Dismissed

M/S T.G Enterprises and Anr. v. The State of Ap and 5 Ors.

Gauhati HC28 Apr 2022WP(C)/51/2022

Case brief

AI extract

What is this about?

Writ petition challenging the tender process for MGNREGA works, claiming bid rejection was time-barred due to office refusal. Court dismissed petition as factual disputes required evidence unavailable on record and judicial interference prohibited by precedent.

What did the court decide?

The petition challenging the tender process is dismissed with parties bearing their own costs.

M/S T.G Enterprises and Anr. Vs The State of… — Public Procurement and Tenders | Gauhati HC (2022)

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Page No.# 1/8

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GAHC040001282022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : WP(C) 51/2022

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1:M/S T.G Enterprises and Anr

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Represented by its prioprietor Shri Tagam Gingo, S/O Lt. Tade Gingo, Village Gingo, P.O/P.S Taliha, Upper Subansiri District, Arunachal Pradesh.

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2: M/s Simon Enterprises Represented by its Sri Jito Maying S/O Sri Riji Maying P.O/P.S Taliha District Upper Subansiri Arunachal Pradesh

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VERSUS

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1:The State of AP and 5 Ors

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Represented by the Secretary, Rural Development Department, Govt. of Arunachal Pradesh, Itanagar.

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2:The Director Rural Development Department Govt of A.P Itanagar.

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3:The Deputy Commissioner-cum- DPC DRDA Daporijo Upper Subansiri District.

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4:The Additional Deputy Commissioner-cum-Chairman of Board Daporijo

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Upper Subansiri District for NIT no. DRDA/MGNREGA/NIT/2021-22 dated 12.02.2022

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5:The Joint Director (R.E)

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Page No.# 2/8

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Rural Development Department Itanagar.

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6:Shri Tapor Nalo Assistant Project Officer (Tech) DRDA

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Advocate for the Petitioner : T T Tara

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Advocate for the Respondent : GA (AP)

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BEFORE

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HONBLE MR. JUSTICE ROBIN PHUKAN

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Date : 28-04-2022

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VERDICT(CAV)

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In this petition under Article 226 of the Constitution of India, the petitioner No.1 M/s T.G. Enterprises, represented by its proprietor Shri Tagam Gingo and petitioner No.2 M/s Simon Enterprises, represented by its proprietor Shri Jito Maying, has put to challenge the whole tender process of NIT No. DRDA/MGNREGA/NIT/2021-22, dated 12.02.2022, issued by the Joint Director,Rural Development (RD) Department, Itanagar, for supply and procurement of materials pertaining to MGNREGA works, for the financial year 2021-22, against Payeng CD Block, Upper Subansiri District.

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2. The grievance of the petitioners is that the respondent No.2 - the Director, Rural Development Department, Govt. of Arunachal Pradesh, on behalf of the Governor of Arunachal Pradesh, issued a Notice Inviting Tender No.DRDA/MGNREGA/NIT/2021-22, dated 12.01.2022, inviting all registered & eligible contractors/firms having valid trading license with GST registration for supply and procurement of materials pertaining to MGNREGA works for the financial year 2021-22, against Payeng CD Block, Upper Subansiri District, Arunachal Pradesh, with an estimated cost of Rs 81,14,091/-(Rupees eighty one lakh fourteen thousand ninety one only) mentioning the period of completion as 6(six) months and showing the last date and time for the submission of the bid as 28.01.2022, up to 1200 hours.

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Page No.# 3/8

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3. The petitioners have purchased bid document and prepared an Earnest Money Deposits (EMD) against their respective firms and at around 11:56 am on 28.01.2022, they reached the office of the Project Director, to submit the bid documents. But, the Assistant Project Officer (Tech) DRDA, namely, Shri Tapor Nalo, refused to accept the bid documents of the petitioners on the pretext that time is over.But at the same time, he has accepted the Baririjo package at around 12.05 pm on the same day. Thereafter, the petitioner submitted a complaint dated 28.01.2022, and 31.01.2022, before the Deputy Commissioner-cum- Project Director, Daporijo and who is the Chairman of Bid Evaluation Committee, raising their grievances, but the same is yet to be disposed of.

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4. Being aggrieved, the petitioners approached this Court by filing this petition for cancellation of the whole tender process as according to the petitioner, the action of the respondents are arbitrary and they acted in contravention of the mandate of Article 14, 19/21 and 300 A of the Constitution of India.

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5. The respondent Nos. 1, 2 & 5, have submitted their affidavit-in-opposition and denied that the petitioners have reached the office at 11:56 am to submit their tender documents. It is stated that they have reached the office to submit their tender documents at the tender box at 12:02 pm, which is after 12:00 noon and by that time the board members and the officials have already started sealing the tender box. To substantiate the same, it is relied upon 3(three) videos of 28.01.2022, wherein the process of sealing of the tender box was recorded as at the time, the CCTV in the office premises was not functioning. And from the aforesaid video, it becomes clear that the board members refused to accept the tender documents of the petitioners as by the time the petitioners have reached the office, the scheduled time was over and in view of the matter, the averments of the petitioners that they reached the office at 11:56 am, is misleading. It is also stated that M/s N.P Trade Agency and M/s Maling Enterprises have participated in the tender process of Payeng Block and the technical and financial bid of the aforesaid 2(two) bidders have been opened, and on scrutiny, the board have prepared the list L1 and L2 bidders and vide Memo No. DRDA/MGNREGA/NIT-1/2021-22, dated 04.02.2022, the Project Director, DRDA, Daporijo, have forwarded the board proceeding to the Director, Rural Development, Government of Arunachal Pradesh, Itanagar, for obtaining necessary approval. It is also stated that the petitioncannot be considered, for non-joinder of necessary parties.

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Page No.# 4/8

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6. In his affidavit-in-opposition, the respondent No.6, denied the averments made in the petition. It is stated that the petitioners have mislead the Court by placing wrong facts about receiving of documents by hand inasmuchas there was a tender box in the office and there is no provision for accepting the tender documents by hand and all the bidders have deposited their bid in the box placed in the office. It is also stated that the petitioners brought the bid documents exactly at 12.02 pm not at 11.56 am as contended and as the time of submission of bid document was 12.00 noon the same was not accepted. And as such no legal rights of the petitioners have been violated and therefore, it is contended to dismiss the petition.

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7. In their affidavit-in-reply, the petitioners reiterated their averments made in the petition that they have reached the office of the Project Director, DRDA, at about 11:56 am on 28.01.2022, and their tender documents were not accepted due to the resistance of respondent No.6, the Assistant Project Officer.

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8. In its additional affidavit, the petitioners also stated that only 5(five) firms, purchased the bid documents for Payeng CD Block, namely: (a) M/s N.P Trade Agency; (b) M/s Simon Enterprises; (c) M/s T.G Enterprises;(d) M/s Minggam Enterprises;(e) M/s Kodak Enterprises, but, M/s Minggam Enterprises& M/s Kodak Enterprises, did not participated in the tender process, though, they have purchased the tender documents for Payeng CD Block and as the tender documents pertaining to M/s Simon Enterprises & M/s T.G Enterprises have not been accepted, there remains only 1(one) bidder, namely, M/s N.P Trade Agency. Accepting such single tender is in a violation of the General Finance Rule and CVC guidelines applicable in the State of Arunachal Pradesh and as per the terms and conditions of the tender, the DC-Cum-Project DPC at District level has to recommend at least three firms L1, L2, L3 to competent authority for acceptance along all relevant documents.

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9. I have heard Mr. T. T. Tara, learned counsel for the petitioner. Also heard Mr. B. Picha, learned Standing counsel for the State respondents and Ms. P. Pangu, learned counsel for the respondent No. 3 and 4 and also gone through the petition and documents placed on record and the original record of Annexure-9, i.e., the list of persons who has purchased the bid documents. And the original bid document of M/s N.P Trade Agency and M/s Maling Enterprises, which was called for and received from the Director, Rural Development Department.

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Page No.# 5/8 10. Mr. T. T. Tara, learned counsel for the petitioners submits that at the instance of the respondent No. 6, the bid documents of the petitioners were not accepted by the authority though, they have reached the office of the Project Director, on 28.01.2022 at about 11:56 am, which is within the time, as the time of last receiving the bid document is notified as 12:00 noon. It is further submitted that the action of the respondent authorities are arbitrary and illegal and contrary to the provisions of Article 14, 19/21 and 300 A of the Constitution of India. It is further submitted that only (1)one bidder has participated in the process and by manipulating the record, the respondents have prepared the L1 and L2 bidder with ulterior motive and therefore, it is contended to interfere with the impugned tender process. Mr. Tara, further submitted that the original copy of Annexure-9 is manipulated.

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11. On the other hand, Mr. B. Picha, learned counsel for the respondents, submits that whatever the respondent authorities have did, they did the same in accordance with the provision and that the petitioners have reached the office of the Project Director, before 12:00 noon is a misleading one asmuch as there was a tender box in the office and there was no provision for accepting the tender documents by hand.It is further submitted that 2(two) firms participated in the tender process and accordingly the Chairman of the Evaluation Committee has prepared the list of L1 and L2 bidder and forwarded the same to the Government for approval.Mr. Picha, therefore, contended to dismiss the petition devoid of merit.

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12. Mr. Picha, also relied upon a decision of Hon’ble Supreme Court in M/s N.G. Projects Limited Versus M/s Vinod Kumar Jain & Others, Civil Appeal No. 1846 of 2022 (Arising out of SLP(Civil) No. 2103 of 2022. In Paragraph 23, Hon’ble Supreme Court has held as under:-

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“ 23. In view of the above judgements of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender

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Page No.# 6/8

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has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.

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13. Having heard the submissions of learned Advocates of both side, I have carefully gone through the pleadings of the parties and the documents placed on record and also carefully gone through the case law, referred by Mr. B. Picha, learned counsel for the respondents and I find sufficient force in the submission of Mr. B. Picha, learned counsel for the respondents.

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14. A cursory perusal of the Notice Inviting Tender, which is enclosed in the petition as Annexure-2 and the terms and conditions of the tender mentioned in Page No. 13 of the Annexure2, it appears that the terms and conditions no. 2, it has been specifically mentioned that “ Tender should be addressed to the Project Director, DRDA, Daporijo and dropped in the tender box at the office chamber of the Project Director, DRDA, Daporijo”. In the terms and conditions no. 7, it has been mentioned that “ No tender will be entertained after 1200 Hrs. of 28.01.2022.”

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15. It has been specifically stated in the affidavit-in-opposition by the respondent Nos. 1 to 5 and also by respondent No. 6 that all bidders have to deposit their tender documents in the box placed in the office and as such the allegation that the respondent No.6, refused to accept the tender documents of the petitioner is a misleading fact. It is also stated that the tender box was sealed only after 12:00 pm and the process was video graphed, as the CCTV was not functioning in the said premises.

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16. Though, the petitioners have submitted their reply to theaffidavit-in-opposition submitted by the respondent Nos. 1 to 5 and 6, yet they have not disputed the factum of requirement of depositing the bid documents in the tender box. And as such, the question of receiving the documents by the deponent by hand in person does not arise at all. The averments made by the petitioners, as such, bereft of any logic.

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Page No.# 7/8

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17. It also appears that the petitioners have claimed that they have arrived at 11.56 am to submit the bid document and that the respondent No.6 has refused to accept the same and is disputed by all the respondents. According to respondents the petitioners reached the office at 12.02 pm and by that time the tender box has been sealed, as the schedule time(12.00) was over and the hence the bid document were not accepted. The petitioners have also alleged that the respondents have manipulated the Annexure-9, original copy of which was produced before the Court on call, which is disputed by the respondents. Thus, it appears that a disputed question of fact is involved in this petition. Now, the question is, can this court dealing with a petition under Article under Article 226 of the Constitution of India decide such question?.

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18. In ABL International Ltd. and Ors. vs. Export Credit Guarantee Corporation of India Ltd. and ors : (2004) 3 SCC 553, while dealing with the issue of disputed question of facts, Hon’ble Supreme Court has held that in appropriate cases High Court has jurisdiction to try writ petition involving disputed question of facts. It is further held that however, in cases where the disputed question of facts, which requires consideration of evidence and the same is not on record, maintainability of writ, can be denied.Same view is also expressed by Hon’ble Supreme Court in Popatrao Vyankatrao Patel vs. State of Maharastra and Ors. :Civil Appeal No.1600 of 2020.

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19. The disputedquestion of facts, which are involved in this petition, and discussed in Para No. 17 here in above, which are required to be dealt with by the court, consideration of evidence is required. But, to decide the same,evidence is not available on the record. The CCTV footage of the office is also not produced as the same was not in order. Though the respondents have enclosed with their affidavit-in-opposition, one pen drive containing the videograph of sealing the Tender Box, yet the original copy was not produced satisfying the legal requirements. Similarly, no evidence is also available to substantiate manipulation of original copy of Annexure-9 . Therefore, the same could not be considered to decide the disputed question of facts. Thus, in absence of evidence on record, this court is handicapped to decide the disputed question of facts.

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20. It appears that the Board constituted by the DC-Cum-DPC at the District level has opened the tender box on the same date i.e., 28.01.2022, at about 1:00 pm and found 2(two) firms namely, M/s N.P Trade Agency and M/s Maling Enterprises, have participated in the process of Payeng Block and after evaluation of their technical and financial bid, it has prepared L1 and L2 and sent the list for

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Page No.# 8/8

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the approval to the Director, Rural Development Department, Govt. of Arunachal Pradesh Itanagar, for obtaining necessary approval.

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The learned counsels for the petitioners argued that only one firm has participated in the tender process and the same is in violation of General Finance Rule and CVC guidelines, applicable in the State of Arunachal Pradesh. But, the petitioners have failed to establish the provision of the General Finance Rule and CVC guidelines have also been violated by the respondent authorities. Even for the sake of argument, it is accepted that there is violation of said Rules and Guidelines, and the arbitrariness or malafide in the action of the respondents are reflected therein, yet, this Court is not entitled to interfere with the same as held by Hon’ble Supreme Court in the case of M/s N.G. Projects Limited Versus M/s Vinod Kumar Jain & Others, (Supra), wherein, it has been categorically observed that if the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract.The injunction or interference in the tender leads to additional costs on the State and is also against public interest.

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22. In view of above discussion and findings, I find no merit in the submissions, so advanced by Mr. T. T. Tara, learned counsel for the petitioner and consequently, the same petition is dismissed. The parties have to bear their own costs.

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JUDGE

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Comparing Assistant

M/S T.G Enterprises and Anr. v. The State of Ap and 5 Ors.

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M/S T.G Enterprises and Anr. v. The State of Ap and 5 Ors.

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