Vishnu Soman v. Office of the Registrar General of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943** ## **WP(C).No.2531 OF 2021(N)** ## **PETITIONER:** **VISHNU SOMAN AGED 29 YEARS S/O. SOMAN, PROPRIETOR, VINAYAKA TRADERS, ERUVA P.O., KAYAMKULAM-690512.** **BY ADV. SRI.K.R.SUNIL** ## **RESPONDENTS:** **1 OFFICE OF THE REGISTRAR GENERAL OF INDIA MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, REPRESENTED BY ITS SECRETARY, NEW DELHI-110001.** - **2 THE DIRECTORATE OF CENSUS OPERATIONS, REPRESENTED BY ITS DIRECTOR, CGO COMPLEX, POONKULAM, VELLAYANI P.O., THIRUVANANTHAPURAM, PIN-695522.** **3 THE DIRECTORATE OF CENSUS OPERATION, REPRESENTED BY ITS ASSISTANT DIRECTOR, CGO COMPLEX, POONKULAM, VELLAYANI P.O., THIRUVANANTHAPURAM, PIN-695522.** **BY SRI.M.A.VINOD, CGC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.2531 OF 2021(N)** 2 ## **J U D G M E N T** The petitioner is aggrieved by the cancellation of tender notified in.Ext P1. 2. Pursuant to Ext.P1 notice inviting tender dated 19.11.2020, for disposal of scrap papers of Census Records of 2011, National Population Register Schedules and other connected records, petitioner submitted his bid. It is stated there were only 2 bidders and petitioner's bid was accepted. It is stated that an officer of the second respondent had telephonically informed the petitioner that the bid amount of Rs.12.69 per kilo quoted by the petitioner was the highest and that petitioner would be awarded the contract immediately. But petitioner received Ext.P7 communication informing him about the cancellation of Ext.P1 tender notification. According to petitioner, there is no reason for cancellation and petitioner who quoted the highest amount is entitled **WP(C).No.2531 OF 2021(N)** 3 to be awarded the work in accordance with the tender conditions. 3. The 3[rd] respondent filed a statement, according to which there were two bidders- petitioner and another who quoted Rs.12.69 per kg and Rs.11.25 per kg respectively. In paragraph 4 of the statement it is stated as follows: The EMD of Rs.1,72,000/- was calculated taking into account a Reserve Price, a price assessed by the respondent for the purpose of ensuring a fair and reasonable price, in the bid floated by a Government office, in public interest. The Reserve Price is an assessment by the office to evaluate and arrive at a decision on the highest amount in a bid. The bid inviting authority reserves the right to decide on the bid, taking into account this aspect. The rate quoted by Vinayaka trades in the bid, Rs.12.69 per Kg was found to be less than the Reserve Price, therefore it was decided not to accept the bid and the tender was cancelled through Central Public Procurement Portal (CPP Portal) itself vide corrigendum dated 22.01.2021. The reason for cancellation was therefore mentioned as “due to administrative reasons”, the one which was found appropriate as the reserve price is an assessment by the office for the purpose of bid evaluation and finalisation by the office. The intimation of the cancellation of tender was addressed to thee-mail id of the agency on 22.01.2021. It is “an auto generated mail from the e procurement system”. They were requested to visit the portal for further details, if any. The contention of the petitioner that no other **WP(C).No.2531 OF 2021(N)** 4 information was given is wrong and misleading. 4. Further he stated that as per point No.28 of the terms and conditions mentioned in Ann.A of the tender document DCO Kerala reserves the right to cancel the sale at any time without assigning any reason before issue of the sale order; bidders are not entitled to claim any damage or compensation in case of such cancellation. It is also stated that point No.6 in the bid document pertains to bid valuation criteria. The amount quoted by a bidder in a tender for disposal of goods or records should be one that is acceptable; it should be a fair and reasonable price; the tender is floated by the Government Office, in public interest. Respondent has stated that the tenders are invited through the Central Public Procurement Portal and it was cancelled through the same portal. The respondents have already initiated steps for re-tender. According to the respondent, the cancellation of tender is in public interest. **WP(C).No.2531 OF 2021(N)** 5 5. Petitioner has filed a reply affidavit stating that as per Clause 6 of Ext.P3 tender conditions which provides for bid evaluation criteria, the highest bidder would be arrived at on the basis of the highest amount quoted for per kg of material excluding of all taxes if any and the highest bidder would be awarded the contract for lifting the material immediately. It is also stated that the reserve price referred to in the statement of the respondent was not published and it was not part of Ext.P3 and therefore the cancellation of the tender on the ground that the amount quoted by the petitioner is below the reserve price is unsustainable. Petitioner also pointed out that in Tamil Nadu, petitioner has been awarded the contract for the very same work when he quoted Rs.12.10 paise per kg; therefore it is stated that the cancellation of tender despite the bid submitted by the petitioner offering Rs.12.69 per kg is arbitrary. Petitioner points out that in the order cancelling the **WP(C).No.2531 OF 2021(N)** 6 tender nothing was stated regarding the reserved price and the only ground stated was administrative reasons. Relying on the judgment of the Apex Court in **Chairman,** **All India Railway Rec. Board and Another v. K.Shyam Kumar and Another** [2010 KHC 4335] petitioner asserts that the tender is to be finalised in favour of the petitioner, accepting his bid. 6. I heard the learned counsel for the petitioner and the learned CGC. 7. Petitioner's claim that his bid was liable to be accepted and cancellation of the tender as per Ext.P7 was unnecessary, is to be considered in the light of the provisions contained in Ext.P2 as well as Ext.P3 which the petitioner himself relies on. 8. As it is pointed out that the tenders are invited by the Regional Authorities in the respective States Ext.P2 itself provides that the DCO Kerala reserves the right to cancel the sale at any time **WP(C).No.2531 OF 2021(N)** 7 without assigning any reason before issue of the sale order and that bidders are not entitled to claim any compensation in the case of such cancellation. The contention of the petitioner is that cancellation is arbitrary and therefore interference of this Court is warranted. However it is settled law that the judicial intervention in matters relating to tenders and tender conditions should be very limited. (See **Tata Cellular v. Union of India** [(1994) 6 SCC 651]; **Raunaq International Ltd. v. I.V.R. Construction Ltd** [(1999) 1 SCC 492] **Jespar I. Slong v. State of Meghalaya** [(2004)11 SCC 45], **Jagdish Mandal v. State of Orissa** [(2007) 14 SCC 517], **Michigan Rubber (India) Ltd. v. State of Karnataka** [(2012) 8 SCC 216], etc.). Evaluating tenders and awarding contracts are essentially commercial functions. If the decision relating to award of contract is _bona fide_ and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural **WP(C).No.2531 OF 2021(N)** **==> picture [7 x 7] intentionally omitted <==** aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. Petitioner has not raised any allegation of malafides. There is not even an allegation that the cancellation is to favour anybody. It cannot be said that the process adopted is so arbitrary or irrational that no responsible authority acting reasonably and in accordance with relevant law could have reached. 9. On the other hand the respondents have stated that it is to protect public interest that the tender is cancelled. The respondents have stated that they decided to cancel the tender since the quoted amount is less than reserve price fixed by them and that and steps are taken for re-tendering the same. In **South Delhi Municipal Corpn. v. Ravinder Kumar & Anr.** [(2015) 15 SCC 545], Apex Court held that Government **WP(C).No.2531 OF 2021(N)** 9 being guardian of public finance it has the right to refuse the lowest or any other tender bid provided its decision is neither arbitrary nor unreasonable. In the judgment in **Meerut Development Authority v. Assn. of Management Studies** [(2009) 6 SCC 171] the Apex Court held that the bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids. The tender inviting authority has the right not to accept the highest bid and even to prefer a tender other than the highest bidder, on good and sufficient reasons, such as, the highest bid not representing the market price provided the Authority’s action in accepting or refusing the bid must be free from arbitrariness or favouritism. In **Kasturi Lal Lakshmi Reddy v. State of J&K** [(1980) 4 SCC 1] it was held that the Government, cannot, give a contract or sell or lease out its property for a consideration less than the highest that can be **WP(C).No.2531 OF 2021(N)** 10 obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so. Petitioner would be free to participate in the re-tender. Just because petitioner quoted the highest amount he does not have any right to insist that the tender has to be finalised in his favour. The fact that the reserve price was not published cannot also be a reason for coming to a conclusion that cancellation is arbitrary. The contention that when the amount quoted by him in respect of similar tender invited in Chennai was accepted and therefore cancellation even when a higher amount quoted cannot also be a reason for interference because the each of the notifications are with respect to different regions and issued by different officers. Even the provisions contained in the tender conditions give liberty to the respective regional officers to take a decision. It is for the respondents to decide what should be better in public interest as well as **WP(C).No.2531 OF 2021(N)** 11 the interest of the institution. I am of the view that there is no arbitrariness in the matter in cancelling the tender and proceeding with a re-tender, in which the petitioner would be free to participate. Accordingly the writ petition is dismissed. Sd/- **P.V.ASHA, JUDGE** AS **WP(C).No.2531 OF 2021(N)** 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 THE TRUE COPY OF THE NOTICE PUBLISHED BY THE 1ST RESPONDENT THROUGH THE 2ND RESPONDENT DATED 19.11.2020.** - **EXHIBIT P2 THE TRUE COPY OF THE TERMS AND CONDITIONS DOWNLOADED, ACKNOWLEDGED AND UPLOADED BY THE PETITIONER.** - **EXHIBIT P3 THE DETAILS REGARDING THE DISPOSAL OF THE CENSUS RECORDS OF 2011, NATIONAL POPULATION REGISTER (NPR) SCHEDULES AND THE OTHER CONNECTED RECORDS HELD BY THE 2ND RESPONDENT, THE ELIGIBILITY CRITERIA, EARNEST MONEY DEPOSIT, PROCEDURE FOR SUBMISSION OF BID, ANY DISAGREEMENT UNDER THE CONTRACT, BID EVALUATION CRITERIA, SEARCHING FOR TENDER DOCUMENTS, PREPARATION OF BIDS, SUBMISSION OF BIDS.** - **EXHIBIT P4 NIL. EXHIBIT P4(A) THE TRUE COPY OF THE ANNEXURE A TERMS AND CONDITIONS.** - **EXHIBIT P4(B) THE TRUE COPY OF THE ANNEXURE B DECLARATION.** - **EXHIBIT P4(C) THE TRUE COPY OF THE ANNEXURE C PROFORMA FOR TECHNICAL BID.** - **EXHIBIT P4(D) THE TRUE COPY OF THE ANNEXURE D PROFORMA FOR FINANCIAL BID.** - **EXHIBIT P4(E) THE TRUE COPY OF THE ANNEXURE E SELFDECLARATION-NON BLACKLISTING.** - **EXHIBIT P5 THE TRUE COPY OF THE ONLINE BID ACKNOWLEDGEMENT ISSUED BY THE 1ST RESPONDENT DATED 25.1.2021.** - **EXHIBIT P6 THE TRUE COPY OF THE DEMAND DRAFT** **WP(C).No.2531 OF 2021(N)** 13 **DRAWN ON INDIAN OVERSEAS BANK FOR AN AMOUNT OF RS.1,72,000/- (ONE LAKH SEVENTY-TWO THOUSAND).** **EXHIBIT P7 THE TRUE COPY OF EMAIL DATED 22.1.2021 SENT BY THE 2ND RESPONDENT TO THE PETITIONER.** ## **RESPONDENTS' EXHIBITS:** **ANN.A THE BIRTH CERTIFICATE OF 1ST APPLICANT ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS, PERINTHALMANNA MUNICIPALITY, DATED 29.08.2000** **ANN.B THE BIRTH CERTIFICATE OF ARCHANA T, THE 2ND APPLICANT/3RD RESPONDENT IN THE APPEAL ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS, PERINTHALMANNA MUNICIPALITY, DATED 06.09.2000.**