Calcutta High Court (Appellete Side)
Rashmi Metaliks Limited And Another vs The Kolkata Metropolitan Development ... on 2 July, 2013
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
Sl. 71.
02.07.2013.
S.G. W.P. No. 15620 (W) of 2013
with
CAN 6456 of 2013
Rashmi Metaliks Limited and another
-versus-
The Kolkata Metropolitan Development Authority and others
Mr. Abhrajit Mitra
Mr. Mainak Bose
Mr. Arif Ali
Mr. P.K. Srivastava
.....for the petitioners.
Mr. Partha Sarathi Basu
Mr. Imran Ali
.....for the KMDA.
Mr. Jayanta Mitra
Mr. Padam Khaitan
Mr. Anirban Ray
Mr. Shounak Mitra
Mr. Vivek jhunjhunwala
...... for the applicant.
This writ petition has appeared in the usual course in the list
today without any of the parties having the courtesy of bringing the
appellate order of June 25, 2013 to the notice of this court since
such order required the writ petition be disposed of within two
weeks from the date of that order.
The grievance of the petitioners is that one of the primary
eligibility criteria in the tender documents pertaining to a notice
dated May 10, 2013 was formulated to exclude the petitioner
company's bid. The petitioners complain of clause (i) on the first
page of the notice inviting tenders, which reads as follows:
"(i) A declaration in the form of Affidavit in a non
judicial stamp paper should be submitted stating clearly
that the applicant is not barred/ delisted/blacklisted by
any Govt. Deppt/Govt. undertaking/Statutory Body/
Municipality and of the like Govt. Bodies in DI Pipe-
supply tender during last five years and if any such
incident is found at any point of time, the tender will be
cancelled summarily without assigning any reason what
so ever".
The petition was moved in the summer vacation on the
petitioners' representation that the petitioners were not being
permitted to submit the bid, though the bidding was online. By an
order of May 28, 2013, the Vacation Bench permitted the petitioner
company's bid to be made and required the authorities to consider
the same, subject to the fulfillment of the eligibility criteria. The
issuance of the work order was temporarily stayed till June 7, 2013.
When the matter appeared before the regular Bench on June
7, 2013, an order was made requiring the Kolkata Metropolitan
Development Authority to inform the court whether the petitioner
company's bid was the best since it was felt that if the petitioner
company's bid was not the best, the issues raised in the petition
were unnecessary to be gone into. The matter was next taken up
on June 17, 2013 when it was submitted on behalf of KMDA that
the petitioner company's bid could not be considered since its
technical bid failed to meet the eligibility criteria. Notwithstanding
such submission, the order dated June 17, 2013 required the
commercial bids to be opened for it to be assessed whether the
petitioner company's bid came within the zone of consideration for
the other issues to be taken up. The KMDA and another bidder
carried appeals from order dated June 17, 2013 wherein the
appellate court held that once a bidder had been technically
disqualified, it was not proper for the court to pass any order in
favour of such bidder to the effect that the commercial bids be
opened notwithstanding the employer's perception that the
petitioning bidder was not qualified to participate in the process.
The order also recorded that the financial bids would not be
opened for a fortnight from the date of the order and the trial court
was required to dispose of the petition within such period.
The petitioners refer to the stay petition filed in the appeal by
the KMDA. The petitioner company's bid was found to be
disqualified on two grounds: that the latest income-tax return had
not been submitted in terms of clause (j) of the first page of the
tender notice; and, that an unconditional declaration in terms of
clause (i) had not been furnished and, in any event, the petitioner
company had been debarred by the Hyderabad Metropolitan Water
Supply and Sewerage Board and by the Public Health Engineering
Department of the Government of West Bengal from participating in
works under such authorities.
It is submitted on behalf of the petitioners that it would be
evident from a spate of writ petitions which these petitioners have
been constrained to file recently against the State and the State-
controlled organisations that there is a concerted effort on behalf of
the State to ensure that the petitioner company did not obtain any
contract issued by State bodies. The petitioners seek to suggest
that the KMDA had gone out of its way to obtain information from
the Hyderabad Metropolitan Water Supply and Sewerage Board and
that the Public Health Engineering order of debarring the
petitioners was issued long after the time for opening the bids had
expired.
As to the failure on the part of the petitioner company to
submit its latest income-tax return, the petitioners say that there
was a genuine mistake or oversight; but such failure, not being in
derogation of any essential criterion for the tender process, would
not warrant the disqualification of the bid of the petitioner
company. In such context, the petitioners refer to the judgments
reported at AIR 1984 Bom 351 and AIR 1991 SC 1579 for the
proposition that if one of the ancillary conditions which had no
nexus with the nature of the work required to be performed under
the proposed contract had not been met by any bidder, it ought to
be regarded as an irregularity and may be glossed over as long as it
was not an essential condition. In the Bombay case, paragraph 18
of the report speaks of a signature not having been put in by the
bidder on a relevant page and of the earnest money being tendered
otherwise than as directed under the notice inviting tender. In the
Supreme Court matter, the earnest money was deposited by way of
an instrument drawn on a bank other than the bank that had been
specified in the tender papers.
It does not appear that the failure - or negligence or mistake -
on the part of a bidder to submit its latest income-tax return can be
equated with the mistake on the part of a bidder to sign a particular
page of a bid or the preparation of an instrument of payment by any
mode other than the one specified in the tender terms. The failure
to file the latest income-tax return would deny the employer of an
opportunity to assess whether the bidder was in a financial position
to execute the work. It would not do for the bidder to subsequently
come up and suggest that the appropriate document had been
mistakenly left out and the court should direct the employer to
accept the document at a subsequent stage.
Since it does not appear that upon the petitioner company's
failure to submit its latest income-tax return in terms of Clause-(j)
of the first page of the tender documents the petitioner company's
bid could have crossed the technical stage, it is unnecessary to go
into the grounds urged by the petitioners in support of the
contention that the disqualification of the petitioner company on
account of the petitioner company having been dislisted or debarred
or blacklisted by other government organisations or municipalities
was without basis and would betray the hostile discrimination of
KMDA or other State bodies towards the petitioner company.
No affidavits have been called for in view of the paucity of time
following the appellate order coming to the notice of this court.
CAN 6456 of 2013 has been filed by one of the other bidders.
Such other bidder, Electrosteel Castings Limited, has been heard
and CAN 6456 of 2013 is allowed by directing Electrosteel Castings
Limited to be impleaded as a respondent to the present proceedings.
The name of Electrosteel Castings Limited should be included in the cause title by advocate for the petitioners in the presence of an officer of court in course of the day.
WP No. 15620 (W) of 2013 fails on the ground of the petitioner company not having submitted its latest income-tax return along with its bid, notwithstanding the lurking suspicion that the employer in this case may have been biased against the petitioner company.
There will be no order as to costs.
Urgent certified photocopies of this order, if applied for, be given to the parties upon compliance of the requisite formalities.
(Sanjib Banerjee, J.)