Calcutta High Court
Niranjan Nath vs State Of West Bengal And Ors. on 18 February, 1997
Equivalent citations: AIR1998CAL16, AIR 1998 CALCUTTA 16
ORDER Satyabrata Singh, J.
1. In the writ application the petitioner has prayed for the following relief's :--
"(a) A writ and/or order or orders and/or directions in the nature of a writ of mandamus directing the respondents their agents, subordinates, employees and/or transferees to issue tender form to the petitioner's firm and to permit the petitioner's firm to participate in tender of construction of 3rd Mahanada Bridge in terms of the Memo No. 440 dated 1 October, 1996 issued by the Superintending Engineer, P.W.D., Planning Circle the respondent No. 3;
(b) A Writ and/or order or orders and/or directions direction the respondents their agents, servants and subordinates directing them not to proceed with the process of tendering or accepting any tender from giving any work order to any tender or taking any further step pursuant to such acceptance of any lender :
(c) A Writ and/or order or orders and/or directions in the nature of a Writ of Certiorari directing the respondents to certify to this Hon'ble Court the record of the case leading to the issuance of the tender form in terms of the abridge notice issued under Memo No. 440 dated 1 October, 1996 by the Superintending Engineer, P.W.D., Planning Circle the respondent No. 3."
2. Bereft of all unnecessary details the fact of the matter is as follows :--
For construction of Third Mahananda Bridge in the district of Jalpaiguri measuring about 480 metres in length the Urban Development Department of the Government of West Bengal was granted a sum of Rs. 8 crores by way of Special Assistance Fund by the Planning Commission, Government of India subject to the following conditions :
"(i) the work will be a deposit work to P.W.D.
(ii) the time for completion of the work will be 30 months;
(iii) The works will be carried out by the Public Works Directorate, but the said directorate will not charge any agency charges as stipulated under the P.W.D. Code (11 %).
(iv) the work will commence by October, 1996 and to be completed in all respect by December, 1998."
3. It is stated that the said construction has to be completed within a time schedule failing which the entire additional cost has to be borne by the State of West Bengal.
4. On or about 1-10-1996 the Superintending Engineer, Public Works Directorate issued a notice for pre-qualification of the contractor for the work, the date of purchase whereof was fixed by 8-11-1996. The relevant clauses of the said documents read thus :--
"The prospective applicants should have executed similar nature of work worth at least Rs. 400 lakhs successfully during the last 5 years in a single contract. Cost of Pre-qualification document is Rs. 3000/- per set.
For further details, Superintending Engineer, P.W.D., Planning Circle, P-16, India Exchange Place Extn., C.I.T. Building (2nd floor), Calcutta -- 700 073, may be contacted between 11.00 a.m. to 2.00p.m. after 31-10-1996 and upto 8-11-1996."
5. According to the respondents the said contract involved specialised skill and, therefore, a decision had been taken to get the work done preferably by those who are experts in such works i.e. construction of pre-stressed concrete bridge worth at least Rs. 400 lakhs successfully during the last five years in a single contract. The job of evaluation of pre-qualification document was entrusted to three experts, namely, Chief Engineer, P.W.D.. Superintending Planning Engineer, P.W.D. and the Executive Engineer, Design Division No, 1. P.W.D.
6. The petitioner although had no experience in the said type of job he filed an application before the Chief Engineer and the said authority directed supplv of a tender paper. All the participants submitted their respective documents. The evaluation details of the pre-qualification documents were sub-divided into two groups, Schedule-A being the performance whereas the other qualifications were sub-divided into Schedules-B, C, D and E, being financial statement, personnel, plant equipment and relevant project, completed and all projects in progress in respect whereof 25 marks were allotted and the pass mark had been fixed at 30 out of 100.
7. As per documents submitted by the participants the following marks were obtained by the tenderers :--
Name of Contractors Schedule-A Schedule-B Schedule-C Schedule-D Schedule-E Total
1.
Madhumita Construction Pvt. Ltd.
US(x) 05 10 04 0 19
2. Mackintosh Burn Ltd.
HS(**) 20 25 25 12 82
3. National Building Con- struction Corpn. Ltd.
HS(**) 20 25 25 12 82
4. IRCON International Limi-ted.
HS(**) 20 25 25 25 95
5. Bridge & Roof Co. (I) Ltd.
HS(**) 20 25 75 23 93
6. Associated Contractors.
US(x) 02 09 04 00 15
7. Bharat Vanijya Eastern (P) Ltd.
MS(*) 07 14 07 03 31
8. Rajpath Contractors and Engineer Pvt. Ltd.
MS(*) 05 12 10 18 45
8. Mr. Balai Roy, the learned Counsel appearing on behalf of the petitioner submitted that it had fulfilled the criteria of one single work of Rs. 400 lakhs during the last five years as would be evident from the continuation sheets markedat 13-A and 14-A at pages 99 to 113 of the writ application. According to the petitioner as the work was completed on 30th September, 1991 and the notice having been issued on 1-10-1996, the.same would be within a period of five years.
9. It was further submitted that although Rajpath Contractors and Engineers Pvt. Ltd. had shown experience in constructing Dyke Bandh it must be held that it had no experience in relation to the contract in question but he was awarded 3 marks whereas the petitioner was awarded '0'. The learned Counsel submits that the petitioner apprehends that the said Rajpath Contractors and Engineer Pvt. Ltd. would be one of the contractors who may be awarded contract if matters are allowed to stand where they are today. He further submitted that Bharat Vanijya Eastern (P) Ltd. did not execute any single contract work for Rs. 4 crores during the last five years. It was further submitted that the system of marking is arbitrary, irrelevant, irrational and discriminatory as no guideline had been fixed therefor.
10. According to the learned Counsel Cement Concrete Bridge and pre-stressed concrete bridge differs only in one item of work and the word 'similar' must be held to be not synonymous with the word 'identical.' Reliance in this connection has been placed on Nat Steel Equipment Pvt. Ltd. v. Collector of Central Excise, . It was further submitted that as the persons who had no experience had been allowed to participate in the contract, the same must be held to be arbitrary and reliance in this connection has been placed in Ramana Dayaram Shetty v. International Airport Authority of India, .
11. Mr. Kar Gupta the learned Counsel appearing on behalf of the respondents submitted that it is not a case where this Court is concerned with the merit of the decision as tbe decision is yet to be arrived at. The learned Counsel submitted that the petitioner did not qualify and, thus he has no locus standi to maintain the writ application. The learned Counsel further submitted that there does not exist any arbitrariness in the decision-making process.
12. This Court's attention was further drawn to the fact that whereas at page 13-A of its tender document the petitioners submitted another document, along with the writ application he did not annex the same and replaced the same with another document and, thus, he is guilty of suppression of facts. Relying on the decision in Welcome Hotel v. State of Andhra Pradesh, , the learned Counsel submits that this writ application should be dismissed on that ground alone. It was further submitted that the Court is not concerned with the merit of the decision and in support of the aforementioned contention reliance has been placed in Tata Cellular v. Union of India, and in Deepak Builders v. State of Rajasthan, .
13. In the instant case on 1-10-1996 only a notice of pre-qualification of the contract of the work was issued whereas upon considering the tender submitted, notice inviting tender was issued on 18-12-1996. The Public Works Department examined and considered the pre-qualification documents. Out of the 8 participants 6 were found eligible for consideration as they obtained more than 30 out of 100 marks and the rest were disqualified, and the eligible contractors were intimated to purchase and to submit their tender papers by 22-1-1997 pursuant to the aforementioned NIT, dated 18-12-1996. Only 5 out of 6 contractors participated in the tender bids which were opened on 22-1-1997 in presence of all the tenderers. According to the respondents the petitioner does not possess any past experience in construction of pre-stressed concrete bridge project.
14. There cannot be any doubt whatsoever that the State as distributor of the largess and/or in the matter of awarding contract must act fairly and impartially. Although some play in the join must be given to the principal, it has to act within a particular limit and cannot act arbitrarily.
15. In Indian Hotels Company Ltd. v. Calcutta Municipal Corporation, Matter No. 3743 of 1994 disposed of on 27th February, 1995, it was held :--
"There cannot be any doubt that the public bodies are required to follow certain principles and guidelines for consideration and acceptance of Tenders. The Supreme Court of India in Ramana Dayaram Shetty v. International Airport Authority's case, observed, "it must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity the with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, licences etc., must be confirmed and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or form in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
16. It is well settled that "the Government is not like a private individual who can pick and choose the person with whom it will deal, but the Government is still a Government when it enters into a contract or when it is administering largesse and it cannot, without adequate reason, exclude any person from dealing with it or take away largesse arbitrarily." "The State need not enter into any contract with any one, but if it does so, it must do so fairly without discrimination and without unfair procedure." (See Harminder Singh v. Union of India, ). However, the extent of the duty to act fairly will vary from case to case. The concern of the Court in such matters are :--
(i) Whether a decision-making authority exceeded its power.
(ii) Committed an error of law.
(iii) Committed a breach of the rules of natural justice.
(iv) Reached a decision which no reasonable Tribunal would have reached.
(v) Abused its power."
17. It was further held :--
"In Sterling Computers v. M. & N. Publications, , the Supreme Court quoted extensively from Wade's Administrative Law and inter alia observed as follows :--
(i) It may not be always possible for a Government undertaking to act like a quasi judicial authority while awarding contracts.
(ii) The discretion has to be conceded to the authorities to have to enter into contract giving them liberty to assess overall situation for the purpose of taking a decision as to whom the contract awarded and what terms.
(iii) If the decision has been taken in a bona fide manner although without strictly following the norms laid down by Court, the same may not be interfered as the Court while judging the Constitutional validity of executive decisions must grant certain measure of freedom of 'play in the joints' to the executive."
The Supreme Court also observed (at Rule 55 of AIR) :--
"But in normal course, some rules must exist to regulate the selection of persons for awarding contracts. In such matters always adefence cannot be entertained that contract has been awarded without observing the well settled norms and rules prescribed, on the basis of the doctrine of "executive necessity". The norms and procedures prescribed by Government and indicated by Courts have to be more strictly followed while awarding contracts which have along with a commercial element a public purpose as in the present case. The publication of directories by the MTNL is not.just a commercial venture; the primary object is to provide service to the people."
18. The first question which arises for consideration in this application is as to whether the petitioner had a right to be considered. The document on which the petitioner relied upon, reads thus :--
"This is to certify that Associated Contractors of 72, Ashutosh Mukherjee Road, Subhas Pally, Siliguri, Dist. Darjeeling, was entrusted with the work.-- "Remaining Works of Barang Aqueduct at K.M. 27.90 of Mahananda Main Canal under Teesta Barrage Project, P.O.-Chopra, Dist. West Dinajpur." Tender No. being 36 of 1986-87 accepted by Superintending Engineer/Teesta Canal Circle. The work was satisfactorily completed on 30-9-91 within the extended time limit. The estimated value of the work done including supplementary and excess works is Rs. 4.15 crorcs as per schedule."
19. The certificate is somewhat vague as it does not state as to what exact works were done by the petitioner as the words used are "Remaining Works of Barang Aqueduct."
20. The petitioner, thus, cannot be said to have completed successfully similar nature of work during last five years as the petitioner had been awarded a contract in the year 1986-87 and the said contract had to be extended from time to time. Normally one year would indicate 'anniversary'. Be that as it may even assuming that the petitioner was entitled to be awarded a pre-qualification papers, he cannot make any grievance as regards thereto as he had been given the said document and he participated in the process.
21. According to the experts, he did not come out successful as the marks obtained by him would show that he is far behind the other contractors and, thus no tender paper was given to him.
22. The submission of Mr. Roy to the effect that the criteria fixed by the respondents arc arbitrary cannot be accepted. In my opinion al! the criteria appear to be a relevant criteria keeping in view the magnitude of the work and the other experiences.
23. In International Airport Authority's case (supra) , although tenders were invited from Class-I contractors, the tender of a Class-II contractor was accepted which was held to be in violation of the norms set out by the Principal and, thus, violative of Article 14 of the Constitution of India but despite the same the Supreme Court in view of passage of time refused to interfere in the matter. Such is not the position here. The decision to award contract is yet to be arrived at and the petitioner's apprehensions that Bharat Vanijya Eastern (P.) Ltd. may be awarded contract is based on surmises and conjectures.
24. It is true that the word 'similar' may not be synonymous with 'identical'. However, in Nat Steel Equipment Pvt. Ltd. v. Collector of Central Excise, , the fact of the matter was absolutely different. The Supreme Court in that case was considering a matter under Central Excises and Salt Act. In the matter of construction of a bridge, what sort of technicalities arc required is amatter of expertise, even lack of experience in one essential item may not amount lo doing a similar nature of job inasmuch as construction of a very long bridge over a river is a job of highly skilled nature and, thus it is for the experts alone who can determine what sort of job would fulfil its requirement.
25. In Welcome Hotel v. State of Andhra Pradesh, , the question which arose for consideration was as to whether the expression "food stuff included "cooked food" also. It was held to be so in view of the terminologies used therein. In that case the Supreme Court lamented the interim order passed by it in the following terms (at P. 1019) :--
"However, the entire notification fixing the price of the menu of the poormen was put under suspended animation leaving the hoteliers to extort any price to suit their greed. Now that we are dismissing these petitions and vacate the stay orders, the notification fixing the maximum prices will revive and can be enforced. But in the meantime the poor of Andhra Pradesh were made to pay by their nose for their simplest menu and the difference between maximum price fixed by the impugned notification and the prices charged by the hoteliers would be unjust enrichment of the hoteliers undeservedly enjoyed with the assistance of the Court by the exercise of the constitutional power under Article 32 of the Constitution, and there is no way of depriving this unjust enrichment. The Court set up for justice, including socio-economic justice unfortunately lent its assistance to such unjust enrichment and yet we are helpless."
26. It is now well known that interpretation of a document unless it is perverse, cannot be a subjec-matterofjudicial re view. In Indian Hotel's case (supra) this Court has held :--
"Construction of a document, may be a question of law in a given situation but, in my considered view, a tender or a notice inviting tender should be construed keeping in view the intention of the maker thereof. If two views are possible, the construction put by the maker of the said document should not be interfered with by this Court in exercise of its power of judicial review.
Illegality, which is one of the grounds of judicial review, as stated by Diplock L. J. in Council of Civil Service Unions v. Minister for the Civil Service, 1984 (3) All ER 935 (941), in my opinion, should not be extended to a wrong interpretation of adocumcnt where two views arc possible."
27. In Deepak Builders v. State of Rajasthan, , a Division Bench of the Rajasthan High Court, inter alia, held that in the matter of grant of contract short listing is permissible. It was further held that in a matter of contract, the principles of natural justice in its strict sense are not attracted.
28. In Indian Hotel's case (supra) also I had held that the dictum of the Supreme Court in Tata Celiular's case (supra) fixing the parameters of Judicial Review although includes principles of natural justice but the same does not mean that the principles of natural justice would be attracted in a case of tender, if the tenderers had not been given personal opportunity of hearing.
29. Yet recently the Supreme Court in U. P. Financial Corporation v. Naini Oxygen and Acetylene Gas Ltd. (Judgment delivered on 22-11-1994), laid down the law in the following terms (at p. 262 of AIR) :--
"However we cannot lose sight of the fact that the Corporation is an independent autonomous statutory body having its own constitution and rules to abide by, and functions and obligations to discharge. As such, in the discharge of its functions, it is free to act according to its own light. The views it forms and the decisions it takes are on the basis of the information in its possession and the advice it receives and according to its own perspective and calculations. Unless its action is mala fide even a wrong decision taken by it is not open to challenge. It is not for the Courts or a third party to substitute its decision, however more prudent, commercial or business-like, it may be, for the decision of the Corporation. Hence, whatever the wisdom (or the lack of it) of the conduct of the Corporation, the same cannot be assailed for making the Corporation liable."
"Recently, in Shree Nathji International v. Bharat Aluminium Co. Ltd. (Matter No. 2632 of 1994) disposed of on 21-12-94. I have held that it is well known now that the scope of judicial review of this Court in terms of Article 226 of the Constitution of India is very limited. This Court while exercising its power of judicial review does not sit in appeal over the decision of the respondent concerned, but it is clear that the judicial review is only confined to the decision making process."
30. Furthermore, it appears that the petitioner has not included the correct page 13-A in the writ application which was filed along with his pretender document. From a perusal whereof it appears that the experience of the petitioner is as follows :--
Name of Employers Name, location & type of contract Contract price in lakhs & date Percentage parti-cipation of company in the Project 1 2 (sic) 4 5 Executive Engg. Mahananda barrage Construction of Aqueduct (with well foundations 9 - Nos well) at 10.065 Km of Dy No. 4 of MMC over river in PS Phansidewa, Dist. Darjeeling, vide W/order No. 172, dt. 22-1-92 (241.04 lakhs (sic) completion) Total Executive Engg. Teesta Canal Divn. T. B. Project Constn. of Cross Drainage works at 5.92 Km. of Dauk Nagar Main Canal in PS Chopra, Uttar Dinajpur, vide W/O No. 509, dt. 22-5-93 50% of 170.88 lakhs (220.00 lakhs on completion against our contract part) 50% of the total work Executive Engg. Teesta Canal Divn. No. 1 T.B. Project Remaining work of Bairon Aqueduct at 27.90 Km of river Bairon in PS Chopra, West Dinajpur, vide W/O No. 10/511, dt. 25-3-87 259.95 lakhs (415.00 lakhs on completion) Total Executive Engg. P.W.D. (Uttar Dinajpur) Constn. of RCC Bridge over DNMC at 25.05 KM of DNMC in Islampur Uttar Dinajpur, vide W/O No. 2340, dt. 21-9-94 27.00 lakhs Total
31. It is beyond anybody's comprehension as to why the petitioner although annexed the said document along with Schedule-E, omitted to annex the same with his writ application. It appears that the petitioner has no experience in pre-stressed concrete bridge and no experience in constructing Dyke Bandh whereas others had the said experience. It also did not have any pre-stressing equipment. The marks obtained by the respective tenderers were on the basis of the documents annexed with the pre-tender papers. The classification made for grant of tender can neither be said to be arbitrary nor fanciful. In any event, as noticed hereinbefore, this writ application is not maintainable as no contract has yet to be awarded. However, there cannot be any doubt whatsoever that the State is expected to award the contract fairly, impartially and in terms of its own policy-decision and the marks obtained by the respective parties. This application is dismissed with costs. Advocates' fee assessed at 100 Cms.