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M/s Parihar Constructions, through its partner Shri Darwan Singh Parihar, Bageshwar v/s M/s Dalip Singh Adhikari & Others

    SPECIAL APPEAL NO. 424 OF 2021
    Decided On, 27 December 2021
    At, High Court of Uttarakhand
    For the Appellant: Sanjay Bhatt, Advocate, Hari Om Bhakuni, learned counsel. For the Respondent: R1, Shobhit Saharia, learned counsel, R2, B.P.S. Mer, learned Brief Holder, R3 & R4, Subhash Upadhyay, learned counsel holding, S.S. Chauhan, learned counsel.

Judgment Text

Sanjaya Kumar Mishra

1. In this Intra-Court appeal, the successful tenderer, being respondent No. 1, in Writ Petition (M/S) No. 699 of 2020, has assailed the judgment and order passed by the learned Singh Judge on 01.12.2021, along with the application of the respondent No. 1, and thereby directing the impugned orders dated 03.02.2020 and 27.02.2020 as illegal, and pray to quash the same.

2) The learned counsel for the appellant would argue that the judgment and order passed by the learned Single Judge is illegal as the authorities concerned have come to the conclusion that the tender submitted by respondent No. 1 by filling defective bar chart, and using G-1 grade of metal chips (stone chips) for up-gradation of the road, under the Pradhan Mantri Gram Sarak Yojana (PMGSY). It is not disputed that the petitioner’s financial bid is lowest, but he was not granted the tender only on the ground that he is using a bar chart, delimiting the different dates in execution of the work, which was objectionable to the authorities concerned, and that he has reflected in his tender documents that he shall use the G-1 stone / metal chips for up-gradation of the road.

3) The matter was heard at length by the learned Single Judge. He having taken into consideration the material available on record, has held as follows:

“12. From perusal of the bar chart, it is apparent that it gives a timeline for completing different activities involved in road construction. The objection raised by respondent nos. 2 & 3 against petitioner’s bar chart is not that depiction of timeline is incorrect, but, the sole objection is that G-1, which was not to be used in the work of up-gradation of road, has been included.

13. A specific query was put to Mr. Shailendra Singh Chauhan, learned counsel appearing for respondent nos. 2 & 3 as to whether there is any condition in the Tender Document / Instruction to Bidders, which forbids a bidder from mentioning G-1 in the bar chart or using G-1 in the work of up-gradation of road. Mr. Chauhan fairly submitted that there is no such condition in the Instruction to Bidders, which forbids mentioning of G-1 in the bar chart or use of G-1 in up-gradation of road.

14. In the absence of any condition in the Tender Document / Instruction to Bidders which prohibits mentioning of G-1, in the bar chart, rejection of petitioner’s bid merely for the reason that he has mentioned G-1 in his bar chart, would not be justified.

15. Moreover, mere mention of G-1 in the bar chart neither causes any financial gain to the contractor nor any financial loss to the employer, as the contract is awarded for the whole work based on the price bid and contractor is not to be paid separately for different items used in the work. In other words, upon execution of contract, a successful bidder will not be paid price for the inputs used in up-gradation of road, separately, but, he will be entitled to receive only the amount quoted by him in his price bid.

16. Clause 25.3 of the Instruction to Bidders provides that a bid, which is not substantially responsive alone will be rejected by the employer. Substantially responsive bid has been explained in clause 25.2. The bid submitted by petitioner cannot be said to be non-responsive merely on account of mentioning of G-1 in the bar chart, as it does not amount to material deviation of reservation, as it will not affect in any substantial way the scope, quality and performance of the work. In the bar chart, bidders were required to indicate the timeline for different activities to ensure that different activities in the project are completed as per the time schedule indicated in the bar chart, therefore, merely by mentioning G-1 in the bar chart, petitioner’s bid will not become substantially non-responsive. As stated earlier, G-1, G-2 and G-3 denote stone grit aggregate of different sizes and it is not that G-1 is never used in road construction. The objection of the employer is that G-1 is not to be used in up-gradation of road. A material is used in construction activity as per requirement and it is nobody’s case that petitioner will use G-1, even if, it is not required or warranted. This Court finds substance in the submission made by learned counsel for the petitioner that G-1 is integral part of the material used for construction of WBM Road, therefore, as a matter of abundant caution, petitioner had mentioned G-1 in the bar chart, but it does not mean that petitioner will use G-1, even if not required. As stated earlier, purpose of bar chart is to indicate the start date and completion date of different activities. Thus, bar chart is meant for scheduling different activities in the project. There is no condition in the tender document / Instruction to Bidders that only such material has to be mentioned in the bar chart, which is actually to be used in the project. Thus, in the absence of any guidelines in the tender document / Instruction to Bidders, on this aspect of the matter, rejection of petitioner’s bid cannot be justified.”

4) A plain reading of these few paragraphs of the impugned judgment leave no doubt in the mind of the Court that the learned Single Judge has a very perspicacious view of the matter at hand, and has come to a very just and proper conclusion which is supported by good and reasonable grounds.

5) The learned counsel for the appellant submits that in short matters the Writ Court should stay its hands from interfering. He would rely upon a reported judgment of Hon’ble Supreme Court in Uflex Limited Vs Government of Tamil Nadu and others, Civil Appeal Nos. 4862-4863 of 2021, decided on September 17, 2021. The learned counsel for the appellant would also rely upon the observations made in paragraphs 42 and 43 of the judgment, which for proper appreciation are quoted below:

“42. The judgment in Nabha Power Limited (NPL) Vs Punjab State Power Corporation Limited (PSPCL) and another, (2018) 11 SCC 508, concluded with the following observations in para 72:

“72. We may, however, in the end, extend a word of caution. It should certainly not be an endeavour of commercial courts to look to implied terms of contract. In the current days and age, making of contracts is a matter of high technical expertise with legal brains from all sides involved in the process of drafting a contract. It is even preceded by opportunities of seeking clarifications and doubts so that the parties know what they are getting into. Thus, normally a contract should be read as it reads, as per its express terms. The implied terms is a concept, which is necessitated only when the Penta-test referred to aforesaid comes into play. There has to be a strict necessity for it. In the present case, we have really only read the contract in the manner it reads. We have not really read into it any ‘implied term’ but from the collection of clauses, come to a conclusion as to what the contract says. The formula for energy charges, to our mind, was quite clear. We have only expounded it in accordance to its natural grammatical contour, keeping in mind the nature of the contract.”

43. We have considered it appropriate to, once again, emphasise the aforesaid aspects, especially in the context of endeavours of courts to give their own interpretation to contracts, more specifically tender terms, at the behest of a third party competing for the tender, rather than what is propounded by the party framing the tender. The object cannot be that in every contract, where some parties would lose out, they should get the opportunity to somehow pick holes, to disqualify the successful parties, on ground on which even the party floating the tender finds no merit.”

6) This observation has been given by the Hon’ble Supreme Court in a case where it was alleged that the tender floating authority fixed the terms and conditions of the contract which is tailor-made for a particular tenderer. The application filed by the petitioner was allowed by the High Court, but it was set aside by the Hon’ble Supreme Court on the ground that the interpretation of the contract or terms and conditions of the tender document shall be as per the interpretation of the authorities, not in accordance with the interpretation of any of the parties or the unsuccessful tendered. The ratio decided in the aforesaid case is definitely not applicable to the case in hand, as in this case, the tender document of the petitioner / respondent No. 1 has been rejected on the ground that he put forth the tender with a condition that he will use G-1 type of stone chips for up-gradation of the road, which was not prohibited by the terms and c

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onditions of the tender. 7) There is another important factor in favour of the petitioner / respondent No. 1 that the tender inviting authority, i.e., Uttarakhand Rural Roads Development Agency has not challenged the order of the learned Single Judge and they accepted the order as it is. 8) Moreover, it is apparent from the record that there is no prohibition of use of G-1 type of stone chips for the up-gradation of the road. In fact, the notice inviting the tender does not specify any such condition in using the same. Therefore, this Court is of the opinion that the judgment passed by the learned Single Judge is just and proper, and requires no interference. 9) In that view of the matter, the appeal is dismissed being devoid of any merit. The judgment passed by the learned Single Judge is hereby confirmed. There shall be no order as to the costs. 10) The Stay application (IA No. 01 of 2021) stands disposed of accordingly.