H.N. Sarma, J.
1. The legality, validity and justifiability of the decision of Hindustan Paper Corporation Limited, Unit- Nagaon Paper Mill to cancel the tender No. NPM/EMCC/FOR/08-09/01 dated 16/2/08 in respect of the job/work for unloading of bamboo/wagon from the wagon and shifting the same to the bamboo yardstick and thereby not opening the price bid offered by the petitioner, is the subject matter of scrutiny in this writ petition, as agitated by the writ petitioner.
2. I have heard Mr. HK Mitra, learned Counsel for the petitioner and Mr. BK Chatterjee, learned Standing Counsel, Hindustan Paper Corporation Ltd. and Mr. R. Dubey, learned Counsel for Respondent No. 4.
3. The facts necessary for the purpose of disposal of this writ petition may be summarized below:
The respondent Corporation published a notice on 16/2/08 inviting sealed tender in two-bid tender system from reputed and experienced contractors for allotting the job of unloading of bamboo/wood from wagons and shifting of bamboo/wood from railways side to bamboo/wood yard fixing 11/3/08,which however, was subsequently extended till 17/7/08. In response to the aforesaid tender notice, altogether 5 tenderers including the petitioner and respondent No. 4 submitted their respective tenders. After scrutiny of the technical bids and after processing them through various stages, the petitioner's tender was decided to be accepted by the Corporation. Subsequently, however, on further scrutiny, it was found that the petitioner has not complied with certain requirements as per NIT and also on the objection of internal audit department, the Corporation ultimately decided to invite fresh tender for allotment of the job.
It is alleged that the tender committee having found the petitioner suitable for opening its price bid at one stage, it was not permissible for the Corporation to further scrutinize the legality or otherwise of the tender submitted by the petitioner including scrutiny of the documents submitted by the petitioner.
4. The stand of the Corporation is that the petitioner has no legal right to agitate such grievances in a writ proceeding under Article 226 on the facts alleged in the writ petition and the Corporation having reserved its right to accept or reject any tender or to restrict the number of contractors or to cancel the tender without assigning any reason whatsoever, the corporation is empowered to ask for issuance of fresh tender.
Further stand of the respondent is that the Corporation has rightly taken the decision to issue fresh tender for the job and the tender of the petitioner being incomplete and invalid, the action proposed to be taken by the Corporation is not entitled to be challenged by the petitioner by resorting to the extra-ordinary jurisdiction of this Court and in exercise of the power under Article 226 of the Constitution.
5. Learned Counsel for both sides have argued in support of their respective pleas on the basis of the materials available on record. The Corporation also placed the relevant case records. It is pertinent to note herein that the petitioner has annexed various notes from the notesheet of the related file of the Corporation which is taken as exception by the learned Counsel for the Corporation. It is contended on behalf of the Corporation that although the petitioner obtained some information resorting to the provision of the Right to Information Act, but he was never supplied with a copy of any note sheet by the Corporation and it is strange that how confidential note sheets could be obtained and annexed in the proceeding and how he could have excess to such documents.
6. Submissions of the learned Counsels led me to go through the records produced by the Corporation. Scrutiny of the NIT disclosed that provides a good number of clauses mentioning the rights and obligations of the tenderer or power of the Corporation, out of which the following are relevant for the purpose of adjudication of the dispute raised in this writ petition:
At Clause-12.4 of the NIT it is provided that the Corporation reserves its right to accept or reject any/all tender(s) without assigning any reason whatsoever. It is also contained in Clause-1, interalia, that the participating tenderers are advised to read the tender documents carefully and fill-up the tender as instructed in the documents and any deviation or incomplete information shall lead disqualification of such tender. Clause 1.6.2 provides that the Techno Commercial Bid is to contain all the requisite documents and bids without such documents would be cancelled. As regards signing of the tender, Clause 7.0 of the NIT provides that the tender documents must be duly signed on each page with the name, designation of the signatory and the seal of the firm and shall be stamped. Clause 7.1 provides that the tender should signed by the tenderer himself. The list of documents to be furnished along with the Techno Commercial Bid as has been mentioned in Clause.9.
7. The petitioner claims to be a reputed proprietorial firm and submitted its tender in terms of the aforesaid NIT. After opening the tender documents, the concerned authority prepared a comparative statement of the Techno Commercial Bids and forwarded the same for technical scrutiny. The tender committee scrutinized the tenders of all the 5 tenderers and after such scrutiny, technical recommendation was accorded in favour of the petitioner as well as respondent No. 4 and was placed for further deliberation. The matter was, thereafter, referred to finance department to consider the financial soundness of the tenderers and in turn it recommended to open the price bid of both the petitioner and respondent No. 4 as per its note dated 13/5/08. The matter was, thereafter, further placed before the Internal Audit department of the Corporation. The Internal Audit department, however, not having found applied the same yardstick as regards the consideration of the related tenders submitted by both the tenderers, they were asked to follow the same vide note dated 10/6/08. After consideration in details by the Internal Audit department, it was noticed that there were some deviation in the tender submitted by the petitioner which may lead to its disqualification and the Internal Audit department opined that the Techno Commercial Bid of both the petitioner and respondent No. 4 were found to be disqualified, but by the same note it also intimated for obtaining necessary legal opinion.
In terms of the said note, legal opinion was sought for in respect of acceptability of the tender of the petitioner. The said opinion so furnished disclose that the respondent No. 4 has not fulfilled the NIT conditions and submitted the bid without complying with Clause-9 of the general terms and conditions of the contract. So far the deviation in respect of the petitioner is concerned it was pointed out that in the documents submitted by the petitioner along with the tender it endorsed a stamp of M/s Shivam Syndicate wherein the petitioner was also a partner and he did not put the required stamp in all the pages. It was opined by the legal expert that the intention of the Bidder appears to be clear, but the deviation was there and taking into consideration of the matteris in its entirety, the deviation is stated to be a minor one. Being minor deviation was appeared in the tender; the legal opinion was given in favour of the petitioner.
It is to be noted herein that in view of the deviation noticed in the tender submitted by the petitioner, a show cause notice dated 14/8/08, was issued to the petitioner asking such clarification and in its reply dated 19/8/08, the petitioner has admitted such deviation with certain explanation. Thereafter, the matter was finally placed before the Chief Executive of the Corporation. Referring to the aforesaid anomalies in respect of the tender submitted inasmuch as the tender committee could not arrive in any final decision in view of the conflicting opinion relating to the suitability of the tender submitted by the respondent No. 4 as provided by the Internal Audit department as well as that of the legal expert. Thereafter, the Chief Executive, Nagaon Paper Mill referred the matter to the CHQ vide note dated 30/7/08.
8. The note dated 20.12.2008 in the notesheet disclose that the Corporation could not finalise the tender process even after nine months from the opening of the Techno Commercial Bid and upon consideration of the views of Internal Audit Department, legal opinion and numerous cross notings and comments noted against the tenderers, the Committee recommended for issuing fresh NIT with clear and unambiguous tenders without having any scope for deviation in finalizing the tender process. By the said note, the Technical Committee was asked to deliberate and put up suitable recommendation within a week.
9. From the notes which have also been annexed by the writ petitioner in the writ petition, it is clearly disclosed that the Corporation could not made up its mind nor could arrived at a conclusive decision for opening the price bid offered by the petitioner and the respondent No. 4, and in view of deficiency in their tenders and taking into account the opinion of the Internal Audit department and legal expert, the authority decided to issue the fresh NIT.
10. The leaned counsel for the petitioner referring to different office notes assailed the decision to issue fresh NIT submitting that such issuance of fresh NIT infringes valuable rights accrued upon the petitioner. Learned Counsel has referred to the following decisions in support of his arguments
(i) (1994) 6 SCC 651 Tata Cellular v. Union of India.
(ii) : AIR2005SC3520 Hindustan Petroleum Corporation Ltd. v. Darieus Shapur Chenai and Ors.
11. In Tata Cellular case(supra), the Apex Court held inter-alia that if the mistake is in relation to a non-essential, peripheral or collateral matter and there was every intention to comply with the terms of the bid and for an accidental omission the tenderer cannot be disqualified. But in the instant case, the facts disclose that the present petitioner does not fall in such a category. In the tender notice, it is specifically provided that in case of any violation regarding furnishing complete information including violation of the requirement of Clause-7 and submission of the tender without any signature and seal duly reflected in each page, the tender may be liable to be rejected the tender. It is specifically provided in Clause-1 that any deviation or uncomplete information lead to disqualification of the tender.
12. The facts of the case as indicated hereinabove does not attract the aforesaid principles of law, inasmuch as, there are ample reasons recorded in the notesheet disclosing as to why the Corporation proposed to proceed with fresh NIT for allotment of the contract in question.
13. From overall consideration of the materials as disclosed from records, it is found that the different Departments of the Corporation themselves were not unanimous as regards the acceptability of the tender of the petitioner. Admittedly, there was deviation in fulfilling the conditions of the tender notice and on such consideration, accepting the views of the Internal Audit Department, the Corporation proposed to issue fresh NIT.
Judicial review of the administrative action of respondent Corporation has been sought for in the instant petition based on the notes from the related departmental file, annexed in this petition. It is strange, as submitted by the learned Counsel for the Corporation, as to how the petitioner could get access to the copies of such official notes. Necessary information as requested by the petitioner under the RTI Act though has been furnished to him, but no copy of the note were provided to him. However, it also cannot be denied that without active cooperation of certain employees of the Corporation, it would not be possible for the petitioner to have access upon such confidential papers. It is open for the Corporation to take appropriate action, if they so desire, against such employees who might be found responsible for supplying such documents to the petitioner without any authority. I leave that part of the matter to be dealt with by the Corporation in its administrative side.
14. The notings in a note of a file do not provide an enforceable right upon a person. Such notings are only expression of feeling by the concerned officer on the subject under review. A mere expression of a view in notes file cannot be the sole basis for action even in a contempt case. (Reference- : 1987CriLJ1860 , State of Bihar v. Kripalu Shankar). Again in the case of Bachittar Singh v. State of Punjab and Anr. reported in : AIR1963SC395 , a constitution Bench of the Apex Court, relying on Article 166 of the Constitution, held that the order of a Minister would not amount to an order unless it was expressed in the name of Raj Pramukh and was then communicated to the party concerned. The final decision of the Corporation based on the finding of the Internal Audit Department of the Corporation at no point of time communicated to the petitioner.
15. In the matter of allotment of contract of such nature the authority is required to consider various aspects, and at various level, the tender documents are required to be scrutinized in the light of the conditions mentioned in the NIT. Unless and until a final decision in this regard is taken by the authority, it does not bar or prohibit the authority from further scrutinizing the matter at appropriate level. Upon such scrutiny, in the instant case, the authority in view of the defects in the tenders submitted by the respective parties decided to re-issue fresh NIT for allotment of the work in question. Although at some point of time certain notings were made in the notesheet in favour of the petitioner but those were not final and conclusive conferring indefeasible right upon the petitioner.
16. In view of what have been discussed above, in my considered opinion, the judicial review of administrative action in the case in hand against the action proposed by the Corporation is not permissible in the manner as alleged in this petition. It is always open for the authority to resile from the tender process on legitimate ground and in the instant case such ground for issuing re-tender having been ex-facie recorded, the same cannot be faulted with at the instance of a tenderer more so when such decision appears to have taken for better public interest.
17. In view of the aforesaid discussion, I do not find any merit in this writ petition and the same is dismissed. Interim order passed earlier stands vacated.
18. No costs.