AI Structured Summary
Not yet generated for this judgment
Judgment
Shantanu Kemkar, J.—Heard on the question of admission.
This petition under Article 226 of the Constitution of India is directed against the decision taken by the respondent in cancelling the Tender No. 11000002-HD-12370 floated by it to seek bottling assistance from private bottler in Jhabua District. The petitioner is also seeking direction to the respondent to complete the formalities of the said tender and to accept the petitioner''s bid being lowest. Briefly stated, in pursuance to the Notice Inviting Tender seeking bottling assistance for LPG Cylinders for Jhabua local and surrounding markets of Meghnagar, Dhar, Ratlam, Badnagar and Khachrod under Indore LPG Region of HPCL, the petitioner amongst one another submitted its bid. After opening the technical and the price bids, instead of accepting the petitioner''s bid, which according to it was the lowest, the respondent, after making some correspondence, issued an order dated 12-1-2012 (Annexure P-17) informing the petitioner that the tender being unworkable, it has been decided not to further process the tender, Feeling aggrieved by the said communication dated 12-1-2012 (Annexure P-17), the petitioner has filed this petition.
Shri Vinod Tyagi, learned Counsel for the petitioner argued that after floating the tender and after opening of the technical and price bids, the respondent could not have cancelled the tender; more particularly, in the absence of such clause being there in the tender document, unlike other lender document, which has been filed for ready reference as Annexure P-20. He further argued that after submission of the tender, a right has been accrued in favour of the petitioner and in view of it, the cancellation of the tender is impermissible. In support of his submission learned Counsel for the petitioner placed reliance on the judgment of the Supreme Court in the case of Union of India and Others Vs. Dinesh Engineering Corporation and Another etc.,
Having heard learned Counsel for the petitioner at length and alter considering the submissions made by him, we are of the view that this petition has no merit.
Clause 12 of the tender document (Annexure P-4) deals about acceptance of the offer by the respondent Corporation. Clause 12(c) of it reads thus :
Acceptance of the offer by the Corporation :
(a) *** *** ***
(b) *** *** ***
(c) The Corporation is not bound to accept the lowest offer and reserves the right to reject any and/or every tender without assigning any reason whatsoever and/or place order on one or more tenderers and/or carry out negotiations with any tenderer in the manner considered appropriate by the Corporation. The Corporation also reserves right to reject any unworkable offer.
The aforesaid clause clearly provides that the respondent is not bound to accept the lowest offer and the respondent has a right to reject any and/or every tender without assigning any reason whatsoever. It also provides that the respondent/Corporation reserves right to reject any unworkable offer. True, it is that in the another tender document (Annexure P-20) there is an additional condition mentioned in the tender document enabling the respondent to withdraw/modify the tender whereas the lender in question is differently worded, however having regard to the Clause 12(c) of the tender condition the right of the respondent to cancel the tender, if found unworkable, is unfettered and, therefore, it cannot be held that the respondent has no right to cancel the tender and arc bound to process it further to the extent of accepting the bid and issue work order.
So far as the challenge to the impugned decision is concerned, we find that in the impugned order/decision dated 12-1-2012 (Annexure P-17), the respondent has assigned the following reasons for cancellation of the tender :--
We state that the purpose of floating Tender was to make arrangements for private bottling assistance in Jhabua District of the State of Madhya Pradesh to cater to the increased domestic requirement in the present winter season of 2011-12.
We further stale that while the matter was under consideration by us the decision to proceed further with the same required to be reviewed in view of the developments and commissioning of a double Head GD/PT, which was commissioned at Indore LPG Plant in the month of August, 2011. This commissioning of new facility has resulted into increased production capacity of the plant. However, the additional bottling capacity of the plant per month is more or less equal to the present requirement under this tender and is able to meet the demand for LPC for the State of Madhya Pradesh as contemplated under the present Tender.
It is therefore, stated that in view of the subsequent development and in view of the fact that the requirement of LPG private bottling assistance for which the present lender is floated does not now remain viable as the demands are already being met and the tender being unworkable it is decided that no further progress be initiated under the present Tender.
HPCL states that in view of the above development its earlier decision of obtaining bottling assistance from private bottlers by floating the present tender no longer survives for the reasons stated above and therefore, it has decided not to further process tender.
We appreciate your association till date and are hopeful that you will associate with us in future as and when services are required.
We accordingly, advise you to put your request for the refund of Rs. 1 lakh being the EMD amount, which is lying with us and which shall be refunded back as advised.
Having gone through the aforesaid reasons, we find that after considering the relevance data the policy to make arrangements for private bottling assistance in Jhabua District of the State to eater to the increased domestic requirement was reviewed, in view of the development and commissioning of double head GD/PT, which was commissioned at Indore LPG plant in the month of August, 2011. On reviewing, it was noticed that the commissioning at Indore LPG plant has resulted into increased production capacity of the plant. It was found by the respondent that the additional bottling capacity of the plant was almost equal to the requirement under the tender in question. Taking into consideration this subsequent development, it was held that it has not now remained viable and the lender has become unworkable. In the circumstances, the impugned decision not to further progress in the tender in question was taken, as the requirement was found to be no longer surviving.
The aforesaid decision taken by the respondent for cancelling the tender is a policy decision based upon the facts and figures emerged due to the subsequent development. In the absence of any arbitrary exercise of powers, such decision cannot be interfered with by the Courts. In the case of Dinesh Engineering Corporation (supra), the Supreme Court has held that the power to reject any tender offer cannot be exercised arbitrarily. However, in the present case, as is clear from the impugned decision, it cannot be said to be an arbitrary decision. Therefore, in the absence of any arbitrariness and malafide, in our considered opinion, the impugned decision, which has been taken by the respondent cannot be interfered into; more particularly, when such powers are vested under Clause 12(c) of the tender document itself. Merely because the petitioner''s offer was lowest, the petitioner in the absence of malafide or arbitrariness on the part of the respondent cannot seek directions to the respondent to accept its bid when a policy decision has been taken not to further process the tender. In the circumstances, the petition fails and is hereby dismissed.