Randeep Chauhan vs State Of H.P. & Others

Satyen Vaidya, J

By way of instant petition, petitioner has prayed for the following substantive relief:-

“That Annexure P-4 may kindly be set aside and respondent may be directed to award the tender in favour of the petitioner in pursuance to the e-tender notice dated 02.08.2022, Annexure P-1”.

Respondent No.4 issued notice inviting tender dated 2.8.2022, seeking bids for construction of link road from Fandiyari to Ajroli Khalla via Jasvi Bijwa Bindoli, Ajroli km. 0/0 to 2/500 in Distt. Sirmour, H.P. (SH-Formation cutting 5/7 meters wide road km. 0/0 to 1/00) under MNP.

Petitioner along with other bidders submitted their respective bids in response to above mentioned notice inviting tender. The bid submitted by petitioner was found technically responsive. Petitioner was further found to be “L-1” after opening the financial bids. Respondent No.4, however, recommended the recalling of tender vide Annexure P-4 on the ground that the bid amount quoted by petitioner was (-) 30.56% below amount put to tender.

Petitioner has approached this Court on the premise that the NIT did not contain any condition, whereby the bidders were precluded from quoting the bid price below particular limits. It has further been contended by the petitioner that the action of the respondents to recall and cancel the tender on a condition, which was not part of NIT was not only unreasonable and arbitrary but was also smeared with malafide.

Petitioner has further contended that while dealing with similar issue, a Division Bench of this Court has already passed judgment on 15.9.2021 in CWP No. 4954 of 2021, titled as, Nakul Chauhan vs. State of H.P. & others along with other connected matters and has set aside the cancellation of tender process on identical grounds.

On notice, respondents have filed the reply. It is not denied that the tender has been decided to be recalled on the ground that it was in violation of guidelines and instructions dated 7.10.2021, issued by the Principal Secretary (Public Works) to the Government of Himachal Pradesh, whereby the Engineer-in-Chief, HP PWD was communicated with a decision of the Government to revise point No. 12 of the Salient Features for adopting of CPWD Work Manual along with other publication for HP PWD. As per such revision, the bid which was found less than 30% of the amount put to tender was liable to be cancelled. The respondents have not specifically stated that the above noted condition was made part of notice inviting tender.

We have heard learned counsel for the parties and have also gone through the record carefully.

It is not in dispute that the CPWD Works Manual, especially its condition No.12, as revised vide letter dated 07.10.2021 was not made part of the NIT. That being so, the issue that arises is whether the tender process could be recalled and cancelled for violation of a condition which neither was part of NIT nor was made applicable at any subsequent stage prior to evaluation of bids?

The above issue has been decided by Division Bench of this Court in which one of us (Satyen Vaidya, J.) was a Member, vide judgment dated 15.09.2021, passed in CWP No. 4954 of 2021, titled as Nakul Chauhan Vs. State of H.P. and others along with connected matters. It has been held therein that the recalling and cancellation of tender process on the ground of violation of CPWD Works Manual, in the absence of same being part of NIT or the tender process at any subsequent stage, was bad in law and on such premise the cancellation of tenders were accordingly quashed and set-aside.

The issue involved in the present petition is identical and is squarely covered by the above noted judgment passed by this Court. The abovesaid judgment shall, thus, apply in the facts of the present case and the reasoning and findings recorded therein shall also be applicable mutatis-mutandis.

In addition to the findings recorded in above noted judgment, this Court is of considered view that once the final bid submitted by qualified bidders were opened, subsequent recalling and cancellation of tender process will definitely prejudice the rights and interests of the bidders, especially the "L-1" bidder. For this reason, also the impugned action of respondents suffers from unreasonableness and arbitrariness. The stand of the respondents that the notification of the government need not be made part of NIT is also baseless for the reason that there was no such notification issued by the government. An intra departmental correspondence cannot be said to have universal application in each and every tendering process initiated by HP PWD, notwithstanding its absence from NIT.

In view of the above discussion, the present petition is allowed. The decision, Annexure P-4, to recall the tender for construction of link road from Fandiyari to Ajroli Khalla via Jasvi Bijwa Bindoli, Ajroli km. 0/0 to 2/500 in Distt. Sirmour, H.P. (SH-Formation cutting 5/7 meters wide road km.0/0 to 1/00) under MNP is quashed and set aside with a direction to the respondents to consider the award of work in question strictly in terms of the NIT.

Pending applications, if any, also stand disposed of.