Allahabad, Aug 18 (ILNS) The Allahabad High Court, while dismissing a petition of a contractor who had challenged the bidding process, directed the contractors to proceed with the execution work in all earnestness and promptness so that pollution in river Gomti is controlled and abated, consequently pollution in river Ganga would also get abated, which is the main objective of ‘Namami Gange Mission, the court said.
The Division Bench of Justice Ritu Raj Awasthi and Justice Dinesh Kumar Singh on Tuesday, while hearing a petition filed by M/S Geo Miller & Co Pvt Ltd through its Director challenging the bidding process, referred to the Prime Minister Narendra Modi’s statement who after getting elected from Varanasi Parliamentary seat in May, 2014, had said, “it is my destiny to serve Maa Ganga”, and directed all the parties to make all efforts to revive the holy river and make it pollution-free.
The petition said that in 2014, the Government came out with a Flagship Programme ‘Namami Gange’, an Integrated Conservation Mission, to accomplish twin objectives of effective abatement of pollution, conservation and rejuvenation of National River ‘Ganga’. It is being operated under the Department of Water Resources, River Development and Ganga Rejuvenation, Ministry of Jal Shakti.
The programme is being implemented by the National Mission for Clean Ganga (NMCG), and its state counterpart organizations – State Programme Management Groups (SPMGs).
Several strategies are being evolved and implemented under the Mission to see that the river is rejuvenated and becomes pollution free. National Mission for Clean Ganga (NMCG) is the implementing agency of Namami Ganges Programme. NMCG is treated as an authority with statutory powers under the Environment Protection Act, 1986. It has been given bureaucratic autonomy and regulatory powers to execute the mission in coordination with respective State Governments.
River Gomti is one of the tributaries of river Ganga. River Gomti is highly polluted in Lucknow city and smells and looks like a big sewer drainage in City Lucknow. Untreated sewage and waste flows directly into river Gomti in Lucknow.
To make river Gomti clean, so that its flow into river Ganga is pollution-free, a tender for construction of sewerage network of STP (Lucknow) was sanctioned by NMCG in favour of U.P. State Ganga Conservation Programme Management Society, Government of U.P.
This Society is within the State Mission for clean Ganga, which is an executing arm of the State Ganga Committee, constituted vide notification dated October 7, 2016. The state mission for clean Ganga is an implementing agency for the project based on their proposal submitted to NMCG and sanctioned by the executing committee of NMCG, subject to several terms and conditions.
A total of eight bidders had applied for this project and one among them was M/S Geo Miller & Co. Pvt. Ltd (the petitioner).
Thereafter, since only one bidder was found to be eligible for the project (among a total of 8 bidders), thus, UP Jal Nigam, the Executing Agency (Namami Gange project) without taking approval from the NMCG, cancelled the tender, without assigning any reason.
However, having received representation from the non-selected bidders, NMCG instructed that U.P. Jal Nigam did not give effect to the cancellation order and the Project Director of U.P. Jal Nigam was directed to submit the technical evaluation reports of the bidders.
The NMCG reviewed the recommendation of the technical evaluation committee and evaluated the technical bids of all eight bidders including the petitioner’s bid and found two more bidders, besides the one already selected by UP Jal Nigam to be technically qualified.
The Petition has been filed by parties whose bid was not found responsive as having not met the technical qualification criteria, first by the Technical Evaluation Committee headed by the Chief Manager, secondly by Tender Sanction Committee headed by the Managing Director of U.P. Jal Nigam and, thirdly, the NMCG.
S.D. Singh, Counsel for the Petitioner submitted that once the decision was taken by the competent authority to cancel the tender, which was in fact cancelled vide corrigendum dated July 29, 2020, the same could not have been revived by NMCG and fresh bids ought to have been invited for implementing the project/scope of the tendering process.
He has further submitted that there was no authority vested in the NMCG to interfere with the tendering process or the decision taken by the owner i.e. U.P. Jal Nigam, which is defined under the tender document itself and, therefore, the decision of the NMCG to re-evaluate the technical bids of the tenderers was without jurisdiction.
Counsel for the Petitioner also submitted that after the tendering process was cancelled vide corrigendum dated July 29, 2020, the only course of action available to the owner was to commence fresh tendering process. There is nothing in the tendering document under which U.P. Jal Nigam is vested with the power to revoke the decision of canceling the tendering process and, therefore, decision to proceed with canceled tender, is totally illegal and contrary to the terms and conditions of the tender document itself.
With the cancellation of the tender, all the processes came to an end. U.P. Jal Nigam does not have any other option but to return the bids to all the bidders and invite fresh bids. Bids submitted in response to the tender which stood cancelled, could not be considered at all and all the bids technically become redundant and infructuous.
However, it has been stated the writ petition that for any reasons, if this court finds and arrives at a conclusion that the bids could have been opened and reconsidered even after corrigendum notice dated July 29, 2020, petitioner’s right needs to be protected and, the declaration of the petitioner as not being qualified is required to be quashed.
In view of the aforesaid submissions, he submitted that the decision to open the financial bids of three bidders and on that basis of Letter of Intent (LOI) dated September 17, 2020 issued in favour of respondents are illegal, arbitrary and in the teeth of the tender document itself and, therefore, the same is liable to be quashed and the executing agency be directed to adopt a fresh tendering process to finalize the work in favour of the successful bidder.
Raghvendra Singh, Advocate General appearing for respondents, U.P. Jal Nigam made preliminary submissions regarding maintainability of the writ petition on behalf of the petitioner and has submitted that the petitioner was not found eligible and technically qualified by the Technical Evaluation Committee and Tender Sanctioning Committee headed by the Chief Engineer and Managing Director.
Since, the Petitioner has not challenged its disqualification and, it appears that he would not have any objection if the tender was awarded to Ashoka Buildcon Pvt. Ltd., the only bidder, which was found eligible by the Tender Sanctioning Committee headed by the Managing Director, he is not entitled to challenge the decision of the NMCG for qualifying two more bidders and directing respondent No.1 to open and evaluate financial bids of technically qualified bidders. Once the petitioner has not challenged its disqualification, the writ petition on its behalf for finalizing the tender in favour of respondent No.4 and issuing LOI. in its favour is not maintainable, the court held.
Advocate General further submitted that once the petitioner has not challenged his disqualification, he cannot be said to be a ‘person aggrieved’ to maintain the writ petition under Article 226 of the Constitution of India. The petitioner is not prejudiced in any manner inasmuch as he has not been found technically qualified. The ‘person aggrieved’ is one who has suffered some legal injury and only such a person would have the right to approach the Court.
Raghvendra Singh, Advocate General has also submitted that in commercial matters even if some defects are found in decision making process, the Court should exercise its jurisdiction under Article 226 of the Constitution of India only in furtherance of public interest.
Advocate General said that the present work is of very large public interest inasmuch as untreated sewage, waste and drainage water is being flown into river Gomti, one of the main tributaries of river Ganga and the water of river Gomti is injurious not only to humans but also to biodiversity and, any delay would not only increase the cost but also to have adverse impact on the National Mission for Clean Ganga.
He has, therefore, submitted that looking at the large public and national interest involved and the fact that the delay would adversely affect the ambitious mission of clean Ganga and prevention of abatement of pollution in river Gomti, the Court may not interfere with the decision of the competent authority to award the contract in favour of the technically qualified bidder, which is just, fair and reasonable.
The Court observed that under the said Statutory notification itself, the NMCG is the ultimate authority to review, approve and monitor the overall execution and implementation of the tender in question. It is also empowered to give its observations before bidding and during implementation and the executing agency is obliged to comply with all such observations and directions.
The Court found force in the submission of J.N. Mathur, Senior Advocate appearing for respondents that vide notification dated October 07, 2016, NMCG has been vested with wide range of powers for issuing directions, which it may consider necessary for proper and prompt execution of the projects etc, and this power would include the power to issue directions to the executing agency i.e. U.P. Jal Nigam during the course of tendering process and, thereafter for proper implementation of the project.
Therefore, the Court did not find much substance in the submission of the Counsel for the petitioner that the NMCG does not have power to revive the tendering process, which was cancelled by U.P. Jal Nigam Corrigendum dated July 29, 2020 in as much as overall control and supervision is vested with the NMCG and even final contract is subject to the approval of the NMCG. We hold that the NMCG was well within the power to direct the U.P. Jal Nigam did not give effect to Corrigendum dated July 29, 2020 and further direction to open the financial bids of three technically qualified bidders and proceed with the tendering process.
“In this case, the Tender Evaluation Committee headed by the Chief Engineer found three bidders, out of eight bidders, technically qualified and they were held to be responsive bidders. However, Tender Sanctioning Committee headed by the Managing Director found only one bidder i.e. M/ s Ashoka Buildcon Ltd., technically qualified and had cancelled the bidding process by Corrigendum dated July 29, 2020 on the sole ground that only one bidder was found technically qualified.
In view of the aforesaid discussion, we hold that public interest would outweigh private interest of the petitioner, if any, and, therefore, this Court in exercising of its power of judicial review vested under Article 226 of the Constitution of India, would not like to interfere with the award of contract which has huge public importance”, the court observed.
Thus, considering the facts and circumstances of the case and submissions of the counsel for the petitioner and respondents, we do not find any ground to interfere with the tendering process and award of contract, the Court said.
The Court while dismissing the petition, directed the respondents to proceed with the execution of the work in all earnestness and promptness so that pollution in river Gomti is controlled and abated, consequently pollution in river Ganga would also get abated, which is the main objective of ‘Namami Gange Mission.”
The bench said, River Ganges is the lifeline of India because it provides water to 40 percent of India’s population. It is a source of irrigation for a wide variety of crops. Its basin has fertile soil that largely influences the agricultural economies of India and the neighbouring country of Bangladesh. It also supports fishing industries, making it an agricultural and professional necessity for the livelihood of Indians.
Despite being the lifeline of nation, having been worshiped, providing sustenance to a large population, over the time the river has become highly polluted, it added.
The Court noted that industrial practices, population growth and harmful religious activities are plausibly responsible for high level pollution of the river. Tanneries, Chemical plants, Textile mills, distilleries, slaughter houses etc., along with rivers dumping their untreated and intoxicated water into the river are responsible for very high pollution and for poor health of river Ganga. Its water contains high levels of intoxicated substances like Chromium Sulphate, Arsenic, Cadmium, Mercury and Sulphuric Acid.