Calcutta High Court
Sahakar Global Private Limited & Anr vs Hooghly River Bridge Commissioners & ... on 11 March, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
G.A. No.473 of 2011
W.P. No.28 of 2011
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Original Side
Before
The Hon'ble Mr Justice Jayanta Kumar Biswas
Sahakar Global Private Limited & Anr............petitioners.
v.
Hooghly River Bridge Commissioners & Ors.......respondents.
Mr Jaydip Kar, Aryak Dutta and Mr Sourav Moitra, advocates, for the petitioners. Mr Sumit Panja, Mr Subrata Banerjee and Miss Sumana Sinha, advocates, for the first and second respondents. Mr Bikash Ranjan Bhattacharya, senior advocate, with Mr Kishore Dutta, advocate, for the third respondent.
Heard on: March 11, 2011.
Judgment on: March 11, 2011.
The Court :- The petitioners in this art.226 petition dated January 12, 2011 have questioned the terms and conditions of a Notice Inviting Pre-qualification for Tender of Toll Collection N.I.P. No.HRBC/PL.&DN./05 of 2010-2011 (at p.25) issued by Hooghly River Bridge Commissioners (a statutory organisation under the Government of West Bengal).
The technical criteria under the heading "Eligibility of the Agency" numbered 6 in the notice have made the petitioners aggrieved, and they are quoted below:-
"(i) The bidder must have minimum 4(four) years experience of operating either a Toll Bridge or a Toll Road with at least 14(fourteen) lanes preferably with provision of at least 2(two) reversible lanes with fully electronically operated Toll Collection system at single location in India, on a highway involving collection of toll fees from vehicles only.
(ii) The offerer shall have experience of handling minimum 50,000 vehicles per day in any single Toll Bridge/Toll Road in India.
(iii) The amount of average annual toll collection made should be at least Rs.40 crore for the last 3(three) years in all locations in India ending 31st March, 2010."
In sub-paras.(ix) and (x) of para.4 of the petition the petitioners have alleged that other than the existing contractor noone in the country will be in a position to fulfill the technical criteria specified in the tender notice. On the basis of the allegation they have contended that the terms and conditions of the tender were so tailored as to suit only the existing contractor and eliminate all others.
2Hooghly River Bridge Commissioners has filed an affidavit dated March 10, 2011 stating that in response to the tender notice as many as thirteen tenderers participated in the process, and that out of thirteen as many as five including the existing contractor met all the eligibility criteria. In the affidavit necessary particulars of all the tenderers who met the eligibility criteria have been incorporated.
Relying on Directorate of Education & Ors. v. Educomp Datamatics Ltd. & Ors., (2004) 4 SCC 19 and Meerut Development Authority v. Association of Management Studies & Anr., (2009) 6 SCC 171 Mr. Bhattacharyya appearing for the third respondent that has filed an application for vacation of the interim order as well has submitted that art.226 power is not to be exercised for examining the reasonableness of the tender conditions; and that there is no reason to say that here the conditions were so tailored so as to facilitate success of the existing contractor.
Relying on Reliance Energy Ltd. & Anr. v. Mharashtra State Road Development Corporation Ltd. & Ors., (2007) 8 SCC 1 Mr. Kar appearing for the petitioners, besides pressing into service the tailor-made doctrine, has sought to argue that the tender conditions can also be questioned on the grounds that they do not allow the intending tenderers like the petitioners a level playing field. Conceding that the level playing field aspect is not a case stated in the pleading, he has said that he will not proceed further with the issue.
I do not find any reason to examine whether the impugned tender conditions contravene the level playing filed doctrine. No case concerning level playing field has been stated in the petition. The only question that requires examination is whether the tender conditions were so tailored as to ensure success of the existing contractor.
In Meerut Development Authority v. Association of Management Studies & Anr., (2009) 6 SCC 171 the Supreme Court said as follows:
"26. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so 3 tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the biding process."
As noted hereinbefore, in response to the tender notice as many as thirteen tenderers participated and out of them as many as five including the existing contractor have met all the eligibility conditions. I am, therefore, unable to accept the petitioners' case that the tender conditions were so tailored as to make the existing contractor the only eligible tenderer. The tailor- made doctrine stated by the Supreme Court in Meerat Development Authority case does not apply to this case.
For these reasons, I dismiss the petition. The application for vacation of interim order (G.A. No.473 of 2011) filed by the third respondent shall be deemed to be disposed of. No costs. Certified xerox.
(Jayanta Kumar Biswas, J.)