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Judgment
Heard learned counsel for the appellant and learned Assistant Solicitor General of India for the respondents.
The matter relates to the challenge to Tender Notification No. SPS/M(M)/CONT (E & M)/2015- 16/NIT-17/1767-77 dated 15-9-2015,
Notice Inviting Quotation (NIQ) for hiring of light vehicles by NHPC (A Government of India Enterprise) Salal Power Station.
The Department issued Tender Notice for hiring light vehicles for a period of two years (24 months) on contract basis and interested
commercial light vehicle owners were requested to quote minimum rates in sealed envelopes along with relevant documents of vehicles with
requisite Earnest Money Deposit (EMI) for each vehicle upto 30-9-2015 at 3.30 p.m.
Tender set out the eligibility criteria and other procedure to be followed. The tender document contains special conditions of contract. A
corrigendum was issued on 26-9-2015 and the sale date of tender document, and receipt and opening date of bid was extended in the following
manner:-
(iii) The sale date of tender document and receipt and opening date of bid is hereby extended as given below :
a) Last date and time of sale of tender documents 8-10-2015 (17:30 Hrs)
b) Last date and time of receipt of sealed Bid 9-10-2015 (15:00 Hrs)
c) Date and time of opening of Bid 9 10-2015 at 15:00 Hrs
The appellant claims to be a person, who is already executing a contract in relation to tender of February 2013, and he is aggrieved by
Condition No. 1 of Special Conditions of Contracts, which reads :
The vehicle provided by owner shall be in good running condition of 2015 model. The vehicle should be available for use for 24 hours. No
payment shall be made for the period the vehicle remains off the road for minor/major breakdown. In case of breakdown or some major repairs,
the owner/contractor of vehicle shall be responsible for replacement of vehicle of same specification for that period.
The writ petition is filed by him to quash the tender (NIQ) dated 15-9-2015 as amended and for further direction not to terminate the
arrangement currently between the Firm and NHPC.
It is fairly submitted by learned counsel for the appellant that the earlier tender period has already come to an end, therefore, the second part of
the relief cannot be granted without the valid contract in existence.
So far as first relief is concerned the learned single Judge, on notice to the respondents, came to hold that the challenge to this contract was on
the basis that the respondents did not follow the procedure prescribed in terms of clause 2.1 (a) of the Delegation of Power (DOP) for works and
procurements, which reads as under :-
Through Notice Inviting Tender in English/Hindi and the written language of the district and pasted on notice boards of various circles of
Projects/Units for works valued below 25 lacs. A copy should also be sent to Central PWI) Divisions, Zonal Office, the Circle Office, Local
Municipalities and DM's/Collector's Office/State PWD Divisions operating at the station of the work and Head quarters of the Project Office.
All open tenders shall be posted on web site of NHPC.
Inviting tenders from bidders pre-qualified for a particular work.
According to him, this Tender has not been pasted on notice boards of various circles of the Project besides the cost factor has not been
deliberately shown to avoid other forms of publication.
This is repelled by respondents in their objections stating that they have sent copies of the NIQ to the District and State authority for wide
circulation and also pasted on the notice board of the various departments. As far as objection on special condition No. 1, i.e. the age of the
vehicle is concerned, the stand of the respondents that the same principles is followed even in the earlier tender of the year 2013. It is further
averred that condition in the present NIQ that the vehicle should be of 2015 is a policy decision taken for that year. The department can vary the
terms and conditions on their requirement and convenience.
The learned single Judge in respect of the two issues, came to the conclusion that the appellant had knowledge of the issuance of Tender
notification on 26-9-2015 well before the last date i.e. 30-9-2015. It was extended by corrigendum. The learned single Judge referred to para 10
of the writ petition to point out that it was within the knowledge of the appellant and, therefore, his grievance that it was not widely published is not
correct.
At best any person, other than the petitioner, could have come to this Court with such a grievance, stating that non publication. The department
takes a specific stand that they had pasted as per rule through the department concerned. It is a disputed question of fact. The Municipality's letter
relied upon by petitioner is of no avail. When the mode of publication is satisfied there ends the matter. The fact of wide publicity is proved by
number of participants.
The next contention is that the challenge to the notification that the year of the vehicle is arbitrarily fixed as 2015 has not been rejected by the
learned single Judge and hence canvassed in the appeal. On this issue, we are not inclined to accept the appellant's contention that NIQ of year
2015 varies from that of NIQ 2013 and it is arbitrary. It is for the authority to decide as to what is the nature of vehicle, year and model of the
vehicle, they would require for their use. It is user based requirement and such conditions imposed cannot be challenged. If petitioner wants to
participate in the tender, it is for him to comply with the conditions of the tender. Such relief cannot be granted as a largess to any vehicle owner
merely because he wants to participate in the tender.
Respondents in this case is a power Corporation and they are entitled to impose appropriate conditions to ensure that their work is not
hampered. The petitioner by no stretch of imagination can raise a plea that the tender notice is arbitrary, only because it puts a condition that the
vehicle should be of year 2015. We are unable to agree to such submissions.
The learned single Judge has further analysed the contention to hold that 14 persons have participated in the tender and, therefore, the question
no proper publication or lack of wide publicity would not arise. It would also be noticed that the appellant herein is a contractor, who has benefited
out of the contract of 2013. We find absolutely no justification to entertain the writ petition at his behest to stall the subsequent tender after closure
of the previous tender of 2013. This appears to be a tactics to delay the process of fresh tender. We find absolutely no merit. Appeal is dismissed.
Caveat, if any, filed also stands discharged.