MAGOTRA SUPER MARKET PVT LTD KATRA TH AMBRISH MAGOTRA V. U T OF J AND K TH COMMISSIONER SECRETARY DEPTT OF TOURISM AND OTHERS

LPA/107/2022

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The case involves Magotra Super Market Pvt. Ltd., the appellant, challenging the decision of the respondents declaring another bidder, respondent No. 4, as successful in a tender process for the development and promotion of tourism assets in J&K. The appellant alleged that respondent No. 4 lacked the basic eligibility criteria and that the evaluation process was arbitrary and lacked transparency. The High Court of Jammu & Kashmir and Ladakh initially issued an interim order to maintain the status quo and directed the respondents to file objections. The appeal was considered against the backdrop of these proceedings, with the court deciding not to interfere with the interim order but to allow the Writ Court to decide on the merits of the case.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 742568 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 24-11-2022
• Assessment Year: misc
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: R S JAMWAL; SUNIL SETHI; PARIMOKSH SETH
• Assessee Lawyers: VIKRAM SHARMA; SACHIN SINGH
• Keywords: Mandamus; Successful Bidder; Writ of Certiorari; E-NIT No. 37 of 2022; Technical Eligibility Criteria

Judgement Text

"P a g e | 1 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU LPA NO. 107/2022 c/w WP( C) NO. 2256/2022 Magotra Super Market Pvt. Ltd. …Appellant(s) Through: Mr.Vikram Sharma, Sr. Advocate with Mr. Sachin Dev Singh, Advocate Vs. Union Territory of J&K & Ors …Respondent(s) Through: Mr. R.S.Jamwal, AAG for R 1 to 3 and 5. Mr. Sunil Sethi, Senior Advocate with Mr. Parimoksh Seth, Advocate for R-4. CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE M.A.CHOWDHARY, JUDGE ORDER 24.11.2022 1. In the instant appeal appellant-writ petitioner has challenged the order dated 20.10.2022 passed in CM No. 6120/2022 (WP (C ) No. 2256 of 2022 by the learned Single Bench which is being relevant is extracted as under:- “Heard learned counsel for the parties and perused the record. 2. In this petition, the petitioner has claimed the following reliefs: “A. Certiorari: For quashing the result/declaration of Respondent no. 4 as successful bidder, made available on the web-portal alter 01.00 AM on 19-10.2022, despite the fact that the respondent no. 4 lacked the basic eligibility criteria in terms of Clause 6 (Technical Eligibility Criteria) of the e-NIT No. 37 of 2022 dated 16.08.2022 floated by respondent no.2. B. CERTIORAN: For quashing the Mark List uploaded on the web-portal on 19.10.2022 after 01.00 AM in Technical Evaluation (Clause l4 of the e-NIT), whereby exhibiting the extreme arbitrariness, the respondent no. 4 has been granted 697/700 marks, P a g e | 2 without any transparency, rationale and/or tangible criteria, to make respondent no. 4 a 'super-entity' beyond competition to ensure it a safe-passage and a sure-shot position as 'successful bidder', as against 410/700 marks given to the petitioner. C. MANDAMUS: For commanding the respondents to disqualify the respondent no. 4 and further to reject its candidature/bid in e-NIT No. 37 of 2022 dated 16.08.2022 floated by respondent no. 2, because of its ineligibility in terms of Clause 6 ('Technical eligibility Criteria) of the e-NIT. Sr.No.94 2 D. MANDAMLJS: Commanding the respondents particularly Respondent No. 2 to not accord consideration to the respondent no. 4's presentation, based on communication no.DTJ/EST/6/52-56 dated 07.10.2022, towards finalizing the result of the e-NIT No. 37 of 2022 dated 16.08.2022. E. MANDAMUS: Commanding the respondents particularly Respondent No.2 to not accord consideration to the respondent no. 4, based on its letter dated 18.10.2022 to respondent no. 2, whereby a fresh Financial Bid has been invited and agreed to between the respondent no. 2 and 4, after the entire process of scrutiny of eligible bidders was over and particularly after the last date of submission of bids (i.e. 06.09.2022, extended upto 13.09.2022) had expired long back. F. MANDAMUS: Commanding the respondents to consider only the technically eligible bidders for the purposes of Technical Evaluation and Financial Evaluation in terms of Clause l4 of the e-NIT. G. MANDAMUS: Commanding the respondents to open and declare the Technical Evaluation of the eligible bidders only in terms of Clause l4 of the e-NIT No. 37 of 2022 dated 16.08.2022, before proceeding for the Financial Evaluation of the successful bidders and concluding the final result.” 3. Respondent No. 4 has been declared as successful bidder and the petitioner is aggrieved of the same by seeking a writ of certiorari for quashing the result/declaration of respondent No. 4 as successful bidder and has also challenged the marks list uploaded on web portal on 19.10.2022 which exhibits extreme arbitrariness and the said respondent has been given 697 marks out of 700 marks whereas the petitioner has been given only 410 marks out of 700 marks. The petitioner further claims that a direction be issued to the respondents to disqualify the said respondent and to reject his candidature/bid in e-NIT No. 37 of 2022 and not to accord consideration to his presentation, based on letter dated 18.10.2022 issued by respondent No.2, whereby a fresh financial bid has been invited and agreed between the respondents 2 and 4 after the entire process of scrutiny of eligible bidders is not to be taken into 3 P a g e | 3 consideration and the respondents are required to consider only the technically eligible bidders for the purposes of Technical Evaluation and Financial Evaluation in terms of Clause 14 of the e-NIT. 4. Having considered the grounds taken in this petition as well as the record on the file, Registry to issue notice to the respondents, returnable within two weeks. 5. Mr. R. S. Jamwal, learned AAG who is present in the court accepts notice on behalf of respondents No. 1 to 3. He shall file objections within two weeks. 6. Notice be issued to respondents No. 4 and 5, returnable within the aforesaid period. Petitioner to take steps within one week for service of respondents No. 4 and 5. 7. List on 27.12.2022. CM No. 6120/2022 8. Issue notice in this CM also. Subject to objections and till next date before the Bench, the decision taken by the official respondents shall remain subject to the outcome of the main writ petition/orders in this CM” 2. When this matter was taken up for consideration, learned counsel for the respondents raised objection regarding maintainability of this LPA against an interim order and submitted that the said order is not appealable under clause 12 of the Letter Patent Appeal. 3. Ordinarily appeals filed against interim order are not entertained, however, the indulgence is shown depending on the peculiar facts and circumstances of the case. In order to meet the objection as raised regarding maintainability and for coming to the conclusion to show indulgence, it has become necessary to detail out controversy involved in the writ petition as under: i./ Tourism Department of J&K Government through its Jammu Directorate vide e-NIT No. 37 of 2022 dated 16.08.2022 invited e-tenders from eligible bidders for repair/up-gradation/maintenance/development/promotion and development of Tourism Assets (on outsourcing basis) at the cost to be borne entirely by the successful agency. P a g e | 4 The Tourism Assets detailed under the e-NIT aforesaid were specified as under: a) World Class Tourist Amenities with Smart Solar Illumination Tourist pathways. Solid Waste Management Comprising of Eco Log Cafeteria. Local Handicraft Promotion Outlet, Gender Bases Pcs) (as is where is basis). b) Incomplete TRC Building at Katra (as is where is basis). The period of contract with the successful bidder has been prescribed as 25 years. ii/ The appellant in response to the e-NIT submitted the requisite documents/certificates in terms of clause 6 with experience criteria, turn over certificate from the Chartered Accountant for last 3 years, bid document payment, EMD payment and Income Tax Return as specified by the e-NIT. Respondent no. 4 also opted under e-NIT aforesaid and submitted its bid claiming to be holding the brand ‘Rasalika’. The respondent Nos. 1 to 3 informed, the date of presentation to be conducted by the bidders, vide communication No. DTJ/EST/6/52-56 dated 07.10.2022, in terms of clause 14 of the e-NIT the time slot to make the presentation to the three bidders including respondent no. 4 herein. However, the date of presentation was postponed to 12.10.2022 and the time slot was also changed as notified earlier. After looking into the technical as well as financial bids offered by all the stake holders, respondent no. 4, had been granted 697 marks out of 700 in the technical evaluation while the appellant-petitioner was granted 410.44 P a g e | 5 marks out of 700, whereas the respondent no. 4 had been granted 100 marks each by members 3, 4, 5 & 6 and 99 marks out of 100 each by Members No. 1, 2 and 7 whereas appellant-petitioner on the other hand was granted 58.05 ,59.05.59.14.59.05.59.05,57.05,59.05 each by members 1 to 7 respectively. Respondent No. 4 had quoted financial bid as Rs. 23.61,000/- as against more than double thereof quoted by the appellant-petitioner i.e. Rs. 55,55,500/- Having regard to the technical as well as financial bids, respondent No. 4 was declared as successful bidder as was uploaded on web portal of the respondents 1 to 3 on 19.10.2022. iii/ Appellant-petitioner being unsuccessful in the bidding process, filed WP (C ) No. 2256 of 2022 before this Court and the learned Writ Court vide order dated 20.10.2022 after issuing notice to all the respondents invited objections from them and listed the matter on 27.12.2022 . Notice was also issued in the interim application and subject to objections, the decision taken by the official respondents was subjected to the outcome of the main writ petition/orders in this CM. 4. A Co-ordinate bench vide order dated 21.10.2022 observing that the appellants had alleged that the respondent No.4 lacked the basic eligibility for the purpose of participation in the tendering process in view of clause 2.2. of e-NIT No. 37 of 2022 dated 16.08.2022 which provides that the firm shall own a Hotel chain or Restaurant chain at National Level for a minimum period of 3 years and the perusal of the communication dated 15.10.2022 P a g e | 6 stated to have been uploaded by respondent No. 4 while participating in the process revealed that respondent No. 4 has mentioned three outlets namely Shivam Food, ( Rasalika) at Kunjwani Bye-pass Jammu, Gandhinager Jammu and Charan Paduka at Katra and in the BOQ summary details, the respondent No. 4 had been shown as L-1. It was observed that the detailed consideration as well as appreciation is required in the case and status-quo as on date was ordered to be maintained. 5. The official respondents during the pendency of this appeal filed response and as per the record produced by the official respondents it appears that the terms and conditions more specifically in clause 2.2. of e-NIT No. 37 of 2022 the eligibility criteria was changed during the process of tender. Also learned counsel for the appellant has pointed out certain important issues with regard to alleged arbitrariness in awarding the marks of presentation as well. Since the learned Writ Court had passed the interim order, when there was no response available on behalf of the respondents. 6. Though the arguments heard at length having reference to the merits of the writ petition, we are not inclined to decide the writ petition and the appeal which course in the event adopted shall deprive the aggrieved party against the order passed by the Writ Court from filing appeal. Therefore, we are of the considered view that the matter needs to be decided on merits by the Writ Court, as such, we direct the respondents to file reply during the course of this week or by Monday to the main writ petition/interim P a g e | 7 application so as to enable the Writ court to decide the writ petition and interim application finally on the next date of hearing. 7. The instant appeal is disposed of with request to learned Writ Court to take up the matter on 01.12.2022. Till the matter is heard by the Writ Court and fresh orders passed the interim direction passed by this Bench on 21.10.2022, shall remain in force. (MA CHOWDHARY) ( Ali MOHAMMAD MAGREY) JUDGE CHIEF JUSTICE Jammu 24.11.2022 Mujtaba Whether the order is reportable: Yes / No "