Present:
(Hon. Mr. Justice Amitava Lala & Hon. Mr. Justice Vinay Kumar Mathur) Appearance:
For the Applicants/Petitioners : Mr. Vijay Singh, & Mr. Raj Kumar Dharma.
Amitava Lala, J.-- This review application has been made by the applicants, the petitioners in the writ petition, to review the order passed by this Bench on 01st November, 2011 in the aforesaid writ petition along with an application for condoning the delay occurred in filing the review application. The order dated 01st November, 2011 passed by this Court is as follows:
"The petitioners are bidders in connection with a contract between them and National Highway Authority of India Ltd. One of the conditions in connection with the acceptance of bid is that "Any bid having bid security for lesser value and shorter validity period shall be treated as non-responsive."
According to the petitioners, the earlier bank guarantee was for a shorter period which was subsequently extended and accepted by the authority concerned. Therefore, their financial bid is to be opened.
According to the respondents, incorrect period as fixed by the bank guarantee is one of the ground for non opening of the financial bid. It might be mistake or error but in the meantime, the bid of the other has already been accepted after opening and finalized. Even if the period of bank guarantee is extended to cover up the clause with validity period, the same cannot be accepted.
There is no legal enforceable right on the part of the petitioners in compelling the respondents to accept their bid for whatever reasons. Admittedly, the supporting documents of bank guarantee was incorrect which has been cured by that time when bid was opened. It would not be proper for us to interfere with the matter because legitimate expectation, if any, in favour of the petitioners may destroy the legitimate expectation of the successful bidder who is not before us.
Therefore, in totality, writ petition cannot be admitted and the same is dismissed, on contest, at the stage of admission without imposing any cost."
We find from the report of the Stamp Reporter that the review application is delayed by 42 days. The review application has not been made by the original counsel, who presented and argued the writ petition, but by the different Counsel.
From the plain reading of paragraph-9 of the affidavit filed in support of the review application, we find that one M/s. Vikas Enterprises filed a writ petition in connection with cancellation of tender process, being Civil Misc. Writ Petition No. 11719 of 2011 (M/s. Vikash Enterprises and another Vs. National Highway Authority of India and others), wherein a limited interim order was passed to the extent that it will be open to the respondents to proceed with the tender process, but not to declare the result till further orders are passed. Such interim order was passed on 25th February, 2011. As per the own statement of the applicants as made in paragraph-10 of the affidavit, such interim order was not extended by further order of this Court dated 09th March, 2011. For proper understanding, paragraphs-9 and 10 of the affidavit filed in support of the review application are quoted hereunder:
"9. That the M/S. Vikas Enterprises being aggrieved by the order of cancellation of the tender process by NHAI on 25.2.2011 has filed the Civil Misc. Writ Petition No. 11719 of 2011 before the Hon'ble High Court of Judicature at Allahabad. The Hon'ble High Court has given time to the respondents to file Counter Affidavit and in the meantime, it will be open to the respondents to proceed with the tender process, but not to declare the result till further orders of this Court.
A photocopy of order dated 25.2.2011 passed by this Hon'ble Court in Writ Petition No. 11719 of 2011 is being annexed herewith and marked as Annexure No. II to this Affidavit.
10. That the Hon'ble High Court on 9.3.2011 has passed the following order we do not find any good ground to extend the interim order dated 25.02.2011. It will be open to the NHAI to complete the tender process to declare the result. The result will however be subject to the final decision of the Writ Petition. List for hearing on 28.3.2011.
Photocopies of the order dated 1.3.2011, 3.3.2011, 8.3.2011, 9.3.2011 and 25.11.2011 is being collectively attached as Annexure No. III to this Affidavit."
It has further been contended by the applicants that pursuant to such order dated 09th March, 2011 the respondents issued an office order dated 25th March, 2011 intimating M/s. Vikas Enterprises and other participants including the applicants/ petitioners herein about the date of opening of financial bid on 06th April, 2011. It has been alleged that on that date i.e. 06th April, 2011 the respondents have completed the tender process and declared the result of the bid. It is also alleged that the bid of the applicants/petitioners herein was substantially responsive to the bidding documents and it has offered the lowest evaluated bid price. By means of this review application the applicants/petitioners have taken a ground that when the Court in the erstwhile writ petition i.e. Civil Misc. Writ Petition No. 11719 of 2011, has passed an order to the effect that it will be open to the authority to complete the tender process and declare the result, the result will, however, be subject to final decision of the writ petition. According to their own statement in paragraph-13 of the affidavit filed in support of the review application, such bid is subject to final decision of the said writ petition in view of the order dated 09th March, 2011 passed in such writ petition. Further stand of the applicants is that the respondent authority without taking into consideration the fact that a part of the present work is subject matter of such writ petition, which is pending before this Court, has re-invited the tender including the same work and also allotted to some other and hence, the respondents committed the grave illegality. The respondent authority hid such fact to take advantage before the writ Court in the present writ petition, in which the review application is made.
In any event, we find that the present writ petition was dismissed on contest at the stage of admission and being aggrieved and/or dissatisfied therewith, the applicants herein filed a special leave petition before the Supreme Court which was dismissed as withdrawn. However, they obtained a liberty to file a review application. But the Supreme Court had made it clear that no observation has been made with regard to merits of such review application, if any, filed before the High Court.
According to us, long standing practice of this High Court is that filing of review, recall, restoration applications etc. by the newly engaged counsel after passing the order, will be seriously noted. This is because of the reason that stand of one Advocate might be different from the other and the new argument might be developed by new counsel from different outlook. If it is allowed, then there would be no end of the litigation. Moreover, engagement of new counsel to make his argument raising a new ground in a different view, cannot be a valid ground for the purpose of review. Following such practice, the Stamp Reporter of this Court has submitted a report at the time of filing the review application. However, no explanation is available with regard to the same. The only explanation as given with regard to the condonation of delay is that as because the Supreme Court decided the matter on 29th November, 2011 directing to file the review application, therefore, there was delay on the part of the applicants/petitioners in filing the same. However, no new question of fact or law is available before us.
According to us, this is not such a case where the respondent has come forward with the plea that upon suppression of material facts from the Court about the pendency of a writ petition, the petitioner has obtained order. Here, the writ petitioners themselves filed the writ petition without making any statement with regard to previous writ petition, which fact has now been brought before us to suit the purpose. Even if such writ petition was filed by a different person, when cause of action is similar and in the knowledge of the applicants/petitioners, there should have been a statement with regard thereto. When the Rules of this Court prohibits multiplicity of proceedings if cause of action is similarly placed, the petitioners could have made an application for intervention or impleadment in the pending writ petition and obtain an order but not to file a separate writ petition. Therefore, the applicants have not come before the Court with clean hands at the time of making the writ petition but suppressed the material facts. When there was no interim order prevailing and when the financial bid was directed to be opened and when the petitioners' case being tenderer was within the four corners of such writ petition and when such Court said that result will, however, be subject to the final decision of the writ petition, it would have been appropriate for such writ petitioner to make an application in such pending writ petition. Conversely, if according to the applicants/petitioners, other part of the work is subject matter of the present writ petition, they can take advantage of any order of the other writ petition. Moreover, when, according to the applicants/petitioners, the same is a subject matter of different writ petition, it will not affect the right of the authority in calling for tender and select one of the tenderers. Lastly, a tenderer's right cannot be construed as legally enforceable right to compel the respondents to accept the bid. It is a question of legitimate expectation and such legitimate expectation is dependable upon facts and circumstances of each case unless the same is outcome of unfair-means or arbitrary and/or illegal action. We do not find any of such grounds for applying our mind. Therefore, there is no question of passing any affirmative order in the review application as against the reasoned order passed by this Court as on 01st November, 2011. Moreover, no explanation has been given in connection with the own statements made by the applicants/ petitioners in paragraphs 17, 18, 19 and 20 of the main writ petition. Such paragraphs are as follows:
"17. That clause-15 of I.T.B. Provides that bid should be valid for the period of 120 days from the last date of submission (i.e. 21.06.2011) and clause 16.2 provides that the validity period of the bid security is 45 days beyond the validity of the bids.
18. That it is apparent from the bid security/Bank Guarantee submitted by the petitioner the bid period was clearly mentioned as valid till 20.10.2011 (i.e. 120 days) and it was further provided in writing that "this guarantee will remain enforce up to and including the dated 45 days beyond the validity of the bid" but due to clerical mistake in the last line the date was mentioned as 20.11.2011 as per one month claim period instead of 45 days.
19. That the mistake was rectified and amended copy of bank guarantee was submitted.
20. That on account of the clerical mistake, which has already been rectified, the petitioner's bid cannot be treated as non-response."
Therefore, there is a clear admission on the part of the applicants/petitioners about their lapses in submitting the tender.
Hence, in totality we do not find any ground to pass any affirmative order within the limited scope of review. Thus, by allowing the application for condonation of delay, we dismiss the review application on merit.
However, no order is passed as to costs.
(Justice Amitava Lala) I agree.
(Justice Vinay Kumar Mathur) Dated: 03rd May, 2012.
SKT/-
Hon'ble Amitava Lala, J.
Hon'ble Vinay Kumar Mathur, J.
Under the authority of the Hon'ble Chief Justice additional cause list has been printed for the purpose of delivery of judgement and the same has been delivered at 2.00 P.M. in the Court upon notice to the parties.
The review application is dismissed, however, without imposing any cost.
Dt./- 03.05.2012.
SKT/-
For judgement and order, see order of the date passed on the separate sheets (six pages).
Dt./-03.05.2012.
SKT/-
Reserved Civil Misc. Delay Condonation Application No. 16460 of 2012.
In Civil Misc. Review Application No. 16463 of 2012.
In Civil Misc. Writ Petition No. 62150 of 2011.
M/s. Perfect Enterprises and another...... ........ Petitioners.
Versus National Highway Authority of India & another.....Respondents.
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Hon'ble Amitava Lala, J.
Hon'ble Vinay Kumar Mathur, J.
In view of the order of the date passed on Civil Misc. Review Application No. 16463 of 2012 filed in the aforesaid writ petition, the delay in filing the review application is condoned. The application for condonation of delay is allowed, however, without imposing any cost.
Dt./-03rd May, 2012.
SKT/-
For order, see order of the date passed on Civil Misc. Review Application No. 16463 of 2012 filed in Civil Misc. Writ Petition No. 62150 of 2011 (M/s. Perfect Enterprises and another Vs. National Highway Authority of India and another).
Dt./- 03rd May, 2012.
SKT/-