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VC Project & Infra Pvt. Ltd. v/s Porbandar Chhaya Municipality Through President/Chief Officer

    R/Special Civil Application No. 7444 of 2021
    Decided On, 09 June 2021
    At, High Court of Gujarat At Ahmedabad
    By, THE HONOURABLE MR. JUSTICE J.B. PARDIWALA & THE HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
    For the Petitioner: Paras K. Sukhwani(8284), Advocate. For the Respondent: Murali N. Devnani(1863), Advocate.


Judgment Text
Oral Order

J.B. Pardiwala, J.

1. By this writ­application under Article 226 of the Constitution of India, the writ­applicant – a “AA” Class Government registered Civil Contractor has prayed for the following reliefs:­

17(a) be pleased to admit present petition.

(b) be pleased to issue appropriate writ of mandamus or any other appropriate writ, order or direction quashing & setting aside the action of the respondent by not qualifying the petitioner for the Designing, Providing, Lowering, Laying, Jointing, Testing and Commissioning of Sewerage network with pump house and all electromechanical works etc. at Khapat and Dharampur (Shrijinagar) area alongwith Two (2) years operation and maintenance at Porbandar Chhaya Joint Municipality by Tender Notice No.PBR/NP/UGD/KHAPAT/20­21/R01.

(c) be pleased to issue appropriate writ of mandamus or any other appropriate writ, order or direction directing the respondent to open the Price­Bid of the petitioner with respect to Designing, Providing, Lowering, Laying , Jointing, Testing and Commissioning of Sewerage network with pump house and all electromechanical works etc. at Khapat and Dharampur (Shrijinagar) area alongwith Two(2) years operation and maintenance at Porbandar Chhaya Joint Municipality by Tender Notice No.PBR/NP/UGD/KHAPAT/20­21/R01.

(d) pending the admission and final hearing of the present petition, be pleased to by way of interim relief restrain the respondent and their men, agents, servants and subordinates from awarding the contract to any other tendered for Designing, Providing, Lowering, Laying, Jointing, Testing and Commissioning of Sewerage network with pump house and all electromechanical works etc. at Khapat and Dharampur (Shrijinagar) area alongwith Two(2) years operation and maintenance at Porbandar Chhaya Joint Municipality by Tender Notice No.PBR/NP/UGD/KHAPAT/ 20­21/R01.

(e) such other and further reliefs as may be deemed fit in view of the facts and circumstances of the case be granted.

2. The facts giving rise to this writ-application may be summarized as under:-

2.1 The respondent Porbandar – Chhaya Municipality invited online tenders for the Designing, Providing, Lowering, Laying, Jointing, Testing and Commissioning of Sewerage network with pump house and all electromechanical works etc. at the Khapat and Dharampur (Shrijinagar) area alongwith two years operation and maintenance at the Porbandar Chhaya Joint Municipality vide the Tender Notice No.PBR/NP/ UGD/KHAPAT/20-21/R01.

2.2 The bid document downloading commence date was 27/01/2021 from 17:59:56 onwards. The bid document downloading end date was 04/03/2021 at 18:00:00 hours. The EMD, Tender Fee and other documents were required to be submitted physically during the office hours upto 10/03/2021 in the office of the respondent. The preliminary stage of bid opening date was 12/03/2021 from 12:00:00 hours onwards. The bid document fee/bid processing fee was fixed at Rs.38,050/-. The Bid Security/EMD/Proposal Security (INR) was Rs.38,04,850/-.

2.3 It is the case of the writ-applicant that he submitted online tender on 04/03/2021 and forwarded the physical documents by way of registered speed post on 04/03/2021 bearing article No. EG331180813IN alongwith the original Demand Draft of Rs.38,050/- dated 04/03/2021 towards the Bid Document Fee/ Bid Processing Fee as well as the original FDR of Rs.38,04,850/- dated 04/03/2021 towards the Bid Security/EMD/Proposal Security (INR). The writ-applicant herein has annexed the copies of the receipt of speed post dated 04/03/2021 including the copies of the original Demand Draft and original FDR dated 04/03/2021. To this extent, there is no dispute at the end of the respondent.

2.4 Shockingly, after a period of 51 days i.e. by way of letter dated 27/04/2021, Annexure-F, Page 25, the Chief Officer of the Porbandar Chhaya Nagarpalika informed the writ-applicant that when the envelope containing the documents was opened, the Demand Draft as well as the original FDR were missing. We are not able to understand why it took 51 days for the Nagarpalika to inform the writ-applicant when the cover indisputably was opened on 08/03/2021 itself. On 08/03/2021 when the Nagarpalika opened the cover and noticed that the Demand Draft and the original FDR were missing, then it was the duty of the responsible officer to immediately do the needful including taking up the issue with the writ-applicant, Postal Department as well as with the Police Station concerned.

2.5 On the ground that the original Demand Draft of Rs.38,050/- and the original FDR of Rs.38,04,850/- were missing from the envelope, the writ-applicant came to be disqualified at the preliminary stage itself.

2.6 Upon receipt of the letter dated 27/04/2021, the writ-applicant addressed a letter dated 29/04/2021 to the Chief Officer of the Nagarpalika, Annexure-I, Page-28 informing that it was shocking on their part to know that the FDR and the Demand Draft had gone missing from the envelope. However, the writ-applicant requested the Nagarpalika that he may be granted some time for producing a fresh Demand Draft and FDR. However, it appears that the Nagarpalika paid no heed to such request made by the writ-applicant.

3. In such circumstances referred to above, the writ-applicant had to come before this High Court during the summer vacation. One of us [Ms. Vaibhavi D. Nanavati, J.] heard this matter on 13/05/2021 and passed the following order:-

“Heard learned advocate Mr.Paras Sukhwani for the petitioner.

It is stated by the learned advocate for the petitioner that the petitioner submitted a bid document pursuant to the online tenders for Designing, Providing, Lowering, Laying, Jointing, Testing and Commissioning of Sewerage network with pump house and all electromechanical works etc., at Khapat and Dharampur (Shrijinagar) area along with Two (2) years operation and maintenance at Porbandar Chhaya Joint Municipality by Tender Notice No.PBR/NP/UGD/ KHAPAT/20­21/R01. It is stated that the petitioner submitted EMD, Tender Fee and other documents as required through email mode. It is stated that the petitioner submitted online tender on 04.03.2021 and sent the physical documents by speed post on 04.03.2021 bearing article No.EG331180813IN along with original Demand Draft of Rs.38,04,450/­ dated 04.03.2021 towards the EMD and bid security.

It is further stated by the learned advocate for the petitioner that the respondent, by the letter dated 27.04.2021 through email on 28.04.2021 i.e. after 51 days of the receipt of the speed post, communicated to the petitioner that the packet was open at the time when it was delivered to the respondent­authority and there was no Demand Draft and EMD. It is stated that the petitioner sought 15 to 20 days’ time for issuance of a new Demand Draft. The said request of the petitioner has not been answered and not considered by the respondent­authority and the name of the petitioner did not appear in the bid since he did not qualify.

The petitioner is aggrieved by the aforesaid action of the respondent­ authority of communicating the petitioner belatedly about the physical delivery of the documents duly sent by him through speed post. The petitioner has relied on the deposition of the Post Master and the Postman, who have stated that the packet was intact when the same was delivered to the respondent­authority.

Let Notice be issued making it returnable on 07.06.2021.

Direct service permitted.”

4. In response to the notice issued by this Court vide order referred to above, Mr. Murali Devnani, the learned counsel alongwith Mr. Krishnan Gavariya, the learned counsel has appeared on behalf of the Nagarpalika. The respondent has filed an affidavit-in-reply, to which, the writ-applicant has also filed a rejoinder.

5. We have heard Mr. Sukhwani, the learned counsel appearing for the writ-applicant and Mr. Murali Devnani assisted by Mr. Krishnan Gavariya, the learned counsel appearing for the Nagarpalika.

6. The following facts are not in dispute.

(i) On 04/03/2021 when all the documents were uploaded online, the copy of the FDR as well as the Demand Draft was also uploaded. This fact is not disputed.

(ii) The cover containing the original documents alongwith the Demand Draft and the FDR was dispatched by registered Speed Post on 04/03/2021. The cover was received by the Nagarpalika on 08/03/2021. The Cover was opened on 08/03/2021. However, the intimation about the FDR and the Demand Draft missing from the cover was given after a period of 51 days to the writ-applicant i.e. on 27/04/2021.

(iii) Shockingly, we are informed that on 27/04/2021 the Chief Officer called the Postman and took an endorsement from him that on 08/03/2021 when the cover was delivered, the same was in an open condition.

The aforesaid something, which warrants an inquiry/investigation. This very circumstance is suspicious and it gives an impression to this Court about an apparent mischief being played by someone so that the writ-applicant is out of consideration so far as the tender is concerned.

7. We are of the view having regard to the peculiar facts of the case as recorded above that the writ-applicant could not have been disqualified from offering his bid at the preliminary stage itself on the ground as discussed above. We are also informed that the bids offered by other parties are yet to be opened. The bid has not been finalized. In such circumstances, we are of the view that the bid offered by the writ- applicant should also be considered by asking the writ-applicant to produce a fresh Demand Draft and the original FDR by 14/06/2021. The original documents containing all other information including the bid offered by the writ-applicant is already in possession of the Nagarpalika and all that is required to be done is to submit a fresh FDR and the Demand Draft. The same shall be done by the writ-applicant on or before 14/06/2021. The Chief Officer shall accept the Demand Draft as well as FDR. Thereafter, it shall be open for the Nagarpalika to proceed further with the opening of the bid offered by all the parties in accordance with law and in accordance with the terms and conditions of the Tender Document.

8. We could have observed many things about some apparent mischief, however, we refrain from observing anything other. We request M

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r. Krishnan Gavariya to caution the Chief Officer of the Nagarpalika that in future if the Court comes to know about such mischief, then the Nagarpalika will have to pay very serious legal consequences of the same. 9. At this stage, Mr. Sukhwani, the learned counsel appearing for the writ-applicant received instructions from his client that infact the bids have been opened by the Nagarpalika and those bids have been forwarded for approval to the Gujarat Urban Development Mission. The Gujarat Urban Development Mission shall not take any decision for the present. The Nagarpalika shall also forward the bid of the writ-applicant once the fresh FDR and the Demand Draft is submitted. The Gujarat Urban Development Mission upon receipt of the bid of the writ-applicant shall consider the same alongwith the other bids in accordance with law and subject to the terms and conditions of the Tender Document. 10. With the aforesaid, this writ-application stands disposed of. Direct service is permitted. One copy of this order be furnished at the earliest to Mr. Krishnan Gavariya, the learned counsel appearing for the respondent for its onward communication.
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