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A F R

HIGH COURT OF CHHATTISGARH, BILASPUR

WPC No. 3207 of 2021

Janmitram Kalyan Samiti (A Non-Government Organisation And

Society Registered Under The Relevant Provisions Of Societies

Registration Act) Ngo Unique Registration Id.-0838 Dated 31.10.2002,

Registered Address-Chhote Attarmuda, T. V. Tower Road, Raigarh

Acting Through Its President Manish Singh S/o Late Shri S. P. Singh,

Aged Around 44 Years R/o M. I. G.-33, Deendayal Puram Raigarh

District Raigarh Chhattisgarh

---- Petitioner

Versus

1.State Of Chhattisgarh Through The Secretary, Mineral Resources

Department, Indravati Bhawan, Block-4, Second Floor, Nawa Raipur Atal

Nagar, District Raipur Chhattisgarh

2.District Mineral Foundation Trust (A Government Of Chhattisgarh

Undertaking) District Janjgir Champa, Through The District Collector And

Secretary, District Janjgir Champa Chhattisgarh

3.Sangam Seva Samiti Janjgir Through Its Secretary/authorize d

Representative, C/o Panchayat Bhawan, Bhadesar, Janjgir District Janjgir

Champa Chhattisgarh

---- Respondents

(Cause-title taken from Case Information System)

For Petitioner : Mr.Hari Agrawal, Advocate.

For respondent No. 1 and 2/

State

: Mr. Prafull N Bharat, Advocate General with

Mr. Sangharsh Pandey, Government Advocate.

For respondent No. 3 : Mr. Abhishek Sinha, Senior Advocate ass isted

by Mr. Somkant Verma, Advocate. 2024:CGHC:20866-DB

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Hon'ble Mr. Ramesh Sinha, Chief Justice

Hon'ble Mr. Sachin Singh Rajput, Judge

Order on Board

Per Ramesh Sinha , Chief Justice

21/06/ 2024

1.The petitioner has prayed for the following reliefs:

“10.1 A writ and/or an order in the nature of writ of appropriate

nature do issue commanding respondent authorities to submit

all the relevant records pertaining to the subject tender process.

10.2 A writ and/or an order in the nature of appropriate writ do

issue, directing the respondent authorities to reject the bid of

respondent No. 3 after declaring the respondent No. 3

disqualiied/ineligible and be further pleased to quash the

consequent work order dated 09.02.2021, being rendered

unresponsive because of aforesaid disqualiication/ ineligibility

in technical evaluation.

10.3 A writ and/or an order in the nature of appropriate writ do

issue directing the respondent authorities to award the contract

to the petitioner for the fact of being the lowest Bidder in inal

score after disqualiication of the respondent no.3.

10.4 Cost of the proceedings.

10.5 Any other writs and directions that may be deemed it and

just in the facts & circumstances of case.”

2.The facts, in brief, as projected by the petitioner are that the petitioner is a

Non-Government Organization (for short, the NGO) registered under the

relevant provisions of Chhattisgarh Societies Registration Act with NGO

Unique Registration ID 0838 dated 31.10.2002 and providing services in

the State of Chhattisgarh for the past 19 years and present petition is being

iled. through its President. The respondent No. 2 is established by the

State Government of Chhattisgarh by notiication as a trust/non-proit

perpetual body in the mining operation afected district of Janjgir- Champa,

to work for the interest and beneit of persons and areas afected by mining

related operations. It is funded through the contribution from miners and 2024:CGHC:20866-DB

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derive its legal status from section 9B of Mines and Minerals (Development

and Regulation) Act, 2015 read with Rule 3 of the Chhattisgarh District

Mineral Foundation Trust Rules, 2015 and is fully controlled by the

Government of Chhattisgarh and situated in the State of Chhattisgarh, and

as such comes within the purview of the deinition of 'State' under Article

12 of the Constitution of India, as such fully amenable to the writ

jurisdiction of this Hon'ble Court. Vide letter dated 616/DMF/Ji.Pan./2020

dated 11.08.2020, the respondent No.2 has invited bids for preparation of

a master plan/vision document for the works relating to identiication of

mining afected area/persons (direct or indirect), necessary survey,

supervision of projects and social audits thereof.

3.A perusal of the tender document would show that the salient features of

the tender process is that the bids were to be submitted in two folders, one

being the technical proposal and other being the inancial proposal, with

70% weightage was to be awarded to the technical evaluation and 30%

weightage to the inancial evaluation. The essentials requisite/conditions

for eligibility/participation in the tender were provided in page 1/condition 1

of the NIT which was sub-divided in ive parts/conditions. For the purpose

of the instant petition, the petitioner relies upon the part/condition No. 5

mentioned therein, which is with respect of Turnover. The above condition

shows that for eligibility/participation, a participant must have received an

average of amount of Rs. 10 Lakh Turnover 'from consultancy' in the past

three years i.e. 2016-17, 2017-18 & 2018-19 and to substantiate the

above, the essential documents which were required to be submitted to

substantiate the above was (a) copy of the Average Annual Turn Over

issued by a Competent Authority/qualiied Chartered Accountant, (b) copy

of statement issued by a Competent Authority/Chartered Accountant,

showing the total Consultancy Turn Over with regard to past three years.

4.The petitioner-institution has submitted its tender strictly in conformity with 2024:CGHC:20866-DB

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the terms and conditions of the tender along with supporting documents as

required, especially the document fulilling aforesaid Part-5 of the technical

qualiication. As per the terms and conditions of the NIT, the technical

evaluation was further classiied into Technical Experience (T-1, maximum

60 marks) and Technical Presentation (T-2, maximum 40 marks) making

the total Score (TS) to be 100 and the Total Score (TS) thereof was to be

multiplied by 0.70. Similarly, the lowest bidder in the inancial bid was to be

awarded 100 marks (FS) and said marks would be multiplied by 0.30.

Thereafter, the Final Score of the bidder would be calculated to be the sum

of above l.e. [(TSx0.70) + (FSx0.30)]. Further, as per the NIT, the scope of

marks to be awarded in T-1 i.e. Technical Experience was based

objectively on the basis of documents submitted as per the aforesaid Part

1 to 5 and a bare perusal would show that with respect to average income-

expenditure, a minimum of 5 marks and a maximum of 15 marks could be

awarded as per the criteria mentioned in the Paragraph/clause 7 of the

NIT. Furthermore, the scope of marks on T-2 (Technical Presentation)

was cognitive/subjective and board parameters and topics/areas for

marking were also laid out. After clearance of the qualifying/eligibility

criteria, the petitioner was called for the technical presentation, wherein the

petitioner appeared before the Tender Evaluation Committee and its

representatives put forth the presentation very well before the Tender

Evaluation Committee and the members also seemed satisied.

5.Thereafter, the inancial bid was opened, wherein the inancial bid of the

petitioner was found to be lowest and the petitioner had every hope that it

would be declared to be the successful tenderer and the said hope was

founded on the belief of possessing requisite technical experience, good

technical presentation before the Tender Evaluation Committee coupled

with the fact of lowest inancial bid. But even after opening of the inancial

bid for a fairly long time, the inal results were neither being communicated

in the oicial website nor any Information in this regard was available in the 2024:CGHC:20866-DB

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oice of respondent No. 2 and sometime in the last week of March, 2021,

the petitioner came to know that the aforesaid tender has been awarded to

the respondent Nо. 3. Immediately, thereafter petitioner contacted his local

counsel to obtain copies of relevant documents but soon thereafter lock-

down was imposed in the State looking into the then ongoing second wave

of Covid- 19 pandemic and all the administrative oices were closed.

However, in the month of June 2021, after easing of restrictions, vide

application dated 14.06.2021, the petitioner through his local Advocate,

applied for grant of copies of entire records pertaining to the aforesaid

tender process. Vide letter 28.06.2021, the petitioner was informed about

the preparation of the aforesaid sought documents and in the month of

July, 2021, the petitioner has obtained the records pertaining to the

aforesaid tender as provided by the respondent No. 2. Upon perusal of the

documents as provided, the petitioner came to know that the respondent

No. 3 has been declared to be L-1 and the petitioner has scored the

position of L-2 and the diference between the total score of respondent

No.3 and Petitioner herein is 0.53 marks. Further, vide order dated

09.02.2021, work order has been issued in favour of the respondent No. 3

herein.

6.On going through the documents submitted by the respondent No. 3, the

petitioner has come to know that the respondent No. 3 has failed to adhere

to the aforesaid condition/Part No. 5 of technical requirements and the

respondents authorities have malaidely, illegally, arbitrarily and

capriciously declared the respondent No.3 qualiied and had awarded the

contract.

7.Mr. Hari Agrawal, learned counsel for the petitioner submits that a bare

perusal of the documents submitted by respondent No.3 would show that

the document which has submitted by the respondent No. 3 to fulill the

aforesaid Part/Condition No. 5 is neither certiied by a Chartered 2024:CGHC:20866-DB

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Accountant nor bears the seal and sign of any other authorized authority,

as such the essential requirement of Condition No.5 was not fulilled and

respondent No. 2 ought to have declared the respondent No. 3 ineligible

and/or disqualiied the respondent No. 3 from participating in the tender

process, however the respondent authorities continued with the technical

presentation and also opened the inancial bid of the respondent No. 3 and

awarded the tender in its favour. The aforesaid condition is a salutary

stipulation, since it is indicative of the commercial standing and reliability of

the tendering entity and failure to adhere to the aforesaid term would

render the bid non-complaint and therefore beyond the pale of

consideration in toto. The respondent No. 3 had failed to comprehensively

correspond to the aforesaid essential terms of the tender and therefore it's

ofer contained in the said tender was ineligible for consideration. The

respondent authorities have identiied the respondent No. 3 as a

successful bidder pursuant to a wrong decision making process, ignoring

the speciic terms in the Tender Notiication and while doing so extended

undue favour to the respondent No. 3 herein, thereby acted in a arbitrary

and discriminatory manner.

8.Mr. Agrawal further submits that the respondent authorities have

perpetuated the illegality by not only declaring the respondent No. 3 as

qualiied/eligible but also awarding maximum 15 marks in the

corresponding criteria/documents, and as such an act ex-facie shows that

the respondent authorities adopted a pick and choose policy and/or

discriminated against the petitioner. Allocation of maximum 15 marks

under the Clause/Condition 5 of the Technical evaluation (T-1) was also

not correct, as no conclusively turn- over/average income-expenditure) for

the past three years can be calculated in the absence of aforesaid certiied

document. Hence, the respondent No. 3 ought to have got only 45 marks in

T-1 and this by itself would have pushed down the respondent No. 3 to a

much low in inal score and on this ground also, the petitioner would be 2024:CGHC:20866-DB

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entitled to have been awarded the contract and claim other relief as sought

in the prayer clause. A bare perusal of the Tabulation Chart T-2 would

show that it was signed by as many as ive members of Tender Evaluation

Committee and consolidated/average marks have been awarded to each

of the participants on three diferent heads. But when the petitioner

demanded copy of separate-separate mark/tabulation sheet of each of the

aforesaid tender committee members, no such document was provided

moreover it was informed to the petitioner that no document is in existence.

Upon coming to know about this high-handedness, the petitioner

immediately iled a representation before the respondent authorities on

13.07.2021. Further, since the detail scoring by each of the tender

evaluation committee was even not conducted and awarding such

consolidated marks at the discretion of the authorities as per their whims

and fancies, ex-facie shows the respondent authorities have acted in a

malaide and unreasonable manner while awarding unreasonably low

marks to the petitioner No.1, without any basis and acted in a manner so

as to beneit the respondent No. 3. According to Mr. Agrawal, despite such

fatal discrepancy in the eligibility documents and of the fact that the

respondent No. 3 was awarded highest marks in the interview and his

inancial bid of the respondent No. 3 was the highest among the

participants being Rs. 1,10,000/-, the reason for allowing the respondent

No. 2 to participate in the tender process and consequent award of

contract is writ large on the face of record.

9.Mr. Agrawal, relying on paragraphs 74 and 77 of the decision of Tata

Cellular v. Union of India reported in (1994) 6 SCC 651, submits that the

Hon'ble Apex Court has dealt with the power of judicial review to bring its

case within the purview of those cases where power of judicial review

should be exercised and interference of the Court should be made. He

further relies on paragraphs 65 and 66 of the decision rendered in B.S.N.

Joshi & Sons Ltd. v. Nair Coal Services Ltd. reported in (2006) 11 2024:CGHC:20866-DB

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SCC 548, wherein the Hon'ble Supreme Court has summarized the scope

of judicial review and the interference of superior courts in awards of

contracts particularly in context of adhering to essential conditions and

relaxation thereof, and a decision of this Court in the matter of Ram Gopal

Somani vs. Bilaspur City Limited reported in 2021 SCC Online Chh 906

has followed the judgment of B.S.N. Joshi (supra) and held that the

respondent authorities have deviated from the notiied tender conditions

and has further held that the decision making process therein was bad and

unsustainable in law.

10.Mr. Agrawal further submits that while laying down qualiication criteria

certain conditions and/or qualiications are essential in nature and no

concession can be given to those conditions or in other words, the

qualiication criteria should be strictly adhered to and in this case essential

qualiication criteria of annual Turn Over and Total Turn Over was such a

criteria. The action of the respondent authorities and/or their act of

omission and commission is contrary to the petitioner's fundamental,

constitutional and other statutory rights guaranteed under the Constitution

of India.

11.In response to the averments made by the petitioner, Mr. Prafull N Bharat,

learned counsel for the respondents No. 1 and 2 submits that the entire

petition as framed by the petitioner deserves to be dismissed for the

reason that the petitioner, after participation in the tender proceeding and

having been aware of the documents submitted by each and every bidders

cannot take the somersault and challenge the non-selection of his

candidature on the count of selection of respondent No. 3 which was being

done as per the wisdom of tender evaluation committee and as per the

terms and conditions of the document. The respondent No. 2 through

Collector has invited a tender for selection of consultants for preparation of

DPR (Detailed Project Report) as well as preparation of written 2024:CGHC:20866-DB

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document/master plan for various development work which is to be funded

by District Mineral Fund Trust, for the District-Janjgir Champa for

upcoming ive years. It is worthy to state that present was the second call

of the tender, as the irst call which was issued on 18.02.2020, was

cancelled due to Covid restrictions. The tender was invited through

advertisement in the newspaper which was published on 11.08.2020 and

the time stipulated for the submission of bid was 15.09.2020. Total eight

irms/bidders namely, 1. Janmitram Kalyan Samiti Raigarh (petitioner

herein), 2. Sec Tech Bilaspur, 3. Sangam Seva Samiti Janjgir Champa

(respondent No. 3), 4. Social Action for Rural Development Raipur, 5.

Yuva Jagriti Munch Raipur, 6. Swaniti Initiative Sarvapriya Vihar New

Delhi, 7. Vastu Angle Architects & Associates Raipur and 8. Design Matrix

Raipur participated in the above tender, out of which two irms namely

Social Action for Rural Development, Raipur as well as Vastu Angle

Architects & Associates Raipur were held to be disqualiied for not fulilling

the mandatory requirement as per condition No. 1 of the NIT. Therefore,

there bids were not considered for the further selection. The above NIT is

based on QCBS (Quality Cost Based System), means thereby, the

successful bidder will be selected on the basis of the highest marks

obtained as per the diferent bench marks prescribed in the tender. Since,

the tender was QCBS based, therefore, irrespective of the price diference

between the selected bidder as well as the left out bidders, the selection

was to be made on the basis of quality, mechanism and not on the basis of

price. The purpose of putting this embargo on this tender is because there

may be a chances that any new person can, for the purpose of availing the

opportunity, quote lower price which may in the future result to non-

completion of work due to inexperience of the selected bidder which could

lead to further litigation. Therefore, to get rid of all these kind of situations,

the quality cost based system bid was called for wherein the irst priority

was on the quality of the work which the bidders has executed in the past 2024:CGHC:20866-DB

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years irrespective of their prices.

12.Mr. Bharat further submits that the NIT was further sub-categorized into

diferent qualiication criteria ranging from Condition No. 1 to 5 in which

Condition No. 1 relates to the incorporation of the bidders which stipulates

about legal entity of the irm, or registered with partnership or individual or

with Company's Act or not. In similar manner, Condition No. 5 mandates

that the person has to have the minimum required turnover in last three

inancial years i.e. 2016- 17, 2017-18 and 2018-19 over and above Rs. 10

Lakh from the consultancy only for which two documents were required i.e.

the Turnover Certiicates as well as the Audit Report certiied by the

Chartered Accountant. The tender also stipulated further essential

documents for the above ive mentioned conditions in the form of Clause 2

which states that technical proposal (essential documents). For getting

eligible for condition No. 5 further essential documents were required for

by the bidder as detailed in paragraph 6 of the return. Merely perusal of

the said paragraph 6 would show that the documents required for the

person to get eligible for condition No. 5 are three in number. By reading

the pre-qualiication criteria condition No. 5, it appears that the main

contention of the employer i.e. the Tendering Authority is to check whether

the person is inancially sound and has achieved the milestone in the last 3

years of the same work and to prove this credential, the bidder has to

submit the documents as stated in above para. Admittedly, the respondent

No. 3 along with other bidders has submitted the audited balance-sheet for

the last 3 inancial years which bears the signature of Chartered

Accountant. Sub- condition No. 3 of Essential Condition No. 5 provides for

the submission of the documents which shows that the bidder has

achieved the turnover of 30% of the amount they have proposed for their

NIT. Since, none of the bidders which include the petitioner also have

disclosed this fact that they have achieved the turnover of 30%, the Tender

Evaluation Committee has taken into consideration this fact and relaxed 2024:CGHC:20866-DB

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the condition for all the persons. In the similar manner, during the

valuation, it was found that the respondent No. 2 has not submitted the

turnover certiicate duly certiied by Chartered Accountant and by looking

to the other documents submitted with the balance-sheet which is duly

certiied by the Chartered Accountant and taking into consideration the

substantial compliance of the tender condition No. 5, the Tender

Evaluation Committee has considered the candidature of the respondent

No. 3 in technical ground also. Thus all proceedings were done in the front

of each and every bidders which includes the petitioner also. At the time,

when this proceeding was going on, the petitioner did not raise any

objection to such thing and now after his non-selection, he is raising hue

and cry challenging the credential of the respondent No. 3. The employer

i.e. the tendering authority holds power to interpret its own terms and

condition for considering the candidature of the bidders. In the present

case, since there is substantial compliance by the respondent No. 3 by

virtue of the document in the form of audited balance-sheet duly certiied

by Chartered Accountant, the Committee decided to consider its

candidature for the tender. This exercise can by no stretch of imagination

be termed as illegal and incorrect.

13.Mr. Bharat further submits that the impugned NIT was loated for the

preparation of the DPR for two kinds of villages, i.e. villages which are

directly afected by the mining area, and villages which are indirectly

afected. The respondent No. 3 prior to passing of interim order by this

Hon'ble Court on 27.10.2021, has already completed part of the tender by

preparation of the DPR (Detailed Project Report) for the directly afected

area on 08.09.2021, and the payment of the same was also done for the

same.

14.In response to the return iled by the State, the petitioner had also iled a

rejoinder stating that in para 7 of the return, the respondents/State 2024:CGHC:20866-DB

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authorities have categorically stated that during the valuation process, qua

the tender condition No.5, the respondent No.3 has not submitted the turn

over certiicate duly certiied by the Chartered Accountant, as such from

the averments made by the respondent/State authorities it is itself clear

that they have not followed the essential condition for eligibility/

participation as mentioned in the NIT qua the respondent No. 3. Mr.

Agrawal further submits that the respondent/State authorities not only

while handling the tender process but also subsequent actions, would

show that the respondent/State authorities and the private respondent

No.3 are hand in gloves and they have least regard for this Hon'ble Court

and said statement is fortiied from the fact that in order to defeat the

petition, in their reply, the respondent/State authorities have stated that

prior to the passing of the interim order dated 27.10.2021, a sum of

Rs.4.51 crore has already been released qua the work completed by the

private respondent No. 3. It would be cleared that the above sum of Rs.

4.51 crore has been released from the month of February, 2021 to

September, 2021 and during this period, the respondent No.3 has

surveyed around 450 villages, which are directly afected by the mining

area and prepared a DPR (Detailed Project report thereof). The said

averment of the respondent / State is in itself malaide and colourable

because from the month of March, 2021 to August, 2021, the country has

witnessed a severe second wave of the COVID-19 pandemic wherein the

entire population/citizens of country including the State of Chhattisgarh

were afected and lakhs of citizens have lost their lives. Further, complete

lockdown was imposed in the State of Chhattisgarh for around two months

restricting the movement then how in the above span of 240 days which

includes the lockdown period, survey of more than 450 villages has been

done or whether such survey was only conducted on paper, even the date

of the clearance of cheque dated 02.09.2021 and 14.09.2021 amounting

respectively to Rs.2.25 crore and 0.45 crore assumes importance because 2024:CGHC:20866-DB

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on 06.08.2021, this Hon'ble Court had issued notice on merit as well as on

application for grant of ad-interim relief in the matter and on the very same

date, the State counsel has accepted notice on behalf of State/respondent

authorities. Mr. Agrawal, vide paragraph 12 of his rejoinder tried to explain

as to what would the minimum time required for completion of the survey in

the mining afected area and in the given time, the respondent No. 3 could

not have completed the work.

15.An aidavit has been iled on behalf of the State/respondents No. 1 and 2

in pursuance of the direction of the Hon'ble Court on 21.02.2022 stating

that the respondent No.2 through the Collector had invited a tender for

selection of consultants for preparation of DPR (Detailed Project Report)

as well as preparation of written document/master plan for various

development work which is to be funded by District Mineral Fund Trust for

the District Janjgir Champa for upcoming ive years on the terms and

conditions annexed with the return wherein in clause 3(10) it is clearly

stipulated that the selected institution will be primarily contracted for 01

year (it is pertinent to mention here that in the said terms and conditions

due to typographical error after 01 year has not been mentioned, which is

bonaide and thus the same may kindly be read as 1 year), which can be

extended on the basis of successful execution of the contracted works.

After issuance of the work order dated 09.02.2021 in favour of the

respondent No.3/Sangam Seva Samiti, Janjgir District Janjgir Champa an

agreement dated 10.02.2021 was executed between the respondent No.3

and Chief Executive Oicer, Zila Panchayat District Janjgir Champa for a

period of one year. The respondent No.3 has already completed part of the

tender by preparation of the DPR (Detailed Project Report) for the directly

afected area on 06.09.2021 and the payment of the same was also done

for the same, which is evident from the completion certiicate for the part of

the tender Annexure-R-2 iled with the return. This Hon'ble Court vide its

order dated 27.10.2021 had been pleased to suspend the order dated 2024:CGHC:20866-DB

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09/02/2021. Prior to passing of interim order by this Hon'ble Court the

respondent No.3 had already completed part of the tender by preparation

of the DPR for the directly afected area on 06.09.2021. During pendency

of the present petition, the period of contract/agreement of 1 year had

already been expired on 10.02.2022.

16.Thereafter, this Court had further directed vide order dated 21.07.2022 to

ile another aidavit pursuant to which the State/respondent No. 1 and 2

have iled their aidavit stating that the Hon'ble court vide its order dated

21.07.2022 noted that the aidavit iled on 25.02.2022 on behalf of the

respondents No. 1 and 2 was not clear as to whether the work of

preparation of a master plan/vision document for the works relating to

identiication of mining afected areas/persons (direct or indirect),

necessary survey, supervision of projects and social audits thereof, was

completed or not and that pursuant to the notice inviting tender dated

11.08.2020, the work order was issued in favour of respondent No. 3 on

09.02.2021. It has already been on record of this Hon'ble Court that

pursuant to the NIT, the work order was issued in favour of respondent No.

3 on 09.02.2021. After issuance of the work order dated 09.02.2021, an

agreement dated 10.02.2021 has been executed between the respondent

No.3 and respondent No.2. On the basis of and in terms of the agreement

dated 10.02.2021 Administrative Sanction Order dated 12.02.2021

(hereinafter referred to as "AS") was issued. The petitioner has challenged

only to the work order dated 09.02.2021 in its original petition whereas it

has not challenged the AS dated 12.02.2021.

17.The NIT dated 11/08/2020 was issued for the work of preparation of a

master plan/vision document for the works relating to identiication of

mining afected areas/persons (direct or indirect), necessary survey,

supervision of projects and social audits thereof whereas the AS dated

12.02.2021 was issued for preparation of a ive year plan/ vision document 2024:CGHC:20866-DB

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for the interest and beneit and overall development of the directly/

indirectly afected areas/ individuals. Identiication of mining afected

areas/persons (direct or indirect) and supervision of projects is the task of

DMF authorities. The process of social-audit is conducted in two phases;

irst phase is related to the identiication of requirements of the afected

area and the second phase is related to implementation and quality of the

relevant works. Respondent No.3 was responsible for and has completed

irst phase of social-audit whereas second phase of the social-audit is

related to execution/implementation level. The directly afected areas/

peoples are having priority over indirectly afected areas/ peoples.

Therefore, AS dated 12.022021 was initially issued for directly afected

areas/ individuals only which is implied under clause 14 of the AS dated

12.02.2021. Clause 14 above stipulates that 40% of the total amount shall

be paid to the selected institution initially. In the present case Rs. 1.80

Crores has been initially paid to respondent No.3 in the month of February

2021 as 40% of the Total amount Rs. 4.51 Crores for 429 directly afected

villages at the rate (Rs. 1,05,000/- per village) as agreed upon after

negotiation with the tendered rate and further payment has been made as

per clause 14 of the AS. In compliance to the AS dated 12.02.2021,

respondent No.3 submitted the Five-Year Master Plan for all 429 directly

afected villages on dated 08.09.2021. In the veriication, respondent No.2

found that based on baseline survey, fundamental data collection of

villages and analysis of existing infrastructures/ resources and in meeting

with the villagers (Gram Baithak), list of proposed tasks and works

inalized on priority basis and the master plan have been prepared for per

individual villages by the respondent No.3 with the approval of gram

Panchayat. All this was done for same to 429 directly afected villages.

After such veriication, completion certiicate with respect to directly

afected villages was issued in favour of respondent No.3 on 14.09.2021.

As per the terms and conditions of the NIT, which is impliedly incorporated 2024:CGHC:20866-DB

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in the AS dated 12.02.20221 also; satisfactory and successful completion

of the work awarded is the pre-requisite for further awards. It is respectfully

submitted that respondent No. 3 has completed irst phase (directly

afected villages) of the work awarded satisfactorily and successfully

therefore completion certiicate was issued and inal installment of

remaining 10% of total amount was released in favour of respondent No.3

and thereafter respondent No.3 has became eligible to get further

extension of two years. In terms of the clause 17 of the agreement dated

10.02.2021 and clause 18 of the AS dated 12.02.2021, work for

preparation of a ive year plan/vision document for the interest and beneit

and overall development of the indirectly afected areas/ individuals has

been extended in favour of respondent No.3 and an amount of Rs. 1.93

Crores calculated as per clause 14 of the AS dated 12.02.2021 has been

paid to respondent No.3 on 14.09.2021. The extended work f or

preparation of ive year plan for indirectly afected villages was being done

by respondent No.3 which is stayed in compliance of the order dated

27.10.2021 of the Hon'ble Court. As such, it was lastly submitted that the

tender process is not sufering from any illegality, irrationality, malaide,

perversity or procedural impropriety. As far as possible, respondent No.2

is acting according to the intention of the author of the tender documents.

18.Mr. Abhishek Sinha, learned Senior Advocate assisted by Mr. Somkant

Verma, learned counsel appearing for the respondent No. 3, also submits

that the technical bid of all the tender were opened on 16.09.2020 in

presence of the representative of petitioner and thereafter the work order

has been issued on 09.02.2021. After the work order, the respondent

No.3 has prepared the master plan and prepared ive-year plan/vision

document of the directly afected area and submitted it to the department

which has been accepted and payment made. As per paragraph-14 of AS

order dated 12.02.2021, the petitioner has never impugned order dated

12.02.2021. The present petition has been iled only on 28.07.2021 which 2024:CGHC:20866-DB

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in the facts and circumstances of the petition is extra-ordinarily delayed

without there being any explanation under para 7 of the petition. Delay has

resulted in execution of work and creation of right to execute the contract.

The present writ iled under most of the work under the contract being

done deserve to be dismissed only on the ground of delay and laches. The

petitioner has not iled the complete relevant documents and has chosen to

ile only selective documents. Mr. Sinha submits that the bid was in two

parts technical and inancial and the petitioner has chosen not to ile the

inancial bid submitted by him and rates quoted by him were the lowest

(though L-1 was not the criteria for award of contract but it was quantity

cost-based system) but the bid submitted by him for ive years of work is

Rs. 1,53,046/- as against the accepted bid of Rs. 1,10,000/- of the

respondent No. 3. It is for the said reason the petitioner has chosen not ile

the documents so as to suppress the material fact of his bid not being

lowest for ive years. The conduct of the petitioner disentitles him of any

consideration in equity writ jurisdiction before this Hon'ble court.

19.Mr. Sinha further submits that one of the ground of challenge in this petition

is that the respondent No. 3 had not submitted a certiicate issued by the

Chartered Accountant of the average yearly turnover and therefore his bid

has wrongly been considered to be valid and eligible. In fact, the

requirement under NIT stipulates that the bidder has to submit the

complete statement of turnover duly audited and the answering

respondents has submitted the previous three years of complete turnover

statement duly audited by the Charted Accountant, from which the yearly

turnover is clearly discernible. Therefore, it substantial compliance and

certiicate of CA is just formal. The respondent No. 3 has submitted the

average yearly turnover self-attested and has accordingly accepted the

bid. It is not the case of the petitioner that the respondent No. 3 does not

have the requisite yearly turnover required for being eligible. The three

years audited report has not been disputed. Thus, the objection of the 2024:CGHC:20866-DB

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petitioner is hyper technical and not tenable as there has been substantive

compliance and the answering respondents is technically eligible for being

awarded the work under the NIT. Further, the respondent No. 3 adopts the

reply and the stand take by respondent No.1 and 2. In any event there is

no fault on part of the respondent No. 3 as it not as case of

misrepresentation of eligibility. The work under the contract has been

performed and the part payment has also been done on successful

completion. The respondent No.3 iled all relevant documents alongwith

its application, the Committee considered application of respondent No.3

and others and examined the documents iled by the respondent No.3 and

after veriication of documents, the Committee decided and found the

respondent No. 3 eligible/it and subsequently, by its order dated

09.02.2021 work order has been issued in favor of respondent No. 3. The

basis of certiicate of total turnover is three years audit report of inancial

year 2016-2017, 2017-2018, 2018-2019, the inancial audit report is not

questioning by the petitioner, it means the inancial audit report of the

respondent No.3 is correct, accepted by the petitioner and is undisputed.

After issuance of work order in favor of answering respondent, work has

been completed and on 14.09.2021, competent authority issued work

completion certiicate in favor of answering respondents, till date, there is

no complaint regarding work of the respondent No. 3 and the

State/respondent No. 1 and 2 are fully satisied from work of respondent

No. 3.

20.We have heard learned counsel for the parties, perused the pleadings and

documents appended thereto.

21.From perusal of the averments and pleadings made in the petition, it

transpires that the petitioner is aggrieved by award of tender to the

respondent No. 3 as according to the petitioner, the respondent No. 3 does

not fulill the criteria as prescribed by the tendering authority. 2024:CGHC:20866-DB

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22.So far a submission of the copy of the Average Annual Turn Over issued

by a Competent Authority/qualiied Chartered Accountant and copy of

statement issued by a Competent Authority/Chartered Accountant,

showing the total Consultancy Turn Over with regard to past three years,

are concerned, the State, in its reply at paragraph 7 has explained that

admittedly, the respondent No. 3 along with other bidders had submitted

the audited balance-sheet for the last 3 inancial years which bears the

signature of Chartered Accountant. Sub-condition No. 3 of Essential

Condition No. 5 provides for the submission of the documents which

shows that the bidder has achieved the turnover of 30% of the amount they

have proposed for their NIT. Since, none of the bidders which include the

petitioner also have disclosed this fact that they have achieved the

turnover of 30%, the Tender Evaluation Committee has taken into

consideration this fact and relaxed the condition for all the persons. In the

similar manner, during the valuation, it was found that the respondent No.

2 has not submitted the turnover certiicate duly certiied by Chartered

Accountant and by looking to the other documents submitted with the

balance-sheet which is duly certiied by the Chartered Accountant and

taking into consideration the substantial compliance of the tender condition

No. 5, the Tender Evaluation Committee has considered the candidature

of the respondent No. 3 in technical ground also.

23.According to learned counsel for the respondent No. 3, the petitioner has

not even come before this Court with clean hands as the petitioner had not

iled the relevant documents and had chosen to ile only selective

documents. The petitioner has not iled the inancial bid submitted by him

and the rates quoted were the higher than that of the petitioner as the price

quoted by the petitioner was Rs. 1,53,046 whereas the ofer of the

respondent No. 3 was 1,10,000/-. Even otherwise, the NIT in question was

not based on the lowest price but was under the quantity cost based

system. So far as the contention of the petitioner that in the peak of covid 2024:CGHC:20866-DB

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19 pandemic, the respondent No. 3 has surveyed 450 villages, is noticed

to be rejected as the said issue cannot be decided by this Court. It is for

the tendering authority either to accept the survey report submitted by the

respondent No. 3 and to ascertain as to how and in what manner the

respondent No. 3 has done the survey work.

24.Even otherwise, as stated by the learned counsel for the respondents, the

irst phase of the survey has been completed and payments in that regard

has also been made, this Court does not deem it proper to interfere at this

stage especially in the light of catena of decisions rendered by the Apex

Court relating to tender matters.

25.A three-Judge Bench of the Supreme Court, in Tata Motors Limited v.

The Brihan Mumbai Electric Supply & Transport, Civil Appeal No.

3897 of 2023, decided on 19.05.2023, had observed as under:

“48. This Court being the guardian of fundamental

rights is duty-bound to interfere when there is

arbitrariness, irrationality, mala ides and bias.

However, this Court has cautioned time and again that

courts should exercise a lot of restraint while

exercising their powers of judicial review in contractual

or commercial matters. This Court is normally loathe to

interfere in contractual matters unless a clear-cut case

of arbitrariness or mala ides or bias or irrationality is

made out. One must remember that today many public

sector undertakings compete with the private industry.

The contracts entered into between private parties are

not subject to scrutiny under writ jurisdiction. No

doubt, the bodies which are State within the meaning

of Article 12 of the Constitution are bound to act fairly

and are amenable to the writ jurisdiction of superior

courts but this discretionary power must be exercised

with a great deal of restraint and caution. The courts

must realise their limitations and the havoc which

needless interference in commercial matters can

cause. In contracts involving technical issues the

courts should be even more reluctant because most of

us in Judges' robes do not have the necessary

expertise to adjudicate upon technical issues beyond

our domain. The courts should not use a magnifying

lass while scanning the tenders and make every small

mistake appear like a big blunder. In fact, the courts

must give “fair play in the joints” to the government and 2024:CGHC:20866-DB

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public sector undertakings in matters of contract.

Courts must also not interfere where such interference

will cause unnecessary loss to the public exchequer.

(See: Silppi Constructions Contractors v. Union of

India, (2020) 16 SCC 489)

….

52. Ordinarily, a 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

unless something very gross or palpable is pointed

out. The court ordinarily should not interfere in matters

relating to tender or contract. To set at naught the

entire tender process at the stage when the contract is

well underway, would not be in public interest.

Initiating a fresh tender process at this stage may

consume lot of time and also loss to the public

exchequer to the tune of crores of rupees. The

inancial burden/implications on the public exchequer

that the State may have to meet with if the Court

directs issue of a fresh tender notice, should be one of

the guiding factors that the Court should keep in mind.

This is evident from a three-Judge Bench decision of

this Court in Association of Registration Plates v.

Union of India and Others, reported in (2005) 1 SCC

679.

53. The law relating to award of contract by the State

and public sector corporations was reviewed in Air

India Ltd. v. Cochin International Airport Ltd., reported

in (2000) 2 SCC 617 and it was held that the award of

a contract, whether by a private party or by a State, is

essentially a commercial transaction. It can choose its

own method to arrive at a decision and it is free to

grant any relaxation for bona ide reasons, if the tender

conditions permit such a relaxation. It was further held

that the State, its corporations, instrumentalities and

agencies have the public duty to be fair to all

concerned. Even when some defect is found in the

decision-making process, the court must exercise its

discretionary powers under Article 226 with great

caution and should exercise it only in furtherance of

public interest and not merely on the making out of a

legal point. The court should always keep the larger

public interest in mind in order to decide whether its

intervention is called for or not. Only when it comes to

a conclusion that overwhelming public interest requires

interference, the court should interfere.

54. As observed by this Court in Jagdish Mandal v.

State of Orissa and Others, reported in (2007) 14 SCC

517, that while invoking power of judicial review in 2024:CGHC:20866-DB

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matters as to tenders or award of contracts, certain

special features should be borne in mind that

evaluations of tenders and awarding of contracts are

essentially commercial functions and principles of

equity and natural justice stay at a distance in such

matters. If the decision relating to award of contract is

bona ide and is in public interest, courts will not

interfere by exercising powers of judicial review even if

a procedural aberration or error in assessment or

prejudice to a tenderer, is made out. Power of judicial

review will not be invoked to protect private interest at

the cost of public interest, or to decide contractual

disputes.”

26.In view of the settled principles of law with regard to contractual disputes

and award of tender as aforesaid, we are of the view that this is not a it

case so as to interfere with the decision of the respondent No. 1 and 2.

27.Resultantly, this petition stands dismissed.

Sd/- Sd/-

(Sachin Singh Rajput) (Ramesh Sinha)

Judge Chief Justice

Amit 2024:CGHC:20866-DB

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