Gauhati High Court
Page No.# 1/7 vs The State Of Assam And 7 Ors on 14 September, 2022
Author: Achintya Malla Bujor Barua
Bench: Achintya Malla Bujor Barua
Page No.# 1/7
GAHC010186962022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6046/2022
M/S KHONA TEA ESTATE LLP AND 2 ORS.
REPRESENTED BY ITS PARTNER SRI SIDDHARTHA SHANKAR BHUSAN
BORUAH, HAVING ITS REGISTERED OFFICE NEAR K.P.M. HALL, A.T.
ROAD, SIVSAGAR-785640
2: MEKONG ENGINEERING AND INFRASTRUCTURES PRIVATE LIMITED
REPRESENTED BY MANAGING DIRECTOR
MR. MRIDUL PHUKAN
HAVING ITS REGISTERED OFFICE PIOLI NAGAR
AT ROAD
NAMTIAL PATHAR
SIVSAGAR
ASSAM-785640
3: S.K. PETRO SERVICES PRIVATE LTD.
REPRESENTED BY MANAGING DIRECTOR
SHRI KRISHNA AGARWALLA
HAVING ITS REGISTERED OFFICE ADDRESS AT ANAND NAGAR
BHAGVATI BHAWAN
SIVSAGAR-78564
VERSUS
THE STATE OF ASSAM AND 7 ORS.
REPRESENTED BY THE PRINCIPAL SECRETARY, INDUSTRIES AND
COMMERCE DEPARTMENT, DISPUR-781006
2:THE COMMISSIONER
OFFICE OF THE COMMISSIONERATE OF INDUSTRIES AND COMMERCE
GOVT. OF ASSAM
UDYOG BHAWAN
BAMUNIMAIDAM
GUWAHATI-781021
Page No.# 2/7
3:ASSAM TEA CORPORATION LIMITED
REPRESENTED BY THE MANAGING DIRECTOR
A GOVT. OF ASSAM UNDERTAKING
HOUSEFED COMPLEX
C-BLOCK
7TH FLOOR
DR. B.N. SAIKIA ROAD
DISPUR
GUWAHATI
ASSAM-781006
4:TENDER EVALUATION COMMITTEE
ASSAM TEA CORPORATION LIMITED
HOUSEFED COMPLEX
C-BLOCK
7TH FLOOR
DR. B.N. SAIKIA ROAD
DISPUR
GUWAHATI
ASSAM-781006
5:BOKAKHOLA TEA COMPANY PRIVATE LIMITED
REPRESENTED BY DIRECTOR
HAVING ITS REGISTERED OFFICE AT TORAJAN
JORHAT
PIN-785101
6:JALINGA TEA CO (INDIA) PRIVATE LIMITED
REPRESENTED BY DIRECTOR
HAVING ITS REGISTERED OFFICE AT 21
RN MUKHERJEE ROAD
KOLKATA-700001
7:GIRIRAJ PLANTATIONS PRIVATE LIMITED
REPRESENTED BY DIRECTOR
HAVING ITS REGISTERED OFFICE BERLIA COMPLEX
2ND MILE
SEVOKE ROAD
SILIGURI
WEST BENGAL-734401
8:DENISH KUKURACHOWA
HAVING ITS OFFICE UNPURA NEAR HARIPARA TINIALI
P.O.-NOGAGAON
SIBSAGAR
ASSAM
PIN-78570
Page No.# 3/7
Advocate for the Petitioner : MR. JYOTIRMOY ROY
Advocate for the Respondent : SC, INDUSTRIES AND COMMERCE
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
14.09.2022 Heard Mr. Manish Vashist, learned senior counsel assisted by Mr. Sameer Vashist, learned counsel for the petitioners. Also heard Mr. A Kalita, learned standing counsel for the respondents No.1 and 2 being the authorities under the Industries and Commerce Department, Government of Assam.
2. Issue notice, returnable on 21.09.2022.
3. Extra copies of the writ petition be served on the learned counsel for the respondents as indicated hereinabove during the course of the day.
4. Petitioners to take steps for service of notice on the respondents No.3 to 8 by registered post with A/D as well as by Dasti method through the Registry of this Court and thereafter to file affidavit to that effect. Steps within three days.
5. The petitioners claim that they are a consortium, where the petitioners No.2 and 3 have shares in the petitioner No.1 company M/s. Khona Tea Estate LLP.
Page No.# 4/7
6. The respondent Assam Tea Corporation had floated a request for proposal (RFP) for lease of tea gardens under the Corporation being RFP No.ATC/RFP/LTEs-01 of 2022 dated 01.07.2022. Clause 1.2(v) of the terms and conditions of the RFP, inter alia, provides that any bidder bidding for one or more of the packets shall submit only one qualifying bid while the financial bids in the form of Bill of Quantities (BOQ) given in the e-tendering portal will have to be submitted in respect of one or more packets, depending on the number of packets the bidder intends to bid.
7. Mr. Manish Vashist, learned senior counsel by referring to Clause 1.2(v) submits that in the event any of the bidder intends to bid for more than one garden, the terms and conditions provide that only one common qualifying bid will be submitted, but the financial bids in respect of the different gardens would have to be different. By referring to Clause 1.2(v), Mr. Manish Vashist, learned senior counsel for the petitioners states that the tender summary report dated 25.08.2022 which is available at Annexure A8, (page-886 to the writ petition), in Sl.Nos. 2 and 3, provides for Bokakhola Tea Company Pvt. Ltd., showing the date of submission of the bids to be respectively 11.08.2022 and 20.08.2022. Further reference is made to Sl.No.5 and 6 in respect of Jalinga Tea Company (India) Pvt. Ltd., where also the respective dates of the bids are shown to be 19.08.2022 and 20.08.2022. In the said tender summary reports, the petitioner Khona Tea Estate LLP is at Sl.No.7 by showing the date of submission of the bids to be 01.08.2022. Further in the technical bid opening summary in the said tender summary reports it is provided that all the eight bidders referred therein were accepted for evaluation. By referring to the Bokakhola Tea Company Pvt. Ltd., at Sl.Nos.2 and 3, it is submitted that the said Page No.# 5/7 tenderer had submitted two qualifying bids which otherwise would be impermissible under Clause 1.2(v) of the terms and conditions of the RFP. Similar submission is made in respect of tenderer at Sl. No.5 and 6 being the Jalinga Tea Company (India) Pvt. Ltd., which had also submitted two qualifying bids and therefore contrary to the provisions of Clause 1.2(v) of the terms and conditions of the RFP.
8. Mr. Manish Vashist, learned senior counsel also makes a submission that by submitting two qualifying bids, the bidders would be at some undue advantage inasmuch as, as regards the net worth of the bidders would be at a variance which may prejudice the petitioner No.1 bidder.
9. Being aggrieved by the acceptance of two qualifying bids from the aforementioned bidders, the petitioners had submitted a representation dated 29.08.2022 before the Managing Director of the respondent Assam Tea Corporation specifically raising the issue that any bidder bidding for one or more of the packets shall submit only one qualifying bid, while the financial bids in the form of Bill of Quantities (BOQ) given in the e-tendering portal would have to be submitted in respect of one or more packets, but in the instant case, in respect of the aforementioned two bidders namely Bokakhola Tea Company Pvt. Ltd and Jalinga Tea Company (India) Pvt. Ltd., two qualifying bids were submitted. The learned senior counsel for the petitioners thereafter refers to the qualifying bid evaluation report dated 05.09.2022 in which the petitioners are not included and the reason provided thereof is that the qualifying bid submitted by the consortium led by SK Petro Services Pvt. Ltd., i.e. the petitioner No.3 in Golaghat and Sivasagar districts the packets were found to be non-responsive Page No.# 6/7 and were liable to be rejected.
10. By referring to the technical bid opening summary of the tender summary reports dated 25.08.2022, the learned senior counsel points out that at that stage, the respondents in the Assam Tea Corporation had found the bid of the petitioner No.1 to be technically acceptable. But at the subsequent stage of the qualification bid evaluation report dated 05.09.2022, the Assam Tea Corporation finds the qualifying bid of the petitioners to be unacceptable.
11. Considering both the aspects and on being prima facie satisfied as well as in view of the balance of convenience and irreparable loss that the petitioners may suffer, till the next returnable date, the respondents in the Assam Tea Corporation shall not further proceed in terms of the RFP No.ATC/RFP/LTEs-01 of 2022 dated 01.07.2022.
12. Upon appearance of the respondents, on the next returnable date, further consideration would be given as to whether to continue with the interim order or any variance thereof would be required depending on the submissions that the respondents may make.
13. List on 21.09.2022.
14. Upon being served Dasti, it is expected that the respondents would appear before the Court on the next date fixed so that further consideration on the interim order can be made.
Page No.# 7/7 JUDGE Comparing Assistant