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Judgment
Sharad Kumar Sharma, J
The respondent No.2, to the present writ petition, had invited the bids by issuance of the publication on 03.09.2021, for the work, which was nomenclatured as "Outsourcing of operation and maintenance of the Kisan Sahkari Chini Mills Ltd., Sitarganj, District Udham Singh Nagar having cane crushing capacity 2500 TCD for crushing season 2021-22". While invitation of bids, which was published on 03.09.2021, the instructions to the bidders were also issued to the probable bidders and entire bidding process was to be conducted by way of twin bid system i.e. the initial opening of technical bid and the financial bid, as per the schedule of the tenders, which was issued, the bidding process was to commence from 04.09.2021. The last date for submission of the bid was fixed to be 19.09.2021, and online bids thus submitted were to be opened on 20.09.2021.
The case of the petitioner, before this Court is, that the petitioner's since being one of the aspirants, to be awarded with the contract, and he had purchased the tender documents, had submitted his technical bid before the respondent No.2, i.e. "Uttarakhand Sahkari Chini Mills Sangh Limited, on 19.09.2021, which was to be evaluated by the "E-Tender Evaluation Committee" i.e. respondent No.3, herein. But ultimately the petitioner's tender bid has been rejected by the impugned order dated 20.09.2021, as it has been passed by the Tender Evaluation Committee, where the technical bid of the petitioner was rejected; on the ground that it didn't satisfied the terms and conditions of the bidding documents, as the bids which was submitted by the petitioner didn't included with it the relevant documents, as it was required to be supplied by the bidders, as per the terms of the bids. Hence, the writ petition before this Court.
Learned Senior Counsel for the respondent Nos.2 and 3 Shri T.A. Khan, submitted, that during the pendency of the writ petition, "the Bid Evaluation Committee" in fact had issued a work order on 28.09.2021, and thereafter, an agreement has also been executed on the said date itself with the private respondent. Hence, the contentions of the learned Senior Counsel for the respondent Nos.2 and 3, is that once a concluded contract has already been executed and has come into existence, the scrutinization of the rejection of the technical bid of the petitioner, no more may be amenable to the writ jurisdiction, in view of the stipulations contained under the Bidding Documents, which was an E-tender notice, issued by the "Uttarakhand Sahkari Chini Mills Sangh Limited", because according to its Section 1(A), provided the instructions to the bidders, which was inclusive of Clause No.21, pertaining to the evaluation of the technical bids, and the criteria which was to be adhered to, for the purposes of evaluation of the technical bids of the petitioner. In those cases, where it satisfied the criteria provided under Section 1 (D) of the "E Tender Bidding Documents", the award of the contract was contained under clause (D) of Section (1) of the invitation to bids.
The determination of the eligibility criteria for the bidders is contained under Section 1(D) and Section (2), which deals with the technical E-bid evaluation process too, it dealt with on various parameters, which are required to be fulfilled by the prospective bidders, and in its Clause No.12 and 13, which are extracted hereunder:-
"12. Arbitration Clause
In case of any dispute arising between the parties, the matter shall be referred to the Administrator, Uttarakhand Sahkari Chini Mills Sangh Limited, Dehradun who shall be the sole arbitrator and his decision shall be binding on both the parties. Provisions of Arbitration and Conciliation Act, 1996 shall apply. Place of arbitration shall be Dehradun.
Jurisdiction of Court.
All disputes are subject to the jurisdiction of High Court Nainital and Court subordinate to it at Udham Singh Nagar district, Uttarakhand."
The aforesaid clauses provides that in case if there is any dispute which arises between the parties, it would be referable, to the Arbitrator, as per the provisions contained under the Arbitration and Conciliation Act, 1996, and further it provides a forum of jurisdiction of court below i.e. the District Udham Singh Nagar, and the jurisdiction of the High Court, Nainital.
Learned counsel for the petitioner submits, that Clause No.12 and 13 of Section 1 (D), would not be attracted in the instant case, because according to his interpretation, Clause No.12, would only be attracted, when there is a concluded contract, and until and unless, the concluded contract is not executed inter se between the parties, the arbitration clause as contemplated under Clause 12, would not be applicable.
I am in disagreement with the arguments extended by the learned Senior Counsel for the petitioner, for the reason being that the invitation to bids as published by the respondent No.2, while inviting the bids, has classified the bidding documents into two different Sections i.e. Section 1 and Section 2, which are independent to one another. The execution of the contract falls to be within the ambit of Section 1, which provides with the instructions to the bidders and execution of the contract. As far as Section 1 (D) is concerned, it is altogether an independent section than to Section (1) as Section (2) independently deals with the modalities which are to be adopted for the purposes of evaluation of the technical bids, and which in it contained Clause 12 and 13, and the reference of the dispute between the parties as provided under Clause 12, herein, has to be read in relation to the disputes which falls to be within the ambit of Section 2 of the Bidding Documents, and it will not deals with the situation where the said clause could be attracted only when the concluded contract has been executed.
In that eventuality, the arguments extended by the learned Senior Counsel for the petitioner, that this clause will not be attracted in the instant case, where the aspect of the rejection of the technical bid, due to the non supply of the documents, was only one of the reasons constituted for rejection of his technical bid is not acceptable, for the reason being that Clause 12 and 13 of the Bidding Document, if it is conjointly read together, even then too the petitioner would be equally bound by Clause 13, which contemplates conferring of the jurisdiction to the High Courts and the court subordinate to it i.e. the court at District Udham Singh Nagar.
The Clause 13 of the E Tender Bidding Documents, cannot be read in exclusion, to confer a jurisdiction to entertain or speculate into an aspect of the rejection of the technical bid, while excluding the attraction of the provision, which relates to approaching the subordinate courts at District Udham Singh Nagar. Hence, even if for a moment Clause 12 of the E Tender Bidding Documents, is taken as to be not to be attracted; so far as it relates to the petitioner, once he contends that it was not a concluded contract, which has yet been executed in his favour, then too the controversy in the light of Section 2 of the Bidding Documents will falls to be under Clause 13 of the invitation to bids, and hence the dispute and the nature of the controversy which has been raised as a consequence of the passing of the impugned order of rejection of the technical bid, because of the non satisfaction of the conditions provided under the Bidding Documents, would still be amenable to Clause 13 of the Section 2 of the Bidding Documents, and hence this writ petition, as per my view would not be tenable, before this Court, coupled with the fact also that during its pendency, it has been informed that now a concluded contract has already been executed in favour of the private respondent, and the work order has already been issued, which has been duly approved by the competent authority, which is not a subject matter of the scrutiny before this Court. Hence, this Court, at this stage, is not venturing into its propriety, all contentions are left open, for the petitioner to be agitated when he invokes Clause 13 before the competent court for the redressal of his grievances.
Subject to the above exceptions, it is held that the writ petition is not tenable before this Court. Hence, the writ petition is accordingly dismissed.