Sabyasachi Bhattacharyya, J
1. The respondent no. 2 (West Central Railways), on August 31, 2023, issued a Notice Inviting Tender (NIT) for Automatic Block Signalling. The last
date of submission of bids was October 16, 2023.
2. By Notification No. 2018/CE-I/CT/36-EPC Contract Policy Pt-I dated October 11, 2023, the Ministry of Railways, Government of India brought
Amendment No. 5 to Standard Engineering Procurement Contract Tender Document (EPC) for single stage two packet system, thereby introducing
certain amendments to the clauses regarding technical capacity. Admittedly, the petitioner no. 1 became eligible for participation in the tender only by
virtue of such amendment. Accordingly, the petitioner no. 1 uploaded its technical and financial bids on October 15, 2023, one day prior to the closing
of the bid submissions.
3. On March 19, 2024, an e-mail was sent to the petitioner no. 1 by respondent no. 3 intimating that the technical bid of the petitioner no. 1 was found
technically unsuitable due to the same being non-responsive as Appendix IB was not submitted and the Request For Proposal (RFP) Clause 2.2.2.1(ii)
was not satisfied. Challenging the said rejection, the present writ petition has been filed.
4. At the outset, the respondents throw a challenge to the territorial jurisdiction of this Court to take up the writ petition.Learned counsel appearing for
the added respondent no. 4 cites A.B.C. Laminart Pvt. Ltd. and another Vs. A.P. Agencies, Salem, reported at (1989) 2 SCC 163, where it was held
that if several courts have jurisdiction, the parties can contract to choose to submit to the jurisdiction of a particular court among those. In the present
case, the contract clauses specify the courts in Bhopal in the State of Madhya Pradesh to have jurisdiction.
5. Learned senior counsel for the respondent no. 4 also cites Agmatel India Private Limited Vs. Resoursys Telecom and others, reported at (2022) 5
SCC 362 to argue that the technical evaluation or comparison by the court is impermissible and even if the person inviting offers gives an interpretation
to the tender document which is not acceptable to the Constitutional Court, that, by itself, would not be a reason for interfering with the interpretation
given.
6. Learned senior counsel for the petitioner, while addressing the issue of territorial jurisdiction, cites Ashok Kumar Saboo (HUF) and another Vs.
Hindusthan Paper Corporation Limited and others, reported at (2007) 3 CHN 533, for the proposition that the provisions under Article 226 of the
Constitution cannot be contracted out by selecting one of the two competent forums as there cannot be estoppel against any provision of Constitutional
law.
7. Learned senior counsel cites Maharashtra Chess Association Vs. Union of India and others, reported at (2020) 13 SCC 285 in support of the
proposition that the role of the High Court under the Constitution is crucial to ensuring the rule of law throughout its territorial jurisdiction. The writ
jurisdiction of a High Court cannot be completely excluded by a statute. The decision of the High Court to entertain or not entertain a particular action
under its writ jurisdiction is fundamentally discretionary and limitations placed on the courtâ€s decision to exercise or refuse to exercise its writ
jurisdiction are self-imposed.
8. Learned senior counsel next cites a coordinate Bench judgment of this Court in Sri. Pankaj Panwar Vs. Lalit Kala Akademi and others, reported at
AIR 2015 Cal 67, where, after consideration of different judgments, it was held that when the impugned act of the respondents takes effect within the
territorial jurisdiction of a particular High Court, it may entertain the writ petition notwithstanding that the respondents have their offices or residences
outside its territorial jurisdiction. To hold that service of an order or anotice on the addressee would never give rise to a cause of action to move the
court within whose territorial limits the order/notice is received, may not be reasonably sound.
9. Learned senior counsel next points out that Amendment No. 5 dated October 11, 2023, being intended to apply to tenders of the present nature, was
squarely applicable to the present case. Since the Amendment was brought into force on October 11, 2023, prior to the last date of submission of the
bids that is October 16, 2023, the petitioners have been rendered eligible to participate in the tender by virtue of such amendment.
10. On merits, it is submitted by the petitioners that Appendix-IB was to be uploaded with the bid as per the relevant clauses of the tender document.
The petitioners precisely did so. Although the Appendix-IB was to be uploaded with the technical bid packet, the same was clubbed with the financial
bid. However, the terms of the tender required submission of Appendix-IBalong with the bid documents which was done in the present case.
11. That apart, for abundant caution, a hardcopy of the document was also submitted subsequently to the respondents and a softcopy thereof was sent
to a functionary of the respondent-Authorities. Thus, the petitioners argue that the rejection of their bid was de hors the provisions of the tender
document and ought to be set aside.
12. Learned senior counsel appearing for respondent no. 4 primarily relies on the fact that Appendix-IB was not submitted along with the technical bid
but with the financial bid. It is argued that in terms of the tender clauses, particularly Clause 3.1.6(a), the technical bid was to be considered
responsive only if it was as per format, inclusive of Appendix-IB.
13. As per Clause 2.11.1(h) of the tender document, Appendix-IB was to be filed with the technical bid.
14. Clauses 3.1.9 and 3.3 provide that only technically responsive bids would be opened.
15. Further, technical and financial bids were only to be filed online on the concerned portal and no other mode was recognized. Thus, the WhatsApp
communication to an officer of the tender inviting authority or physical submission of hardcopy of Appendix IB subsequently would not suffice.
16. The respondents also argue that as per the Railway Board Circular dated August 31, 2016 vide Memo No. 2015/CE-1/CT/5/1, Amendment No. 5
could not be incorporated, since it was issued within fifteen days prior to the bid due date. Hence, the petitioner no. 1 was not eligible to participate in
the contract in the first place.
17. It is reiterated by the respondents that the writ petition is not maintainable due to lack of territorial jurisdiction of this Court, since the respondents
have their offices in Madhya Pradesh, the work contemplated in the tender is to be done in the State of Madhya Pradesh and the documents were
partially to be submitted physically also at Jabalpur in Madhya Pradesh. Nothing has been shown by the petitioners to the effect that the petitionersâ€
business would be affected in Kolkata, since the work was for the Bhopal-Nishatpura-Bina Section of Bhopal division of the West Central Railway,
which is beyond the territorial jurisdiction of this Court.
18. Thus, the respondents argue that the writ petition ought to be dismissed on the ground of territorial jurisdiction as well as on merits.
19. Thus, three issues fall for consideration in the present case, which are as follows:
i) Whether this Court has territorial jurisdiction to entertain and decide the writ petition.
ii) Whether Amendment No. 5 would be applicable to the petitioners.
iii) Whether non-uploading of Appendix-IB with the technical bid packet would render the petitioners technically ineligible in the tender.
20. The above issues are decided in the following manner:
21. Decision:
i) Whether this Court has territorial jurisdiction to entertain and decide the writ petition.
22. The terms of the tender are contained in the RFP document. Clause 24.3.18 of the same stipulates that the contract shall be governed by the law
for the time being in force in the Republic of India. In case of any disputes and differences resulting in court cases between Contractor and Authority,
the jurisdiction shall be of Courts at Bhopal only.
23. Clause 25.1 provides that the said agreement shall be construed and interpreted in accordance with and governed by the Laws of India and the
Courts at Bhopal shall have exclusive jurisdiction over matters arising out of or relating to the agreement.
24. Insofar as the first Clause is concerned, no contract has been entered into as yet between the parties since the matter is still at the tender
evaluation stage. Thus, there is no scope of any dispute or difference between „contractor†and „authorityâ€. Hence, Clause 24.3.18 does not
apply.
25. Clause 25.1 stipulates that Courts at Bhopal shall have exclusive jurisdiction over “matters arising out of or relating to the agreementâ€.
However, the present allegations pertain to the authorities having acted de hors the agreement itself.
26. More importantly, the disputes envisaged therein are, as per the said Clause, to be resolved in „Courts†in Bhopal. However, the plenary
powers conferred by Article 226 of the Constitution of India are not circumscribed by territorial jurisdiction as contemplated in statutes which derive
power from the Constitution, including the Code of Civil Procedure, Sections 15 to 20 of which lay down the road-map in respect of jurisdiction.
27. In Maharashtra Chess Association (supra), the Supreme Court observed that although parties, by agreement, may confer jurisdiction on one of the
courts having jurisdiction, the role of the High Court under the Constitution is crucial to ensuring the rule of law throughout its territorial jurisdiction and
in order to achieve these transcendental goals, the powers of the High Court under its writ jurisdiction are necessarily broad. The Supreme Court
reiterated that no limitation can be placed on the powers of the High Court in exercise of its writ jurisdiction. Two clear principles were laid down
therein. First, the decision of the High Court to entertain or not entertain a particular action under its writ jurisdiction is fundamentally discretionary and
secondly, limitations placed on the courtâ€s decision to exercise or refuse to exercise its writ jurisdiction are self-imposed. Writ jurisdiction of High
Courts, it was held, cannot be completely excluded by statute.
28. In Pankaj Panwar (supra), a coordinate Bench of this Court, while considering the proposition that it has to be construed from the pleadings as to
whether the facts constitute essential, integral or material facts so as to constitute a part of cause of action, held that when the impugned act of the
respondents takes effect within the territorial jurisdiction of a particular High Court, it may entertain the writ petition of the person aggrieved
notwithstanding that the respondents have their offices or residences outside its territorial jurisdiction. Where an order has been made by an authority
or person at a place beyond the territorial limits of a particular High Court but the same is given effect to against the petitioner within the said High
Courtâ€s jurisdiction, at least a part of the cause of action arises where the impugned order is implemented. It was held that when an order becomes
effective only when it is communicated or served, the service of the order or receipt of a notice thereof would form part of cause of action for filing a
writ petition.
29. In the case under consideration by the Learned Single Judge, a public notice which was published beyond the territorial jurisdiction was being
considered. In such context, however, the learned Single Judge observed that to hold that service of an order or a notice on an addressee would never
give rise to a cause of action to move the court within whose territorial limits the orders/notices is received, may not be reasonably sound.
30. In Ashok Kumar Saboo (HUF) (supra), a Division Bench of this Court was considering the termination of a contract where there was an
agreement of forum selection, stipulating courts situated in the State of Assam to have such jurisdiction. It was held by the Division Bench that it is
impossible to think that the provision under Article 226 can be contracted out by selecting one of the two competent forums as there cannot be an
estoppel as against a provision of Constitutional law. The forum selection clause, it was held, does not envisage recognition and acceptance of
contracting out of the provision of Article 226 of the Constitution of India.
31. Thus, merely by virtue of the forum selection clause in the tender document, it cannot be said that the jurisdiction of this Court is ousted in the
present case.
32. The petitioner has also cited an unreported judgment in CESC Limited (supra), wherein a similar context, this Court held that at least a part of
cause of action arises within the jurisdiction of this Court, considering the provision of Article 226(2) of the Constitution of India which empowers any
High Court exercising jurisdiction in relation to territories within which the cause of action, wholly or part, arises, notwithstanding that the seat of such
authority is not within those territories, to exercise the powers of the territorial High Court as envisaged in Article 226(1).
33. Learned counsel for respondent no. 4 has cited A.B.C. Laminart (supra) where it was held that so long as the parties to a contract do not oust the
jurisdiction of all courts which would otherwise have jurisdiction to decide the cause of action under the law,it cannot be said that the parties have by
their contract ousted the jurisdiction of the court. If several courts have jurisdiction in the law and the parties have agreed to submit to one of those
and not to the other, it cannot be said that there is total ouster of jurisdiction.
34. The ratio which can be deduced from the above judgments, is that although parties can, by agreement, confer jurisdiction on one of the courts
having jurisdiction in law, the said contract cannot affect the power of judicial review under Article 226 of the Constitution of India.
35. In the facts of the instant case, although the respondents have made out a strong case on territorial jurisdiction on the ground that the proposed
work under the tender is to be done outside the jurisdiction of this Court, certain other factors are also to be taken into consideration. The petitioners
have pleaded in the writ petition that theyhave business throughout India and outside. Thus, the rejection of its bid in the subject tender would affect
their business throughout India.
36. Insofar as the particular work is concerned, and/or working with the particular respondents in the present case is concerned, undoubtedly, the
petitioner would be affected outside territorial jurisdiction of this Court. However, the implications of rejection of a tender document are not confined
to the particular tender inviting authority alone but all similar contracts floated by authorities invariably contain a clause demanding disclosure as to
whether there was any previous rejection of a participantâ€s bid in any previous tender, which affects the eligibility of the bidder in such tenders.
Moreover, the respondent no. 2is a part of the Indian Railways and the rejection of the petitionerâ€s bid on the ground of not being technically
qualified would definitely affect future business of the petitioner no. 1 and its participation in other contracts for the Indian Railways throughout the
country, including in the State of West Bengal.
37. In the present case, as in Pankaj Panwar (supra), the effect of the rejection, which took place in Madhya Pradesh, was given when the petitioners
received the communication from their office in Kolkata.Even if the decision of rejection of the petitionerâ€s bid was taken in Madhya Pradesh, which
falls outside the jurisdiction of this Court, the fact remains that the cause of action of the instant writ arose when the petitioners learnt about such
rejection at Kolkata. Thus, at least a part of the cause of action arose within the territorial jurisdiction of this Court.
38. The argument that some of the bid documents were to be submitted physically in Madhya Pradesh does not cut ice since the primary tender
documents relating both to technical and financial bids were to be submitted online which the petitioners did from their Kolkata office. Hence, merely
because the respondents have their offices outside the jurisdiction of this Court, it does not automatically signify that the territorial jurisdiction of this
Court under Article 226(2), read with Article 226(1) of the Constitution of India is ousted.
39. At least a part of the cause of action arose here, as evident from the above discussions. Accordingly, the first issue is decided in favour of the
petitioners by holding that this Court does have territorial jurisdiction to entertain and decide the writ petition, as at least a part of the cause of action
arose within its territorial limits.
40. Decision:
ii) Whether Amendment No. 5 would be applicable to the petitioners.
41. The petitioners have argued that Amendment No. 5 to standardEPC documents for single stage two packet systems applies in the present case.
The said Amendment was notified on October 11, 2023, barely five days before the closing date of submission of tenders in the present RFP that is
October 16, 2023.
42. To construe the effect of the same, Notification No. 2015/CE-I/CT/5/1 dated August 31, 2016 issued by the Ministry of Railways, Government of
India through the Railway Board is relevant.
43. In no uncertain terms, it stipulates that issue of corrigendum notice is permitted as an exception only during advertisement period and no
corrigendum is permitted during offersubmission period and cases requiring corrigendum during offer submission period shall be re-tendered.
44. The expression “Advertisement period†has been defined in Clause (ii) (a) of the Notification as “Time during which all information
pertaining to tender shall be available but offers cannot be submittedâ€. On the other hand, the term “Offer submission period†has been defined
in Clause (ii) (b) as “Fifteen days prior to opening of tender, during which tenderers can submit their offerâ€.
45. As per the time schedule in the subject tender, the last date for receiving queries was September 14, 2021, the first pre-bid meeting was scheduled
on September 15, 2023, the authorityâ€s response to queries latest by September 29, 2023 and the last date of request for bid document as well as bid
due date was October 16, 2023, although physical submission of documents listed in Clause 2.11.2 was to be permitted till October 25, 2023. The
technical bids were to be opened on October 2023.
46. Thus, the time-lines indicate that the bid due date for online submission was October 16, 2023, beyond which bids could not be submitted.
47. Since in the present case, the corrigendum in the form of amendment came into effect barely five days before the bid submission closing date, it
clearly falls within the excluded zone as contemplated in the Notification dated August 31, 2016 and as such, cannot be given effect to in respect of
the present tender.
48. The jugglery of words in distinguishing between an „amendment†and „corrigendum†is not relevant, since the terms are interchangeable in
the present context, as amendments may very well come in the form of corrigenda and viceversa.
49. Thus, the second issue is decided against the petitioners, holding that Amendment No. 5 dated October 11, 2023 does not apply to the present
tender.
50. Decision:
iii) Whether non-uploading of Appendix-IB with the technical bid packet would render the petitioners technically ineligible in the tender.
51. Prior to entering into this issue on merits, it is to be noted thatthe petitioners have admitted during arguments that it is only by virtue of Amendment
No. 5 that they became eligible to participate in the bid; otherwise, they do not qualify as eligible bidders as per the tender terms. Thus, in view of the
second issue being decided against the petitioners, the petitioners were admittedly not eligible to participate in the tender at all, hence, nipping their
attempt at the bud.
52. However, for the sake of completion, the other important facet of eligibility, which is a sticking point in the present lis, is also taken up for
consideration. Clause 2.11.1(h) stipulates that Appendix-IB (letter comprising the financial bid) shall be submitted online through e-procurement portal
on or before October 16, 2023. Clause 3.1.6.1, pertaining to evaluation of technical bids, provides that as a first step towards evaluation of technical
bids, the authority shall determine whether each technical bid is responsive to the requirements of the RFP. A technical bid, it is further provided, shall
be considered responsive only if the conditions given thereafter are satisfied. The very first such condition, comprised in Clause (a), is that the bid is
received online as per the format at Appendix-IB including Annexuresâ€" I, II, III, IV, V, VII and Appendix-IB.
53. Clause 3.1.6.2 stipulates that the authority reserves the right to reject any technical bid which is non-responsive and no request for alteration,
modification, substitution or withdrawal shall be entertained by the authority in respect of such bid. In view of the said clause, submission of Appendix
IB with the technical bid cannot but be construed to be one of the essential terms of the tender. Even otherwise, the declaration intended to be
incorporated in Appendix IB, being the letter comprising the financial bid, also contains agreement by the bidder to several other essential terms of
eligibility to participate in the tender. Thus, the said document is an essential and integral part of the eligibility criteria.
54. Thus, online submission of the said document along with the technical bid is a sine qua non of the bid being eligible at the technical stage.
55. In terms of the scheme of the tender document, a bid is only considered eligible for the financial stage if it crosses the hurdle of the technical
stage. If a bid is rejected at the technical stage as unresponsive, no question arisesof the financial bid being opened at all. Thus, the petitionersâ€
insistence that they had submitted Appendix-IB along with the financial bid packet, seen in the context of the above clauses, does not cut ice.
„Submissionâ€, for the purpose of eligibility, has to be in consonance with the terms of the contract. Unless Appendix IB is uploaded along with the
technical bid packet, there would not arise any occasionfor the authorities even to open the financial bid. In the present case, Appendix IB was
admittedly included in the financial bid packet and did not accompanythetechnical bid and as such, the authorities were well within their power, in
particular as conferred under Clause 3.1.6.2, to reject the technical bid of the petitioners as non-responsive on such ground alone.
56. That apart, the ratio laid down in Agmatel (supra) is also attracted to the instant case. In consonance therewith, the interpretation lent to the tender
terms by the tender inviting authority has to be given primacy.
57. Hence, the last issue is also decided against the petitioners. The non-uploading of Appendix-IB with the technical bid rendered the petitioners
ineligible in the tender, since their bid was “non-responsive†under the terms of the contract, which entails rejection of the bid at the technical
stage.
58. Conclusion:
59. In view of the above discussions, this Court is unable to find any arbitrariness, unreasonableness or irregularity in the refusal of the petitionersâ€
bid by the respondent-Authorities. The decision-making process of the respondents was perfectly in tune with the terms and conditions of the tender
document and the principles of Natural Justice and as such, there is no scope of interference with the said decision.
60. Accordingly, WPA No. 8752 of 2024 is dismissed on contest without, however, any order as to costs.
61. Urgent certified server copies, if applied for, be issued to the parties upon compliance of due formalities.
