Gauhati High Court
Page No.# 1/19 vs The State Of Assam And 2 Ors on 31 May, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/19
GAHC010128122021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4106/2021
M/S SAPTARSHI INDUSTRIES AND ANR
HAVING ITS REGISTERED OFFICE AT HOUSE NO. 20, J.B LANE,
JORPUKHURI (EAST) UZANBAZAR, GUWAHATI 781001, REPRESENTED BY
ITS PROPRIETOR SMTI RINA SARKAR,
2: SMTI RINA SARKAR
W/O LATE RAMENDRA SARKAR
RESIDENT OF HOUSE NO. 20
J.B LANE
JORPUKHURI (EAST) UZANBAZAR
GUWAHATI 78100
VERSUS
THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM, SOCIAL WELFARE DEPARTMENT, DISPUR GUWAHATI 06
2:THE DIRECTOR
SOCIAL WELFARE ASSAM
UZAN BAZAR
GUWAHATI 01
3:MAFATLAL INDUSTRIES LTD.
HAVING ITS REGD. OFFICE AT MAFATLAL HOUSE
5TH FLOOR
H.T. PAREKH MARG
MUMBAI- 20
REP. BY ITS AUTHORISED REPRESENTATIVE SHRI AKASH DHURI
R/O- A/204
SAKAI MAULI CHS LTD.
SAKAI NAGAR
Page No.# 2/19
NAIGAON WEST
VILL.- UMELA
DIST.- PALGHAR
MAHARASHTRA
PIN- 401202
Advocate for the Petitioner : MR. K P PATHAK
Advocate for the Respondent : GA, ASSAM
Linked Case : WP(C)/4342/2021
M/S SAPTARSHI INDUSTRIES AND ANR.
HAVING ITS REGISTERED OFFICE AT HOUSE NO. 20 J.B LANE
JORPUKHURI (EAST) UZANBAZAR
GUWAHATI 781001
REPRESENTED BY ITS PROPRIETOR SMTI RINA SARKAR
2: SMTI RINA SARKAR
E/O LATE RAMENDRA SARKAR
HOUSE NO. 20 J.B LANE
JORPUKHURI (EAST) UZANBAZAR
GUWAHATI 781001
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
SOCIAL WELFARE DEPARTMENT
DISPUR GUWAHATI 06
2:THE SECRETARY
MINISTRY OF WOMEN AND CHILD DEVELOPMENT
GOVT. OF INDIA
SHASTRI BHAWAN
NEW DELHI 110001
3:THE DIRECTOR
SOCIAL WELFARE ASSAM
UZAN BAZAR
GUWAHATI 01
4:STATE PROJECT DIRECTOR
Page No.# 3/19
POSHAN ABHIYAN
ASSAM
SARUMOTORIA
ZAKIR HUSSAIN PATH
BYE LANE 11
HENGRABARI
GUWAHATI 781036
DIST KAMRUP (M) ASSAM
------------
Advocate for : MR. K P PATHAK Advocate for : ASSTT.S.G.I. appearing for THE STATE OF ASSAM AND 3 ORS.
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the petitioner: Mr. K.P. Pathak, Senior Advocate, Mr. A. Baruah, Adv. For the respondents: Mr. D. Mozumdar, Addl. A.G., Mr. K. Goswami, Addl. Sr. G.A. Date of hearing : 16.03.2022.
Date of judgment : 31.05.2022.
JUDGMENT AND ORDER
(C.A.V.)
Heard Mr. K.P. Pathak, learned Senior Counsel, assisted by Mr. A. Baruah, learned counsel for the petitioner. Also heard Mr. D. Mozumdar, learned Addl. Advocate General, assisted by Mr. K. Goswami, learned Addl. Senior Govt. Advocate for the State respondent nos. 1 to 4.
2) The petitioners in these two writ petitions are common.
a. In W.P.(C) 4106/2021, the petitioners have challenged the e-Tender notice for Supply of Uniform Chadar and Mekhela/ Sarees to the Page No.# 4/19 Anganwadi Workers and Helpers of Anganwadi Centres and Mini- Anganwadi Centres in Assam for the Financial Year 2021-22". Moreover, also in challenge is the Corrigendum dated 10.08.2021, by which Qualification Criteria Point No. 8 in Section 1-A NIT dated 09.08.2021, was substituted.
b. In W.P.(C) 4106/2021, the following prayers have been made, viz., (a) to set aside and quash the conditions at clause no. 1, 7, 8 and 13 of Sl. No. 1 relating to eligibility of bidders qualification criteria as prescribed in Section 1-A in the NIT dated 09.08.2021 and the corrigendum dated 10.08.2021 issued by the Director, Social Welfare, Assam; (b) for directing the state respondents to forthwith cancel/ recall/ rescind and/or otherwise forebear from giving effect to the said clause no. 1, 7, 8 and 13 of Sl. No. 1 of Section 1-A of the said NIT and corrigendum; (c) for directing the respondent authorities, more particularly the respondent no. 2 to consider the representation dated 12.08.2021 submitted by the petitioners; (d) directing the respondents to suitably amend the impugned qualification criteria of the said NIT and corrigendum, enabling the petitioners to participate in the tender process.
c. In W.P.(C) 4342/2021, the petitioners have challenged the NIT dated 10.08.2021, being "e-Tender notice for Supply of Two additional sets of Sarees/Local Dress for Anganwadi Workers and Helpers under POSHAN Abhiyaan for the Financial Year 2020-21".
Page No.# 5/19 d. The following prayers have been made in W.P.(C) 4342/2021, viz., (a) to set aside and quash the conditions at clause no. 1, 7, 8 and 13 of Sl. No. 1 relating to eligibility of bidders qualification criteria as prescribed in Section 1-A in the NIT dated 10.08.2021 issued by respondent no.4;
(b) for directing the State respondents to forthwith cancel/ recall/ rescind and/or otherwise forebear from giving effect to the said clause no. 1, 7, 8 and 13 of Sl. No. 1 of Section 1-A of the said NIT; (c) for directing the respondent authorities, more particularly the respondent no. 4 to consider the representation dated 17.08.2021 submitted by the petitioners; (d) directing the respondents to suitably amend the impugned qualification criteria of the said NIT, enabling the petitioners to participate in the tender process.
3) The petitioner no.1 in both the writ petitions is the registered small scale industries unit and government supplier, who claims to have successfully supplied uniforms for schools and Anganwadi Centers including supply of uniform Chadar and Mekhela under the Directorate of Social Welfare Assam for the year 2017-18 and 2018-19. The petitioner no. 2 is the proprietor of petitioner no. 1 firm.
4) The learned Senior Counsel for the petitioners has submitted that the petitioner no. 2 had come across the said two NITs, dated 09.08.2021 and 10.08.2021. The "e-Tender notice for Supply of Uniform Chadar and Mekhela/ Sarees to the Anganwadi Workers and Helpers of Anganwadi Centres and Mini- Anganwadi Centres in Assam for the Financial Year 2021-22", bearing Tender No. DSW(ICDS)G/96/2021/19 dated 09.08.2021, as well as the Corrigendum dated 10.08.2021, were both issued by the Director of Social Page No.# 6/19 Welfare, Assam.
5) The e-Tender for supply of two additional sets of uniforms for Anganwadi workers and Anganwadi helpers under POSHAN Abhiyaan, Assam for the financial year 2020-2021 bearing no. SPMU(POSHAN)/IEC Procurement/ 72/2020/34 dated 10.08.2021 issued by the Social Welfare Department through the State Project Director, POSHAN Abhiyaan, Assam.
6) It is submitted that the relevant clause nos. 1 (1, 7, 8 and 13) of Section 1-A, relating to the qualification criteria of NIT dated 09.08.2021 and 10.08.2021, are irrational, unreasonable, arbitrary and discriminatory. The said clauses are extracted below:
"1(1). Bidder must be a textile manufacturer who are having their own in- house facility for spinning, weaving & processing located in India under one unit/PAN card. The Bidders must have processing capacity of 1,00,000 meter per date.
Valid copy of the SIA Certificate issued by the Ministry of Commerce & Industries must be submitted. The certificate must clearly indicate the Spinning, Weaving & Processing facilities are under one Unit/ PAN card.
1(7). Bidder should have average turnover of Rs.300.00 lakh during the last three financial years i.e. 2018-19, 2019-20 & 2020-21. Proof of same to be submitted.
1(8). Bidder must enclose proof of Past Performance for supply of uniform saree only to any Govt. Department in any one year during past four years before the bid opening date along with the Govt. order copy for minimum of Rs.3.20 crores (approximately 40% of the tender value) (prescribed format in Annexure-C). Proof of same to be submitted.
1(13). Bidder must enclose a certificate from the bidder's banker or registered Chartered Accountant (CA) stating therein that the bidder has achieved a minimum sales turnover equivalent to tender value for any one financial year out of the last three financial years i.e. 2018-19, 2019-20 & 2020-21. Proof of same to be submitted."
Page No.# 7/19
7) The learned Senior Counsel for the petitioners has submitted that the items which are required to be supplied under the said NIT were Chadars, Mekhela, Dokhona, Pekok. In this regard, it has been submitted that the said items, i.e. Chadars, Mekhela, Dokhona, Pekok, are all reserved for exclusive production by Handloom sector.
8) It has been submitted that to give effect to the provisions of Article 39(b) and 39(c) of the Constitution of India, the Parliament had enacted the Handlooms (Reservation of Articles for Production) Act, 1985 (hereinafter referred to as the 1985 Act). As per recommendation of the Advisory Committee constituted under Section 4 of the Act, by an order dated 11.03.1986, published in the Gazette of India in exercise of power conferred under sub-section (1) of section 3 of the 1985 Act, Chadar and Mekhela made in North East India, was included in serial no. 13, and reserved for exclusive production by handlooms. It was submitted that the said gazette notification was not superseded by any other order or notification and therefore, remains valid and enforceable. It was submitted that thereafter, by another similar order dated 26.07.1996, published in the Gazette of India, Chadar Mekhela of Assam, was reserved for exclusive production by handlooms. The said notification was superseded by order dated 03.09.2008, published in the Gazette of India, which included Chadar Mekhela at serial no. 11 of the said notification.
9) It was also submitted that the Mekhela Chadar of Assam is a product having 'geographical indication', which identifies goods originating in the territory of a member Country or a regional locality in that territory where a given quality, reputation or other characteristic of goods is essentially attributable to its geographical origin. It was submitted that the product Page No.# 8/19 Mekhela Chadar is not dependent on any particular fabric by which it is made and such product may be of Pat Silk, Mulberry Silk or Muga Silk, Eri Silk, Tasar, Ghisa, or polyester fabric, etc. To explain the definition of geographical indication, the provisions of Section 1(1)(c) of the Geographical Indication of Goods (Registration and Protection) Act, 1999 was referred to. The learned senior counsel had also referred to the literature of the Cell for Intellectual Property Rights Promotion and Management, Department of Industrial Policy and Promotion, Government of India on geographical indication. The learned senior counsel for the petitioners has also referred to the New Textile Policy of the Government of India, as well as on the Guidelines of the North Eastern Region Textile Promotion Scheme, which encouraged handloom sector. Accordingly, it was submitted that the Chadars, Mekhela, Dokhona, Pekok can only be manufactured exclusively in handloom sector and therefore, the eligibility criteria as mentioned in the NIT dated 10.08.2021 were irrational, arbitrary and not sustainable on facts and in law. On conclusion of oral submissions, a written synopsis of argument was handed over, after serving a copy thereof to the learned Addl. Advocate General of the State, which is retained on record.
10) It was submitted that after the enactment of the 1985 Act, power-loom sector had assailed the said enactment before several High Courts in the Country and eventually all the writ petitions were transferred to the Supreme Court of India and by judgment dated 05.02.1993, those writ petitions were dismissed. Thus, it was submitted that the reservation made in favour of Mekhela Chadar for handloom sector vide order dated 11.03.1986, as published in the Gazette, and for Chadars, Mekhela, Dokhona, Pekok, as notified separately, had attained finality.
Page No.# 9/19
11) In support of his submission, the learned Senior Counsel for the petitioner has referred to the case of Parvej Aktar & Ors. Vs. Union of India & Ors., (1993) 2 SCC 221.
12) Per contra, the learned Addl. Advocate General has submitted that it is the prerogative of the Government to set up such terms and conditions of tender, as it deems appropriate so as to secure the interest of the State. Therefore, this Constitutional Court, while exercising jurisdiction under Article 226 of the Constitution of India, may not like to sit as an appellate authority for scrutinizing the various terms and conditions. By referring to the NIT conditions, it was submitted that the estimated value of tender was Rs.9.87 crore approximately and therefore, the requirement of the bidder to have a turnover of Rs.3.00 crore was not excessive. It is also submitted that there was no requirement that every tender of a particular class of goods, for all times to come, must have same terms and conditions for bidding, and that there could not be any departure if the materials sought to be procured was the same/ similar. It was also submitted that the NIT dated 10.08.2021 was for supply of additional uniform Chadars, Mekhela, Dokhona, Pekok to Anganwadi workers and helpers for the financial year 2020-21 and because of the present challenge, there has been a delay in supplying uniform to the beneficiaries. It has been submitted that the tender conditions under challenge were fully justified so as to ensure that after awarding with the work, the successful bidder should not default in making timely supply. By referring to the Table appended to the NIT, relating to Specifications for supply of uniform Chadar and Mekhela/Saree for the Anganwadi Workers and Anganwadi Helpers, it was submitted that in respect of (1) Chadar for Anganwadi Workers, (2) Chadar for Page No.# 10/19 Anganwadi Helpers, (3) Mekhela for Anganwadi Workers, (4) Mekhela for Anganwadi Workers, the fabric prescribed was blend of cotton- 70% and Polyester- 30%. Accordingly, by referring to the Column-3 of the Table appended to the order dated 03.09.2008, published in the Gazette of India, which was relied upon by the learned senior counsel for the petitioners, it was submitted that the prescribed "range reserved for exclusive production by handlooms" in respect of Chadars, Mekhela, Phanek and Dokhona, was if it was manufactured from "cotton yarn or silk yarn or art silk yarn or in any combination thereof, woven in plain or twill weave with check or stripe design irrespective of count and dimensions and is characterised by a border and/or cross border with extra warp and/or extra weft design and includes Dokhona, Danka, Khamlet, Phanek of Assam". Accordingly, it was submitted that the class of Chadars, Mekhela, Dokhona, Pekok, for which the NIT was floated was of a distinct fabric and therefore, not covered by the order dated 03.09.2008, issued under sub-section (1) of section 3 of 1985 Act, which was published in Gazette of India.
13) In support of his submission, the learned Addl. Advocate General has placed reliance on the case of Union of India & Ors. v. Diljeet Singh & Ors., (1999) 2 SCC 672.
14) It is seen that the case of the petitioners is that the goods, i.e. Chadars, Mekhela, Dokhona, Pekok, are reserved for exclusive production by handloom sector. However, the clause nos. 1 (1, 7, 8 and 13) of Section 1-A relating to qualification criteria of the impugned (i) NIT dated 09.08.2021; (ii) substituted clause 1(8) of the corrigendum dated 10.08.2021; (iii) and NIT dated 10.08.2021, could not apply on handloom sector. Therefore, it was Page No.# 11/19 submitted that with such clauses in the NIT, only large scale industrial unit could only participate in those tenders.
15) The relevant clause 1 (1, 7, 8 and 13) of Section 1-A relating to qualification criteria as provided in NIT dated 09.08.2021, amended clause 1(8) of the corrigendum dated 10.08.2021 and NIT dated 10.08.2021 are as follows:
"1(1). Bidder must be a textile manufacturers who are having their own in-house facility for spinning, weaving & processing located in India under one unit/PAN card. The Bidders must have processing capacity of 1,00,000 meter per date.
Valid copy of the SIA Certificate issued by the Ministry of Commerce & Industries must be submitted. The certificate must clearly indicate the Spinning, Weaving & Processing facilities are under one Unit/ PAN card.
1(7). Bidder should have average turnover of Rs.300.00 lakh during the last three financial years i.e. 2018-19, 2019-20 & 2020-21. Proof of same to be submitted.
1(8). Bidder must enclose proof of Past Performance for supply of uniform saree only to any Govt. Department in any one year during past four years before the bid opening date along with the Govt. order copy for minimum of Rs.3.20 crores (approximately 40% of the tender value) (prescribed format in Annexure-C). Proof of same to be submitted.
1(13). Bidder must enclose a certificate from the bidder's banker or registered Chartered Accountant (CA) stating therein that the bidder has achieved a minimum sales turnover equivalent to tender value for any one financial year out of the last three financial years i.e. 2018-19, 2019-20 & 2020-21. Proof of same to be submitted."
Corrigendum dated 10.08.2021. In Section 1-A, Qualification Criteria- Point No. 8 at Page No. 4 of tender Booklet may be read as: Bidder must enclose proof of Past Performance for supply of uniform Saree/ Chader and Mekhela only to any Govt. Department in any one year during past four year before the bid opening date along with the Govt. Order Copy for minimum of Rs.3.20 crores (approximately 40% of the tender value) (prescribed format in Annexure-C). Proof of same to be submitted.
Page No.# 12/19 NIT dated 10.08.2021. 1(8). Bidder must enclose proof of Past Performance for supply of uniform, only to any Govt. Department in any one year during past four years before the bid opening date along with the Govt. order copy for minimum of Rs.4 crores (approximately 40% of the tender value) (prescribed format in Annexure-C). Proof of same to be submitted."
16) Three points arise for determination in this case. The first point is whether the order dated 11.03.1986, issued in exercise of powers conferred under sub-section (1) of section 3 of the 1985 Act, published in the Gazette of India is valid as on date. The second point is whether the Chadars, Mekhela, Dokhona, Pekok, which are the goods for which the impugned e-Tenders were called, are reserved for exclusive production by handloom sector. Third point is whether the petitioners are entitled to any relief as prayed for.
17) The first point as to whether the order dated 11.03.1986, issued in exercise of powers conferred under sub-section (1) of section 3 of the 1985 Act, published in the Gazette of India is valid as on date, has been taken up.
18) The learned Addl. Advocate General had referred to the case of L. Shankaraiah & Ors. v. Union of India & Ors., AIR 2005 AP 134, to show before the Court that the previous Government order bearing S.O. No. 99(E) was superseded by S.O. No. 459(E) dated 04.08.1986, after considering the recommendations made by the advisory committee, and to also show that the S.O. No. 459 was unsuccessfully challenged in Parvej Aktar case. In the case of Parvej Aktar (supra), in Para 1 thereof, it has been mentioned as follows:-
"1. The writ petition and the transferred cases challenge the validity of Handlooms (Reservation of Articles for Production) Act, 1985 (22 of 1985 (hereinafter referred to as the Act) and the order bearing No. DCP/BNP/1(2) 1986, dated August 4, 1986 issued under sub-section (1) of Section 3 of the Act. This Act is to provide for reservation of certain articles for exclusive production by handlooms and for matters connected therewith. On March 31, 1986, the Act came Page No.# 13/19 into force. Section 4 of the Act provides for constitution of an Advisory Committee to make recommendations to the central government to determine the nature of any article or class of articles that may be reserved for exclusive production by handlooms. On June 2, 1986, in exercise of the powers conferred under Section 4 of the Act, the central government constituted an Advisory Committee. The said Advisory Committee submitted its recommendations. After considering those recommendations the impugned order dated August 4, 1986 was issued directing certain articles/class of articles to be exclusively reserved for production by handlooms. It is this order which is attacked on the following grounds in all these cases.
19) Thus, in the first blush, it seems quite strange that when the previous order bearing no. S.O. 99(E) dated 11.03.1986, under the 1985 Act, being not superseded by the subsequent order dated 04.08.1986, was valid, why was the said previous order dated 11.03.1986 was not put to challenge before the Supreme Court of India.
20) However, the answer lies in the case of Diljeet Singh (supra), cited by the learned Addl. Advocate General. The relevant part of para-11 thereof is quoted below:-
"... It is true that where a subsequent order does not specifically supersede an earlier order but if both the orders relate to the same subject and are issued in exercise of the same power, statutory or otherwise, notwithstanding absence of specific words superseding earlier orders in the subsequent order, it can be inferred that the earlier notification has been impliedly superseded . ..."
21) Therefore, even if the contention of the learned senior counsel for the petitioners is accepted for the time- being that by none of the order(s) issued under sub-section (1) of section 3 of the 1985, the previous order bearing no. S.O. 99(E) dated 11.03.1986, issued under sub-section (1) of Page No.# 14/19 section 3 of the 1985 Act, was superseded. However, from the herein before quoted observation of the Supreme Court of India, in the case of Diljeet Singh (supra), coupled by the fact that in the case of Parvej Aktar (supra), there was no challenge to the said order bearing S.O. 99(E) dated 11.03.1986, the Court is inclined to infer that as the subsequent orders were issued in exercise of powers conferred under sub-section (1) of section 3 of the 1985 Act, the previous order dated 11.03.1986 has impliedly been superseded. The first point of determination is answered accordingly.
22) The second point of determination is taken up now.
23) At the outset, it would be appropriate to refer to the order bearing S.O. 99(E) dated 11.03.1986, wherein at entry no. 13 of the Table, in respect of Chaddar, the range reserved for exclusive production by handlooms is stated as follows - "Chaddar means any piece of cloth used for covering the body like shawl, woven with grey, bleached or coloured cotton or blended yarn which is also jointly characterised by the following:- (i) It is woven with check or stripped pattern. This will also include Mekhela or Phanek Chaddar produced with ornamental designs having border and cross border made in North East India."
24) We would now refer to the relevant entry no. 11 of the "Table", notified vide order bearing S.O. No. 2160(E) dated 03.09.2008, which was also issued in exercise of power conferred under sub-section (1) of section 3 of the 1985 Act. The relevant entry no. 11 is as follows:-
Sl. Article or class of articles Range reserved for exclusive production No. by handlooms.
Page No.# 15/19 11 Chaddar, Mekhela or Chadar, Mekhela or Phanek is used for Phanek covering lower and/or upper part of the body and is manufactured from cotton yarn or silk yarn or art silk yarn or in any combination thereof, woven in plain or twill weave with check or stripe design, irrespective of count and dimensions and is characterised by a border and/or cross border with extra warp and/or extra waft design and includes-
(i) Puan of Mizoram;
(ii) Dhara, Jainsem, Dakmanda, Daksari of Meghalaya;
(iii) Skirts and Odhana fabrics of Nagaland and Arunachal Pradesh;
(iv) Riha and Pachara of Tripura;
(v) Pawade (set) of Dhawani of Andhra Pradesh, Karnataka, Kerala, Tamil Nadu and Pondicherry; and
(vi) Dakhona, Danka, Khamlet, Phanek of Assam.
25) No document has been brought on record by the petitioners to show that the particular item "Pekok" , which was to be procured through the impugned NIT is same as Phanek, which is covered by the entry no. 11 of the herein before referred "Table". Be that as it may, the "range", as provided in the "table" appended to the "order" bearing S.O. No. 2160(E) dated 03.09.2008, does not include the specified variety of Chadars, Mekhela, Dokhona, Pekok, which are sought to be procured through the (i) NIT dated 09.08.2021, (ii) corrigendum dated 10.08.2021 to the NIT dated 09.08.2021, and (iii) NIT dated 10.08.2021, referred herein before. In this regard, it is reiterated at the cost of Page No.# 16/19 repetition that as per the said two impugned NITs and corrigendum, the fabric prescribed for Chadar for Anganwadi Workers, Chadar for Anganwadi Helpers, Mekhela for Anganwadi Workers, and Mekhela for Anganwadi Workers, was blend of cotton- 70% and Polyester- 30%. Thus, as polyester is not included in the "range" mentioned in the table referred to above, the goods, viz., Chadars, Mekhela, Dokhona, Pekok, for which the impugned e-Tenders were called, cannot be held to be reserved for exclusive production by handloom sector. The second point is answered accordingly.
26) The third point of determination is taken up now. 27) It may be mentioned that the learned senior counsel for the
petitioners had painstakingly explained the importance of Chadars, Mekhela, Dokhona, Pekok, in the yardstick of geographical indications. In this regard, it is seen from the 'table', appended to the "order" bearing S.O. No. 2160(E) dated 03.09.2008, that the said table, inclusive of 'range', does not indicate that any reference has been made to "geographical indication" in respect of the entry of such "goods". Moreover, the fact remains that in these two writ petitions, the Court is not called upon to decide on the basis of "geographical indication" as to whether or not the goods in question, i.e. Chadars, Mekhela, Dokhona, Pekok, can be manufactured outside the State of Assam, or whether there is any prohibition to use the name of Chadars, Mekhela, Dokhona, Pekok, if such goods has been manufactured outside the State of Assam. Therefore, in the absence of any prayer in the context of "geographical indications" in these two writ petitions, the said issue is left open to be decided in a more appropriate case.
28) It would be appropriate to quote paragraph 22 of the case of Page No.# 17/19 Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, which is quoted below:-
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. a contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power is judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interference, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone.
OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say : 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.'
ii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving black-listing or imposition of penal consequences on a tenderer/contractor or distribution of state largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
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29) Having regard to the first and second point of determination as decided herein before, the clause nos. 1(1, 7, 8 and 13) of Section 1-A of NIT dated 09.08.2021; corrigendum dated 10.08.2021 in respect of clause no. 1(8) of NIT dated 09.08.2021; and NIT dated 10.08.2021, cannot be said to be illegal, arbitrary or irrational or mala fide. It may be mentioned that the hereinbefore referred observation merely in case of Jagdish Mandal (supra) was relied upon and referred to in a recent judgment of the Supreme Court of India in the case of L.G. Projects Ltd. v. Vinod Kumar Jain (2022) 0 Supreme (SC) 246, Civil Appeal No. 1846/2022 decided on 21.03.2022.
30) We may also refer to the decision of the Supreme Court of India in the case of Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 wherein it was emphasized that the author of the document is the best person to understand and appreciate its requirement, further observing that it is possible that the owner or employer of the project may give an interpretation to the tender documents that is not acceptable to the Constitutional Courts but that by itself is not a reason for interfering with the interpretation given. In the case of Uflex Ltd. (supra), the observations made in paragraph 47 is quoted below:
"47. Insofar as the participating entities are concerned, it cannot be contended that all and sundry should be permitted to participate in matters of this nature. In fact, in every tender there are certain qualifying parameters whether it be technology or turnover. The Court cannot sit over in judgment on what should be the turnover required for an entity to participate. The prohibition arising from only a Limited company being permitted to participate was again addressed by the corrigendum permitting LLPs to participate. If entities like Kumbhat and Alpha want to participate they must take some necessary actions. Alpha is already an LLP. Kumbhat cannot insist that it will continue to be a Page No.# 19/19 partnership alone and, thus, that partnerships must necessarily be allowed to participate."
In view of above, the Court is of the considered opinion that the present challenge to (i) NIT bearing e-Tender No. NIT bearing e-Tender No. DSW(ICDS)G/96/2021/19 dated 09.08.2021; (ii) corrigendum bearing no. DSW(ICDS)G/96/2021/49 dated 10.08.2021; and (iii) NIT dated SPMU (POSHAN)/IEC Procurement/72/2020/34 dated 10.08.2021, fails and accordingly, these writ petitions stand dismissed, leaving the parties to bear their own cost.
JUDGE Comparing Assistant