Reserved Order IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1004 of 2009 (M/S) M/s Holostik India Ltd. (A company incorporated under the Companies Act, 1956), W-51, Sector 11, Noida-201301 (U.P.) through its Director, Ritesh Rupramka, S/O Sri Shiv Kumar Rupramka. …… Petitioner. Versus 1. State of Uttarakhand, through Secretary Excise, Government of Uttarakhand, Dehradun. 2. Excise Commissioner, Government of Uttarakhand, Dehradun. … Respondents. Sri M.C.Pande, Advocate, learned counsel for the petitioner. Sri K.P.Upadhyay, learned Additional C.S.C. for the respondents-State. Date November 26, 2009. Hon’ble B.S.Verma, J. Learned counsel for both the parties have agreed that this writ petition be disposed of finally at the admission stage. 2. I have heard learned counsel for the parties and perused the record.. 3. By means of this writ petition, the petitioner has sought for the following reliefs:- 1. Issue a writ, order or direction in the nature of mandamus by commanding the respondents to issue work order to the petitioner for supply of EAL hologram to the petitioner in pursuance of the tenders invited vide tender notice dated 06-03- 2009. 2. Issue a writ order or direction in the nature of certiorari quashing the re-tender notice dated 18-06-2009 published in Amar Ujala Dehradun edition dated 20-06-2009. 2 3. Issue a writ order or direction in the nature of mandamus commanding the respondents not to proceed as per the re-tender notice dated 18-06-2009 published in Amar Ujala Dehradun edition dated 20-06-2009. 4. Issue any other and further order as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case. 5. Award the cost of writ petition to the petitioner. 4. Relevant facts giving rise to the present petition, according to the petitioner, are that the petitioner is a company incorporated under the Companies Act 1956 having its registered office at 30/6, Devika Towers, Nehru Place, New Delhi-19 with marketing head office in many places in the country including Noida. Ritesh Rupramka is one of its Director having been authorized to file the writ petition. The petitioner company is engaged in manufacture of high security holograms and allied products. The company is having a fully integrated and modern manufacturing facility for production of security hologram and it provides practical solutions to the problems of document and brand protection to suit specific needs. 5. The Government of Uttarakhand invited tenders in March 2008 through advertisement, published in the Times of India for supply of high security Excise Adhesive Label (EAL for short) thereby the tenders were invited by 25-3-2008 by 11-00 a.m. The petitioner participated in the tender and, ultimately, the tender filed by the petitioner was accepted by the respondents for the year 2008 and 2009. The petitioner in paragraph 8 of the petition has alleged that it supplied the high-level security hologram (EAL) to the respondents to their satisfaction. The respondents again invited tenders for supply of EAL hologram for the year 2009-2010 on 18th February 2009. However, that tender was cancelled because size of the hologram was small. The respondent no. 2 subsequently invited 3 fresh tenders vide tender notice dated 6th March 2009 requiring the interested persons to submit their technical and price bid in two separate sealed envelops by 14-3-2009. A typed copy of the tender notice is enclosed as Annexure-3 to the petition. In compliance of the said tender notice dated 6th March 2009, five companies/firms submitted their tenders for supply of high security EAL, namely Holostik India Pvt. Ltd. i.e. the petitioner, Alpha Lazer Tech, Bajaj Holographic, Kanta Trackpack and Gopsons Paper Pvt. Ltd. Out of the total five applicants, four technical bids were accepted and they were held technically qualified. As per condition no. 3 of the tender notice, the applicant should have necessary experience of supplying EAL to the Excise Department of any State and he should have obtained a certificate for satisfactory supply of EAL. The financial bid of the successful technical bidders was opened and the bid of the petitioner was found to be the lowest. The earnest money of the petitioner amounting to Rs. 5 lacs was retained and the lowest bid of the petitioner was deemed to be accepted. By letter dated 8th June 2009 of the respondent no. 2 (Annexure-5 to the petition) the petitioner was required to supply the EAL hologram to the excise department as per terms and conditions dated 26-5-2009 till 15-7-2009 and the petitioner company was required to follow the terms and conditions for the year 2008-2009. 6. According to the petitioner, the respondent no. 2 gave assurance to the petitioner that a written order is now a mere formality as for all the practical purposes the tender of the petitioner being the lowest one has been accepted and earnest money of all unsuccessful tenderers has been returned on the date of opening of financial bids. The petitioner was given an understanding that the delay is due to the official latches and the petitioner in good faith purchased required raw material for timely supply of EAL hologram investing substantial amount. 4 7. Subsequently, the respondents invited tender on 18-6- 2009 terming the same as re-tender without canceling the earlier tender or issuing any corrigendum duly accepted by the respondents by their deeds and acts. The respondent no. 2 has invited tenders by 7-7-2009 to be opened on the same day at 11-30 a.m. Copy of the tender notice dated 18-6-2009 is annexed as Annexure No. 6 to the petition. The condition no. 3 of the tender notice only required that tenderers should have experience of supplying of EAL hologram to any department or undertaking of the State/Centre Government along with certificate of satisfactory supply to that effect, while in the earlier tender notice dated 18-2-2009, condition no. 3 required experience of supply of EAL hologram to different department of the State Government for a period of three years along with certificate of satisfactory supply to that effect. 8. The grievance of the petitioner is that re-tender notice dated 18-6-2009 issued by the respondents without cancelling/revoking the previous tender is arbitrary, unreasonable, against all rules of fair play and in violation of principle of natural justice and the same cannot be sustained in the eye of law because no opportunity of hearing was given to the petitioner. 9. On behalf of the respondent no. 2, counter affidavit has been filed. It has been stated therein that as per excise policy of the State Government for the year 2009-2010 vide Notification dated 27-2-2009, adhesive labels with holograms were required to be affixed on the bottles of country-made liquor as well as foreign liquor. An advertisement no. 4732 dated 18-2-2009 was published in the newspaper and the tender was opened on 3-3-2009. Three tenderers, namely Holostik India Ltd. (petitioner), Kantas Traek Pack India Ltd. Noida U.P. and Gopsons Paper Ltd. submitted their financial/technical bids. On scrutiny, none of the tenderers qualified in the technical bid. Subsequently, vide advertisement dated 6-3-2009, fresh tenders were invited. The tenders could not 5 be opened on the date fixed, i.e. 14-3-2009 due to inevitable circumstances including model code of conduct during Lok Sabha elections and the date was deferred to 19-5-2009. As many as six tenderers participated for the contract under tender notice including the petitioner. It was found by the tender committee that the bid of Rs. 125-00 per thousand holograms offered by the petitioner was the lowest and the matter was referred to the Government for approval. It is stated in paragraph no. 6 of the counter affidavit that the Government vide letter dated 18-6-2008 pointed out that there was much difference between the financial bid of Rs. 125 per thousand holograms given by the petitioner to the Excise Department of the State of Uttarakhand and a financial bid of Rs. 54/- per thousand was given by the petitioner to the State of Delhi. Therefore, the Government decided to invite tenders afresh. The respondent no. 2 accordingly started the process of re-tendering. It is also stated that one of the participants in the tender namely M/s Gopsons Paper Ltd. made a complaint to the Government on 27-5- 2009 alleging therein that the bids offered by the petitioner were unusually high. The Government after verifying the same from the State of Delhi issued the direction to invite fresh tenders. 10. In reply to the contents of paragraph no. 5 to the writ petition, wherein the petitioner has contended that the petitioner supplied high level security hologram to the respondents to their satisfaction, it is stated in paragraph no. 9 of the counter affidavit as under:- “9- That the contents of para 5 of the writ petition as stated are not admitted. In the year 2008-09 the petitioner also supplied defective holograms for which notices dated 24/2/2009, 24/3/2009 and 14/5/2009 were issued to the petitioner requiring it to replace the defective holograms with correct holograms or to compensate the concerned wholesalers. However, the petitioner has not yet rectified the said wrong. Copies of the aforesaid notices 6 dated 24/2/2009, 24/3/2009 and 14/5/2009 are being jointly filed herewith and marked as Annexure No. C.A.-4 to this affidavit. Moreover, for failure to supply holograms in time to the concerned wholesalers the petitioner was issued a show cause notice vide a letter dated 18/6/2009. The details of delay in supplying the holograms to the wholesale dealers of the country/foreign liquor and beer were also pointed out to the petitioner. A copy of the show cause notice dated 18/6/2009 is being filed herewith and marked as Annexure No. C.A.-5 to this affidavit. It is relevant to point out here that the petitioner vide its letter dated 20/6/2009 submitted reply to the show cause notice dated 18/6/2009. However, no explanation whatsoever was given for supplying defective holograms or for supplying the holograms quite belatedly. From the petitioner’s reply itself it is clear that the petitioner accepted its mistakes. For ready reference a copy of the petitioner’s reply dated 20/6/2009 is being filed herewith and marked as Annexure No. C.A.-6 to this affidavit.” 11. It paragraph no. 12 of the counter affidavit, it has been categorically stated that the bid of the petitioner being the lowest was referred to the Government for approval but the bid was not at all accepted by the respondents. 12. In paragraph no. 16 of the counter affidavit, which is in reply of para 14 of the petition, it is stated that by modifying the condition no. 3 of the tender notice the tender process was made open for more participants and there was no infirmity in the modified condition. It is also stated that it is incorrect and misleading on the part of the petitioner to state that the advertisement dated 18-6-2009 was published only in a local paper. The advertisement was published in Amar Ujala, Dainik Jagran and Rastriya Sahara. The information was given in the internet also. 7 13. In paragraph no. 17 and 18 of the counter affidavit it has been stated that the petitioner has already participated in terms of the tender notice dated 18-6-2009 and it is not open to the petitioner to challenge the said re-tender. 14. Rejoinder affidavit has been filed on behalf of the petitioner and only the averments made in the writ petition have been reiterated. The reply given in the rejoinder affidavit is general and not specific. The petitioner has not given any reply of the assertions made by the respondent no. 2 in paragraph no. 17 and 18 of the counter affidavit, rather the petitioner has not admitted the contents thereof. 15. Before entering into further discussion in the petition, a reference to the admitted facts of the writ petition are necessary. 16. Admittedly, a tender notice was issued for supply of EAL holograms in the year 2008 for the year 2008 and 2009. The bid of the petitioner having been found to be the lowest, the contract was given in favour of the petitioner. It is also not disputed that for supply of EAL holograms for the year 2009-2010, tender notice was issued on 18th February 2009, but this tender was cancelled because when the tenders were opened, it was found that none of the bidders could fulfill the conditions regarding the technical bid. It is also admitted that the respondent no. 2 invited fresh tenders vide tender notice dated 6th March 2009 wherein as many as five firms had participated in submitting their tenders as mentioned by the petitioner in paragraph 8 of the writ petition. It is also admitted that the bid of the petitioner was found to be the lowest one. The bid of the petitioner was referred to the State Government for consideration. Admittedly the bidders were required to deposit earnest money of Rs. Five lacs. Admittedly, the petitioner was allowed to continue supply of EAL holograms upto 15-7-2009. It is also admitted that the bid of the petitioner was not 8 approved/accepted. Admittedly, the respondents have issued a re- tender for supply of EAL holograms and the caption of the tender notice shows that it is a re-tender. The re-tender notice issued on 18-6-2009 has been annexed as Annexure-6 to the petition by the petitioner. It is also pertinent to note that when the re-tenders were invited, the petitioner had out of its own participated in the tender process without any demur or protest and submitted its bid to the respondents. Even no objection was preferred by the petitioner before the respondents. 17, In the light of the aforesaid admitted facts, the short controversy to be resolved in this petition is whether the petitioner can challenge the re-tender notice wherein the petitioner company had participated without any demur or protest. 18. In the course of arguments, learned counsel for the petitioner Sri M.C.Pande, Advocate, has vehemently argued that the re-tender issued by the Government in respect of the supply of EAL holograms utterly fails to satisfy the test of reasonableness, therefore, the re-tender being unconstitutional deserves to be quashed. It has also been urged that the terms and conditions of the tender under challenge do not indicate legal certainty, norms and benchmarks. The action of the part of the respondents is unequal and discriminatory. In support of his argument, the learned counsel for the petitioner has placed reliance in paragraph no. 38 of the case of Reliance Energy Ltd. and another Vs. Maharashtra State Road Development Corpn. Ltd. and others [(2007) 8 Supreme Court Cases, Page 1], wherein the Apex Court has observed as under:- “38. When tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. This “legal certainty” is an important aspect of the rule of law. If there is vagueness or subjectivity in the said norms it 9 may result in unequal and discriminatory treatment. It may violate doctrine of “legal playing field”.” 19. The ratio of the case-law cannot be disputed, but the facts of the case at hand are quite distinct, therefore, this case-law is of no avail to the petitioner. 20. Learned Additional Chief Standing Counsel appearing on behalf of the respondents has contended that the tender of the petitioner was not finally approved by the Government and after the re-tender notice was published in the newspaper, the petitioner had participated in the tender process and has already submitted his tender. The outcome of the tender is still awaited hence no prejudice was caused to the petitioner. Therefore, the petitioner is estopped from challenging the re-tender in which he had actually participated. 21. It is significant to mention here that the petitioner could not demonstrate before the Court that the bid offered by the petitioner had ever attained finality for a complete one year as provided in condition no. 8 of the tender notice. It is the own case of the petitioner that the contract was given to the petitioner for the financial year 2009-2010 for supply of EAL holograms upto 15-6- 2009 only. This period of contract for supply was extended for one month, i.e. for the period 16-6-2009 to 15-7-2009 as is obvious from a perusal of the order dated June 08, 2009 (Annexure-5 to the petition) whereby the petitioner was directed to supply the EAL holograms for the extended period. The intention of the Government of Uttarakhand was clear that the contract period of the petitioner was extended only upto the period 15-7-2009. 22. For the reasons and the discussion made in the foregoing paragraphs, I am of the view that no prejudice has been caused to the petitioner by inviting re-tender by the respondents 10 thereby extending scope of bids to larger sense. Moreover, the petitioner had participated in the tender process again without any demur or protest, therefore, it is not open to the petitioner to seek quashing of re-tender notice dated 18-6-2009. Since the petitioner had participated in the re-tender and the outcome of the re-tender process is still awaited, no legitimate grievance/prejudice has been caused to the petitioner. 23. The writ petition is devoid of any merit and is liable to be dismissed outright at the admission stage. 24. Accordingly, the writ petition is dismissed at the admission stage. No order as to costs. ( B.S.Verma, J. ) RCP 11 12 13 14 15