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2017 Supreme(UK) 393
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
K.M. Joseph, V.K. Bist, JJ.
Pratap Trading Company – Appellant
Versus
The State of Uttarakhand and others – Respondents
Special Appeal No. 977 of 2017 With Special Appeal No. 980 of 2017 With Impleadment Application No. 15173 of 2017
Decided On : 22-11-2017
For the Appellant : Mr. Subhash Upadhyay, Mr. Jitendra Chaudhary, Mr. Arvind Vashistha, Mr. Ashish Sinha
For the Respondent: Mr. S.N. Babulkar, Mr. Paresh Tripathi, Mr. Yogesh Pacholia, Mr. Rakesh Thapliyal, Mr. Pankaj Chaturvedi, Mr. Narendra Bali
Headnote:
TENDER - CONDITIONS - ESSENTIAL AND NON-ESSENTIAL - JUDICIAL REVIEW - SCOPE - PUBLIC INTEREST - FINANCIAL STABILITY - TURNOVER REQUIREMENT - NO DUES CERTIFICATE - EVALUATION COMMITTEE - DISCRETION - EXTRINSIC EVIDENCE - AUDIT REPORT - FORM 3CB AND 3CD - NECESSITY.
Fact of the Case:
The appellants challenged the tender process for fishing contracts in two reservoirs in Uttarakhand. The appellant in Special Appeal No. 977 of 2017 argued that the tender committee had not responded to its bid and that the successful bidders had not obtained the necessary No Dues Certificates. The appellant in Special Appeal No. 980 of 2017 challenged two conditions in the tender notice: a requirement for an annual turnover of Rs. 5 crores for the previous three years and a requirement for registration with the Provident Fund and Employee State Insurance. The State of Uttarakhand defended the tender process, arguing that the conditions were necessary to ensure the financial stability of the successful bidders and to protect the interests of the laborers employed by them.
Finding of the Court:
The Court held that the conditions in the tender notice were not arbitrary or discriminatory and that the State had a legitimate interest in ensuring the financial stability of the successful bidders and protecting the interests of the laborers employed by them. The Court also held that the tender committee had not acted in an arbitrary or unreasonable manner in rejecting the appellant's bid. The Court dismissed both appeals.
Issues: 1. Whether the conditions in the tender notice were arbitrary or discriminatory? 2. Whether the State had a legitimate interest in ensuring the financial stability of the successful bidders and protecting the interests of the laborers employed by them? 3. Whether the tender committee had acted in an arbitrary or unreasonable manner in rejecting the appellant's bid?
Ratio Decidendi: 1. The Court held that the conditions in the tender notice were not arbitrary or discriminatory because they were necessary to ensure the financial stability of the successful bidders and to protect the interests of the laborers employed by them. The Court noted that the contract was for a period of five years and that the work involved was extensive. The Court also noted that the State had a history of problems with contractors abandoning contracts before their completion, which resulted in financial losses and delays. 2. The Court held that the State had a legitimate interest in ensuring the financial stability of the successful bidders and protecting the interests of the laborers employed by them. The Court noted that the contract was for a period of five years and that the work involved was extensive. The Court also noted that the State had a history of problems with contractors abandoning contracts before their completion, which resulted in financial losses and delays. 3. The Court held that the tender committee had not acted in an arbitrary or unreasonable manner in rejecting the appellant's bid. The Court noted that the appellant had not complied with the conditions in the tender notice and that the tender committee had given the appellant an opportunity to rectify the deficiencies in its bid.
Final Decision: The Court dismissed both appeals.
K.M. Joseph, J.
Since these appeals raise common issues, we are disposing of the same by this common judgment. Special Appeal No. 977 of 2017 is filed against Writ Petition (M/S) No. 2191 of 2017 whereas Special Appeal No. 980 of 2017 is filed against Writ Petition (M/S) No. 2060 of 2017. The petitioners in the aforesaid writ petitions are the appellants.
2. Respondent no. 2 issued a tender on 04.08.2017 for the purpose of granting fishing contracts in relation to Dhaura and Baigul Reservoirs, which are situated in District Udham Singh Nagar of the State. It is the case of the appellant (see Writ Petition (M/S) No. 2191 of 2017) that in District Udham Singh Nagar total five reservoirs, namely, Nanak Sagar, Baigul, Dhaura, Baur & Haripura and Tumariya are present and all these reservoirs are under the control of the respondent-Fisheries Board. Annexure No. 3 order dated 09.08.2012 was issued by the Government by which, certain guidelines have been issued for awarding of contracts as well as for issuing of tender notices. The process contemplated settling the right by way of a two stage bid process. The first stage was the technical bid and the final stage was the financial bid. Only those persons, who were found to be pre-qualified at the technical bid, could be considered for opening up their financial bid. The technical bid of the appellants in both these cases was found to be not responsive and it is, in such circumstances, that they have approached this Court seeking the relief’s as follows:
Relief’s sought in Writ Petition (M/S) No. 2191 of 2017 are as follows:
“(i-a) Issue a writ, order or direction in the nature of certiorari, calling for the original record and pleased to quash the impugned office order dated 29th August 2017 (Uploaded on 31-8-2017), passed by the respondent no. 2 i.e. Secretary, Uttarakhand State Matasya Palak Vikas Abhikaran, Barasi Grant (Dhanyari), Raipur Road, Dehradun.
(i-b) Issue a writ, order or direction in the nature of certiorari, calling for the original record and pleased to quash the impugned order/letter dated 4th September 2017 (Annexure-8) issued by the respondent no. 2. i.e. Secretary, Uttarakhand State Matasya Palak Vikas Abhikaran, Barasi Grant (Dhanyari), Raipur Road, Dehradun.
(i) Issue a writ, order or direction in the nature of mandamus, directing and commanding the respondents to the effect that they shall treat to the petitioner as a successful bidder in technical bid round and his bid may be declared as a responsive bid and further be pleased to include his name in the list of successful bidders for opening financial bids and then pleased to open his financial bid along with other successful bidders on 1-9-2017 as per their fixed schedule in pursuance to tender notice dated 4-8-2017.
(ii) Issue a writ, order or direction in the nature of mandamus, directing and commanding the respondents to the effect that they shall reject the bids of the private respondents due to non-availability of correct no dues certificates with their tender forms and pleased to declare their bids as non-responsive and further names of the respondents may be deleted from the list of successful bidders for the purpose of opening financial bids on 1-9-2017 as per fixed schedule.
(iii) Issue a writ order or direction in the nature of certiorari, calling for the original record and pleased to quash the impugned comparative chart dated 29-08-2017 (Annexure-2) prepared by the tender committee, headed by the respondent no. 2.
Relief’s sought in Writ Petition (M/S) No. 2060 of 2017 are as follows:
“(a) Issue a writ, order or direction in the nature of certiorari quashing the condition no. 6 and 10 of the terms and conditions of the tender notice no. 02/avHkh@tyk'k; fufonk@2017&18 dated 04.08.2017 issued by respondent no. 1 for Dhoura and Begul dam in District Udham Singh Nagar.
(b) Issue a writ, order or direction in the nature of Mandamus directing the respondent to let the petitioner for participate in the ten
