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2021 Supreme(Online)(Gau) 569
GAUHATI HIGH COURT - PRINCIPAL SEAT AT GUWAHATI
MR. JUSTICE KALYAN RAI SURANA, J
M/S KBM ENTERPRISE AND ANR – Appellant
Versus
NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT CORPORATION LIMITED – Respondent
WP(C)/3188/2021
Important Points
Subject
Administrative Law - Public Procurement Law
Act Referred
Headnote
(B) Jurisdiction - Territorial jurisdiction - The case elaborated on jurisdictional issues and the exclusive jurisdiction clause in the bidding process terms precluded the Guwahati High Court from entertaining the matter. (Paras 6, 8, 15)
Facts of the case:
The petitioner was the successful bidder for a construction project but faced challenges during the pandemic in submitting required performance guarantees, leading to the rejection of their bid. The legal arguments centered around territorial jurisdiction influenced by COVID-19 shut-downs.
Findings of Court:
The court found that the cause of action regarding the petition did not arise in Assam, Nagaland, or Arunachal Pradesh; rather, it originated in New Delhi based on the nature of correspondence in the tender process.
Issues: The main issues addressed included the appropriate jurisdiction for the tender matter and whether the High Court could consider the petition given that the bulk of the cause of action occurred in New Delhi.
Ratio Decidendi: The court held that the exclusive jurisdiction clause in the bidding documents determined the place of jurisdiction, which is New Delhi, not Guwahati, as the decisions made affecting the case occurred there.
Result: Writ petition returned for consideration in the appropriate jurisdiction.
For the Appellants/Petitioners: MR. P J SAIKIA
For the Respondents: SC, NHIDC
| Table of Content |
|---|
| 1. timeline on performance security requests essential for laying jurisdiction. (Para 2 , 3 , 17) |
| 2. the jurisdiction for writ petitions in bidding disputes lies where the contract is executed. (Para 4 , 5 , 6 , 10 , 12 , 14) |
| 3. exclusive jurisdiction lies explicitly in contractual terms. (Para 8 , 9 , 11 , 15) |
| 4. conclusion on returning the petition for lack of local jurisdiction. (Para 16) |
ORDER
Date : 02.07.2021
Heard Mr. P.J. Saikia, learned counsel for the petitioner and Mrs. R. Bora, learned standing counsel for the respondents.
2) By this writ petition filed under Article 226 of the Constitution of India , the petitioner has assailed the legality of (i) the letter no. NHIDCL/Civil Work/Nagaland/MTM/Pkg5/2020/880 dated 01.06.2021 issued by the Executive Director (T), NHIDCL, New Delhi (respondent no.3), thereby rejecting the request again made by the petitioner by his letter dated 27.05.2021, seeking extension of time for submission of Performance Security and Additional Performance Bank Guarantee and thereby withdrawing the LoA issued to the petitioner vide letter no. NHIDCL/Civil Work/Nagaland/MTM Pkg 5/Wakching/2021/823 dated 26.03.2021; (ii) for setting aside the notice inviting bid no. Bid/Package No: NHIDCL/Civil Work/Nagaland/MTM Pkg 5/ 2020 dated 01.06.2021 by respondent no. 1 for Construction of Two-Lane with Hard Shoulders of Merangkong Tamlu Road (Wakching Town Portion) on EPC basis from existing KM 59+000 to KM 73+640 [Design Km 59+000 to Km 72+450] (Design Length- 13.450 Km) (Package-V) in the State of Nagaland; (iv) to direct the respondent nos. 1, 2 and 3 to consider the request of the petitioner made vide representation dated 27.05.2021 for extension of time for submission of Performance Security and Additional Performance Bank Guarantee afresh taking note of the prevailing situation in the State of Arunachal Pradesh, Assam and Nagaland as well as benefit granted to the similarly situated bidders vide letter dated 17.05.2021. The petitioner has also prayed for granting interim relief to the petitioner by staying the herein before referred notice inviting bids no. Bid/Package No: NHIDCL/Civil Work/Nagaland/MTM Pkg 5/ 2020 dated 01.06.2021.
3) The learned counsel for the respondent has raised two preliminary issue and accordingly, both sides were extensively heard (i) on the preliminary issue of lack of territorial jurisdiction at Guwahati and/or alternatively of forum convenience at New Delhi, and (ii) on the prayer for interim relief.
FACTUAL MATRIX RELEVANT FOR THIS ORDER:
4) The non disputed factual matrix is that in the tendering process, the petitioner was adjudged as the successful bidder and a Letter of Acceptance dated 26.03.2021 (hereinafter referred as ‘LoA’ for short) was issued by the Executive Director (T) (respondent no. 3). On 12.05.2021, the Assam State Disaster Management Authority (hereinafter referred to as ‘ASDM Authority’ for brevity) had issued order (which is popularly called SoP), inter alia, shutting down both Government and Non-Government offices for 15 days and ban was imposed on movement of individuals from 2 PM to 5 AM. This was followed by another order dated 17.05.2021 by ASDM Authority, thereby banning inter-district movement. In the meanwhile on 17.05.2021, the Deputy General Manager (HR) of respondent no.1 had issued an office order to relax the submission of Performance Bank Guarantee and Additional Performance Bank Guarantee to the EPC (i.e. Engineering, Procurement and Construction) contractors. Thereafter, by order dated 04.06.2021 issued by the ASDM Authority had, inter alia, imposed total ban in the movement of individuals from 1 PM to 5 AM daily and it was ordered that both Government and Non-Government offices shall remain closed till 15.06.2021, and the inter-district travel also remained banned. Similar Covid-19 protocols were also issued by the District Magistrate-cum- Deputy Commissioner, Itanagar Capital Region on 17.05.2021, 06.06.2021. Similar Covid-
