Calcutta High Court (Appellete Side)
Basirhat Food Supply Mohila ... vs The State Of West Bengal & Ors on 21 October, 2022
Author: Shampa Sarkar
Bench: Shampa Sarkar
21.10.2022
Sl. No.1
Sn/nb
MAT 1722 of 2022
With
C.A.N. 1 of 2022
Basirhat Food Supply Mohila Co-operative Society Ltd.
Versus
The State of West Bengal & Ors.
Mr. Saptangshu Basu
Mr. Swarup Paul
Mr. Surya Maity ...for the Appellant/ Petitioner.
Mr. Amal Kr. Sen
Mr. Shamim Ul Bari .. for the State
Mr. Sagar Bandopadhyay
Mr. Arijit Chakraborty . .for the interveners
This appeal arises out of an order dated September
28, 2021 passed in WPA 21753 of 2022. The appellant is
aggrieved by the refusal of its prayer for an interim order.
The learned judge did not pass any interim order
on the ground that a previous challenge by the petitioner
in respect of a similar tender was negated by a learned
single Judge and the order of the learned single Judge
had been affirmed by the Hon'ble Division Bench. The
tender condition, which had been challenged in the writ
petition was within the knowledge of the petitioner at the
relevant of point of time when such order was passed on
the earlier occasion.
However, the point of maintainability of the writ
petition has been kept open by Her Lordship.
2
Mr. Saptangshu Basu, learned Senior advocate
challenges the order impugned on the following grounds.
A similar clause which was inserted by the
authorities with regard to the procedure to be followed in
case of tie between the L1 bidders, had been considered
to be tailor made and had been stayed by a learned single
Judge in W.P. no. 15610(W) of 2010. Such order was
challenged before the Hon'ble Division Bench in MAT
1030 of 2010. MAT 1030 of 2010 was allowed in favour of
the writ petitioner therein, and the stay of the clause with
regard to tie had been upheld. The tender notice in which
such clause was incorporated was set aside and fresh
tender was directed to be notified.
Earlier, the procedure to be followed in case of tie
between L1 bidders was that preference was to be given
to the highest tax prayer in the previous year. This
condition was found to be tailor made and hence the
tender notice which had incorporated such condition had
been set aside by the Hon'ble Division Bench.
Retendering was directed.
Mr. Basu, argues that a similar clause has again
been incorporated in the memorandum dated June 7,
2022 bearing no. 2320-F(Y) of under Situation III thereof.
Mr. Basu submits that when a similar clause had been
set aside by the Hon'ble Division Bench of this Court with
regard to procedure to be followed in case of a tie
amongst L1 bidders, subsequent incorporation of a
3
similar clause would automatically stand vitiated. He
submits that Situation III of the impugned memo was
also tailor made, in order to give preference to more
financially sound, rich and favourable contractors.
According to Mr. Basu, every tenderer has a right to
participate in the tender process and has a right to be
treated equally. By incorporation of a clause which would
give preference in case of a tie to those tenderers whose
annual turnover was greater, the authorities have
discriminated amongst the tenderers.
Mr. Sen, learned advocate for the State and Mr.
Bandopadhyay, learned advocate for the intervenors
submit that the Hon'ble single Judge had kept the writ
petition pending for final hearing, upon exchange of
affidavits. That there was no scope to pass any interim
order. That the writ petition did not state any instance.
When the petitioner had been deprived from being the L1
bidder or from being awarded the contract by invocation
of the Situation III, which is under challenge in the writ
petition.
According to Mr. Sen, terms and conditions of a
contract was entirely within the domain of experts. The
Writ Court should not adjudicate the wisdom of
authorities in this regard.
Mr. Bandopadhyay, learned advocate for the
intervenors submits that another writ petition had been
filed by the petitioner being WPA 16461 of 2022. In the
4
said writ petition the same impugned memo had been
challenged. The challenge was not entertained by a
learned single Judge. The Hon'ble Division Bench also
did not interfere. No relief on the prayer of the writ
petitioner for non-implementation of the Situation III of
the memorandum dated June 7, 2022, had been granted.
Such contention is, however, disputed by Mr. Basu.
Our view is that the learned single Judge had
rightly kept the writ petition pending for hearing upon
exchange of affidavits. The legality of the incorporation of
Situation III of the memo has to be decided in the light of
the facts and circumstances pleaded in the writ petition
and also in the light of the steps taken by the authorities
while invoking Situation III.
This Court finds that the clause which was set
aside on an earlier occasion in MAT 1030 of 2010 is
different from the clause which has now been
incorporated.
By the impugned memo, the L1 bidders have been
given one more opportunity to offer their bids after
keeping the lowest amount (tie bid) as the base. In the
prima facie opinion of the Bench, the clause allows equal
treatment and equal opportunity to all L1 bidders to
quote at a price lower than the tied amount. As such,
there is no scope for passing any interim order. The writ
petition shall be decided as per the direction of Her
Lordship.
5
In the affidavits to be filed as per the direction of
the Hon'ble Single Bench, the State respondents shall
categorically state how Situation III had been followed in cases of tenders floated subsequent to the memorandum dated June 7, 2022 in case of tie bids, amongst L1 bidders. Special mention as to whether the amount quoted by the L1 bidders had been kept as the base and whether the L1 bidders were asked once again to offer their competitive rates, must be stated. The observations are prima facie and the issues raised shall be decided in the writ petition.
The appeal and the application are disposed of. There will be, however, no order as to costs. Parties are directed to act on the server copy of this order.
(Shampa Sarkar, J.) (Partha Sarathi Chatterjee, J)