IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1696 of 2011 Hema Pant and others ….. Petitioners Versus State of Uttarakhand and others ..… Respondents Hon’ble Tarun Agarwala, J. Heard Shri Sharad Sharma, the learned Senior Counsel assisted by Shri Yogesh Pandey, the learned counsel for the petitioners, Shri Ashish Joshi, the learned counsel for the Nagar Nigam, Haldwani and Shri H.M. Raturi, the learned Standing Counsel for the State. Nagar Palika Parishad, Haldwani, District Nainital issued an advertisement dated 20th July, 2011 inviting tenders for allotment of 35 shops on rent on a premium. On 21st July, the Nagar Parishad was upgraded to Nagar Nigam and the District Magistrate was appointed as the Administrator. On taking charge, the Nagar Nigam issued a corrigendum dated 24th July, 2011 extending the last date for submission of the tender form till 1st August, 2011 and also indicated that the tenders would be opened on 2nd August, 2011 and that the terms and conditions of the tender remained the same as per the advertisement dated 25th July, 2011. It transpires that the Administrator issued an order dated 25th July, 2011 constituting a Committee to oversee the tender process. It has come on record that the Nagar Nigam received 210 tenders. On 2nd August, 2011, these 210 tenders were opened in the presence of government officials as well as the tenderers. The Committee, after opening the tenders, found that out of 210 tenders, 131 tenders were rejected as they did not fulfill condition No.15 of the tender notice. The Committee also found that 77 tenders were valid. The Committee instead of finalising the tenders, submitted a report dated 2nd August, 2011 to the 2 Administrator recommending the cancellation of the tender process on the ground that the period for submitting the tender alongwith the certificates, namely, the permanent resident certificate and character certificate issued by the competent authority was very short on the ground of which many of the tenders were rejected in which it was stated that they may be given two weeks time to submit the certificates. The Committee found that condition No. 15 of the tender notice which stipulated that permanent resident certificate and character certificate should be issued by the competent authority was vague and that the tender notice should specify precisely as to who is the competent authority in as much as the Committee found that many of the certificates were either notarised or certified by the gazetted officers. The Committee further found that some of the rates quoted in the applications, which were rejected, quoted a higher price and, consequently, felt that if the tender process was finalised, the Nagar Nigam would be put to a loss of more than Rs. 20 lacs. On the basis of the recommendation, it transpires that the Administrator, by an order dated 4th August, 2011, cancelled the tender process and directed that fresh tender process be issued after removing the anomalies as pointed by the Committee. It transpires that fresh advertisement dated 6th August, 2011 was issued indicating that 20/08/2011 would be the last date for submission of the forms and condition No. 18 specified the competent authority whose certificates were to be submitted. In the new advertisement, it was also indicated that the financial bid would be kept in a separate cover. The petitioners, whose tenders were found to be valid, being aggrieved by the cancellation of the tender notice dated 20th July, 2011 as modified by the corrigendum dated 24th July, 2011, 3 has filed the present writ petition and also prayed that the fresh advertisement dated 6th August, 2011 should also be quashed. The learned Senior Counsel submitted that the terms and conditions mentioned in the tender was common to all and, condition No. 15 clearly indicated that the permanent resident certificate issued by the competent authority was required to be filed alongwith the application. Since the same was not done, 131 tender applications were rightly rejected and that this could not be the ground for cancellation of the entire tender process when 77 persons had validly submitted the tender process. The learned counsel submitted that the action of the respondents in cancelling the tender process was made on vested grounds to include their favourites in the second round of the tendering process. The learned counsel further submitted that the contention that a short period was given which was against the tender process was immaterial in the light of the fact that 77 persons were able to submit the certificates in accordance with condition No.15. The learned counsel further submitted that pursuant to the tender notice being opened by the Committee, the price bid of the valid tenderers have been made known to all and, consequently, the petitioners are now being prejudiced by the action of the respondents in issuing a fresh tender notice. In the light of the above, the learned counsel submitted that the action of the respondents was wholly arbitrary. Having heard the learned counsel for the parties at some length, the Court finds that the action of the respondents in cancelling the tender notice dated 28th July, 2011, as modified by the notice dated 24th July, 2011, is neither arbitrary nor is malafide. The tender process was cancelled for valid and cogent reasons. The observation of the Committee that a short period was granted to the applicants for submission of the tender forms alongwith the requisite certificates as provided in condition No.15 4 appears to be genuine, especially, when the Committee found that out of 210 tenders more than half the tender forms were rejected on this ground itself. The Committee found that many of the applicants could not submit the certificates on the ground of paucity of time. It is a stark reality and it is known to all that issuance of a certificate from a Government Department goes through the usual red-tapism and certificates are issued after undergoing a process which takes time. Consequently, the defect that was pointed by the Committee was a valid ground for cancelling the tender process. In this regard, the contention of the learned counsel for the petitioners that the shorter period becomes immaterial because 77 forms were found to be valid is immaterial, inasmuch as, the defect pointed out by the committee was genuine. The underlying idea is to provide sufficient time to the public to respond to the advertisement. The contention that once the tender notice was opened, the price bid given by the petitioners become known to all which has led the petitioners to be at a disadvantage vis-à-vis with other applicants in the second round of the tendering process and this has prejudiced the petitioners. The contention that the highest bid has become known to all is patently erroneous. There is nothing on record to indicate that the petitioners’ bid were the highest. Further, the Nagar Nigam in paragraph 6 of their counter affidavit have categorically stated that the rates given by the tenders have not been disclosed to anyone and that the said tenders have now been kept in a sealed box. This fact asserted by the respondents in paragraph 6 of the counter affidavit have not been specifically denied in paragraph 7 of the rejoinder affidavit. There is another aspect of the matter. The court finds that initially the tender notice was defective. Only one form was invited which disclosed all the details including the price bid by the tenderers. Once, the tender was opened, the Committee came 5 to know about the price. This defect has been rectified in the new tender process which has been advertised in which it has been directed that the financial bids would be kept in a separate cover. In the light of the aforesaid, when the shops constructed by the Nagar Nigam are being allotted to the general public through a tender process, transparency on all force is required to be adhered. Once the Nagar Nigam realized the defect in the tender process, it rightly cancelled the tender process. The Court does not find any arbitrariness or malafide in the cancellation of the tender process. In the light of the aforesaid, the writ petition fails and is dismissed. Interim order, if any, is vacated. In the circumstances of the case, the parties shall bear their own cost. (Tarun Agarwala, J.) Dated 14th November, 2011 Shiv