KALYAN RAI SURANA,J. -
(1.) Heard Mr. T. Pertin, the learned Counsel for the petitioner. Also heard Mr. S. Soki, the learned Senior Govt. Advocate, State of Arunachal Pradesh, appearing for State respondents No.1 to 4 and Mr. N. Ratan, the learned Counsel appearing for the private respondent No.5.
(2.) The petitioner is an unsuccessful tenderer in NIT called for the work of "C/O All weather road from Nyorak PMGSY Road to Kodum Nikta CO HQ-10 KM". Hence, the petitioner has challenged the tender process by this application under Article 226 of the Constitution of India. This writ petition has been filed through an attorney.
(3.) The learned Counsel for the petitioner, by referring to the writ petition and affidavit-in-opposition (hereinafter referred to as 'A/O' for short) filed by the respondents, has made the following submissions:-
a. The tender was scheduled to be opened on 27.10.2017. On the same day, the authorities constituted a Board. No separate advertisement about the date of opening of tender in terms of clause 20.1.1 of the CPWD Manual.
b. For the purpose of opening the bids, the authorities did include any person outside of the State PWD, like Administrative Officer from Deputy Commissioner's Office or any other independent person for opening of tender and for evaluation of bids, as such, there was large scale manipulation in the tender process. It is mandatory to have independent persons present at the time of opening and scrutiny of bids, which is established by letter dated 21.11.2017, by which the PWD authority had requested the Deputy Commissioner to deploy a A.O. (Magistrate) for cross verification of documents.
c. The tender was evaluated on 27.10.2017, the date of opening and no result was declared on the said date. A RTI application submitted on 28.10.2017 remained un-responded to, which was to hide something, as such, the manipulation in the tender process cannot be ruled out. It is submitted that the State respondents did produce any record of minutes prepared on 27.10.2017 while opening the tender.
d. Two tenderers were allowed to inspect the tender papers submitted by one M/s. K.G.B. Enterprise. No other bids were allowed to be inspected. Thus, if the authorities could permit inspection of one bid, unless there was something to hide, inspection of all other tenders ought to have been allowed to the parties desiring inspection.
e. The reason for the rejection of technical bid of the petitioner was disclosed for the first time through the affidavit-in-opposition filed by the State Respondents. The rejection of technical bid was notified when bids were opened on 27.10.2017.
f. By disclosing the reasons for rejection of his tender on time, the State Respondents, in connivance with the private respondent No.5 had permitted the respondent No.5 to commence the work and now they would be taking a plea of public interest on commencement of the work.
g. The provisions of District Based Entrepreneur And Professionals (Incentives, Development And Promotion) Act, 2015 (hereinafter referred to as "DBEP Act, 2015)" provided that a bidder is eligible to bid if he has in hand more than two works at the relevant point of time. Accordingly, the said pre-condition was also prescribed in the tender. The Respondent No.5 had mentioned in his tender that he was having only two works in hand, being (i) C/O Road from Manmoa HQ to Phinbiro-1 (33.17 KM), Package No. AR/01/05/055; and (ii) C/O Motorable Bridge over Siyom River at Bene, C/O Steel Arch Bridge-96m span. However, the respondent No.5 had withheld that he was holding another contract work in hand, being (iii) C/O New Seppa Pakoli PWD Road to Hamba Pinda in East Kameng District. Thus, the respondent No.5 was disqualified to bid in the tender.
h. The aforesaid provisions of DBEP Act, 2005 would have disqualified the respondent No.5. Therefore, in order to overcome the aforesaid prohibition under DBEP Act, 2005, the PWD officials took a decision in connivance with the respondent No.5 that any bidder who had completed 90% of work would be deemed to have successfully completed the work. Thus, by deeming completion of work, the bid of the respondent No.5 was saved.
i. In the tender, the respondent No.5 had mentioned that he had only the work at Sl. No. (i) and (ii) mentioned in paragraph 3(h) above, but there was no mention of work at item Sl. No. (iii), which was surprisingly referred to in the A/O filed by the State Respondents. This only establishes connivance but also established that there was a deliberate attempt to bye-pass the DBEP Act, 2015.
j. In paragraph 16 to 19 of the writ petition, the details of documents have been pleaded to show that invalid documents were submitted by the respondent No.5 in his bid. But, no objection could be raised at the time of opening of tender because the PWD authorities did prepare any comparative statement at the time of opening of the tender bids. The petitioner had subsequently come to know about it only after true copy of the bid documents of respondent No.5 were provided on application filed under RTI Act. Thus, from the documents annexed to the A/O filed by the respondents, it was alleged that the documents were subsequently manufactured. Example was cited by referring to the description of vehicles given, it is projected that up-to-date tax receipts were submitted against such vehicles. The Registration Certificates submitted by the respondent No.5 in his bid reflected that the validity of the RC's had expired. Moreover, in the A/O filed by the State, a photograph of one Tractor bearing registration No. AS-05-AC-7640 was shown, but the bid documents did contain the documents of the said tractor.
k. It is projected that the petitioner had previously joined with one M/s. Siang Poultry, who had submitted RTI applications and had done correspondence with the authorities. Thereafter, along with the said party, the petitioner had filed W.P.(C) No. 142(AP)/2018, but due to some reasons, the petitioners had to withdraw the said writ petition. Now only the writ petition was prosecuting the matter alone in this writ petition. As such, the respondents have taken a defence that information was sought by others and by the petitioner, which could be a valid ground to contest this writ petition as the respondents had connived with each other and the entire process of tender was vitiated by mala fide. By referring to the case of Udar Gagan Properties Ltd. v. Sant Singh, (2016) 11 SCC 378: (2016) 0 Supreme(SC) 377 , the Hon'ble Supreme Court had, inter-alia, held that when it would be placing intolerable burden of proof of a just claim to require a party alleging mala fide action of State to aver in his petition and prove by positive evidence that a particular officer was responsible for misusing the authority for collateral purpose. Thus, it is submitted that in the present case as the petitioner had demonstrated how and why the action taken by the State was tainted by malice and mala fide. As such, his writ petition cannot be dismissed for want of impleading some officers against whom mala fide is alleged.
l. The entire tender process was an eye wash, and the process was designed to award the contract to the private respondent No.5, as such, the tender process was vitiated by fraud.;