RSR Private Limited vs State of H.P. & Others

Sandeep Sharma,J.

1.By way of instant Civil Writ Petition filed under Article 226 of the Constitution of India, petitioner has prayed for the following main relief amongst

others:

“1. That an appropriate writ order or direction may very kindly be issued against the respondents and in favour of the petitioner directing the

respondents to grant rate contract for the supply of Plant Protection Equipments (Sprayers) to the petitioner for a complete period of an year i.e. up till

31st December, 2018 by further directing the respondents to amend/modified the rate contract issued to the petitioner vide communication dated

13.12.2017 (Annexure P-3) in the interest of law and justice.â€​

Necessary facts, as emerged from the record, are that the petitioner-firm, who despite being lowest and successful bidder, was not awarded rate

contract for the purchase of Plant Protection Equipments (A) (Foot, Hand Compression & Knapsack, Sprayer etc.) for the year 2017-2018,

approached this Court by way of CWP No.910 of 2017, seeking therein direction to respondents to award rate contract with respect to aforesaid

items for the year 2017-18 and to hold a fair and impartial inquiry with regard to unnecessary delay caused and attempts made by officials of

respondent No.2 to oust/debar the petitioner-firm from the tender process with malafide intention and for the extraneous reasons.

During the pendency of aforesaid petition, a communication dated 29th April, 2017 came to be issued by respondent cancelling therein tender in

question, as a consequence of which, petitioner, while amending its petition, also prayed for quashing of communication dated 29th April, 2017. This

Court, having perused pleadings adduced on record by the respective parties, allowed the aforesaid writ petition filed by the petitioner vide judgment

dated 8.11.2017. It would be appropriate to take note of operative portion of judgment referred hereinabove:-

“45. Consequently, in view of detailed discussion made hereinabove as well as law laid down by Hon’ble Apex Court, the

decision/communication dated 22nd/29th April, 2017, taken/issued by the Managing Director, H.P. Agro Industries, cancelling therein tender in

question is quashed and set aside with a further direction to the respondent-Corporation to consider the tender submitted by the petitioner with respect

to purchase of Plant Protection Equipment for the year 2017-18, ignoring the alleged short comings as pointed by “TOC†and “TSSC†and

thereafter award rate contract in its favour, if it is a lowest bidder. Needless to say authorities concerned while examining/analyzing tender in the light

of direction issued by this Court shall act judiciously strictly in accordance with law without there being any malice towards the petitioner. Necessary

action in terms of direction passed by this Court shall be taken by the authorities concerned within fifteen days from the receipt of copy of instant

judgment.

Before parting, we are constrained to place on record our displeasure and anguish over the practice adopted by the respondents-Authorities while

dealing with the tender in question and as such respondents-authorities are warned to be more careful and cautious in future while discharging their

duties. Registry is directed to supply a copy of this judgment to the Chief Secretary to the Government of Himachal Pradesh, so that necessary

safeguards/steps are taken by the Government, to sensitize/educate its officers with regard to procedure/approach required to be followed and

adopted in the tender matters.

Since petitioner was unnecessarily pushed to the wall and it was compelled to initiate legal proceedings in the Court of law, respondents-authorities

are liable to compensate it suitably, accordingly costs of Rs.one lac is imposed upon the respondents-authorities, which shall be paid within a period of

six weeks from today. Accordingly, the writ petition is disposed of in the aforesaid terms.â€​

Pursuant to passing of aforesaid judgment, respondent-H.P. Agro Industries Corporation Limited, issued communication dated 13.12.2017 to the

petitioner intimating therein that Departmental High Level Purchase Committee (Agriculture) (for short ‘DHLPC’) in its meeting held on

12.12.2017, has approved tendered/negotiated rates in respect of items detailed in enclosed schedule ‘A’ on the terms and conditions specified

therein as well as terms and conditions of tender document and schedule ‘B’ & ‘C’. Respondent, while conveying aforesaid decision

taken by ‘DHLPC’, categorically conveyed to the petitioner-firm that validity of this rate contract will remain in force up to 31.03.2018.

Being aggrieved and dis-satisfied with time period/validity of rate contract, the petitioner has approached this Court in the instant proceedings

seeking therein direction to the respondents to grant rate contract to it for the supply of Plant Protection Equipments (Sprayers) for a complete period

of one year i.e. up to 31.12.2018. Petitioner has further prayed that necessary directions may be issued to the respondents to amend/modify the rate

contract issued vide communication dated 13.12.2017.

Mr.Sanjeev Bhushan, learned Senior Counsel representing the petitioner-firm, vehemently argued that respondent by issuing communication dated

13.12.2017 (Annexure P-3), whereby tendered/negotiated rates submitted by the petitioner have been approved by ‘DHLPC’ for a period of

three months i.e. up to 31.03.2018, has made an attempt to overreach the mandate given in the judgment dated 8.11.2017 passed in CWP No.910 of

2017. Mr.Bhushan further contended that aforesaid judgment passed by this Court, whereby this Court quashed and set aside the decision taken by

the respondents to cancel the tender and issued directions to the respondents-Corporation to consider the tender submitted by the petitioner in respect

of purchase of Plant Protection Equipments for the year 2017-18, was purposely not complied with for more than 2½ months, whereafter impugned

communication dated 13.12.2017 came to be issued awarding therein rate contract to the petitioner just for a period of three months.

Mr.Bhushan further contended that respondents, who were warned to be more careful and cautious in future while discharging their duty, have

again acted malafidely with a view to teach a lesson to the petitioner, who successfully, by way of earlier writ petition, highlighted the issue with

regard to colourable exercise of power by the Authorities while awarding rate contract. Mr.Bhushan argued that petitioner-firm ought to have been

awarded rate contract for complete one year after passing of judgment dated 8.11.2017 because writ petition having been filed by him remained

pending for almost six months, whereafter, this Court, having carefully perused record of the respondents, arrived at a conclusion that the process

adopted or decision taken by the respondents-Authorities is malafide or intended to favour someone.

Lastly, Mr.Bhushan contended that since even prior to 31.03.2017, rate contract for supply of equipments was with the petitioner-firm, respondents,

malafidely and with a bias, purposely did not take decision for finalizing the tender before 31.03.2017 and that despite having a similar clause in the

earlier tender document, respondents failed to extend the rate contract for a further period of six months. While inviting the attention of this Court to

condition No.26, as contained in Annexure P-1, Mr.Bhushan contended that keeping in view the peculiar facts and circumstances of the case,

respondent-Corporation can extend annual rate contract up to six months.

Mr.Ranjan Sharma, learned Additional Advocate General, representing respondent-State, while placing on record communication dated 03.05.2018

sent by Dy. General Manager, H.P. Agro Industries Corporation Limited, stated that if this Court permits us, the case of the petitioner for extension of

rate contract can be put up before the ‘DHLPC’ for granting similar treatment as stands granted to other suppliers. He further stated that in

terms of instructions imparted to him, action in terms of Clause 26 of agreement of tender form can only be taken in case the Directors Agriculture

and/or Horticulture (for short ‘Indenting Departments’) so demands and the same is approved by the ‘DHLPC’ .

While refuting the aforesaid submissions having been made by Mr.Sanjeev Bhushan, learned Senior Counsel representing the petitioner-firm,

Mr.Shrawan Dogra, learned Senior Counsel representing respondents No.2 and 3, contended that earlier judgment dated 8.11.2017 stands duly

complied with and as such, it cannot be said that attempt has been made by respondent-Corporation to overreach the mandate contained in the

aforesaid judgment. While referring to Annexure P-3, communication dated 13.12.2017, Mr.Dogra argued that since tender submitted by the petitioner

was with respect to purchase of Plant Protection Equipments (A) (Foot, Hand Compression & Knapsack, Sprayer etc.) for the year 2017-2018,

respondent-Corporation immediately after passing of aforesaid judgment awarded rate contract in favour of petitioner till 31.03.2018 and after that

fresh tender is required to be issued by the respondent-Corporation, which is a nodal agency to settle/finalize rate contract on behalf of Departments

of Agriculture and Horticulture for one financial year.

Mr.Dogra further argued that grant of extension in the period of tender virtually would amount to re-writing the contract, which is not permissible

under law. While inviting the attention of this Court to the tender document (Annexure P-1), Mr.Dogra contended that validity of tender was for a

period of one year and not beyond that and as such relief prayed for in the present petition cannot be granted being beyond realm of contract and it is

well settled by now that there cannot be re-writing of contract by this Court.

Lastly, Mr.Dogra contended that financial year 2017-2018 ended on 31.03.2018 and, as such, in a given situation ‘Intending Departments’

could have made a request for extension of rate contract in favour of particular party in peculiar exigency in case the new rate contract is not finalized

for the next financial year. But, in the instant case, respondent-Corporation did not receive any such request for extension of rate contract on behalf of

‘Intending Departments’ as far as the present petition is concerned.

We have heard learned counsel for the parties and gone through the record of the case.

Factum with regard to passing of earlier judgment dated 8.11.2017 is not in dispute, whereby this Court, while holding action of respondents to be

arbitrary and irrational, quashed and set aside the order cancelling the tender in question. While concluding that process adopted or decision taken by

the respondent-Authorities while cancelling the tender of petitioner is intended to favour someone, this Court specifically directed respondent-

Corporation to consider the tender submitted by the petitioner with respect to purchase of Plant Protection Equipments (A) (Foot, Hand Compression

& Knapsack, Sprayer etc.) for the year 2017-2018.

Having carefully perused Annexure P-1 i.e. tender document, which was subject matter of earlier writ petition, it is quiet apparent that respondent-

Corporation had invited tenders for purchase of Plant Protection Equipments (A) (Foot, Hand Compression & Knapsack, Sprayer etc.) on behalf of

‘Intending Departments’ for the financial year 2017-2018. Though, there is no specific date prescribed for commencement of period of rate

contract, but in normal course the rate contract is presumed to be for the period starting from Ist April to 31st March of the financial year.

True, it is, that this Court, after having found action of respondent-Corporation arbitrary or irrational, set aside the decision dated 22nd/29th April,

2017 taken by the Managing Director, H.P. Agro Industries, cancelling therein tender in question and issued direction to the respondent-Corporation to

consider the tender submitted by the petitioner with respect to purchase of Plant Protection Equipments for the year 2017-2018, but, having carefully

perused tender document, wherein it has been specifically stated that tender is for the year 2017-18, this Court finds it difficult to accept the prayer

having been made by the petitioner in the instant petition for extension of rate contract for a period of one year. When specific time period is provided

under tender document, this Court cannot extend the period beyond contractual time period unless there is agreement between the parties to lis.

Otherwise also, this Court, while allowing the earlier writ petition, had issued direction to the respondents to consider the tender submitted by the

petitioner with respect to purchase of Plant Protection Equipments (A) (Foot, Hand Compression & Knapsack, Sprayer etc.) for the year 2017-2018,

whereafter new rate contract is to be finalized by the respondent-Corporation being nodal agency on behalf of ‘Indenting Departments’ by

issuing fresh tender.

No doubt, petitioner, despite being lowest tender, was not awarded rate contract and it was compelled to approach this Court by way of writ

petition for having rate contract awarded in its favour and in this process sufficient/considerable time was lost as far as petitioner is concerned, but

that cannot be a ground/basis for extending the validity of rate contract, especially when tender in question for purchase of equipments, as referred

hereinabove, was only for the financial year, 2017-18, as it would amount to rewriting of contract, which is not permissible under law.

Though, this Court, having carefully perused pleadings adduced on record as well as judgment dated 8.11.2017 passed in CWP No.910 of 2017,

has no hesitation to conclude that the respondent-Corporation has not acted in fair manner while dealing with the petitioner-firm, even after passing of

judgment dated 8.11.2017, wherein this Court had specifically observed that the respondents, while taking action in terms of judgment passed by this

Court, would consider the case of the petitioner without there being any malice, but since validity of tender is only up to 31.03.2018, this Court cannot

pass any direction to issue rate contract beyond that particular date. However, taking note of condition No.26, contained in Annexure P-1, this Court is

of the view that in the peculiar fact and circumstances of the case, wherein admittedly question with regard to validity of tender submitted by the

petitioner remained pending before this Court, case of the petitioner for extension of time in terms of clause 26 of the agreement of tender can be

considered favourably by the authorities concerned, but, definitely decision in this regard is required to be taken by the ‘Indenting Departments’

on whose behalf respondent-Corporation invited tenders. As has been noticed hereinabove that Dy.General Manager of respondent-Corporation vide

letter dated 03.05.2018 has informed the learned Additional Advocate General that in case this Court permits, case of the petitioner, for extension of

rate contract, can be put up before the ‘DHLPC’ for granting similar treatment as stands granted to other suppliers and for extension of validity

of contract in terms of Clause 26 of the agreement.

Though at no point of time, this Court restrained the respondents from putting up the case of petitioner for extension of time before the

‘DHLPC’, but, taking cue from communication dated 03.05.2018, as has been taken note hereinabove, this Court deems it appropriate, in

peculiar facts and circumstances of the case, to dispose of present petition with the direction to respondent-Corporation to submit the case of the

petitioner for extension of rate contract in terms of Clause 26 of the agreement of tender form before the ‘DHLPC’, who, after having heard

the petitioner as well as representatives of the ‘Indenting Departments’, may consider extending validity of rate contract awarded in favour of

the petitioner for a period of six months.

Needless to say necessary action in terms of observations made hereinabove shall be taken within a period of one week from the date of passing

of this judgment.

Consequently, in view of detailed discussion made hereinabove, this petition is disposed of in the aforesaid terms. Interim direction, if any, is

vacated. All miscellaneous applications are disposed of.