Ranjit Construction Co. Ltd. vs National Highways Authority Of India … on 1 October 2003
Delhi High Court
Ranjit Construction Co. Ltd. vs National Highways Authority Of India … on 1 October, 2003
Equivalent citations: 2003VIIAD(DELHI)621, AIR2004DELHI64, III(2003)BC635, 2004(1)CTLJ51(DEL), 107(2003)DLT249, AIR 2004 DELHI 64, 2004 (1) CTLJ 51, (2003) 107 DLT 249, (2003) 3 BANKCAS 635
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT
B.C. Patel, C.J.
1. The petitioner by filing this petition has prayed as under:-
“(i) setting aside the decision of the respondent No. 1 NHAI rejecting/concluding that the tender submitted by the petitioner as non responsible (Sic responsive) for “construction of Additional three Lane Bridge with its approaches (with footpaths on the left side only” and “improvement of the existing bridge proper and its approaches across River Tapi in Km.246/408 on NH-8 in Ahmedabad – Mumbai Section in Surat District”.
(ii) issue a writ of mandamus directing the Respondent No. 1 not to consider the bid submitted by the respondent No. 2 in view of the various violations committed by respondent No. 2 of the conditions of the Bidding document (Vol.I), including influencing the Employer’s processing of bids and the final decision.
(iii) Directing the respondent No. 1 to disqualify respondent No. 2.
(iv) Issue a writ of mandamus directing the respondent No. 1 to consider the bid submitted by the petitioner, and further direct the respondent No. 1 to award the contract for the execution the works to the petitioner who was determined to be L-1.
(v) Direct/restrain the respondent No. 1, their servants and agents not to proceed to award of the contract for the execution of the said project in favor of the respondent No. 2, U.P.State Bridge Corporation
(vi) Direct the respondent No. 1 to produce before this Hon’ble court the records of the case including the bids submitted of all the bidders”.
2. For construction of Additional Three Lane Bridge with its approaches (with footpaths on the left side only) and improvement of the existing bridge proper and its approaches across River Tapi in Km.246/4-8 in Ahmedabad – Mumbai Section in Surat District and for execution the aforesaid works, National Highways Authority of India (hereinafter referred to as “the NHAI”) through its Evaluation Committee invited Pre-qualifications Applications from the prospective bidders some where in the month of May, 2002. The tender documents were to be obtained from Shri V.K.Banga, Manager (CM-1), NHAI, Dwarka, New Delhi, on payment of Rs. 50, 000/- and were to be submitted on or before 12.30 hrs on 24.12.2002. As contended by the petitioner, one copy duly signed by Manager (CM) NHAI of the tender documents were issued.
3. In para 11 of the petition, the petitioner has come out with the version that technical and financial bids were submitted on 24.12.2002. The petitioner made copies of the original tender documents and submitted bids in two sets, one in original and one copy. In view of clause 19.1 of the bidding document original is to be taken into consideration. It is specifically stated in para 11 that copies of the “Original Bid” and “Copy of the Bid” are annexed to the petition and are marked as Annexure-B collectively. Thus the petitioner on oath stated before the Court that documents Annexure-B collectively are the true copies of the Original Bid and copy of the Bid.
4. By a letter issued from the office of DGM (QA and Vigilance) of NHAI, the petitioner was informed about the discrepancies in the tender and was required to attend the office of the respondent No. 1 on 29.1.2003, on which date the petitioner clarified certain aspects. It is the case of the petitioner that by letter dated 29.1.2003 he clarified as under:-
i) That one set of documents was issued and second copy was made with the aid of Xerox and rates were filled by the company and submitted to NHAI on 24.12.2002.
ii) Bids were sealed in two separate envelopes, one containing technical bid and second containing financial bid. Both the envelopes were again sealed in one envelope as original and copy. In price bids nothing was mentioned as original and copy as only one set of tender was issued by NHAI. (The say of the petitioner is that it was not necessary to mention it again as original and copy as it was obvious that original was to be considered as original and copy was procured by Xerox, therefore, the other as copy).
iii) The rates of item No. 5.08 were quoted in the original which were issued by the NHAI at Rs. 2, 700/- per MT. And the rates quoted in the Xerox copy were Rs. 27, 000/- per MT. The rates in original is correct.
iv) The rates of the above item are for structural steel. These rates are on lower side but considering over all rates of tender are reasonable and quite workable.
v) The rates are different because of oversight.
vi) The rates were quoted in words as per terms and conditions. It was not possible to write words separately as there was no sufficient space.
vii) As per the contract conditions, the rates quoted in the original tender should be enveloped separately.
5. It is clear from the list of dates and events that the petitioner did not send the documents as required. Both the copies of price bid should be sealed separately and on original it should have been specifically written as “Original Bid” and on copy it should have been specifically written as “Copy of Bid”. But the petitioner sealed both the copies in one envelope.
6. The petitioner has come out with the case that there was no positive response and the petitioner had strong reasons to believe that his bid is not accepted as the Vigilance Department of the respondent No. 1, arbitrarily and without any basis formed its opinion and wrongly concluded that the bid of the petitioner was non-responsive. Though at the time of filing of the petition, the petitioner had no material with it in this behalf as the contract was not awarded at the relevant time or the petitioner was not informed that his tender is not accepted.
7. In para 16 of the petition, the petitioner has averred that rate of item No. 5.08 quoted in the original at Rs. 2, 700/- per MT. was correct and not the rate quoted at Rs. 27, 000/- per MT. The petitioner has also averred that he learnt that the Tender Committee had accepted the unit rate of Rs. 2, 700/- per MT. for item No. 5.08 by virtue of Clause 19.1 of the bidding document. What was the source of information for that is not disclosed by the petitioner, which in a writ petition one is required to disclose. The petitioner has also averred in para 16 of the petition that the Tender Committee had also recommended award of tender to the petitioner and as such recommendation was made to Member, Administration and to the Chairman. It may be noted that the petitioner has not disclosed the source of this information.
8. In a writ petition, the petitioner must plead and prove facts by evidence which must appear from the writ petition and if he is the respondent from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. In this context it will not be out of place to point out that in this behalf there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. In pleadings, i.e. the plaint or a written statement, the facts and not evidence are required to be pleaded, however, in a writ petition or in the counter affidavit not only the facts are to be pleaded but also the evidence in proof of such facts have to be annexed to it. (Bharat Singh and others v. State of Haryana and others ).
9. In V.H.Mehta v. DAV New High School, 1998(3) Gujarat Law Reporter 1849 at page 1858, it was observed as under:
“When a petition is presented before the Court, it must separately and specifically state facts (i) based on personal knowledge, (ii) based on information and (iii) based on belief, and petitioner must give source of information and if based on belief, then grounds of belief. There must be separate paragraphs for each submission which can be dealt with. Such submissions may be based on facts or law.”
10. The Apex Court in the case of A.K.K. Nambiar v. Union of India, , emphasizing the importance of verification, has observed as under:-
” The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be true to information received from persons or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In absence of proper verification, affidavits cannot be admitted in evidence.”
11. In the case of Shivaji Rao v. Dr Mahesh Mahav, , the Court observed as under :-
“Our attention was drawn by leaned counsel Dr. , Singhvi on the observations of this Court in the Barium Chemicals Ltd. v. The Company Law Board, . Where at page 352 ( of SCR) : ( at p. 319 of AIR) of the report the court observed that where evidence was adduced by affidavits, such affidavits might be properly verified either on knowledge or from sources. But the basis of such knowledge or source of information must be clearly stated. This was laid down as early as 1909 by Jenkins, C.J., and Woodroffe, J., in Padmabati Dasi v. Rasik Lal Dhar, (1909) 2nd 37 Cal. 259, where the Division Bench of the Calcutta High Court observed that the provisions of Order XIX Rule 3 of the Code of Civil Procedure must be strictly observed; every affidavit should clearly express how much is a statement of the deponent’s knowledge and how much of the statement was in his belief, and the grounds of belief must be stated with sufficient particularity. This has been followed more or less universally by Courts in matters where reliance is placed on affidavits. This view has been reiterated by this Court in State of Bombay v. Purshottam Jog Naik . It is on this principle that Dr. Singhvi urged that the original petiton should not have been entertained because of the defective affidavit in this case. Undoubtedly the affidavit and the petition were defective as mentioned hereinbefore.”
12. In the proceedings before the Court, ordinarily the Court accepts the sworn statement made in the petition. The Court accepting such statements passes even interim ordeRs. Therefore, it is the duty of the party filing petitions before the Court to make true, correct and accurate statements, stating as to what portion of the petition is true to his personal knowledge and what portion of the petition is true to his information or belief stating the reasons thereof.
13. The affidavit should not be vague or general . It must comply with the requirement of a valid affidavit as laid down in Civil Procedure Code (for short “Code”). The affidavit should be confined to such facts as the deponent is able to take from his own knowledge to prove, except on interlocutory application on which statements of his belief may be admitted, provided that the grounds thereof are stated. The statement based on personal knowledge must be distinguished from the statement based on information and belief. In the case of statements based on information, the deponent shall disclose the source of his information. The affidavit is a mode of placing evidence before the Court. A party may prove a fact or facts by means of affidavit before the Court but such affidavit must be in accordance with rules and norms laid down and in accordance with the provisions contained in the Code. This is with a purpose to find out whether it would be safe to act on such evidence and to enable the Court to know as to what facts are based in the affidavit on the basis of personal knowledge, information and belief, as this is relevant for the purpose of appreciating the evidence placed before the Court in the form of affidavit. It is only on the basis of verification, it is possible to decide the genuineness and authenticity of the allegations and the deponent can be held responsible for the allegations made in the affidavit. If the statement of facts is based on information, the source of information must be disclosed in the affidavit. In a matter where allegations of malafide are made against a person or party, it is all the more necessary that the person filing affidavit in this regard must take care to verify the facts stated in the affidavit strictly in accordance with what is mentioned hereinabove.
14. In the instant case verification, which is at page 20 of the petition, clearly points out that it is a vague verification. In the affidavit, which is at page 19A nothing specifically stated but a vague statement is made to the effect that “the facts stated therein are true to the best of my knowledge as based on records of the case and the submissions made therein are based on the legal advice.” The Apex Court in various cases has pointed out that in a writ petition the petitioner is required to file affidavit specifically indicating as to which part of the petition is true according to his knowledge or according to his information disclosing the source of information and according to his belief indicating the reasons of belief. Having not done, such petitions are not required to be entertained. However, we have heard the matter at length and, therefore, we decide the same. Nonetheless it is required to be borne in mind that at the relevant time there was no cause of action when the petition was filed.
15. In para 17 of the petition, the petitioner has come out with the case that the respondent No. 1 appears to have entertained a complaint from respondent No. 2. and that respondent No. 2 appears to have re-assessed the petitioner’s tender even being satisfied on various clarifications issued by the petitioner vide letters dated 29.1.2003 and 14.2.2003. The petitioner has come out with the case that it had strong reasons to believe that both the financial and technical bids submitted by the petitioner were determined as L-1 had been rejected as non-responsive. The petitioner has further averred that respondent No. 1 appears to be in the process of accepting the tender of respondent No. 2. As indicated above, even these contentions are raised without any evidence whatsoever or disclosing source of information or reasons for forming the belief.
16. In the instant case, before the Court along with the petition documents annexure-B collectively were filed. One set is at 10 of 41 to 29 of 41 of the tender. Second set annexed is at page 25, which is stated to be a copy i.e. page 10 of 41 to 29 of 41 of tender. Annexure-B collectively, refers to item No. 5.08; estimated quantity was indicated as 300, unit rate in rupees was indicated at Rs. 2700 and the amount in rupees was indicated as Rs. 81, 00, 000/-. While in the copy, the page which begins at page 25, at page 14 of 41 for the aforesaid item unit rate was indicated at Rs. 27, 000/- while amount in rupees was shown as Rs. 81, 00, 000/-. At the initial stage when the matter was argued, it was submitted that in none of the documents against unit rate or in the last column the amount was indicated in words. The petitioner has not indicated in words in these documents (in either set) anywhere on account of non-availability of space as stated by the counsel.
17. It is submitted that there is obviously a mistake in original. If estimated quantity shown in the column, which is 300 is multiplied with the unit rate of Rs. 2, 700/- then amount would be Rs. 8, 10, 000/- and not Rs. 81, 00, 000/-. It was submitted that it is in view of this the same was corrected in accordance with the conditions. It was further submitted that considering this change in the amount the petitioner’s tender would be the lowest and, therefore, according to the petitioner recommendation was made to accept the said tender.
18. The petitioner further submitted that as indicated in clause 25 at page 10 of 64 of the bid document, Volume I, the entire process must be kept confidential. Our attention was drawn to Clause 25.1 which reads as under:-
“Information relating to the examination, clarification, evaluation and comparison of bids and recommendations for the award of a contract shall not be disclosed to bidders or any other persons not officially concerned with such process until the award to the successful bidder has been announced. Any effort by a bidder to influence the Employer’s processing of bids or award decisions may result in the rejection of the bidder’s bid.”
19. It is in view of this, it was submitted that respondent No. 2’s tender should be cancelled as he had addressed a letter, which would obviously mean that he had access to the original tender submitted by the petitioner. According to the petitioner, respondent No. 2 having access to the record of the petitioner, addressed a letter to the respondent No. 1 as a result of which the decision has been influenced. Our attention was drawn to Clause 26 for the said purpose.
20. So far as correction is concerned, our attention was drawn to Clause 28 at page 11 of 64, Volume-I of the bid document. This was also pointed out with a view to indicate that the unit rate shall prevail. It was submitted that in the original, unit rate was mentioned as Rs. 2700/- and, therefore, that rate is require to prevail. Clause 28.1 reads as under:-
“Bids determined to be substantially responsive will be checked by the Employer, for any arithmetic erroRs. Arithmetic errors will be rectified on the following basis. If there is a discrepancy between the unit rate and the total cost that is obtained by multiplying the unit rate and quantity, the unit rate shall prevail and the total cost will be corrected unless in the opinion of the Employer there is an obvious misplacement of the decimal point in the unit rate, in which case the total cost as quoted will govern and the unit rate corrected. If there is a discrepancy between the total bid amount and the sum of total costs, the sum of the total costs shall prevail and the total bid amount will be corrected.”
21. Thus if there is discrepancy between the unit rate and total cost by multiplying the unit rate, then unit rate shall prevail. Another aspect to be considered is about the total cost. In the instant case the sum of the total cost shall prevail. There was no discrepancy in the sum of the total costs considering the document as it is. However, if there is a discrepancy between the total bid amount and the sum of the total costs, the sum of the total costs shall prevail and the total bid amount will be corrected. Keeping this aspect in mind, total bid amount was Rs. 81, 00, 000/- for item 5.08 and the sum of the total cost was Rs. 31, 82, 32, 853/-. If there is a discrepancy between the total bid amount and sum of total costs, the later shall prevail. Therefore, in any case the sum of the total cost shall prevail and that cannot be corrected by stating that unit rate shall prevail.
22. It was submitted that respondent No. 2 on January 16, 2003 lodged a protest in the subject matter. This letter is addressed by respondent No. 2 to respondent No. 1. Relying on this letter, it was submitted that how the respondent No. 2 came to know that there was a mistake in calculation in the rate of steel. Our attention was drawn to the letter to point out that unless and until the respondent No. 1 has shown the record of the petitioner, the respondent No. 2 could not have known this and as respondent No. 2 has tried to persuade respondent No. 1 to change the decision on the basis of such information, his tender should be rejected. The two points mentioned in the letter read as under:-
“1. The said contractor has knowingly quoted the rate of steel as Rs. 2700/- per tonne (they have not mentioned this rate in words though this was mandatory vide the tender papers) whereas have calculated the amount on the basis of Rs. 27000/- per tonne.
2. They wanted to take two privileges in the tender, first by not quoting the rates in words so that tender can be manipulated, secondly they can take two opportunities one by the quoting rate of Rs. 2700/- per tonne and the other by amount calculated on the basis of Rs. 27, 000/- per tonne.”
23. Our attention was drawn to various clauses of the contract to point out that there is no question of rejecting the tender of the petitioner being non-responsive.
24. Against this it was pointed out by learned counsel for respondent No. 1 that the error which is tried to be projected before the court as the simple error is not inadvertently made but is with a specific design. Our attention was drawn to bid documents. Clause 8.2 of bid document at page 6 of 64 specifically indicates that the bidder is expected to examine carefully the contents of all the above documents. Failure to comply with the requirements will be at the bidder’s own risk. Pursuant to Clause 27, bids, which are not substantially responsive to the requirements of the bidding documents, will be rejected. On the other hand, the petitioner submitted that in the absence of failure to comply with the requirements of the bid submission, there is no question of rejecting the same. The petitioner drew our attention to various clauses as to in which type of case the bid is to be considered as non-responsive, while on the other hand, on behalf of respondent No. 1, our attention was drawn to various clauses to point out that the bid is non-responsive and the bid is not acceptable.
25. Learned counsel for respondent drew our attention to Clause 19.1 at page 8 of 64, Volume-I of Bid Documents, which reads as under:-
“The bidder shall prepare original and one copy of the documents comprising the bid as described in Clause 12 of these instructions to Bidders and clearly marked “ORIGINAL BID” and “COPY OF BID” as appropriate in the event of discrepancy between them the original shall govern.”
26. By showing the original documents, it was submitted by respondent No. 1 that the petitioner has nowhere mentioned that the document is original bid or copy of bid. According to learned counsel for the respondent No. 1, this is very vital and non-compliance must result in rejection of tender. Our attention was drawn to page 9 of 64, Volume-I of Bid Documents wherein Clause 20 refers to Sealing and Marking of Bids. Clause 20.1 specifically states that the bidder shall seal the original and each copy of the bid in an inner and outer envelope duly marking envelopes as “Original” and “Copy”. How the inner and outer envelopes are to be addressed, the identification and the words to be indicated are specifically referred in Clause 20(2). Thus the original was to be kept in a separate cover marking as “Original” and the copy was to be kept in an envelope marking as “Copy” and were to be sealed in a cover with the address, identification etc. On behalf of respondent No. 1, it is pointed out that in the instant case the petitioner has neither marked “Original Bid” nor “Copy of Bid”; neither has placed separately in different envelops marking as “original” and “copy”. According to respondent No. 1, the petitioner has sent both the documents in one envelope. Learned counsel for respondent No. 1 has drawn our attention to various aspects as to why the same are to be sealed in separate covers and thereafter in one envelope with the marking as indicated. In the instant case, attention of the Court was drawn to the original as well as copy. As indicated earlier, in none of the documents it is indicated as “Original Bid” or “Copy of Bid”. Both are signed by and on behalf of the petitioner. Not only that but at various places from page 10 of 41 of the Bid Documents we have noticed that unit rate in rupees are indicated in figures as well as in words. At page 14 of 41, the original clearly reveals that except item Nos.5.07 and 5.08 in all the items i.e. 5.01 to 5.06, unit rates are indicated in figures as well as in words. At several other places that is the position. However, on page 14 of 41 of the Bid Documnts, item No. 5.08, the unit rate is indicated only in figures and not in words. In one copy unit rate in rupees mentions Rs. 2, 700/- while in another it mentions Rs. 27, 000/-. So far as the total amount and rupees are concerned, against item No. 5.08 it is indicated in figures Rs. 81, 00, 000/-. In the second set against item No. 5.08 unit rate is indicated in figures as Rs. 27, 000/- and in the last column total amount in rupees is indicated as Rs. 81, 00, 000/-. It is on this basis, learned counsel for the petitioner contended that the documents which were taken into consideration by the respondent No. 1 obviously had a mistake. According to learned counsel for the petitioner, considering the unit rate at Rs. 2700/- multiplied with estimated quantity of 300, the amount would Rs. 8, 10, 000/- and not Rs. 81, 00, 000/-. However, if the other set is considered, considering the unit rate Rs. 27, 000/- multiplied with estimated quantity 300, the amount would be Rs. 81, 00, 000/- and, without any error in both the documents against item No. 5.08 in the total amount last column figure Rs. 81, 00, 000/- is indicated.
27. Learned counsel for respondent No. 1 submitted that it was the duty of the petitioner to indicate the unit rate in figures as well as in words. In the same way in the total amount he was also required to indicate in figures and words. That is the requirement of the document, which is clear from the document itself. Had it been mentioned in figures and words, there would have been no question of error as it is suggested by the petitioner.
28. Respondent No. 1 fairly stated that the Evaluation Committee made a correction in the arithmetical error by assuming that the rate quoted by Ranjit Construction (the petitioner) at Rs. 2, 700/- per ton is correct, total amount is to be corrected from Rs. 81, 00, 000/- to Rs. 8, 10, 000/-. However, at the same time the Evaluation Committee has not checked these aspects from the other set of document. The Committee ought not to have presumed certain aspects more particularly, when as required, the amount was to be both in figures and words. It is on account of erroneous assumption correction was made and the amount of Rs. 81, 00, 000/- was changed to Rs. 8, 10, 000/-. It is in view of this correction made by the Committee the tender would be lower. But, as indicated earlier, the sum of the total costs would prevail and no change can be made in that total.
29. However, the respondent No. 1 pointed out that M/s .Ranjit Construction has not clearly marked the bid as original and copy and also had not written figures in words. In view of these M/s .Ranjit Construction’s tender cannot be considered. In view of all these, it can be said, by not quoting rates in words, the tender can be manipulated and it can take advantage; one by quoting rate of Rs. 2, 700/- per MT. and other by amount calculated on the basis of Rs. 27, 000/- per ton. Keeping these aspects in mind, respondent No. 1 has pointed that it should be for the petitioner to carefully examine the contents of the documents and failure on its part to comply with the requirements of the bid submission was at the risk of the bidder. Attention of the Court was drawn to Clause 8.2 of the document, which we have reproduced earlier. It was submitted that it is very clear that failure on the part of the petitioner to mention the amount quoted in words, which was the material requirement was at its own risk and, therefore, the petitioner cannot be allowed to take advantage of its own wrong.
30. On behalf of respondent No. 1, it is also pointed out that in one of the bids the petitioner has quoted the rate of Rs. 27000/- per MT. while in another has quoted Rs. 2700/- per MT. for item No. 5.08. On behalf of respondent No. 1, it was submitted that even commercial prudence demands that the rate of Rs. 27, 000/- per MT. be taken as correct amount as the prevailing market rate for the said item is Rs. 25, 000/- per MT. (see page 70). It was, therefore, submitted that specifically in both the copies for item No. 5.08 different unit rate was quoted but the total was kept the same so that in case if the petitioner’s tender is accepted by indicating his second bid he can claim that there is a mistake apparent in writing the unit price. In the column of amount figure is 81, 00, 000 in both the documents and in another document unit price is indicated as Rs. 27, 000/- and, therefore, for claiming higher price it can be said that obviously there is a mistake in the unit price in one copy of the document for claiming the price at Rs. 27, 000/- and more so when the market price of the item is Rs. 25, 000/- per MT. It can also with emphasis be said that the original is one, wherein, rate is shown at Rs. 27000/- considering unit 300 Mt., the total is correctly mentioned which is also in other set. Considering the market rate it would be said that no fool will quote Rs. 2700/- when market rate is Rs. 25000/-.
31. On behalf of the respondent, it was pointed out that in the facts and circumstances of this case, if rectification is allowed that would affect unfairly the competitive position of other bidders, which is not permissible in view of Clause 27.2 of the Bid Document. Clause 27.2 of Bid Document at page 11 of 64 reads as under:-
“For the purpose of bid evaluation, a substantially responsive bid is one, which conforms to all the terms, conditions and specifications of the bidding documents, without material deviation or reservation. A material deviation or reservation is one (i) which affects in any substantial way the scope, quality or performance of the Works; (ii) which limits in any substantial way, inconsistent with the bidding documents, the Employer’s rights or the bidder’s obligations under the Contract; or (iii) whose rectification would affect unfairly the competitive position of other bidders presenting substantially responsive bids.”
32. Learned counsel for respondent No. 1 submitted that this rectification would affect unfairly the competitive position of other bidders presenting substantially responsive bids. It would have a material deviation in view of these aspects. According to learned counsel for respondent No. 1, the bid of the petitioner cannot be said to be substantially responsive as there was material deviation as indicated hereinabove and more particularly in view of the facts and circumstances of this case. Therefore, there is no question of considering clause 28 in the instant case stating that unit rate shall prevail. If the amount of bid in toto would remain as it is the question would be different. Considering the fact that the market price of the material was 10 times higher than indicated in one document and in the second document it was nearer to the market price and in the last column of the amount in both the documents amount was indicated Rs. 81, 00, 000/- and in one document unit price multiplied by estimated quantity comes to Rs. 81, 00, 000/-, it cannot be said that the tender was responsive.
33. Considering the case in the converse position and in two different ways: (i) the petitioner would claim the rate as indicated in second document, which would be consisting with the total amount indicated in both the columns, if his tender would have been accepted, as suggested by him and (ii) if the tender of the petitioner would have been accepted, the same could have been said to have been bad or not in accordance with law, as the tender document does not indicate the unit price and the amount in words and figures and in the second document the amount of unit price and estimated quantity would be consistent with the market rate and that there is no discrepancy in total amount mentioned. Therefore, his tender if accepted could have been said that it is illegal.
34. With regard to the contention raised by the petitioner that how the respondent No. 2 came to know about the price quoted, it would be sufficient to state here that the tenders were opened in the presence of all including the respondent No. 2 and it is thereafter respondent No. 2 addressed the letter to the respondent No. 1. Learned counsel for the petitioner submitted that the tender of respondent No. 2 should be rejected on this ground alone. It was also mentioned by the respondent No. 1 that petitioner has placed on record at annexure-B page 24 collectively and annexure-B at page 25 collectively pages 10 of 41 to 29 of 41 in both the sets. All the pages are signed by advocate as true copy. It was never disclosed to the Court that the copies were taken out first from the blank documents and only figures were mentioned in the relevant columns. It was argued before the Court that on account of shortage of space in the column the figures were not indicated in words along with figures. As all the pages were signed by the advocate as true copy, ordinarily it would be believed that the advocate who had signed the document as true copy had seen the original document and had compared the original document and after finding the same to be true has put his signature and has signed the same as true copy. When we called for the originals, it was learnt that at various places unit rate is indicated in figures and words. It is in view of this, learned counsel for the respondent No. 1 submitted that the documents which are placed before the Court are not genuine and not the true copy of the original. Despite this learned counsel for the petitioner has signed as true copy and the petitioner has placed reliance on these documents to invite the verdict. In the submission of learned counsel for respondent No. 1, this is a case which calls for serious action. Against this, it was submitted by learned counsel for the petitioner that this is not a case wherein the petition can be rejected on these grounds. Learned counsel for the petitioner invited our attention to the decision of this Court in Backbone Tarmat-NGJV v. National Highways Authority of India and another in LPA No. 204 of 2002 decided on May 18, 2002.
35. Learned counsel for the petitioner submitted that the question whether petitioner can be held guilty or not for bringing on record (part of the documents), which were meant for internal use, came to be considered in the aforesaid case. For this purpose the Division Bench relied on the decision in the case of Moody v. Cox 1917 (2) Ch 71. The Division Bench in the said case quoted Halsbury’s Laws of England Vol.16, paras 1303 and 1305. At this juncture it would be also relevant to note that the advocate for the petitioner contended that respondent No. 2 should be debarred as he had obtained information improperly. In our opinion, the person would have information because the bids were opened in the presence of all and secondly he gathered the information and thereafter he has written a letter. If the information is true, then it cannot be said that order should be passed against respondent No. 2 more particularly when the petitioner has come to the court by producing documents stating to be true copies, which are in fact not true copies. In the instant case had the petitioner produced true copies of the original, situation would have been different. It was submitted, as pointed out earlier, that figures were mentioned and not the words for want of space and that all the entries were indicated in figures, but in fact it is found to be incorrect. All entries are not in figures but some of the entries are in words and figures.
36. In Halsbury’s Laws of England paragraph 1305 reads as under:-
“The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiff’s demerits.”
37. It is in view of what is stated hereinabove, there is no merit in the contention raised by the petitioner that the respondent No. 2’s bid should be cancelled but on the contrary this Court is of the opinion that the petitioner has not come with clean hands, in view of what we have stated in earlier paragraphs.
38. Learned counsel for the respondent submitted that in a case like this where tender involves higher amounts and looking to the nature of the work and considering the competitive bidding, degree of care required is much higher. Learned counsel submitted that it is not a case of ordinary local bids for small works. Not mentioning on the documents as “original” and “copy” and not submitting as per the manner prescribed is contrary to the procedure. Original and copy were required to be sealed in separate covers with the purpose of avoiding arbitrariness or to have a check. Our attention was invited to the decision of Apex Court in the case of West Bengal State Electricity Board v. Patel Engineering Co. Ltd and others 2001 (2) S.C.C.451 wherein paragraph 24 the Court has stated as under:-
“In a work of this nature and magnitude where bidders who fulfill prequalification alone are invited to bid, adherence to the instructions cannot be given a go-by by branding it as a pedantic approach, otherwise, it will encourage and provide scope for discrimination, arbitrariness and favoritism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casuality. Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the appellant) in favor of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity.”
Apex Court held that:-
“We have, therefore, no hesitation in concluding that adherence to the ITB or rules is the best principle to be followed, which is also in the best public interest.”
39. In the instant case mistake is stated to have been made unintentional. What is required to be noted is that if that was so the said mistake would have been found in the other document also. But considering the fact that in one document the price mentioned is Rs. 2700/- for a unit and in another it is mentioned at Rs. 27, 000/- per unit but the total in both the copies of the concerned entry is Rs. 81, 00, 000/-, it cannot be said that it is unintentional. The petitioner must be vigilant in checking the bid documents before they are submitted. Such mistakes would be violative of various clauses and, therefore, bid was non responsive. This aspect we have already discussed earlier.
40. In matters of tender, in Tata Cellular v. Union of India the law is laid down by the Apex Court as under:-
“(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tieRs. More often then not such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle or reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by malafides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.”
41. What is required to be noted by Court is that the public interest is paramount. There should be no arbitrariness. In the facts and circumstances of the case, we have narrated hereinabove, the Court has to consider whether the action is arbitrary and interference is called for in public interest. It is laid down by catena of decisions that award of a contract is essentially a commercial transaction. In arriving at a decision in a matter of contract, considerations which are of paramount nature are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender. It can enter into negotiations. Price need not always be the sole criterian for awarding a contract. What is important to be borne in mind is that the Court must find some defect in the decision making process and even in such a matter the Court has to exercise its discretionary power 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 has to keep larger public interest in mind in order to decide whether its intervention is called for or not. In this case, it cannot be said that the bid of particular bidder must be accepted. In the facts and circumstances of the case narrated hereinabove, if the authority has arrived at a conclusion that the bid is non responsive the Court cannot sit in appeal over that decision to set aside the decision taken by the Competent Authority after examining all these aspects in detail.
42. In the opinion of this Court, it is not open to the Court to sit in appeal over the decision taken by the Competent Authority and to substitute its own decision. The Court is of the opinion that in the facts and circumstances of the case discussed hereinabove, it cannot be said that the decision making process was faulty and the decision arrived at by the Competent Authority was malafide, arbitrary or was so perverse that no prudent man would take.
43. In the result, the writ petition is dismissed with costs, which we quantify at Rs. 20,000.