(1.) Challenge in this writ petition is made against the notice for re- tendering vide Tender Specification No.AEGCL/MD/Tech-270 (Kh- Rot)/2009/Revised or any process relating to the said tender seeking a direction to award the work as per the Tender Specification No.AEGCL/MD/Tech-270 (Kh-Rot)/2009 to the petitioner being the lowest bidder in terms of Notice Inviting Tender ('NIT' for short) dated 14.6.2009.
(2.) The ground seeking the relief as indicted above is summarized hereinbelow:- The respondent No.2, the Assam Electricity Grid Corporation Ltd. ('AEGCL' for short) issued a NIT on 14.6.2009 from experienced and resourceful firms for the works covering supply of materials, conductor, insulators, hardware materials, etc. including erection, stringing, testing and commissioning for raising the height of 220 KV 4 CKt, Khanapara- Sarusajai line at Khanapara Rotary under deposit scheme which was published in the daily English newspaper 'The Assam Tribune'. In the said publication the period of sale of tenders were fixed from 22.6.2009 to 30.6.2009 (on working days) and last date and time of submission of tender papers were fixed at 14:00 Hrs. of 10.7.2009 and the tender opening time and date at 14:30 Hrs. of 10.7.2009. However, the Managing Director, AEGCL reserved the right to accept or reject any or all tenders without assigning any reasons. The respondent No.2 thereafter issued another publication in the said daily dated 12.7.2009 whereby the period of sale of tenders were extended from 13.7.2009 to 20.7.2009 wherein last date of submission of tenders were fixed at 14:00 Hrs. of 27.7.2009 and the date and time of opening the tenders were fixed at 14:30 Hrs. of 27.7.2009. Causes of extension of time as rescheduled was shown "due to unavoidable circumstances" as indicated in the said publication. Respondents adopted two bid system of Techno-Commercial bid for evaluation of the offer of the tender in which price bids were to be opened only of those bidders who were technically found qualified. Thereafter, the tenders were opened whereby it was found that there were two bidders including the petitioner followed by Techno- Commercial bid for evaluation of the offer of the tender in which price bids were to be opened only of those bidders who were technically qualified. But by communication dated 12.10.2009 the respondent No.2 informed the bidders that the scope of works specified in tender for height raising works of the 220 kv 4 Ckt Khanapara-Sarusajai transmission line at Khanapara Rotary on turnkey basis has been changed and therefore, the evaluation of the tender by omission and inclusion of items may create confusion as the tender was invited on turnkey basis. Therefore, Tender Purchase Committee ('TPC' for short) vide its Resolution No.1 dated 9.10.2009 has resolved to cancel the tender and invite fresh tender as per revised specification. In the above changed circumstances both the bidders were informed that if they are interested they may participate in the fresh tender for the works and the revised specification will be issued free of cost. Thereafter the respondent No.2 issued notice for re-tender in the English daily newspaper "The Sentinel" in its issue dated 15.9.2009, whereby sale of tenders were fixed from 16.10.2009 to 26.10.2009 (on working days) and last date and time of submission was fixed at 13:00 Hrs of 2.11.2009 and opening (technical part) time and date was fixed at 13:30 Hrs of 2.11.2009 which is under Challenge before the Court seeking reliefs as indicated above.
(3.) Heard Mrs. A Sarma, learned counsel appearing for the petitioner. Also heard Mr. BD Das, learned Senior counsel assisted by Mr. HK Sarma, learned counsel appearing for respondent Nos.1 to 5 and Mr. I Rafique, learned counsel appearing for respondent No.6.
(4.) Drawing the attention of the Court, Mrs. Sharma, learned counsel appearing for the petitioner would submit that the earlier work specified in tender specification and the tender specification subsequently issued are same save and except for a few corrected insignificant typographical error referring clause 1.6.0 which relates to amendment of bidding documents where it is stated that "1.6.1 at any time prior to the deadline for submission of bids, the employer may for any reason modify the bidding documents by issuing addenda which shall be communicated in writing to all purchasers of the bidding documents", whereas clause 1.6.2 relates "to any addendum thus issued shall be part of the bidding documents" which would imply that the respondent No. 2 did not follow any procedure laid down in the tender specification, thereby arbitrarily cancelled the tender after making all technical assessment and opening of the price bid which require interference under Article 226 of the Constitution of India.
(5.) Referring Annexures- 7 and 8 of the writ petition, Mrs. Sharma would contend that the so called amendment "dismantling of existing conductor and ground wire" have been added as an additional item, whereas in the original tender specification these items were given in the erection schedule of rates. Later on in the revised specification these items were deleted from the relevant schedule of works and again in the amendment this item was included in the work schedule deleting Annexure-2 (A) to justify the process of re-tendering but again added it back to the tender as it would reveal from Annexure-2(A) which is nothing but a camouflage of the entire system to deprive the petitioner to get the work order issued in the earlier tender specification resulting violation of Article 14 of the Constitution of India.
(6.) Mrs. Sharma would further contend that the clause 2.4.2 which relates to variation, addition and omission in the technical specification whereby AEGCL reserves the right during the contract to amend, alter, omit or otherwise vary any of the item by notice in writing do not justify for re-tendering of works, more so, when under clause 1.6.1, "at any time prior to the deadline for submission of bids, the Employer may for any reason modify the bidding documents by issuing addenda which shall be communicated in writing to all purchasers of bidding documents" and clause 1.6.2. says that "any addendum thus issued shall be part of the bidding documents". Thus, when only the typing error was corrected, where instead of 220 kv, 132 kv was typed is insignificant and thus do not justify the process of re-tendering as has been done in the case in hand including clause 1.5.0 which relates to site visit, whereas the petitioner made a site visit and his contract price was inclusive of all such expenses which do not require the process of re-tendering after opening the commercial bid thereby the price of the petitioner was exposed causing serious miscarriage of justice if the work is not awarded to the petitioner and if the respondent No. 2 is allowed to call for re-tender.
(7.) The following decisions have been referred by Mrs. Sharma in support of her submission,
.i).AIR 1976 SC 49 (Rameshwar and Ors. -vs- Jot Ram and Ors.) .ii).AIR 1986 SC 1527 (Shri Harminder Singh Arora -vs- Union of India and Ors.) iii).AIR 1988 SC 2035 (M/s Prestress India Corporation -vs- UP State Electricity Board and Ors.) iv).AIR 2000 SC 2272 (M/s Monarch Infrastructure (P) Ltd. -vs- Commissioner, Ulhasnagar Municipal Corporation and Ors.) .v).(2002) 2 SCC 475 (Food Corporation of India -vs- SN Nagarkar) .vi).(2002) 2 SCC 617 (AIR India Ltd. -vs- Cochin International Airport Ltd.) vii).AIR 1988 AP 144 (FB) (Dhronamraju Satyanarayana -vs- NT Rama Rao and Ors.) viii).AIR 1993 PandH 39 (Vivekanand Shiksha Samiti -vs- State of Haryana and Ors.)
(8.) It may be pertinent to mention herein that while the writ petition was pending for disposal, due to subsequent developments, the writ petitioner filed a Misc. Case being No.395/10 whereby the respondent Nos.4, 5 and 6 were impleaded as party respondents in the writ proceeding and in another Misc. Case No.425/10, filed by the petitioner praying for passing an order of status quo by all the respondents and to restrain newly impleaded respondent No.6 from further proceeding with the work in connection with Tender Specification No.AEGCL/MD/Tech- 270 (Kh-Rot)/2009/Revised till disposal of the writ petition, the court while issuing notice, in the interim directed to maintain status quo vide its order dated 17.02.2010. The subsequent developments arose because the TPC vide resolution No.1 cancelled the tender earlier floated and invited fresh tender as per revised specification. Thereafter the official respondent No. 2 published the "notice for re-tender" on 15.10.2009 and the respondent No.6 accordingly submitted its bid pursuant to the said re-tender. Though the petitioner was requested to participate in the re- tender for the work but the petitioner chose not to participate in the re- tender process and accordingly after evaluation of the entire bid documents the respondent No. 6 was awarded with the contract of work being the lowest bidder.
(9.) In the above background the respondent No. 6 has entered appearance through his counsel Mr. Rafique and accordingly an affidavit- in-opposition is filed. Mr. Rafique, learned counsel appearing for respondent No.6 would contend that the respondent No. 2 issued a letter of intent for raising the height of 220 kv 4 Ckt Khanapara- Sarusajai transmission line at Khanapara on turnkey basis under the deposit scheme of NHAI in favour of the respondent No.6 vide communication dated 23.01.2010 in pursuance to the re-tender issued for the above work being the lowest bidder as per terms and conditions and directed to confirm the same within seven days wherefor the respondent No.6 has accepted the offer and accordingly, the respondent No.2 issued the final work order on 10.02.2010 in favour of respondent No.6 and the respondent No. 6 having almost completed the work, the same do not require to be interfered with since the letter of intent dated 23.01.2010 and the final work order dated 10.02.2010 are not under challenge, no relief is available to the writ petitioner.
(10.) Facing with such a situation, Mrs. Sharma, learned counsel for the petitioner argued that since the re-tender is under challenge, the Court has wide discretionary power to mould the relief, even if, there is subsequent developments, whereby the contract work is awarded to the respondent No.6, more so, the Court vide order dated 07.02.2010 directed to maintain status quo and within 7 days the respondent No.6 could not start the work which require interference under writ proceedings citing decisions as referred to hereinabove.
(11.) An affidavit-in-opposition has been filed on behalf of respondent Nos.1, 2 and 3, denying the allegations made by the writ petitioner. Relying upon the statements made on oath in the counter, Mr. Das, learned Senior counsel would submit that after evaluation of the tenders for the work in reference the tender documents were placed before TPC of AEGCL on 9.10.2009 for approval and decision of work allotment. Thereafter, the TPC in its meeting held on 9.10.2009 itself discussed the entire work alongwith the tender documents and thereafter by resolution No.1 inter alia observed that the scope of works specified in the tender has changed and accordingly the Committee opined that allotment of the works by omission and inclusion of items may create confusion, as the tender was invited on turnkey basis. Therefore, the TPC has decided to scrap the tender and go for fresh tender with revised specification of the works. .Accordingly, re-tender was floated on 15.10.2009 by amending clause 1.5.0 (site visit).
(12.) Mr. Das, learned Senior counsel has brought to the notice of the Court the items mentioned in both the NIT dated 14.6.2009 and 15.10.2009 and submits that some items which were described in the earlier tender documents pursuant to NIT dated 14.6.2009 have been omitted in the subsequent tender by inserting different items.
(13.) Mr. Das would further contend that this Court vide order dated 21.12.2009 passed in Misc. Case No.3405/2009 filed by respondent Nos.1, 2 and 3, praying for vacation/modification of the interim order dated 30.10.2009, after hearing the counsel and upon perusal of the materials on record, as well as the NIT dated 14.6.2009 and 15.10.2009 allowed the application by not extending the interim order passed in favour of the petitioner. Accordingly, final work order issued to respondent No.6 vide communication dated 10.2.2010 and the respondent No.6 has in the meantime almost completed the work. However, work order so issued in favour of respondent No.6 has not been challenged by the petitioner till date. The petitioner, therefore, would not be entitled to any relief and thus prayed for dismissal of the writ petition.
(14.) Considered the submissions so made by the contesting parties. Perused the record of the case alongwith the pleadings of the parties including the annexures appended thereto. Admittedly the respondent No.2 floated the tender on 14.06.2009 wherein two bids were submitted, one by the writ petitioner and the other by M/s ECI Engineering and Construction Co. Ltd., Jubilee Hills Hyderabad in pursuance to the notice inviting tender. In the said tender notice there was a two bid tender where the price bid was opened only after all technical assessment. After being satisfied with the bidders, the commercial and technical evaluation of the offer submitted by both the parties conclude that the petitioner was the lowest bidder for the work order and accordingly, the letter of intent and offer of work ought to have been given to the petitioner.
(15.) It is also an admitted fact that there were some amendments, omission, alterations after the earlier notice inviting tender and accordingly specification work was modified and in such a situation the TPC vide its resolution No.1 dated 09.10.2009 had resolved to cancel the tender and invite fresh tender as per revised specification wherein the petitioner was asked to participate making it clear that the revised specification would be issued to him free of cost. However, the petitioner in his wisdom did not participate in the re-tender process but challenged the notice for re-tendering specification No. AEGCL/MD/270 (Kh-Rot) 2009 revised in the instant writ proceeding.
(16.) Thereafter the respondent No.2 published the notice for re-tender in the newspaper on 15.10.2009 and accordingly, bidders submitted their bid. After going through the bids so submitted, the respondent authority accepted the bid of the respondent No.6 and the letter of intent was issued in favour of the respondent No.6 on 23.01.2010 and on confirmation of the letter of intent, the final work order was issued on 10.02.2010 in favour of the respondent No. 6. Therefore, it is an admitted fact that the letter of intent dated 23.01.2010 and final work order dated 10.02.2010 was not under challenge before this Court. Even resolution No.1 dated 09.10.2009 resolved by the TPC whereby the earlier tender issued on 14.06.2009 was also not under challenge before this Court. In such a situation whether the court can mould the relief in the changed circumstances as sought for. The answer would be in negative and against the petitioner in the facts and circumstances of the case.
(17.) In the above background, the decisions cited by Mrs. Sharma in support of her contentions require examination. In Rameshwar and others (Supra), the Supreme Court found the law stated in Ramji Lal -vs- State of Punjab (AIR 1986 Punjab 374 FB) sound, wherein the Court held as thus, "Courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the best of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has, by reason of change in the circumstances, become inappropriate and not when the plaintiffs, suit would be wholly displaced by the proposed amendment (see Steward v. The North Metropolitan Tramways Company, (1886) 16 QBD 178) and a fresh suit by him would be so barred by limitation." In the present case in hand, the contract was awarded in favour of respondent No.6 but the same is not under challenge before this Court which could have been challenged by way of amendment and hence, the question of moulding the relief as contended is answered in the negative. The case reported in Harminder Singh Arora (supra) relates to tender invited by instrumentalities of the state for supply of fresh buffaloes and cows' milk. The Supreme Court held that the case has to be decided on the basis of bid by the tenderers and therefore, it must abide by the result of the tender and cannot arbitrarily accept the bid of the respondent No.4. Bid of respondent No.4 was found much higher than the appellant, thus acceptance of bid of respondent No.4 was to the detriment of the State. The contract of supply of milk was to be given to the lowest bidder under the terms of the tender notice and the appellant being the lowest bidder under the terms of the tender notice, he should have been granted the contract. In the instant case, initially NIT was issued which was subsequently cancelled and notice issued to re-tender and accordingly the final work order was issued in favour of the respondent no 6 which cannot be said arbitrary and illegal, more so, where the final order dated 10.02.2010 is not under challenge and therefore, no equitable relied is available to the writ petitioner.
.In M/s Prestress India Corporation (supra), the Supreme Court has held, since the Board excluded from consideration the tender of the appellant and directed to place an order for the remaining supply of 25,000 PCC poles, this case is not applicable in the case in hand since after re-tender of notice, the wit petitioner did not participate in the bid therefore, the question of moulding the relief does not arise. .In the case of M/s Monarch Infrastructure (Supra), the Supreme Court has held that where there is alteration in eligibility condition after offers have been received inviting tenders, the entire process has to be carried out afresh which has been done in the instant case considering the expertise in the field of contractual matters by the respondents herein which would go against the petitioner. Food Corporation of India (Supra) relates to arrears of pay and allowances on promotion to the higher posts wherein the High Court decided the writ petition in favour of the petitioner directing the entitlement of arrear pay and allowances with effect from the date of promotion in higher posts which, however, was not complied with resulting in filing an execution proceeding before the High Court wherein the High Court has held that it cannot go beyond the order passed in the writ petition and on appeal the Supreme Court has held non-applicant employer (FCI in this case) could not contend that the order passed in the writ petition was erroneous, inasmuch as, it awarded arrears from the date of promotion and not from the date of actual joining, since the petitioner was deprived of the benefits not on account of any fault but on account of the fault of the authorities and it has been held that the court in exercise of writ jurisdiction may mould the relief having regard to the facts and circumstances of case and interest of justice. The relevancy and/or otherwise would not be suited in the instant case as referred.
.The decision in AIR India Ltd. (Supra) relates to award of contract by state or its instrumentality wherein the Supreme Court has held that state can choose its own method, but it should comply with the norms, standard and procedure, which has been done in the instant case. Dhronamraju Satyanarayana (supra) relates to public interest litigation which is not the case in hand. The High Court of Andhra Pradesh ('AP' for short) has dealt with the matter relating to violation of laws and constitutional provisions by Shri NT Rama Rao, the then Chief Minister of A.P. wherein the court was not inclined to issue a writ of Mandamus directing the central government to appoint a commission to go into the charges leveled against the respondent Nos.1 and 2. However, the court has observed that it is the duty of the court to see that the ends of justice should not be allowed to be frustrated by the court. The court should exercise its discretion in moulding the relief in such manner as would meet the situation since Article 226 empowers the High Court to issue orders for any purpose apart from writ for the enforcement of rights enshrined in Part III of the Constitution of India which has no bearing in the instant case because final work order was issued on 10.02.2010 in favour of the respondent No.6 and the work is in the verge of completion and therefore, moulding the relief at the belated stage would be futile exercise in absence of the order dated 10.02.2010 challenged by the petitioner. Vivekanand Shiksha Samiti (supra) relates to Haryana Private Colleges (Taking over the Management) Act (26 of 1978) wherein the court held that even if the order passed on 1.10.1991 and 30.08.1991 was not under challenge in the writ proceeding and though the appellant therein was entitled to take over the management from the respondents, the court under Article 226 of the Constitution of India has very wide discretion in the matter of framing its writs to suit the exigencies of particular cases wherein a proper writ or direction has not been prayed for quashing the order of the government dated 30.08.1991 thereby allowed the appeal which is not the case in hand. Where the award of work in pursuance of re-tender notice is not under challenge, no relief as urged would be available in the facts and circumstances of the case.
(18.) For the foregoing reasons and discussions, this Court is not inclined to accept the writ petition and the same is, therefore, dismissed. Parties are left to bear their own costs.