reservoir. His Technical Bid was rejected for non-fulfillment of the condition mentioned in Clause 3(3) of the main conditions of contract, which requires every bidder to submit audited balance-sheet and profit & loss account with certificate of a Chartered Accountant regarding minimum annual turnover of Rs.5 crores during last three financial years.
5. According to Mr. Subhash Upadhyaya, learned counsel for the petitioner, Technical Bid submitted by the petitioner was complete in every respect and petitioner had also enclosed balance-sheet for three years with certificate of Chartered Accountant and further that the tender committee while opening Technical Bids on 26.08.2017 did not find any deficiency in the Technical Bid of the petitioner. However, when tender committee met again on 28.08.2017 for evaluating the Technical Bid, then the deficiency in Technical Bid of the petitioner was noticed. He further submits that specific allegation has been made in para 19 of the writ petition regarding foul play in the matter.
6. A careful perusal of para 19 of the writ petition indicates that although Technical Bids were opened on 26.08.2017, however, evaluation of Technical Bids was done on 28.08.2017 and 29.08.2017. Shortcoming, if any, in a Technical Bid cannot be noticed immediately upon opening of Technical Bid and such shortcoming can be noticed only after close scrutiny of Technical Bids. Therefore, the allegation of foul play made in para 19 of the writ petition appears to be baseless. Moreover, petitioner has not named any person, who according to him, is responsible for such foul play.
7. Even otherwise also, there is no reason to believe that a multi member body like the tender committee will act against a bidder in the manner alleged in the writ petition. Moreover, the allegation made in para 19 of the writ petition gets belied by the statement made in para 27 of the writ petition, where it is stated that petitioner after coming to know about the deficiency pointed out by the tender committee in his Technical Bid “tried to persuade them to the effe
