Kewal Krishan Gupta vs State

Mansoor Ahmad Mir, J.—Challenge in this Letters Patent Appeal is to the judgment and order dated 29-5-2013 passed by the learned

single Judge in OWP No. 1209/2012, in case, titled as, Kewal Krishan Gupta v. State of J.&K. whereby the writ petition filed by the writ

petitioner, appellant herein, came to be dismissed with costs of rupees one lac (for short, impugned judgment), on the grounds taken in the memo

of appeal. The facts in brief are that M/s. Chenab Construction Joint Venture, a sole proprietorship firm of the appellant, responded to e-Tender

Notice floated by respondent No. 2, i.e. Chief Engineer, Pradhan Mantri Gram Sadak Yojana (for short, PMGSY), Jammu vide No. DIP/JK-

1512 dated 29-5-2012 dated 29-5-2012. Writ petitioner, appellant herein, along with others submitted the bids in so far as it related to Item No.

4 of the tender notice, i.e. for construction of road from Rajdhani to Paryali, Block Manjakote, Phase VII (JK12-103). However, the technical bid

of the writ petitioner, appellant herein, came to be rejected and he was informed vide communication dated 16-8-2012. Aggrieved by the same,

writ petitioner filed the writ petition, bearing OWP No. 1209/2012 in this Court questioning the rejection order on various grounds taken in the

memo of writ petition.

Respondents filed objections and resisted the writ petition. The Writ Court after considering the pleadings, documents and the arguments

advanced by the learned counsel for the parties dismissed the writ petition vide the impugned judgment. This is how the writ petitioner has filed the

instant appeal seeking setting aside of the impugned judgment and allowing the writ petition.

In terms of clause 4.4A and 4.4B of Standard Bidding Documents (for short, SBD) of Notice Inviting e-Tenders, every tenderer had to

produce the documents and satisfy the conditions as laid down in these clause. For facility of reference, we deem it proper to reproduce Clause

4.4A and 4.4B herein.

4.4A. To qualify for award of the Contract, each bidder should have in the last five years:

a) Achieved in any one year a minimum financial turnover (as certified by Chartered Accountant, and at least 50% of which is from Civil

Engineering construction works) equivalent to amount given below:

i) 60% of amount put to bid, in case the amount put to bid is Rs. 200 lakhs and less.

i) 75% of amount put to bid, in case the amount put to bid is more than Rs. 200 lakhs but less than Rs. 1000 lakhs.

a-i) 100% amount put to bid in case of the amount put to bid is more than 1000 lakhs. The turnover should be for civil engineering works as

certified by Chartered Accountant. ""The amount put to bid above would not include maintenance cost for 5 years and the turnover will be indexed

at the rate of 8% for a year."" If the bidder has executed road works under Pradhan Mantri Gram Sadak Yojana in originally stipulated completion

period, the financial turnover achieved on account of execution of road works under PMGSY shall be counted as 120% for the purpose of this

sub-clause.

b) Satisfactorily completed, as prime Contractor, at least similar work (Earth works, protection works & Cross Drainage works) equal in value to

one-fifth of the estimated cost of work (excluding maintenance cost for five years) for which the bid is invited, or such higher amount as may be

specified in the Appendix to ITB. (The requisite certificate should be from the officer not below the rank of Executive Engineer or equivalent). The

value of road work completed by the bidder under Pradhan Mantri Gram Sadak Yojana in originally stipulated period of completion shall be

treated 120% for the purpose of this Sub-Clause.

4.4.B (a) Each bidder must produce:

(i) The current income tax clearance certificate;

(ii) An affidavit that the information furnished with the bid documents is correct in all respects; and

(iii) Such other certificates as defined in the Appendix to ITB. Failure to produce the certificates shall make the bid non-responsive.

(b) Each bidder must demonstrate:

(i) availability for construction work, either owned, or on lease or on hire, of the key equipment stated in the Appendix to ITB including equipments

required for establishing field laboratory to perform mandatory tests, and those stated in the Appendix to ITB;

(ii) availability for construction work of technical personnel as stated in the Appendix to ITB.

(iii) liquid assets and/or credit facilities, net of other contractual commitments and exclusive of any advance payments which may be made under

the Contract, or not less than the amount specified in the Appendix to ITB;

(c) The bidder must not have in his employment;

(i) The near relation (defined as first blood relations, and their spouses, of the bidder or the bidder's spouse) of persons listed in the Appendix to

ITB.

(ii) without Government permission, any person who retired a gazetted offer within the last two years of the rank and from the departments listed in

the Appendix to ITB.

The estimated cost, as recorded in the NIT, for the above said work was Rs. 429.02 lacs. The writ petitioner had to place on record the

documents indicating that his maximum turnover in any of the 1st five financial years was 75% of the estimated cost of the work. The Committee

duly constituted by the respondents after considering the documents submitted by the writ petitioner rejected his technical bid on the grounds that

the turnover of the bidder was not as per the requirement of SBD/NIT and was found to be ""non-responsive"".

The writ petitioner, appellant herein, questioned the rejection order before the Writ Court on the simple ground that since he was having 75%

turnover of the estimated cost, therefore, was eligible. In support of the same, he has annexed Annexure 'B' to the writ petition, i.e. a certificate

issued by one Raj Kumar Gupta, Chartered Accountant, showing the Gross Receipts of the last five years of the petitioner's firms.

The writ respondents while contradicting the claim of the petitioner have pleaded in their reply that the certificate (annexure 'B' to the writ

petition) related to so many firms and not only to M/s. Chenab Construction Joint Venture. They have further disclosed that the writ petitioner also

submitted a certificate in another contract bid showing different turnover for the same years, referred to in annexure 'B'. Both the certificates have

been issued by one Chartered Accountant, namely, Raj Kumar Gupta, which have been reproduced at internal pages 3 & 4 of the objections to

the writ petition.

The Committee after examination of the certificate produced by the writ petitioner has recorded reasons that the bidder before the writ

respondents was M/s. Chenab Construction Joint Venture and not any other firm(s) and the first certificate, as discussed hereinabove, was of four

firms. The Committee also observed that the turnover of M/s. Chenab Construction Joint Venture, as reflected in gross receipts from PWD in

Profit and Loss Account Statement, is 1.21 crore only. After taking in view all these aspects, the bid of the writ petitioner came to be rejected.

The Writ Court while holding the rejection order as correct and legal one has observed that the bidder before the respondents was only M/s.

Chenab Construction Joint Venture through its Proprietor Sh. K.K. Gupta and not other firms of the writ petitioner, therefore, the writ petition

could not have 75% turnover of the estimated cost of the work in any of the last five financial years.

As per Clause 4.4A of SBD, reproduced hereinabove, words ""each bidder"" are used. The pleadings of the parties and documents on the file do

disclose that M/s. Chenab Construction Joint Venture was the only bidder. As per documents, at pages 96, 97, 98 & 99 of the paper book, it was

only M/s. Chenab Construction Joint Venture who had applied. Page 97 of the paper book is a photostat copy of Term Deposit Receipt which is

in the name of M/s. Chenab Construction Joint Venture, page 98 discloses that it was only M/s. Chenab Construction Joint Venture who had filed

the bids and page 99 is a photostat copy of affidavit which too had been sworn on behalf of M/s. Chenab Construction Joint Venture. It is

nowhere mentioned in these documents that M/s. Chenab Construction Joint Venture had submitted its bid as ""AAA"" Class Contractor on behalf

of all the firms.

Learned counsel appearing for the appellant argued that the Certificate of Gross Receipts (annexure 'B' to the writ petition) was the only valid

certificate uploaded by the appellant while submitting e-Tender, and wherefrom the respondents have procured the second Certificate of Gross

Receipts, the mention of which is made at internal page 4 of the objections to the writ petition, is not forthcoming nor the same has anything with

the present lis.

The argument though appears to be attractive is devoid of any force. The petitioner has not pleaded or taken any ground that the second

Certificate of Gross Receipts, the mention of which is made at internal page 4 of the reply, is fake one or is not belonging to M/s. Chenab

Construction Joint Venture, or the same has not been issued by Raj Kumar Gupta, Chartered Accountant. He has also not stated or replied that he

did not annex the said certificate while submitting tenders for construction of another road.

In the objections to the writ petition, the writ respondents have also stated that the writ petitioner while submitting bid for construction of road

from Kalidub to Loorkote, Package No. JK-12-119, has annexed certificate on behalf of M/s. Chenab Construction Joint Venture, the mention of

which is made hereinabove, and that is how the writ respondents came to know that the writ petitioner has given different/contradictory figures of

turnover in both the certificates.

It is surprising that the writ petitioner has not denied paragraph 3 of the para-wise reply. How could it be said by the writ petitioner that the

writ respondents or the Committee was not within its power to examine both the certificates when the figures mentioned in both the certificates on

the face of it are at variance. In the first certificate (annexure 'B' to the writ petition), it has been shown that the writ petitioner had highest Contract

Receipts of Rs. 178.43 crore for the financial year 2009-10 of all the four firms. If it is so, then how it has been shown as Rs. 352 crore in the

second certificate for the same financial year of M/s. Chenab Construction Joint Venture only. It was for the tenderer/bidder to disclose all the

facts genuinely. But, in the present case, it was the Committee, who after going through both the certificates and other relevant documents,

submitted by the writ petitioner in other schemes of the department, has decided to reject the technical bid of the petitioner.

We have gone through both the certificates. It is surprising that both the certificates show different details. The figures given in both the

certificates are contradictory. In first certificate the gross receipts have been shown to be of four firms, while as in another certificate the gross

receipts have been shown to be of only M/s. Chenab Construction Joint Venture. Thus, both the statements/certificates are at variance. The writ

Court after examining the terms and conditions of the tender notice has rightly held that the writ petitioner was not eligible to qualify, as the annual

turnover of M/s. Chenab Construction Joint Venture, as per the profit and loss statement placed on record along with the objections, was not in

terms of Clause 44A of SBD, therefore, his technical bid has rightly been rejected. The writ Court has also issued show cause notice to Raj

Kumar Gupta, Chartered Accountant, though same is not questioned by him.

When the technical bid of the writ petitioner came to be rejected, he filed the writ petition in this Court and obtained interim direction on 29-8-

2012, whereby the entire project has come to standstill. Even the writ petitioner, appellant herein, has obtained interim direction in this appeal.

Thus, the interest of public at large is being jeopardized and the public at large has been suffering for want of construction of road from Rajdhani to

Paryali, Block Manjakote, when roads are the life line of public at large. Viewed thus, saddling the writ petitioner with cost was the need of the

hour. Having said so, we are also of the considered view that the order made by the Writ Court is legal one, needs no interference. The costs

awarded also appeared to be reasonable, needs no interference. Accordingly, the appeal is dismissed along with connected CMA(s), if any.