Dhiraj Singh Thakur, J.1. Petitioner challenges the action of the Municipal Corporation, Jammu in rejecting his Technical Bid in reference to NIT No. 165-T, through which NIT, bids have been invited from the eligible groups for up-gradation of the Shamshan Ghat at Jogi Gate in Ward No. 07, Jammu.Briefly stated, the material facts are as under :2. An NIT dated 19.11.2018 was issued by the Jammu Municipal Corporation inviting inter alia bids for up-gradation of Shamshan Ghat at Jogi Gate, Jammu. The approximate cost for the said works was Rs. 81.87 lacs and the class of contractors which were made eligible to bid for the said work was Self Help Groups as defined under Government Orders No. 14-L&E of 2017 dated 20.2.2017, 44-L&E of 2017 dated 21.8.2017 and 20-L&E of 2018 dated 8.3.2018.It needs to be highlighted that subsequently the Government amended certain conditions as incorporated in the aforementioned three Government orders through Government order dated 6.6.2018. However, the amendments incorporated do not, in any manner, affect the controversy involved in the present writ petitions. Clause 7 of the Government Order dated 6.6.2018 reflecting the Scheme of Self Help Groups is reproduced hereunder:“7. Para 9 Sub-para 9.3 (B) shall be substituted by the following:(B) Limit of Work Contracts.(a) Quota: 30% of the total works of the Government Departments/Corporations and Autonomous bodies shall be the quota earmarked for the Self Help Groups.(b) A Self Help Group shall be entitled to get works contract up to the limit of Rs. 50 lakh for two years from the date of its registration.(c) After two years, a Self Help Group shall be entitled to get a work contract up to a limit of Rs. 75 lakh within their quota, for the next two years, subject to the condition that the group has total annual turnover of Rupees one crore or more.(d) After four years of its registration, a Self Help Group shall be entitled to take a work contract up to the limit of Rs. 1.25 crore, within their quota, subject to the condition that the group has total annual turnover of above rupees two crore.(e) A Self Help Group that demonstrates high level of performance could even be considered for allotment of works with monetary limit of above Rs. 1.25 crore within their quota after 05 years of its registration as per the capacity of SHG. However, performance of a SHG shall be graded by the Superintending Engineer of R&B/PHE/I&FC/UEED/PDD, as the case may be and SHG graded very good or excellent alone shall be allowed to take a work with an estimated cost of Rs. 1.25 crore.Provided where there is no Superintending Engineer, the SHG shall be graded by Chief Engineer concerned.(f) All line Departments including Heads of Departments, District Development Commissioners, Chief Engineers, Managing Directors, etc. shall earmark certain small works, including the small works like sanitary fittings, electrical works, painting, carpentry/joinery, information technology works, etc. in bigger projects to be allotted/executed to/by SHGs of Engineers only.(g) SHGs of Engineers shall be integrated with Annual Maintenance Contracts (AMC) for maintenance works and wherever AMCs are not available, maintenance work shall be exclusively allotted/executed to/by SHGs.”3. According to the terms and conditions of the NIT, the bidders had to upload a copy of the Pan Card, Registration Card and GST, duly self attested or attested by the Gazetted Officer. In the event of failure to upload the aforementioned documents, the bid was liable to be cancelled if not uploaded on or before 27.11.2018 at 14:00 hrs.Since the other conditions of the NIT are not immediately relevant to the present controversy, the same are not being referred to, except Clause 11 of the NIT which applies to the Self Help Groups and is reproduced hereunder:“11.Nature and limit of contract will be according to guidelines of SHG Scheme issued by Labour Employment Department (J&K) vide Government Order No. 14-L&E of 2017 dated 20.2.2017. Clause 9.3(B).”4. According to Clause 19 of the NIT, furnishing of hard copies of bids immediately after submission of e-tenders was dispensed with. The same, however, were to be obtained from the bidder who was declared as L-1 after opening of the financial bids.5. Petitioner claims that it furnished all the requisite documents and uploaded the same including the prescribed fee as also the turnover certificate issued by the Chartered Accountant, namely, M/s. Kraps and Co. reflecting that the petitioner had annual turnover of Rs. 2,30,31,498.00 for the financial year 2017-18. It is urged that despite having done the needful, the official respondents rejected the technical bid vide communication dated 11.12.2018. The relevant reason for rejection in the aforementioned communication reads as under:“Rejected-Fee/Pre Qual/Technical.”6. Learned Counsel for the respondents Mr. S.S. Nanda, learned Sr. AAG states that in fact the technical bid was rejected only on the ground that the petitioner had failed to upload the turnover certificate.7. With a view to ascertain the fact whether the turnover certificate had been uploaded or not, directions were issued to produce the relevant records which have been produced today.According to the record, it appears that the petitioner had uploaded the turnover certificate issued by its Chartered Accountant, namely, M/s. Kraps and Co. The argument that the certificate was not so uploaded, is, therefore, without any basis.8. Mr. S.S. Nanda, learned Sr. AAG, however, stated that even when the petitioner had uploaded his certificate of turnover, the same ought to have been in Form 16-A or Form 26-A, which would reflect the annual turnover of the petitioner's Self Help Group and not in the form, in which, the same was uploaded by the petitioner.This argument, however, does not find any basis either in the NIT or from the Scheme applicable to the Self Help Groups. This was not at all a condition precedent that the turnover certificate had only to be issued and uploaded in Form 16-A or Form 26-A. Had this been known at the time of issuance of NIT, the petitioner perhaps would have satisfied that condition as well. However, this could not have at all been made a condition for rejecting the technical bid of the petitioner.9. Neither the NIT nor the Scheme required the certificate of turnover to be furnished in a particular form. To read into the NIT and the Scheme the said format would be to read a condition which is non-existent and would severelly prejudice the case of the petitioner.10. Mr. Pranav Kohli, learned Counsel appearing for the private respondent No. 5 states that the turnover certificate uploaded by the petitioner, even otherwise, did not specifically reflect that the same were relatable to the execution of the works contracts and that the turnover could as well have been attributed to some other activities or business undertaken by the Self Help Groups.This argument, however, cannot be accepted in view of the fact that there are works performance certificates issued by the Executive Engineer, Jammu dated 3.7.2018 which shows that the Self Help Group-M/s. Mahamaya Engineering and Construction Group (J-139) was a construction group and had executed 29 No. of works under the Jammu Municipal Corporation for the financial year 2017-18 amounting to Rs. 98.46 lacs. There is another certificate issued by the Commissioner, Municipal Corporation, Jammu reflecting the good performance of the Self Help Group in regard to the construction activities as was certified by the Executive Engineer of the said Corporation.11. In any case, the technical bid of the petitioner could not have been rejected only on that ground and in case there was any doubt, the Contract Committee could have always asked for additional proof to satisfy themselves whether the turnover was, in fact, on account of the construction activity or any other business. The argument raised by the learned Counsel for the private respondent is more in the arena of speculation rather than arising out of conviction. The same is, accordingly, rejected.12. Learned Counsel for the private respondent has referred to certain judgments of Apex Court in case titled Jagdish Mandal v. State of Orissa and Ors., I (2007) SLT 404=I (2007) CLT 338 (SC)=(2007) 14 SCC 514 and Municipal Corporation, Ujjain & Anr. v. BVG India Limited and Ors., VII (2018) SLT 69. =2018(5) SCC 462.13. What was sought to be urged was that while exercising powers of judicial review, the Court was not required to see whether the decision made by the respondents in allotting the contract was a sound decision but what was required to be seen was whether the decision made was lawfully.14. It is true that in exercising the power under Article 226 of the Constitution of India, Courts are obliged to test not the decision but the decision making process. The proposition of law laid down in the aforementioned two judgments cannot at all be questioned and have to be followed strictly. While applying the said ratio to the facts and circumstances of the case, it can, thus, be seen that the petitioner had done whatever it was required to do by uploading the turnover certificate. The certificate reflected that the turnover of the petitioner was more than Rs. 2.00 crores which fulfilled the requirement of the Government Order dated 6.6.2018 and the NIT.15. Petitioner had asserted that the financial bid submitted by him was around Rs. 70.00 lacs as against the bid submitted by the private respondent No. 5 which was around Rs. 1,00,51,105.53 which was subsequently reduced to Rs. 81.87 lacs. Hence there was an initial difference of almost 30 lacs between the bid submitted by the petitioner and that furnished by the respondent No. 5. Even otherwise, it would be in public interest to hold in favour of the petitioner by ordering that his financial bid be opened and contract be allotted to the lowest bidder.16. During the course of arguments, Mr. Pranav Kohli, states that some work has already been executed by respondent No. 5 and that the same be got measured so that the private respondent’s rights are not prejudiced and that some payment at least is made to it for the works executed.17. It needs here to be noticed that when the petition was first filed, a Co-ordinate Bench of this Court had, by virtue of order dated 14.12.2018, ordered that the contract would not be finally allotted to anyone. Although the said order was passed on 14.12.2018, the contract is stated to have been allotted to private respondent on 13.12.2018.Counsel for the private respondent, however, urged that the said order was not to the knowledge of the petitioner and that not even a party to OWP No. 2556/2018 and, therefore, having been allotted the contract, it had proceeded to execute the same.18. According to the learned Counsel for the petitioner, the order was served on the Municipal Authorities on 17.12.2018 by which date the allotment order had already been made. However, after the allotment of works in favour of the private respondents another petition came to be filed bearing OWP No. 2695/2018 challenging the said allotment order in winch a Co-ordinate Bench of this Court had pleased to pass an order on 31.12.2018 staying the operation of the order of allotment dated 30.12.2018. Some works appears to have been executed during this interregnum.19. Be that as it may, it is, accordingly, ordered that the work done by the respondent No. 5 be got measured. In this regard, Mr. Dinesh Kumar Rampal, Superintending Engineer, PM
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GSY is appointed as Commissioner who shall go on the spot and measure the works executed. The approximate amount so determined shall be payable to the said respondent from out of the amount payable to the petitioner for executing the balance work. In case the amount determined is contested by either party then the same shall be adjudicated through the mechanism of arbitration for which the parties may approach this Court by way of an appropriate petition. The Commissioner shall be paid an amount of Rs. 50,000/- to be borne by the Jammu Municipal Corporation. The Fee of the Commissioner shall be deposited by the Municipal Corporation with the Registry of this Court within ten days from the date a copy of this order is served upon it, which upon preparation of the report shall be released by the Registrar Judicial of this Court in favour of the Commissioner.20. I, accordingly, hold that the rejection of the technical bid of the petitioner was uncalled for, illegal and arbitrary and is, accordingly, set aside. Allotment Order No. MJ/Tech/T/1839-44 dated 13.12.2018 for tender under Ref. No. e-NIT No. 165T issued by respondent No. 3 in favour of respondent No. 5 also stands quashed.With the aforementioned directions, both the petitions stand disposed of.Petitions disposed of.