M/S FAZAL REHMAN DAR TH MUJEEB UR REHMAN MAL MANDI RAJOURI V. U T OF J AND K TH COMMISSIONER SECRETARY PW R AND B DEPTT AND OTHERS

WP(C)/72/2023

AI Insights

The case revolves around a dispute concerning the bidding process for a contract related to the 'Upgradation of road from MRL-18 Mangota to Darhal' under the PMGSY scheme. M/s Fazal Rehman Dar, the petitioner, contested the acceptance of respondent No. 3's bid, alleging that it did not meet the technical requirements specified in the e-NIT. The petitioner argued that respondent No. 3 failed to submit complete ITRs and provided a conditional bank certificate. The respondents defended the bidding process, asserting that the documents submitted by respondent No. 3 were sufficient and met the requirements of the e-NIT. The court examined the technical and financial documents submitted by all parties and found that the bidding process was conducted fairly and in accordance with the prescribed guidelines.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 725773 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 04-08-2023
• Assessment Year: misc
• Other Referred Cases: M/s Pratap Technocrats Pvt. Ltd. vs. M/s Bharat Sanchar Nigam Ltd., Laxmi Datt Binwal vs. the State of Uttarakhand and ors, Silppi Constructions Contractors v. Union of India, Air India Ltd. v. Cochin International Airport Ltd., Tata Motors Ltd. v. Brihan Mumbai Electric Supply & Transport Undertaking (BEST), Bharat Coking Coal Ltd. v. AMR Dev Prabha
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: RAVINDER GUPTA; SUNIL SETHI; RAVI ABROL
• Assessee Lawyers: R K G U P T A; JUGAL KISHORE GUPTA
• Keywords: E-NIT; Financial Bid; PMGSY; Technical bid; Contract allotment; Responsive bidder

Judgement Text

" HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Reserved on : 14.06.2023 Pronounced on : 04.08.2023 WP(C) No. 72/2023 CAV No. 104/2023 M/s Fazal Rehman Dar …..Appellant(s)/Petitioner(s) Through: Mr. R. K. Gupta, Sr. Advocate with Mr. Jugal Kishore Gupta, Advocate. vs UT of J&K and others .…. Respondent(s) Through: Mr. Ravinder Gupta, AAG. Mr. Sunil Sethi, Sr. Advocate with Mr. Ravi Abrol, Advocate. Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE JUDGMENT 1. The respondent No.2, vide e-NIT No. CEJ/PMGSY/723 of 2022-23 dated14.11.2022 invited tenders from the eligible contractors for allotment of various contracts for different works including the “Upgradation of road from MRL-18 Mangota to Darhal, Package No. JK12-3056, PMGSY-111, Batch-I of 2022-23; Block-Thana Mandi, District Rajouri Length 20.00 Kms (Using Waste Plastic)”. 2. The petitioner after having failed to procure the above mentioned contract on account of submission of the higher financial bid by the petitioner vis-a-vis the respondent No. 3 (successful bidder), has now approached this court raising grievance in respect of the defective technical bid submitted by the respondent No. 3 and its acceptance by the respondent No.2 vide order No. CEJ/PMGSY/25846 dated 2 WP(C) No. 72/2023 CAV No. 104/2023 06.12.2022, which as per the petitioner was uploaded on 14.01.2023. The petitioner has also questioned the action of the respondent No.2 for declaring the respondent No.3 as successful bidder for the contract under reference. 3. The case projected by the petitioner is that initially vide e-NIT No. CEJ/ PMGSY714 of 2022-23 dated 27.08.2022, the respondent No. 2 had invited tenders from approved and eligible contractors for execution of various works in Jammu including the tender for “Up-gradation of road from MRL 18 Mangotra to Darhal, Package No. JK12-3056, PMGSY 111, Batch-I of 2022-23, Block-Thana Mandi, District Rajouri Length 20.00 Kms. (Using Waste Plastic). The tender document was inclusive of the Standard Bidding Documents (SBD) containing in details terms and conditions, which the bidders were supposed to comply before being declared as responsive. The petitioner submitted its bid to the official respondent for allotment of aforesaid contract, but during the course of evaluation of technical bid of the bidders, the petitioner and another firm namely M/s Puran Chand and Sons were declared as technically disqualified/non responsive on account of certain deficiencies. The aforesaid e-NIT was cancelled and fresh e-NIT i.e. e-NIT in question was issued. 4. The petitioner again submitted its bid on the e-Portal of the official respondents and enclosed all the requisite documents as per the requirements of e-NIT as well as SBD. Besides petitioner, four other contractors including the respondent No. 3 also participated in the 3 WP(C) No. 72/2023 CAV No. 104/2023 tendering process. It needs to be mentioned that the bids were made in two parts i.e. Part-I was the technical part of the bid and the Part-II was the financial part. The petitioner as well as the other bidders, were notified by the system generated e-mail/SMS about the opening of Part 1 of the bid containing names of the bidders who had submitted their response to the above mentioned e-NIT. The respondent No. 2 vide No. CEJ/PMGSY/25846 dated 14.01.2023 issued technical evaluation list of the bidders. On 14.01.2023 the petitioner received another e-mail/SMS regarding opening of the financial bid wherein the petitioner was informed that the respondent No. 3 has been found as the lowest bidder in the financial bid. 5. Being aggrieved of the respondent No. 3 having successfully qualified the technical bid and the subsequent declaration of respondent No. 3 as lowest bidder, the petitioner has filed the present petition on the following grounds: (i) That in terms of clause 4.4 B (a) III (b) Income Tax Returns (for short „the ITRs‟) for the last five financial years and in terms of clause 4.4 B (a) xi evidence of access to line(s) of credit and availability of other financial resources/facilities (10 percent of the contract value) certified by the banker (the certificate being not more than 3 months old) were required to be submitted along with bid by the participants. The respondent No. 3 did not enclose the copies of ITRs for the last five years but had enclosed acknowledgements of having filed the ITRs with the department 4 WP(C) No. 72/2023 CAV No. 104/2023 which does not meet the requirement as envisaged in the said clause. More so, the bank certificate enclosed with the bid did not meet the requirement of the evidence to access to line(s) of credit and availability of the financial resources/facilities in the said certificate, as the bank had declined to take any responsibility for the certificate which had been issued at the request of respondent No. 3 only. (ii) That one contractor M/s Green Earth RLS (JV) has been declared as disqualified/non-responsive merely for not submitting the company audit report for the last five years as the bidder had submitted the said report for two years only in respect of upgradation of road from MRL 18-Sohal to Sangrampur via Bumhal Package no. JK05-3008 PMGSY-III Batch-I of 2022-23, Block Akhnoor District Jammu. The respondent No. 2 cannot be allowed to adopt different yardsticks for the qualification and disqualification of the bidders as per its own whims and caprices. (iii) That in earlier e-NIT in respect of same contract work, the petitioner was declared as non-responsive only on the ground that the petitioner had submitted the audit reports under Income Tax Act for the last four financial years instead of last five financial years. (iv) That the mala fide on part of the respondent No. 2 is evident from the disqualification of contractor Sh. Vipan Kumar for the contract work “Upgradation of road from MRL02-Hubbi to 5 WP(C) No. 72/2023 CAV No. 104/2023 Bagyalkote, Package No. JK12-3050, PMGSY-III Batch-I of 2022-23 Block Budhal, District Rajouri Length: 7.000 Kms” only for the reason that he had not enclosed the Laboratory Equipments details which was a very minor issue, however, an essential requirement as per clause 4.4.B (a) (ix) of the NIT. In the same NIT M/s Padha Construction Co. was disqualified and held non-responsive on account of having not submitted an affidavit regarding renewal of registration card as contractor, though the said contractor had enclosed the original registration card with the documents. (v) That the respondent No. 2 has not followed the procedure prescribed in the e-NIT for opening the tender bid, both for the technical and financial evaluation. In terms of clause 22.7 of clause (E), pertaining to bid opening of the e-NIT, the result of evaluation of Part-I (Technical Evaluation) of the bids was required to be made public on e-procurement system, following which there had to be a period of five working days during which any bidder could have submitted a complaint to be considered for resolution before opening Part-II (Financial Bid) of the bid. In the instant case, the result of the technical evaluation of the bidders who had participated in the bidding process for the allotment of the aforesaid contract was uploaded on e- procurement system on 14.01.2023 at 4.47 P.M. and that the financial bid was uploaded on the same day at 5.03 P.M. 6 WP(C) No. 72/2023 CAV No. 104/2023 6. The respondents have filed the response. Respondent Nos. 1 and 2 besides raising preliminary objections with regard to the maintainability of the writ petition, have stated that order No. CEJ/PMGSY/25846 dated 06.12.2022 updated on the e-portal of the department on 14.01.2023 was actually uploaded on the tender portal on 06.12.2022 itself and the same was digitally signed again on 06.12.2022 itself at 17:31:01 IST which was uploaded online on PMGSY website at 05.32 P.M. on 06.12.2022 itself. This fact was mentioned by the petitioner in the communication dated 05.01.2023 addressed to the Chief Engineer, PMGSY Jammu. On the same date and time, an SMS was also got generated which was transmitted to all the participants. It is further submitted that on the tender website, anybody, even without having Digital Signature can check any technical bid opening summary and the PDF gets downloaded by clicking on the link which displays the summary of the technical evaluation report. The petitioner has concealed this fact so as to make it appear before the Court that no time was given to the petitioner to respond to the technical valuation from the date, technical summary was uploaded i.e. 06.12.2022. It is further stated that the financial bids which were to be opened on 10.12.2022, were actually opened on 14.01.2023 because one of the participating bidders on 09.12.2022 had obtained directions from the Court in one of the works which figured in the same e-NIT dated 14.11.2022- that the respondents shall not finalize the bidding process in reference to e-NIT No. CEJ/PMGSY/723 of 2022-23 dated 14.11.2022. The same participant M/s Green Earth also got stay 7 WP(C) No. 72/2023 CAV No. 104/2023 order in two other cases as well. Chief Engineer, PMGSY Jammu sought guidance from the Administrative Department and the Administrative Department vide its communication dated 15.12.2022 requested to implement the orders of the Court passed in three different petitions and restrain from carrying the bid evaluation process qua the three remaining packages as mentioned in the para and further take steps for carrying the bid evaluation for remaining packages, so that the development of road project may not be hampered in public interest. So the financial bids were opened on 14.01.2023. It is also stated by the official respondents that ITR documents uploaded on the tender portal by the respondent No. 3 in the PDF format are sufficient to meet the criteria laid down by the standard bid document (SBD). These documents are required from each bidder only to ascertain whether the bidder is an Income Tax compliant or not and do not have any role in the evaluation of the bid capacity of the bidder for the particular work. There is no additional information in the ITR that is used to find out the responsiveness of the bid of the bidder. The financial information which has the bearing for working out the responsiveness of the bid of the bidder is gathered from the five year Annual Turnover Certificate issued by the Chartered Accountant bearing UDIN number mentioning annual turnover of the bidder for civil works. The highest turnover of civil work of one year from the last five financial years is considered for working out the bid capacity of the bidder as per clause 4.6 of instructions to the bidders of SBD. Further it is stated that since there is no particular format specified by the tender inviting 8 WP(C) No. 72/2023 CAV No. 104/2023 authority in the SBD so the certificate in respect of the evidence of access to line(s) credit and availability of other resources has been issued by the bank as per the format adopted by that bank branch, as different banks have devised their own format. It is also averred that M/s Green Earth RLS (JV) has filed writ petition bearing WP(C) No. 2669/2022 in respect of the summary of the technical evaluation report of Upgradation of Road from T06-Roun Domail to Ramnagar, Package No. JK14-3003, PMGSY-III, Batch-I of 2022-23, Block Ramnagar, District Udhampur, Length-27.50 Km (Using Plastic Waste) and not for MRL18 Sohal to Sangrampur via Bumhal, Package No. JK05-3008, PMGSY-III Batch-I of 2022-23, block Akhnoor, District Jammu, as M/s Green Earth RLS (JV) was declared non responsive under Clause 4.4 B (a) iii (f). Infact the petitioner vide its communication dated 05.01.2023 objected to the postponing of the tendering process and had rather requested for finalising the tender by opening the financial bid and when the financial bid was opened and the petitioner could not succeed, he filed the present writ petition thereby challenging the technical summary of the bid submitted by the respondent No.3, which the petitioner did not challenge, when the time of five working days was provided to every bidder to submit complaint in respect of evaluation of the technical bid vide Clause 22.6 of the SBD. Once the period of 5 working days expires without any complaint, the technical bid summary becomes absolute. When the work was previously advertised vide e-NIT No. CEJ/PMGSY/714 of 2022-23 dated 27.08.2022, the technical evaluation 9 WP(C) No. 72/2023 CAV No. 104/2023 report was uploaded on the strength of documents uploaded by each bidder on the tender portal. It is also stated that in its communication dated 05.01.2023 the petitioner has nowhere mentioned that the bid of the respondent No. 3 i.e. M/s A. H. Wani Infratech Private Limited did not qualify the criteria. The fact remains that the petitioner was very confident that the petitioner would emerge as L-1 and after finding that someone else has emerged as L-1, the present petition has been filed on the concocted facts. 7. The respondent No. 3 too has filed its response to the writ petition. In its response, besides raising preliminary objections, the respondent No. 3 has stated that the Income Tax acknowledgements of the last five years submitted by the respondent No. 3 duly contain the total income for each financial year, tax paid and allied information. Income tax Return acknowledgements submitted by the respondent No. 3 contain the necessary information, as was the requirement of the relevant condition of NIT. Various successful tenderers in whose favour various contracts have been awarded by the official respondents have also uploaded ITR acknowledgements instead of ITRs. It is further stated that the bank certificate was issued by the J&K Bank on request of the respondent No. 3 and on the basis of similar certificates issued by the bank to the respondent No. 3, number of contracts have been awarded to the respondent No. 3. It is also stated that in earlier tendering process pursuant to e-NIT dated 27.08.2022, the respondent No. 3 was the only tenderer whose technical bid was found responsive whereas the technical 10 WP(C) No. 72/2023 CAV No. 104/2023 bid of the petitioner was declared unresponsive. The petitioner did not feel aggrieved at that time, but now when the respondent No. 3 has been declared as L-1, the petitioner has challenged the result of technical bid of the respondent No. 3 without any basis. It is further stated that case of M/s Green Earth RLS (JV) and Vipan Kumar cannot be equated with the case of respondent No. 3. Infact, the respondent No. 3 has filed the response in identical manner as that of respondent Nos. 1 and 2. 8. The petitioner has also filed a supplementary affidavit and has stated that the stand of the official respondents is contrary to the clear mandate/terms and conditions of SBD, as ITR is a mother document which reflects the annual turnover, sources of generation of turnover/income, annual income and taxable income. ITR submitted by the assessee accompanied by balance sheets reflects the different sources of turnover as well as profit and loss account. In order to verify and cross-check the correctness of the figures stated in the balance sheet, profit and loss account as well as annual turnover certificate to be issued by the chartered accountant, filing of complete ITR is mandatory. The mandatory submission of ITR for the relevant years by the bidders as per the SBD was felt only in recent few years when similar cases came up before the indenting departments where it was found that the annual turnover certificates and balance sheet certificates issued by the Chartered Accountants did not match the figures reflected in the ITR and were manipulated. The petitioner has given instance of one M/s Ghulam Qadir Natnoo Contractor (JV) whose bid was rejected because copy of 11 WP(C) No. 72/2023 CAV No. 104/2023 PAN Card was not submitted by the second partner of joint venture, Sh. Harish Gupta. In that case also PAN numbers of the partners could have been easily verified from the annual turnover certificate / Balance Sheets certified by the chartered accountant. Further as per Clause 4.4 B (a) iv as well as 4.7 of the SBD each bidder was required to submit affidavit stating therein that the forms, statement, affidavits and attachments submitted in proof of qualification requirements are true and correct and if it was found that the bidder has made any misleading or false representation pertaining to work, he was to be disqualified. A perusal of the affidavit filed by the respondent No. 3 shows that respondent No. 3 has stated that he has filed reports on financial standing of its profit and loss statements supported with ITRs for the last five years, whereas the fact remains that the respondent No. 3 has not submitted any ITR but only ITR acknowledgement. The petitioner has placed on record the sample format for evidence of access to or availability of credit facilities as provided by J&K Public Works (R&B) Department Engineering Manual 2020. The official respondent in the present case not only declared the details of the bidders who had submitted their bids but also proceeded to declare result of non responsive and responsive bidders at the same stage and uploaded at the website contrary to the procedure provided in SBD. It is further stated that irrespective of whether any complaint has been filed by the co-bidder or not, it was the responsibility of the Tender Inviting Authority to ensure that all the bidders meet the criteria of SBD and its terms and conditions even at the time of allotment 12 WP(C) No. 72/2023 CAV No. 104/2023 of contract, as in terms of clause 27 of SBD, the Employer has to ensure that the criteria is met by the successful bidder. 9. Respondent Nos. 1 and 2 have filed response to the supplementary affidavit in which they have reiterated the submissions made in the response to the writ petition and have further pleaded that any bidder who has uploaded the Income Tax Return form or Income Tax Return Acknowledgements is treated as responsive. It is general practice of authorities/regulator/banks etc to obtain acknowledgments of return of income to verify that the party is regular in filing its return of income. In fact, obtaining of full income tax return from bidder would be of no use, as the other documents which suffice the purpose of verifying the genuineness of financial information are the turn over certificate of last five years duly certified by the Chartered Accountant with UDIN mentioned on it, balance sheet and profit and loss account of the bidder of the last five years duly signed by the Chartered Accountant and tax audit report (form 3CA/3CB and 3CD) duly signed by the Chartered Accountant. The balance sheets, profit and loss account and turn over certificates are not made on the basis of figures contained in ITR, rather ITRs are prepared on the basis of balance sheets and profit and loss account. Infact, the official respondents are interested in knowing the work done by the bidders and that information is best gathered from the certificate issued by the Chartered Accountant. So far as case of M/s Ghulam Qadir Natnoo contractor is concerned, the copy of PAN Card issued by the Income Tax Authority was required to be uploaded 13 WP(C) No. 72/2023 CAV No. 104/2023 mandatorily. In fact, the petitioner has been allotted two contracts, which clearly shows that the allegations of mala fide and bias are wrong. It is further stated that the PWD Engineering Manual 2020 and PMGSY Standard Bid Document are two different documents and PWD Engineering Manual, 2020 cannot be considered for the purpose of determining the validity of the credit certificate issued by the banker in the instant case. 10. The respondent No. 3 has also filed response to the supplementary affidavit filed by the petitioner in an identical manner as that of respondent Nos. 1 and 2. 11. The petitioner has filed yet another supplementary affidavit thereby stating that the petitioner has come across various technical evaluation reports of the same official respondent issued in different NITs for several works but having same terms and conditions whereby the official respondents have out-rightly rejected the bids of number of bidders on the ground of their having failed to upload the ITRs along with their bids. The petitioner has placed on record 8 technical evaluation summaries to substantiate its contention. 12. The respondent Nos. 1 and 2 have filed objections to the supplementary affidavit wherein they have mentioned in details the reasons for declaring the bidders as un-responsive in four technical evaluation reports. In nut-shell, the stand of the respondent Nos. 1 and 2 is that SBD had asked for income tax returns and not ITR form and any bidder who 14 WP(C) No. 72/2023 CAV No. 104/2023 had uploaded either income tax return form or income tax acknowledgement has been treated as responsive. 13. The respondent No. 3 has also filed response to the supplementary affidavit and it has been stated that the proprietorship concern of M/s Abdul Hafiz Wani Contractor was merged with M/s A. H. Wani Infratech Private Ltd. Company under Companies Act 2013, with all its assets and liabilities. The respondent No. 3 has placed on record the copy of dissolution and deed of taking over of business agreement. The respondent No. 3 has also placed on record the certificate of registration with regard to „A‟ class contractor issued in favour of proprietorship concern of M/s Abdul Aziz Wani, which was subsequently cancelled and converted to M/s A. H. Wani Infratech Pvt. Limited. 14. Mr. R. K. Gupta, learned senior counsel appearing on behalf of the petitioner vehemently argued that the respondent No. 3 had not uploaded the ITR but only the ITR acknowledgements and as such, respondent No. 3 had not complied with the terms and conditions prescribed by Clause 4.4 B (a) III b) of SBD. He further submitted that the credit guarantee submitted by the respondent No. 3 was in fact not a commitment on part of the bank to provide credit. He further argued that even if the petitioner did not object to the eligibility of respondent No. 3 within a period of five working days, still the official respondents were under a legal obligation to ensure that the standard/mandatory terms and conditions of the e-NIT are complied by all the bidders. He vehemently argued that the respondent No. 3 had uploaded two ITR acknowledgments filed by A. H. 15 WP(C) No. 72/2023 CAV No. 104/2023 Wani as proprietor of A. H. Wani concern and the said ITRs acknowledgements could not have been considered by the official respondents for declaring the respondent No. 3 as having qualified part I of the tendering process. It was also urged by Mr. R. K. Gupta that the submissions of official respondents that requirement of filing ITRs was mandatory and not ITR forms, is an afterthought just to wriggle out the challenge thrown to illegality committed by the official respondents while entertaining the acknowledgement of ITRs instead of ITRs submitted by the respondent No.3. He relied on judgment of Delhi High Court in case M/s Pratap Technocrats Pvt. Ltd. vs. M/s Bharat Sanchar Nigam Ltd. passed in WP(C) No. 1712/2017 on 30th May, 2017 and judgment of the Uttarakhand High Court in Laxmi Datt Binwal vs. the State of Uttarakhand and ors passed in Special Appeal No. 551 of 2019 on 31st May, 2019. 15. Mr. Ravinder Gupta, learned counsel appearing for respondent Nos. 1 and 2 submitted that the only purpose for uploading the ITRs was to ensure that the participant bidder was income tax compliant and the financial capacity of the bidder was to be determined from the annual turnover certificates issued by the Chartered Accountant having UDI No. He further argued that it was for the employer to satisfy itself that the bidder satisfied the terms and conditions of the e-NIT. The respondent No. 3 was declared qualified in respect of technical bid on 06.12.2022 and the petitioner did not chose to make any complaint in respect of ineligibility of respondent No. 3 within the period of five working days. 16 WP(C) No. 72/2023 CAV No. 104/2023 Rather the petitioner submitted a representation dated 05.01.2023 for opening the financial bid without any further delay. Once the petitioner did not chose to object the eligibility of respondent No. 3, the petitioner cannot raise any grievance in the writ petition in respect of evaluation of the technical bids, particularly when the respondent No. 3 has been declared as successful bidder. He further submitted that different banks have different formats for the purpose of assuring the credit guarantee and merely the fact that the same bank has issued two certificates in different manners to its two customers would not mean that the certificate uploaded by the respondent No. 3 is not in accordance with the terms and conditions as prescribed by the e-NIT. He further submitted that in other cases also the bank certificates issued in the similar manner have been accepted by the official respondents. 16. Mr. Sunil Sethi, learned senior counsel appearing on behalf of respondent No. 3 submitted that the respondent No. 3 was incorporated on 02.04.2019. All the assets and liabilities of M/s A. H. Wani concern were taken over by the respondent No. 3 with effect from 31.03.2020, therefore, the income tax return acknowledgements filed by the M/s A. H. Wani as proprietorship concern for two years have rightly been accepted by the official respondents. He further submitted that no particular format was provided for furnishing the bank assurance and in number of other cases, similar certificates issued by the banks have been accepted by the official respondents. 17. Heard and perused the record. 17 WP(C) No. 72/2023 CAV No. 104/2023 18. From the record it is evident and in fact it is admitted by all the parties that all the parties were notified by the system generated e-mail/SMS about the opening of the part I of the bid containing the names of the bidders who had submitted their bids in response to the e-NIT. Part I of the bid pertains to technical qualification part of the bid and part II pertains to technical-financial part of the bid. It is substantiated by the Annexure-VI in the form of system generated e-mail dated 06.12.2022 placed on record by the petitioner that the bid of the petitioner was opened, meaning thereby the technical bids in respect of e-NIT under reference were opened on 06.12.2022 at 05.32 P.M. During the course of arguments, on a specific query by this Court, it was admitted by the learned counsels for the parties that all the documents uploaded by all the responsive bidders were visible to all the bidders on the date of opening of the technical bids. Whether or not the petitioner examined the documents uploaded by the respondent No. 3 on 06.12.2022 when the technical bids were opened but this is clear that the petitioner had an opportunity to examine the documents uploaded by the respondent No. 3 on 06.12.2022 itself. The petitioner could have raised the complaint within the five working days as per clause 22.6 of the SBD. The petitioner has not denied the communication dated 05.01.2023 addressed by the petitioner to Chief Engineer, PMGSY Jammu and the relevant portions of the said communication are reproduced as under: “Your office has postponed the tendering process for the aforementioned work contract on the pretence that the Honourable High Court of J&K, Jammu has stayed the finalisation of the aforementioned work contract in the case of 18 WP(C) No. 72/2023 CAV No. 104/2023 Green Earth Infrastructure Pvt. Ltd. Versus UT of J&K and others, whereas the fact remains that the technical evaluation of the aforementioned work contract has not been contested before the Honourable High Court. In light of the foregoing information, you are hereby most respectfully requested to open and finalise the aforementioned tender in order to permit the participating bidders to withdraw their security deposits totalling Rs. 56 Lac and to continue taking part in other bidding processes while evaluating their current bid capacity in order to obtain competitive bids to save the state exchequer.” 19. From perusal of above mentioned communication dated 05.01.2023 it becomes clear that the petitioner was aware about the technical evaluation in respect of e-NIT under reference on the said date and further that the petitioner was keen for conclusion of the tendering process as early as possible. The petitioner despite being aware that all the documents were uploaded by all the responsive bidders were available on the portal, did not chose to make any complaint within the period of five working days from 06.12.2022 in terms of clause 22.6 of the instructions to the bidders. The petitioner still chose to take a chance for finalisation of the tendering process and filed the present writ petition only when the respondent No. 3 was declared as successful bidder. Had the petitioner been declared as successful bidder, he would have never complained about ineligibility of the respondent No. 3. Be that as it may, this Court deems it proper to examine the contentions raised by the petitioner. 20. Before this Court examines the issues raised by the petitioner, this Court deems it appropriate to examine the scope of judicial review in 19 WP(C) No. 72/2023 CAV No. 104/2023 the interpretation of terms and conditions of tender, by the High Court in exercise of its power under Article 226 of Constitution of India. 21. In Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489, the Hon‟ble Apex Court has held as under: “19. This Court being the guardian of fundamental rights is duty- bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. 20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.” (Emphasis Added) 20 WP(C) No. 72/2023 CAV No. 104/2023 22. In Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617, the Hon‟ble Apex Court has held as under: “7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India , Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India , CCE v. Dunlop India Ltd., Tata Cellular v. Union of India , Ramniklal N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. I.V.R. Construction Ltd. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene. (Emphasis Added) 23. The ratio laid down in both judgments has been reiterated by the Hon‟ble Supreme Court in “Tata Motors Ltd. v. Brihan Mumbai Electric Supply & Transport Undertaking (BEST)”, 2023 SCC OnLine SC 671. 21 WP(C) No. 72/2023 CAV No. 104/2023 24. In Bharat Coking Coal Ltd. v. AMR Dev Prabha, (2020) 16 SCC 759, the Hon‟ble Apex Court has held as under: “(III) Deference to authority's interpretation 50. Lastly, we deem it necessary to deal with another fundamental problem. It is obvious that Respondent 1 seeks to only enforce terms of the NIT. Inherent in such exercise is interpretation of contractual terms. However, it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes. 47. Even if there had been a minor deviation from explicit terms of the NIT, it would not be sufficient by itself in the absence of mala fide for courts to set aside the tender at the behest of an unsuccessful bidder. [Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium),] This is because notice must be kept of the impact of overturning an executive decision and its impact on the larger public interest in the form of cost overruns or delays. 51. In the present facts, it is clear that BCCL and C1-India have laid recourse to clauses of the NIT, whether it be to justify condonation of delay of Respondent 6 in submitting performance bank guarantees or their decision to resume auction on grounds of technical failure. BCCL having authored these documents, is better placed to appreciate their requirements and interpret them. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd.] 52. The High Court ought to have deferred to this understanding, unless it was patently perverse or mala fide. Given how BCCL's interpretation of these clauses was plausible and not absurd, solely differences in opinion of contractual interpretation ought not to have been grounds for the High Court to come to a finding that the appellant committed illegality.” 25. Keeping above principles in mind, this court now would examine the issues raised by the petitioner. 26. Issue No. 1: Whether the respondent No. 3 was required to be disqualified as the respondent No. 3 had uploaded only the ITR 22 WP(C) No. 72/2023 CAV No. 104/2023 acknowledgements and not the ITRs including the balance sheets and profit and loss account? 27. In order to examine the issue No. 1, this Court deems it appropriate to reproduce the relevant portion of Clause 4.4 B (a) as the controversy involved in the issue No. 1 hinges around the said clause and the same is reproduced as under: “4.4 B (a) Each bidder must upload scanned copies of the following documents on website www.pmgsytender.gov.in at appropriate place failing which the bid shall be rejected out rightly. I. Copy of PAN Card issued by Income Tax Authorities (Clause 4.4 of ITB) (pdf). II. Contractor Registration certificate (Clause 3 of ITB) duly renewed for current financial year (pdf). III. Reports on financial standing a) Annual Turnover Certificate from Chartered Accountant for last five financial years (2017-18, 2018-19, 2019-20, 2020-21 and 2021- 22) excluding current financial year bearing Unique Document Identification Number (UDIN) of Institute of Chartered Accountants of India with breakup of civil works and total works excluding GST/VAT in each financial year. (Clause 4.4 of ITB) (pdf). Without UDIN the certificate will not be entertained and the bid rejected. b) Income Tax returns for the last financial years immediately preceding the bid due date i.e. for the last financial year (2016-17, (2017-18, 2018-19, 2019-20, 2020-21). c) Balance Sheet for last five financial years. d) Profit and Loss account for last five financial years. e) Company Audit report (if applicable) for last five financial years. f) Audit Reports under Income Tax Act (3CA/3CB along with 3CD reports) (wherever applicable) for the last five financial years. g) TDS certificate/26AS form downloaded from Income Tax Website for the last five financial years. h) The successful bidder will have to provide the original documents (from a to g) duly certified by a Chartered Accountant before a work is allotted to him. Any certificate issued by the Chartered accountant should mandatorily bear UDIN. IV. Affidavit regarding correctness of certificates/Affidavit on correctness of information submitted with the bid. (Clause 4.4 of ITB) (pdf) which must bear e-NIT No. and Name of the work. V. Any other documents as specified by the UT in the Bid Data Sheet (pdf). 23 WP(C) No. 72/2023 CAV No. 104/2023 VI. Satisfactorily completed as Prime Contractor or sub-contractor during the last five financial years excluding current financial year at least one similar work equal in value to one-third (one-fourth) in case of Naxal/LWE affected districts) of the estimated cost of work of any Government/Semi Government Department (excluding maintenance cost for five years) for which the bid is invited, or such higher amount as may be specified in Appendix to ITB. A certificate from employer, duly issued by an officer not below the rank of Executive Engineer or Equivalent, shall be submitted along with the application incorporating clearly the name of the work, contract value, billing amount, date of commencement of works, actual date of completion of work, satisfactory performance of the contract and any other relevant information. The certificate should be furnished as per format shown in Section 3 Qualification Information Clause No:- 1.3.1 supported with allotment which shall also be uploaded. The value of road work completed by the bidder under Pradhan Mantri Gram Sadak Yojana in originally stipulated period of completion shall be counted as 120% for the purpose of this Sub- Clause. VII. Copies of original documents defining the constitution or legal statues, place of registration, and principal place of business; written power of attorney of the signatory of the Bid to commit the Bidder. VIII. The bidder shall also furnish details of other civil works of similar nature executed and completed in any Govt. or Semi Govt. Department during the last five financial years and details of works underway or contractually committed, with certificate from the concerned officer not below the rank of Executive Engineer or equivalent and clients who may be contracted for further information on those contracts. IX. Evidence of ownership of major items of construction equipment named in Clause 4.4 B(b) (i) of ITB or evidence of arrangement of processing them on hire/lease/buying as defined therein including equipment required for establishing field laboratory to perform mandatory tests, and those stated in the Appendix to ITB. X. Details of the technical personnel proposed to be employed for the Contract having the qualifications defined in Clause 4.4 B (b) (ii) of ITB for the construction. XI. Evidence of access to line(s) of credit and availability of other financial resources/facilities (10 percent of contract value) certified by banker (the certificate being not more than 3 months old). XII. Bidders shall furnish proof of latest returns in GSTR-3B. XIII. Authority to seek references from the Bidder‟s bankers; XIV. Information regarding any litigation or arbitration during the current financial year and during the last five financial years in which the Bidder is involved, the parties concerned, the disputed amount, and the matter; This information may be supplied either in the shape of affidavit duly signed or on letter head duly signed or by filing the excel sheet attached. 24 WP(C) No. 72/2023 CAV No. 104/2023 XV. Proposals for subcontracting the components of the Works for construction/upgradation, aggregating to not more than 25 percent of the Contract Price; and subcontracting of part/full routine maintenance of roads after completion of construction work. XVI. The proposed programme of construction and Quality Management Plan proposed for all the works as per technical specifications and within the stipulated period of completion. (b) Each 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. (c) The bidder must not have in his employment: (i) The near relations (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 as gazetted officer within the last two years of the rank and from the department listed in the Appendix to ITB.” 28. A perusal of above mentioned clause reveals that the bidder was required to upload ITRs for the last five financial years. It is urged by the petitioner that the respondent No. 3 has simply uploaded the ITR acknowledgements and has not uploaded the income tax returns accompanied by the balance sheets and profit and loss account. In absence of the income tax returns, the technical bid of respondent No. 3 was required to be held non-responsive. The stand of the official respondent is that the purpose of uploading of ITRs was only to ascertain as to whether the bidder is income tax compliant or not and ITR did not have any role in evaluation of capacity of the bidder for a particular work. The financial information required to determine the responsiveness of the financial status of the bidder is to be obtained from the five years annual turnover certificate issued by the Chartered Accountant bearing UDIN number, balance sheet for last five years and the 25 WP(C) No. 72/2023 CAV No. 104/2023 profit & loss account for last five years. The official respondents are the employer and it is within the domain of the TIA to interpret the terms and conditions of the tender documents so as to find out the responsiveness of the bidder and until or unless the decision of the TIA is arbitrary or perverse, no interference is warranted in the decision arrived at by the TIA. A perusal of clause 4.4 B (a) as mentioned above reveals that the financial standing of the bidder was to be determined on the basis of the documents to be uploaded by the participants as provided from S. No. III (a) to (h). If the contention of the petitioner is accepted that whole of the ITRs for the last five financial years accompanied by the balance sheets and profit and loss account were required to be uploaded, then the official respondents would not have made it mandatory to submit the balance sheets and profit and loss account for the last five financial years in terms of clause iii(c) and (d). The bidders were also required to submit the audit reports under Income Tax Act and TDS certificate/26 AS form for the last five financial years. This Court has examined the annual turnover certificate, ITR acknowledgments, balance sheets and profit and loss account uploaded by the respondent No. 3 and this Court does not find any infirmity or any discrepancy in the same. The official respondents have provided in detail the documents required for determining the financial capacity of the bidder and the stand taken by the official respondents that the ITRs to be uploaded by the bidders were only for the purpose of determining the tax compliance of the bidder and ITR acknowledgements suffice the said purpose as the ITR acknowledgements cannot be generated without providing the 26 WP(C) No. 72/2023 CAV No. 104/2023 requisite information on the portal of Income Tax Department, is neither arbitrary nor perverse. The judgments relied upon by Mr. R. K. Gupta, learned senior counsel for the petitioner in case titled M/s Pratap Technocrats Pvt. Ltd. & M/s Laxmi Datt Binwal (supra) are not applicable in the instant case because in the said case the bidder had not furnished correct and complete income tax particulars for the last three years, whereas in the instant case ITR acknowledgements have been uploaded by the bidder-respondent No. 3. Once the TIA, in the instant case i.e. the respondent No. 2 has determined the responsiveness of the respondent No.3 by demonstrating the rationale behind uploading the income tax returns and the said rationale is neither irrational nor perverse, no fault can be found with the decision arrived at by the official respondents with regard to technical eligibility of the respondent No. 3. 29. Issue No. 2: Whether the bank certificate uploaded by the respondent No. 3 was conditional one and in fact, was no certificate in the eyes of law? To buttress his submission Mr. R. K Gupta, learned senior counsel placed much reliance upon the certificate issued by the same banker in favour of the petitioner which has been issued un-conditionally. Respondent Nos. 1 and 2 in their reply have pleaded that every bank has devised its own format, as no particular format has been specified by the Tender Inviting Authority (TIA) in the SBD. In order to substantiate this contention the official respondents have placed on record the certificates issued by the Bank of Baroda, J&K Bank and UCO Bank. In the certificate issued in 27 WP(C) No. 72/2023 CAV No. 104/2023 favour of respondent No. 3, there is a stipulation that the certificate has been issued at the specific request of the customer without any risk or responsibility on part of the bank or any of its officials. The respondent No. 3 has also placed on record the bank certificates issued in favour of other bidders in various other tenders, issued by J&K Bank, HDFC Bank and Bank of Baroda. Mr. R. K. Gupta, learned senior counsel tried to persuade this Court that earlier there was specific format for evidence of access to or availability of the credit facilities, but at the same time he frankly admitted that at present no format has been prescribed by the tender inviting authority with regard to the bank certificate in the e-NIT in question. Once the TIA has accepted the certificate, notwithstanding the fact that it contained the stipulation as mentioned above, not only in case of respondent No. 3, but in case of number of bidders in other NITs, the action of official respondents cannot be faulted with. As such, this contention raised by the petitioner is rejected. 30. Issue No. 3: Whether the respondent No.3 was required to be disqualified as two ITRs were submitted qua Mr. A.H Wani, as proprietor and not of the respondent No.3 as company? The third issued raise by the petitioner is that the respondent No. 3 has uploaded the acknowledgments of ITRs for the five years but for the assessment year 2018-19 and 2019-20 the ITR acknowledgments of Abdul Hafiz Wani as assessee, have been uploaded by the respondent No. 3. Mr. R. K. Gupta, learned senior counsel has placed reliance upon 28 WP(C) No. 72/2023 CAV No. 104/2023 the judgment of Delhi High Court in M/s Pratap Technocrat Pvt. Ltd. (supra) to substantiate his contention that experience as well as ITR acknowledgements of Sh. Abdul Hafiz Wani contractor cannot be considered for the purpose of considering the respondent No. 3 as tax compliant as well as for the purpose of determining the eligibility of respondent No. 3. The respondent No. 3 in the reply to the supplementary affidavit has met this objection of the petitioner by stating that proprietorship concern of Abdul Hafiz Wani contractors was merged with M/s A. H. Wani Infratech Private Ltd. with all its assets and liabilities including the qualifications, experiences and business and even the certificate of registration with regard to registration as „A‟ Class contractor issued in favour of proprietorship concern of Sh. Abdul Hafiz Wani was cancelled and converted to M/s A. H. Wani Infratech Pvt. Ltd. A perusal of deed for taking over the business dated 31.03.2020 executed between the respondent No. 3 and Abdul Hafiz Wani reveals that the respondent No. 3 has acquired trade and business of proprietorship concern of Abdul Hafiz Wani with all his business, assets, rights, permissions, registrations, privileges, concessions, goodwill, experience and qualifications along with all the liabilities from 31.03.2020. Once all the assets, liabilities and experiences have been taken over by the respondent No. 3 by virtue of deed of taking over of business dated 31.03.2020 and the TIA has accepted the eligibility of the respondent No. 3, there appears to be no reason for this Court to sit as a court of appeal over the decision of the TIA. The judgment of Delhi Court relied 29 WP(C) No. 72/2023 CAV No. 104/2023 upon by Mr. R. K. Gupta in case of M/s Pratap Technocrat Pvt. Ltd. (supra) is not applicable in the present case as in the said case, the petitioner therein could not prove that the sole proprietorship business was entirely taken over by the petitioner company and also no documents establishing that goodwill was parted or separate consideration was made, was proved by the petitioner, so the said judgment is not applicable in the present facts and circumstances of the case. Therefore, this contention of the petitioner too is rejected. 31. This court has examined the exemplars stated by the petitioner where the respondent No.2 has chosen to reject the technical bids in other NITs but this court has not come across any instance where in identical situation, the bids were rejected. As a matter of fact, the bids were rejected in other cases on other grounds. The petitioner also cannot claim that the respondent No. 2 was having any bias against the petitioner because the petitioner has been allotted two allotments in PMGSY III vide Chief Engineer PMGSY Office No. CEJ/PMGSY/28633-42 dated 09.01.2023 for up-gradation of road from T01-Darhal to Upper Simbli via Patathanahariban, Package No. JK12- 3054,PMGSY III, Batch-I of 2022-23 Block Darhal, District Rajouri, length 6.2 Kms and CEJ/PMGSY/28622-42 dated 09.01.2023 for up- gradation of road, from T01- L055 Link from Km 12th T02 to Kassian Darhal, PMGSY III, Batch-I of 2022-23, Package No. JK12-3001 Block Rajouri, District Rajouri, length 8.1 Kms, as stated by the respondent No.2 in objections to supplementary affidavit. 30 WP(C) No. 72/2023 CAV No. 104/2023 32. The whole issue raised by the petitioner in the present petition is to further its commercial interest and not the public interest. In fact, the petitioner is trying to find faults with the magnifying glass in the technical bid of the respondent No.3, which is not permissible as TIA is the sole judge in respect of interpretation of the terms and conditions of the tender document and it is only when the interpretation of any condition of the tender document of TIA is perverse or irrational and not in public interest, that the High Court can show indulgence. Neither the decision of the respondent No.2 is perverse/irrational nor public interest is involved in the present case, that may warrant indulgence of this court. 33. In view of what has been discussed above, this Court does not find any merit in the present petition, as such, the same is dismissed. 34. Interim direction stands vacated. 35. Record be returned to Mr. Ravinder Gupta, AAG. (RAJNESH OSWAL) JUDGE Jammu 04.08.2023 Sahil Padha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. "