Calcutta High Court (Appellete Side)
Ourt No.13 vs Board Of Trustees For The Port Of Kolkata ... on 28 February, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
1
W. P. 5514 (W) OF 2017
28.02.2017
g
. No.56 Swaymbhu Natural Resources Private Limited & Anr.
ourt no.13 -vs-
Board of Trustees for the Port of Kolkata & Ors.
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Mr. Pratap Chatterjee Mr. Koushik Chowdhury Ms. Vineeta Meheria Mr. Soumabha Ghosh Mr. Shounak Mitra Mr. Zulfiqar Ali - for the Petitioners Mr. Jayanta Mitra Mr. Ashok Kr. Jana - for the Kolkata Port Trust Ms. Ashima Roy Chowdhury - for the Respondent no. 3 Affidavit of service filed in Court be kept with the record. The petitioners assail the action of the Kolkata Port Trust authorities (KoPT) in rejecting the bid of the petitioners for construction of berth at the Haldia Dock.
The learned Senior Advocate for the petitioners refers to the communication of rejection being the letter dated January 20, 2017 and submits that, two grounds for rejection have been specified therein. He submits that, the first ground of rejection is of double counting. The petitioners are not guilty of double counting. He refers to the various clauses of the terms and conditions for the Request For Quotation (RFQ) and submits that, the petitioners did not double count any project. So far as the other ground is concerned, he submits that, the petitioners qualify on the quantum much more than what has been prescribed in the RFQ. He relies upon the certificate of the Chartered Accountant at page 117 of the writ petition in support of the contention that the petitioners did not count the same project twice over, that is to say that, the 2 petitioners are not guilty of double counting as contemplated in the terms and conditions of the RFQ. Referring to page 117 of the writ petition he submits that, the values of the two projects are much in excess than the required threshold limit. He submits that, therefore the rejection of the technical bid by the KoPT is bad.
The learned Senior Advocate for the petitioners submits that the terms and conditions of the RFQ have to be read in a manner so as to give it a business efficacy and that, common sense view has to be taken coupled with business efficacy rather than reading the clauses of the RFQ in the literal sense. In such perspective, the view taken by the KoPT authorities as contained in the impugned writing dated January 20, 2017 is not correct.
The learned Senior Advocate for the KoPT authorities refers to various terms and conditions of the RFQ. In particular, he refers to clauses 2.2.2 and 3.2 thereof.
He submits that, double counting of a project is not permissible. He refers to the Chartered Accountant's report at page 117 of the writ petition and submits that, the Chartered Accountant himself has stated that the petitioners have undertaken two projects. Essentially, the petitioners have undertaken a construction of Thermal Power Plant at Haldia. The same construction has been broken up and shown to be two projects by the petitioners when they are not. The statement made by the Chartered Accountant of the petitioner itself does not demonstrate that the petitioners have undertaken two projects.
So far as the quantum is concerned, he submits that, taking the calculation given at page 117 of the writ petition, the petitioners do not have the requisite quantum qualification.
In reply, the learned Senior Advocate for the petitioners submits that, the petitioners have pleaded in paragraph 31 of the writ petition that the petitioners had 3 undertaken two independent projects and that, the statements made in the writ petition have to taken as be true and correct, particularly in view of the fact that the respondents have chosen not to file affidavits. He relies upon AIR 1978 SC 851 (Mohindra Singh Gill & Anr. -vs- The Chief Election Commissioner, New Delhi & Ors.) in support of the proposition that, the order impugned has to be sustained on the basis of the materials made available to the authorities for consideration. Further documents cannot be imported for the purpose of considering the validity of the impugned order.
I have considered the rival contentions of the parties and the materials made available on record.
The KoPT authorities had floated a RFQ for the purpose of setting up of outer Terminal-I (OT-I) at Haldia Dock Complex. The petitioners had participated in such RFQ. The RFQ has two stages, namely, technical and financial bid stages. The technical bid of the petitioners had been rejected by the impugned writing dated January 20, 2017. The relevant portion of the impugned writing is as follows:
"It has been noted from your application no.SNRL/OT-1/16-17/01 dated 12.09.2016 that you have reported only one project i.e. construction a thermal power plant of 450 MW capacity at Haldia bifurcating it into two projects viz. (i) construction of plant and (ii) material handling facilities for the same plant and has claimed experience under category 4 (Construction-core sector) and category 3 (Construction - Port sector).
In this connection, please refer ton the clause 3.2.5 of RFQ which reads as under-
'The Applicant shall quote experience in respect of a particular Eligible Project under any one category only, even though the Applicant (either individually or along with a member of consortium) may have played multiple roles in the cited project. Double counting for a particular Eligible Project shall not be permitted in any form.' If the project is considered under category 3 of clause-3.2.1 of the RFQ, then the experience of the applicant is Rs 232 crores as against the threshold technical 4 capacity requirement of Rs 825.94 crores. If the project is considered under category 4 of clauise-3.2.1 of the RFQ, then the applicant does not have port sector experience and therefore, the requirement of port sector experience equal to 1/4th of threshold technical capacity is not met.
In view of the foregoing, the applicant is found to have not met the technical capacity criteria."
Clauses 2.2.2, 3.2.1 and 3.2.5 of the RFQ are relevant for the purpose of consideration of the present writ petition. They are as follows:
"2.2.2 To be eligible for pre-qualification and short-listing, an Applicant shall fulfil the following conditions of eligibility:
(A) Technical Capacity: For demonstrating technical capacity and experience (the 'Technical Capacity'), the Applicant shall, over the past 5 (five) financial years preceding the Application Due Date, have:
(i) paid for, or received payments for construction of Eligible Project(s);
and/or
(ii) paid for development of Eligible Project(s) in Category 1 and/or Category 2 specified in Clause 3.2.1; and/or
(iii) collected and appropriate revenues from Eligible Project(s) in Category 1 and/or Category 2 specified in Clause 3.2.1 Such that the sum total of the above is more than Rs.825.94 crores (Rupees Eight hundred and twenty five point nine four crores) (the 'Threshold Technical Capacity') Provided that at least one fourth of the Threshold Technical Capability shall be from the Eligible Projects in Category 1 and/or Category 3 specified in Clause 3.2.1.
3.2.1 Subject to the provisions of Clause 2.2, the following categories of experience would qualify as Technical Capacity and eligible experience (the 'Eligible Experience') in relation to eligible projects as stipulated in Clauses 3.2.3 and 3.2.4 ('Eligible Projects') Category 1: Project experience on Eligible Projects in port sector that qualify under Clause 3.2.3.
5Category 2: Project experience on Eligible Projects in core sector that qualify under Clause 3.2.3 Category 3: Construction and/or operation experience on Eligible Projects in port sector that qualify under Clause 3.2.4 Category 4: Construction experience on Eligible Projects in core sector that qualify under Clause 3.2.4 For the purpose of this RFQ:
(i) port sector would be deemed to include marine structures, on-shore and off-shore terminals, berths, jetties, quays, cargo handling system, bulk/liquid material handling system, port based terminal facilities, CFS/ICDs, storage tanks/tank farms, conveyors, pipelines, warehousing, etc; and
(ii) core sector would be deemed ton include power, telecom, highways, airports railways, metro rail, industrial parks/estates, logistic parks, pipelines, irrigation, water supply, sewerage and real estate development.
3.2.5 The Applicant shall quote experience in respect of a particular Eligible Project under any one category only, even through the Applicant (either individually or along with a member of the Consortium) may have played multiple roles in the cited project. Double counting for a particular Eligible Project shall not be permitted in any form." The clauses of the RFQ have to be read as a whole. Common sense approach that gives business efficacy is preferred than a literal construction of the clauses.
The clauses, in my view, require a participant in the RFQ to undertake projects of the requisite qualification. In the present case, the petitioners gave qualification by virtue of undertaking two projects that is pleaded in paragraph 31 of the writ petition. Affidavits are not invited in the present writ petition in view of the fact that the decision of the KoPT authorities as communicated by the impugned writing dated January 20, 2017 has to be sustained on the basis of the materials made available to the deciding 6 authority. KoPT authorities are not entitled to supplement anything thereto. This is the view in Mahindra Singh Gill (supra).
The evaluation committee of the KoPT had page 117 before it. It did not have paragraph 31 of the writ petition. The deciding authority was proceeding on the basis of the materials made available to it. Page 117 of the writ petition is a certificate where there is a break up of a core sector and a port sector. The Core sector relates to a Thermal Power Plant at Haldia. The Port sector, in addition refers to the Thermal Power Plant at Haldia speaks of a construction of Material Handling Plant thereon. The petitioners' view is that, the construction of a Material Handling Plant has to be considered as a separate project distinct and independent to that of the construction of the Thermal Power Plant itself. KoPT authorities have a different view. KoPT authorities are of the view that it is the same project.
The view of the KoPT authorities that it is of the same project is fortified by the view of the Chartered Accountant of the petitioners itself where it refers to both of them as one project. The learned Senior Advocate for the petitioners submits that, notwithstanding the claim made by the petitioners that, they are separate projects, the claim has to be answered on merits to find out whether the claim of the petitioners can be sustained or not. In the present case, I am of the view that, the petitioners had taken a stand contemporaneously before the authorities they had undertaken two projects for the same thermal power plant. It appears from that, the materials made available to the deciding authority including the certificate at page 117 of the writ petition, that, the KoPT authorities did not make any error in coming to a finding that the claim of the petitioners of two projects in respect of the same Thermal Power Plant is in fact a double counting in terms of Clause 3.2.5 of the RFQ. The petitioners have undertaken construction of a Thermal Power Plant and is seeking the same into two parts for create 7 a non-existent qualification, if possible. The impugned writing dated January 20, 2017 is reasoned. It has specifies the grounds on which the technical bid of the petitioners has been rejected. The view expressed therein is plausible.
In such circumstances, I am not minded to interfere with the present writ petition. W. P. 5514 (W) of 2017 is dismissed without any order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
(Debangsu Basak, J.)