Union Of India And Others v. K.Unnikrishna Pillai And ANR.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION [ CIRCUIT BENCH AT PORT BLAIR ] *** MA/25/2021 IA NO: CAN/2/2021, CAN/3/2021, CAN/1/2021 Union of India and others ... Appellants Vs.
K.Unnikrishna Pillai and another ... Respondents Mr. VD.Sivabalan, Advocate .. .for the appellants Mr. Arul Prasanth, Advocate .. for the respondent Mrs. Anjili Nag, Advocate .. for the added respondent November 17, 2021 [GNC] Sl.No.2 Leave is granted to file the appeal without certified copy. CAN 2/2021 is allowed and disposed of.
The delay in filing the appeal is condoned as the same has been explained. CAN/1/2021 is allowed and disposed of. By consent of the parties, the appeal itself is taken up for hearing today.
The appeal is directed against the judgement and order dated 12th January, 2021 passed by the Single Bench whereby and under the writ petitioner's contention that he could not submit the physical copy of his tender by 3rd September, 2020 due to the pandemic was accepted by the Single Bench. The writ petitioner was allowed to participate in the tender. In this appeal by the employer the parties have been at logger heads with regard to recording in the fourth paragraph of the second page of the judgement.
" As such, since it is submitted that the bids have not yet been opened, the petitioner ought to get an opportunity to be considered in the tender process."
It is submitted by the counsel for the appellants that the said submission as made on behalf of the appellants is incorrect. A letter dated 4th December, 2020 being Annexure A-5 to the writ application is placed before this Court. It appears that the only remaining tenderer was the added respondent and its bid was opened on the 25th November, 2020.
Indeed it is true that a formal work order or contract has not been issued to the added respondent. The fact, however, remains that the writ petitioner-respondent was disqualified as on that date. Certain rights have accrued to the successful tenderer-respondent. The said added respondent should have been notified, added as respondent and heard, in the W.P.
In the light of the fact that an incorrect statement was made to the Single Bench, this Court would have normally remanded the matter back to enable the parties to seek clarifications. However, given the lapse of time which has delayed the project, which the appellant appears to be responsible for, this court is not inclined to defer the issue any further.
By Notice Inviting Tender dated 25th November, 2019 offers were invited for " Construction of Eastern side Jetty on bored pile foundation at Kalpeni Island.". The tender was cancelled on14.05.2020 and the NIT was notified afresh on 5th August, 2020.
The sum and substance of the writ petitioner's argument before this Court is that he had submitted his tender by email on the 2nd September, 2020 whereas the last date for submission of tender was expiring on 3rd September, 2020. The hard copy of the writ petitioner's tender was despatched from Port Blair on the 25th August, 2020. The appellant confirms that such hard copy was received at Cochin on 16th September, 2020 and Kavarati on 18th September, 2020. To explain the delay it is submitted that the writ petitioner could not be held responsible for the delay by postal authorities caused primarily due to the pandemic and absence of flights from Port Blair to mainland. The order of the Single Judge is supported and the appeal by the employer, Andaman Lakshadweep Harbour Works is opposed. This Court has considered the rival submissions of the parties.
It is noted that the physical tender was submitted from Port Blair on 25th August, 2020 when the NIT was published on 5th August, 2020. Soft copy of the tender was sent only on the 3rd of September, 2020.
It is difficult for this Court to accept that the petitioner who is admittedly a seasoned player in the line of work would not have factored in the pandemic after having seen the NIT in November, 2019. A bonafide serious bidder would have definitely in consideration of the same submitted his tender immediately after the 5th August, 2020 or there abouts. The writ petitioner chose to wait until 25th August, 2020 to submit hard copy of the tender. It is equally shocking to note that the soft copy of the tender was sent by email on 2nd September,
2020 i.e a day before the last date of the submission of the bids.
Any genuine or serious tenderer would have despatched the soft copy at the earliest available opportunity. A vigilant and genuine tenderer would have expressed its difficulty to the respondents of any anticipated delay in dispatch of the hard copy of the tender to the respondents. There is no evidence before this Court of any such communication from this writ petitioner.
This Court is, therefore, of the view that as on 3rd September, 2020 i.e (the last date) 25th November, 2020,(the date of opening) the only remaining qualified tenderer was the added respondent. The writ petitioner stood disqualified by then. Reliance is placed on the decision of the Supreme Court in the case of M/s Sorath Builders vs. Shreejikrupa Buildcon Limited and another reported in 2009 (11) SCC 9. The facts appear to be similar. The Supreme Court at paras 14 and 15 held as follows:
"14. In W.B. State Electricity Board vs. Patel Engineering Co. Ltd. and Others, reported in (2001) 2 SCC 451, this Court while considering the issue with regard to the process of tender held: "where bidders who fulfil prequalification alone are invited to bid, adherence to the instructions cannot be given a goby by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and constitutional values".
It was also held:
"the very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty". It was further held:
"the contract is awarded, normally, to the lowest tenderer which is in public interest and that it is equally in public interest to adhere to the rules and conditions subject to which bids are invited".
15. Following the aforesaid legal principles laid down by this Court, we are of the considered opinion that the respondent no. 1 was negligent and was not sincere in submitting his pre qualification documents within the time schedule laid down despite the fact that he had information that there is a time schedule attached to the notice inviting tenders. Despite being aware of the said stipulation he did not submit the required documents within the stipulated date. Pre-qualification documents were received by the respondent no. 2 - University only after time schedule was over. The terms and conditions of the tender as held by the Supreme Court are required to be adhered to strictly, and therefore, the respondent no.
2 - University was justified in not opening the tender submitted by respondent no. 1 on 01.12.2008, which was late by three days. According to us no grievance could also be made by the respondent no. 1 as lapse was due to his own fault. The High Court proceeded to interfere with the entire process as if acting as an appellate authority over the decision of the University which was beyond the jurisdiction of the Court. The High Court was not justified in accepting the contentions of respondent no. 1 and thereby upsetting the entire process of inviting tenders by interfering with the terms and conditions of inviting the tenders and by rescheduling and directing the process of re-tendering, which would only cause further delay and would increase the burden on the exchequer of the University."
The above dicta if applied would negate all the contentions of the writ petitioner.
This Court is surprised that neither the writ petitioner nor the appellant thought it fit to inform either the Single Judge or this Court that the added respondent was required to have been impleaded and heard. By the impugned order, the benefits that had accrued to the private respondent have been watered down. It is equally prejudicial that the financial bid of the added respondent came to be disclosed and made public. This would give an added advantage to the writ petitioner. It is not possible for this Court to accept that the writ petitioner did not know about the added respondent when the petition was filed.
In view of the above, the impugned order is set aside and disqualification of the writ petitioner for not being able to submit tender within this time is upheld. The writ petitioner shall not be entitled to participate in the tender process. The appellant department may take appropriate steps in accordance with the NIT. The appeal is therefore allowed and disposed of.
This Court notes impropriety on the part of the writ petitioner as well as the appellant in conducting proceeding before this Court. While it is true that the private player like the writ petitioner, may not be, expected to have acted in all fairness, the appellant department's silence before the Single Judge and misleading concession to benefit the writ petitioner, cannot be ignored/condoned. But for such misleading, the impugned order would not have been passed. This Court, therefore, directs the appellant to pay costs assessed at Rs.25,000/- to the District Legal Services Authority, Port Blair.
After the judgement is dictated, Mr. Arul Prasanth, learned counsel appearing for the respondent-writ petitioner prays for stay of operation of the order for a period of two weeks. The same is considered and rejected.
The appeal and CAN-3 of 2021 shall stand disposed of. (Rajasekhar Mantha, J. ) (Amrita Sinha, J. )