Approaching the court belatedly is a valid reason for the dismissal of the case on solitary grounds: The High Court of Jammu & Kashmir at Jammu
A considerable delay in filing of a petition could act as a hurdle in the effective evaluation of a case and is a valid reason to dismiss the case on solitary basis. The aforesaid has been established by the Jammu &amp; Kashmir High Court in the case of M/S Butt Transport Company v. Union Territory of J&amp;K &amp; Ors. [WP(C) No.1084/2021 CM No.4400/2021]] Which was decided by a single judge bench comprising Justice Sanjeev Kumar on 16th June 2021. The facts of the case are as follows. The petitioner in this petition is the proprietor of M/S Butt Transport Company and has been in the business of running a motor transport service. Pursuant to e-tenders invited by respondent No.4 for award of contract for transportation of food grains to Fair Price Shops and Government sale depots, the petitioner submitted his bid documents. It was submitted by the petitioner that the whole process was conducted by the respondent No.4 in a clandestine and surreptitious manner and the respondent no. 5 was suddenly awarded the bid inspite of being ineligible for the same. However, it was contended by the Sr. additional Advocate General on behalf of the respondents that all the notifications were duly notified on the official websites and that the petitioner was undoubtedly aware of such notifications which is evident from the clarifications submitted by the petitioner.
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU THROUGH VIRTUAL MODE) Reserved on: 03.06.2021 Pronounced on: 16.06.2021 M S BUTT TRANSPORT COMPANY Through: Ms. Shivani Jalali Pandita Advocate. WP(C) No.1084 2021 CM No.4400 2021 UNION TERRITORY OF J&K & ORS. Through: Mr. H. A. Siddiqui Sr. AAG. CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE The petitioner is aggrieved and has sought to quash order No.837 44 FCS&CA D 2021 2022 dated 24th of April 2021 whereby the official respondents have allotted the contract for transportation of food grains sugar from the feeding stores to the Fair Price Shops and Government sale depots in and around the territorial jurisdiction of Doda in favour of private respondent No.5. The petitioner who claims to have participated in the bidding process also seeks a direction to the official respondents to re tender the contract so that only eligible and qualified bidders are permitted to participate. 2 WP(C) No.1084 2021 CM No.4400 2021 Briefly stated the grievance projected by the petitioner in this petition is that he is the proprietor of M S Butt Transport Company and has been in the business of running a motor transport service after having obtained a motor transport service license from Transport Commissioner J&K Jammu. Pursuant to e tenders invited by respondent No.4 for award of contract for transportation of food grains to Fair Price Shops and Government sale depots under the jurisdiction of Assistant Director FCS & CA Doda for the years 2021 2022 and 2022 2023 the petitioner submitted his bid documents. As per the e NIT the date and time of opening of technical bid was 25th February 2021 at 11.00 am in the office of Deputy Commissioner Doda. However no date or time for opening of financial bid was notified by the respondents. It is submitted by the petitioner that the whole process was conducted by the respondent No.4 in a clandestine and surreptitious manner and it was only on 16th of April 2021 the petitioner came to know that the Evaluation Committee constituted by the official respondents had accepted only one out of five bids received and it was only the respondent No.5 who was declared technically qualified by the official respondents. It is the further case of the petitioner that without intimating the petitioner about the result of technical bids even the financial bids were opened and the contract was allotted to the respondent No.5 despite the fact that the respondent No.5 was not meeting the required 3 WP(C) No.1084 2021 CM No.4400 2021 technical qualification as laid down in clause (m) and of the tender notice. Referring to the license issued in the name of proprietor of respondent No.5 by Transport Commissioner J&K Jammu dated 22nd February 2021 it is contended that the respondent No.5 was not possessing the requisite experience of three years in transportation of similar nature of commodities for a Government Department Corporation public or private sector undertaking. On being put on notice Mr. Siddiqui learned Sr. Additional Advocate General has entered appearance on behalf of respondents and has filed the reply affidavit on behalf of respondent No.4. It is pleaded that contrary to what is alleged by the petitioner the e NIT was published and uploaded on the official website jktender.gov.in on 2nd February 2021. In response the respondent No.4 received five bids including the bid of the petitioner till the last date i.e. 25th of February 2021 prescribed in the e NIT. The technical bids were scheduled to be opened on 27.02.2021 but due to holiday on the said date followed by Sunday a corrigendum was issued uploaded vide No.3792 93 FCS&CA D 2020 21 dated 25.02.2021 whereby the date of opening of technical bids was fixed on 02.03.2021. All the bidders including the petitioner were aware of this change as the corrigendum dated 25.02.2021 had been duly uploaded on the official website. It is also contended that the technical bids were opened on the appointed date and the documents of all the bidders were downloaded 4 WP(C) No.1084 2021 CM No.4400 2021 separate files were prepared for each bidder and handed over to each members of the Evaluation Committee for appraisal and verification. The meeting of the Evaluation Committee took place on 1st of April 2021 and the Committee on evaluation of technical bids found each of the bidders lacking in one or the other aspect. Consequently the Evaluation Committee decided to reject all the bids but due to the objection raised by the bidders the Evaluation Committee decided to give all the bidders an opportunity to file objections or give clarification. All bidders were duly notified through their email addresses provided by them along with tender documents and the information was also uploaded on the official website as well. along with other two bidders submitted his objections clarification. The clarification objections submitted by the petitioner was however rejected by the Committee due to the reason that he was not holding a proper license issued under Rule 127(2) of J&K Motor Vehicle Rules 1991 as was the requirement of the e NIT and was possessing some other license issued by the Transport Commissioner under Rule 133of J&K Motor Vehicle Rules 1991. The Evaluation Committee also found that the experience submitted by the petitioner was not authenticated and was not carrying any reference number or date as was the requirement in terms of clauseof technical bid of e tender. On the other hand the objection of private respondent No.5 who was prima facie lacking the requisite experience was found 5 WP(C) No.1084 2021 CM No.4400 2021 tenable. He being registered under MSME was eligible for relaxation in experience and annual turnover as provided under Policy Circular No.1(2)(1)2016 MA dated 10th of March 2016 issued by Ministry to Micro Small and Medium Enterprises and office memo dated 25th July 2017 issued by the Ministry of Finance Government of India. It is thus submitted that it is in view of the aforesaid position the Evaluation Committee declared the respondent No.5 responsive and technically qualified. Since the rates quoted by respondent No.5 were 30.79% lesser than the approved rates of 2019 2020 the Evaluation Committee approved and accepted the financial bid of the respondent No.5 in the larger interests of public exchequer as well. The respondent No.5 was thus awarded the contract on 24th of April 2021 which he has been executing since its allotment. It is thus submitted that the petitioner has belatedly come to this Court to challenge the process of tendering which was concluded way back on 24th of April 2021. Having heard learned counsel for the parties and perused record I am of the considered view that apart from that the petitioner has no case on merits the petitioner must fail in this petition for having approached this Court belatedly i.e. after the conclusion of the tender process which culminated in issuance of order of allotment in favour of respondent No.5 on 24th of April 2021. On being pointedly asked the reasons for the delay the learned counsel for the petitioner vehemently submitted that since the whole process was conceived in 6 WP(C) No.1084 2021 CM No.4400 2021 fraud and delivered in deceit the petitioner was not aware that the tender process had been concluded and culminated in issuance of impugned order of allotment till recently when he visited the office of respondent No.4 and found that the contract stood allotted to the respondent No.5. This plea of the petitioner is completely belied by the respondents. It has been submitted by the respondents that the whole process right from the issuance of e tender till issuance of allotment letter in favour of the respondent No.5 was open and transparent. The petitioner had fully participated in the process and all updates with regard to the contract were uploaded on the official website from time to time. It has also been pointed out by Mr. Siddiqui Sr. AAG that after the Evaluation Committee found that all the five bids received were lacking in one or the other aspect the bidders were informed to file their objections representation through their email IDs provided by them along with tender documents and that the petitioner along with two other bidders had responded to the said notice. In view of the aforesaid categoric statement of respondent No.4 on affidavit it is really very hard to believe that the petitioner was kept in dark and the tender process was carried in a clandestine manner. This was an e tendering process and everything was being uploaded by the official respondents on their official website. It is thus not coming forth as to why the petitioner waited so long to approach this Court. Indisputably the financial bid was opened on 7 WP(C) No.1084 2021 CM No.4400 2021 16th of April 2021 and the formal order of allotment was issued in favour of respondent No.5 on 24th of April 2021 but the instant petition was filed by the petitioner only on 27th of May 2021 when the respondent No.5 had even started executing the contract. This writ petition could have been dismissed on this solitary ground. However I have also examined the arguments of learned counsel for the petitioner on merits as well. 11) The contention of learned counsel for the petitioner that the respondent No.5 was issued the motor transport service license only on 22nd of February 2021 and therefore he could not have possessed a minimum three years experience in transportation of similar nature of commodities for Government department is without any substance. It is true that license under Rule 127(2) of the J&K Motor Vehicle Rules 1991 has been issued in favour of respondent No.5 on 22nd of February 2021 but the respondent no.5 has also uploaded a certificate issued by the respondent No.4 indicating that the respondent No.5 had executed the similar contract transportation of food grains worth Rs.2 47 00783.00 during last three years for the period 2017 2018 2018 2019 and 2019 2020. Otherwise also as is pleaded by respondent No.4 the respondent No.5 being MSME was eligible for relaxation in experience and annual turnover as per the Policy Circular No.1(2)(1)2016 MA dated 10th of March 2016 issued by Ministry to Micro Small and Medium Enterprises and Office Memo dated 25th July 2017 issued by the 8 WP(C) No.1084 2021 CM No.4400 2021 Ministry to Finance. In that view of the matter the contention of learned counsel for the petitioner that the respondent No.5 was lacking eligibility is not tenable and therefore cannot be accepted. 13) Otherwise also the petitioner was himself ineligible to participate in the tender process in question for the reason that he was not holding a valid license issued by the competent authority under rule 127(2) of the J&K Motor Vehicle Rules 1991 as is mandated by clauseof the technical bid check list and instructions. 14) For the foregoing reasons I find no merit in this petition and the same is accordingly dismissed along with connected CM. 15) No order as to costs. Judge 16.06.2021 “Bhat Altaf PS” Whether the order is speaking: Whether the order is reportable: Judgment pronounced today on 16.06.2021 in terms of Rules 138of the Jammu and Kashmir High Court Rules 1999. Javed Iqbal Wani) Judge 