Dismissed

Ashish Kalubhai Tarpara v. Surat Municipal Corporation

Gujarat HC5 Sept 2022WPPIL/27/2022

Case brief

AI extract

What is this about?

This PIL impugned a tender for school uniforms floated by the Surat Municipal Corporation. The Court dismissed the petition, holding that the petitioner's allegations were vague and bereft of material particulars required to substantiate claims of corruption or policy violation.

What did the court decide?

Tender process allowed to proceed; writ petition dismissed with no order as to costs.

Ashish Kalubhai Tarpara Vs Surat Municipal… — Public Procurement and Tenders | Gujarat HC (2022)

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C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/WRIT PETITION (PIL) NO. 27 of 2022

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ASHISH KALUBHAI TARPARA

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Versus

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SURAT MUNICIPAL CORPORATION & 2 other(s)

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============================================= Appearance:

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KRUSHALKUMAR D SHELADIYA(8017) for the Applicant(s) No. 1 for the Opponent(s) No. 1,2,3

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=============================================

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CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

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Date : 05/09/2022

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CAV ORDER

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(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)

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Petitioner, is said to be a social worker and a well-known businessman, though not stated in petition, but has stated orally before the Court that he is in the business of printing press in city of Surat. By way of this Public Interest Litigation, petitioner appearing as party-in-person has questioned the issuance of Tender by Municipal School Board managed by Surat Municipal Corporation, being Tender No. 508594 dated 28.02.2022 on various grounds enumerated in the petition.

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A Tender came to be floated by respondent – Corporation

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C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

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for the purpose of supply of School Stitched Uniform for Boys and Girls and according to petitioner Tender Notice was published in the local daily newspaper, in which, the last date of online submission of bids had been fixed as 14.03.2022 till 5:50 pm whereas, the date of opening of the technical bid and other documents in the form of hard copy was fixed as 21.03.2022 and the date for issuance of necessary price list through Online portal was fixed as 22.03.2022.

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2.1. Petitioner has further asserted that price of Tender No. 508594 is around Rs.12,00,00,000/- (Rupees Twelve Crores only) which is for one set and for such process, two sets are required to be given. The price offered under the said Tender was to be valid for a period of two years and according to petitioner, the value of the entire Tender runs into Rs.48,00,00,000/- (Rupees Forty Eight Crores only). It has been asserted that some illegal activities, corruption in the tender process is going on at Surat Municipal Board and such illegal activities perpetrated in the tender system are contrary to Gujarat State Procurement Policy, 2016. Having received

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C/WPPIL/27/2022 CAV ORDER DATED: 05/09/2022

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information about such malpractice, the petitioner claims to have been constrained to approach this Court by way of present Public Interest Litigation.

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2.2. According to the petitioner the entire Tender process is illfounded and is violative of the Gujarat State Procurement Policy, 2016 and as such, the same may not be allowed to be precipitated any further. It has been further submitted that Tender is filed by one person only, who is authorized by all companies and the Surat Municipal Corporation cannot demand any material from the selected companies and that is how, the tender process is going on in an irregular manner. It has been further submitted that in view of clause 12 of the Gujarat State Procurement Policy, 2016 the Surat Municipal Board has not specified the brand items in the Tender and has also violated certain other provisions of the Policy. By giving brief details about some items, namely, Leather Sports Shoes, Cotton Garments, Clothes, Apparels, which are indexed, it has been contended that same are reserved for State Cottage Industries. However, the process in respect of these items has also been

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undertaken and as such, there appears to be a mistake in issuance of the Tender itself. An example has been given that the price of Shoes for Children in the Tender is fixed at Rs.800/whereas the market price of the said Shoes is Rs.350/- only. It is alleged in this manner irregularity is taking place on large scale. It has been further submitted that ‘Doenar’ is the Group Company with GBTL, OCM and Graviera as its subsidiaries, but the Surat Municipal Board has given chance to only these three companies in the Tender. The representative of all the companies is one person only and as such, it has been submitted that process, which has been undertaken, is in conflict with the policy and, therefore, the reliefs prayed for in the petition deserves to be granted. No other submissions have been made.

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Having heard the petitioner – party-in-person in the present proceedings, ex-facie , we find that petition is bereft of material particulars, as bald and vague allegations are made about illegal activities and corruption. However it is not specified in what manner such illegality is occurring in the present proceedings. The averments which are made, are also of

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casual nature, on the basis of which it is not proper on the part of the Court to presume illegality or any irregularity.

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3.1. A perusal of the averments made in the petition indicate that petitioner claims to be a social worker and a well-known business person and it appears that petitioner has conveniently concealed his identity as to in which business he is a well-known person. To a pointed query raised by the Court about the nature of petitioner’s business, petitioner appearing as party, has stated that he is in the business of printing press for which, no details are provided at all. Hence, on the basis of vague averments and allegations and on account of inadequate particulars furnished in the petition, this Court is not inclined to exercise extraordinary jurisdiction to entertain this Public Interest Litigation in the present form.

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Additionally, it has also been found by this Court that averments though have been made in the petition that Tender clauses are being violated by respondents, but the manner in which it is violated is not stated and as such, on the basis of

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such inadequate particulars, we are not inclined to entertain the present Public Interest Litigation, as the same appears to be with hidden agenda and on account of clear details not forthcoming in the petition.

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Further, the law on the issue of interference in Contract matters and issues related to it, by now is too well settled. The Hon’ble Apex Court has clearly propounded that scope is very limited and only the decision making process will have to be examined and not the decision of the notice inviting authority. What terms and conditions are to be stipulated is normally left to the Tender Inviting Authority, as they are the best judge to prescribe the appropriate conditions. In a very recent decision delivered by Hon’ble Apex Court in the case of M/s. N.G. Projects Limited v. M/s. Vinod Kumar Jain & Ors., in Civil Appeal No. 1846 of 2022 on 21.03.2022, has held thus:

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“22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of nonperformance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the

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writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.

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23. In view of the above judgments 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 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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26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim

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injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone.”

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In the context of the aforesaid proposition of law laid down by the Hon’ble Apex Court, we have perused the facts of the case on hand and it clearly emerges that petitioner has failed to make out any case either of unreasonableness or arbitrariness in respect of the process of Tender, which has been floated by the respondent authority and as such, we are satisfied that no prejudice is likely to be caused to the public interest. Hence, the present petition is found to be devoid of merits.

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Yet another angle, which is tried to be projected before us, is with respect to clauses contained in the Tender being contrary to the Gujarat State Procurement Policy, 2016. But, having gone through the Policy contents, we find that Tender conditions, which are prescribed by the authority are, prima facie, not being in conflict. We are at loss to understand as to in what context such Policy is breached by the respondent while inviting Tender. Hence, in the absence of any clear-cut

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particulars having been brought to our notice, we are unable to exercise the discretion in favour of the petitioner. Nothing prevented the petitioner from producing on record the specific policy and furnished the details of its violation if any. However, no such attempt has been made even till date. On the basis of bald assertions, petitioner has filed the present petition. Hence, we are not inclined to exercise our discretion. The significance of pleadings is time and again insisted by the Hon’ble Apex Court and the purpose of such pleadings cannot be given a gobye. In the instant case petitioner has neither placed any proper pleadings to the effect that condition of Procurement Policy having been violated and as such, we deem it proper to dismiss the petition. Petitioner happens to be an activist and is said to have been in the business of printing press. As such, he must have secured the Policy if the action of the respondent authority in inviting tender was in conflict with the same. However, no such attempt has been made. Even during the course of hearing also, no such assistance was provided to us. On the contrary, petition was dismissed for non prosecution vide order dated 23.03.2022 and even after application for restoration of petition

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was filed, no such attempt has been made to place the Procurement Policy on record.

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The Hon’ble Apex Court on the issue of proper particulars to be placed before the Court has held in the decision in the matter of Madiraju Venkata Ramana Raju v. Peddireddigari Ramchandra Reddy & Ors., reported in (2018) 14 SCC 1, to the following effect. Of course, said observations have been made while taking up the proceedings related to election petition, but observations related to “material facts and material particulars” has its significance in the background of nature of pleadings and as such, this Court deems it proper to reproduce the relevant paragraphs of said judgment. It reads thus:

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“40. In Harkirat Singh xxx xxx

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“51. A distinction between material facts and particulars, however, must not be overlooked. Material facts are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defence. Particulars, on the other hand, are details in support of material facts pleaded by the party. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative. Particulars thus ensure conduct of fair trial and would

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not take the opposite party by surprise.

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52. All material facts must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence. Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial.”

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In addition to this, the scope of judicial review in respect of Government Contracts have been propounded long back in the decision right from (2007) 8 SCC 1 in the case of Reliance Energy Ltd., & Anr., v. Maharashtra State Road Development Corpn. Ltd., & Ors., and the observations contained in paragraphs 36, 37 and 38 clearly indicate that terms and conditions are imposed by the tender inviting authority with legal certainty, norms and benchmarks. This "legal certainty" is an important aspect of the rule of law. If there is vagueness or subjectivity in the said norms it may result in unequal and discriminatory treatment, which may violate the doctrine of "level playing field". Here, no such contingencies have been pleaded nor any cause on that issue is made out and there are no issues about mala fides has been raised with

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proper averments and pleadings. Hence, in the absence of such pleadings, we are not inclined to entertain this petition.

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