Tripura High Court
Sri Samir Ghosh vs The State Of Tripura on 25 June, 2020
Bench: S. Talapatra, S.G. Chattopadhyay
HIGH COURT OF TRIPURA
AGARTALA
WP(C)No.294 of 2020
Sri Samir Ghosh,
son of late Surendra Chandra Ghosh,
College Tilla, Near Post Office,
P.S. East Agartala,
District : West Tripura,
Agartala, PIN : 799004
and also having the Office at Surjya Road,
Agartala, P.S. West Agartala,
District : West Tripura,
PIN : 799001
----Petitioner(s)
Versus
1. The State of Tripura,
represented by the Secretary, Public Works Department,
Government of Tripura, New Capital Complex,
P.O. New Capital Complex, P.S. New Capital Complex,
Agartala, District : West Tripura, PIN : 799010
2. The Chief Engineer, PWD(DWS),
Government of Tripura, Gorkhabasti,
P.N. Complex, P.O. New Capital Complex,
P.S. New Capital Complex,
Agartala, West Tripura,
PIN : 799006
3. The Superintending Engineer PWD(DWS),
Government of Tripura, Gorkhabasti,
P.N. Complex, P.O. New Capital Complex,
P.S. New Capital Complex,
Agartala, West Tripura,
PIN : 799006
4. The Executive Engineer,
Rig Division, Government of Tripura,
Gorkhabasti, P.N. Complex, P.O. Kunjaban,
P.S. New Capital Complex, Agartala, West Tripura,
PIN : 799006
Page 2 of 12
5. Sree Maa Multi Purpose Co-operative Society Ltd.,
Central Road, Dharmanagar, North Tripura,
PIN : 799250
---- Respondent(s)
For Petitioner(s) : Mr. B.N. Majumder, Adv.
Mr. D.C. Nath, Adv.
Mr. B. Roy, Adv.
For Respondent(s) : Mr. D. Bhattacharya, G.A.
Mr. C.S. Sinha, Adv.
Date of hearing : 23.06.2020
Date of delivery of
Judgment & Order : 25.06.2020
Whether fit for
reporting : YES
BEFORE
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Judgment & Order
[S. Talapatra, J]
By means of this writ petition, the petitioner has questioned the acceptance of the bid submitted by the respondent No.5 in response to DNIe-T No.23/SE/DWSC/AGT/2019-20 and No.24/EE/DWS/AGT/2019-20 for supplying Pea-Gravels, as floated by the Executive Engineer, Rig Division, P.N. Complex, Agartala, the respondent No.4. There is no dispute that the petitioner is a Class-III Contractor and dealing in various contract works throughout the State of Tripura for last few decades. It is also not in dispute that the bid Page 3 of 12 that has been submitted by the petitioner has been accepted by the tendering authority as formal. It has been alleged that the respondent No.5, a Co-operative Society registered under the Tripura Co- operative Societies Act, 1974 was not eligible to submit the bid. The bid submitted by the respondent No.5 had been assessed to be L-1 as the respondent No.5 has quoted the lowest money for supply of required quantity of the Pea Gravels from query source to the destination i.e. the departmental stockyard in an around 8 k.m. from Agartala. The petitioner has stated further in the writ petition that the respondent No.5 has been declared L-1 without examining the eligibility/competence of the respondent No.5 to participate in the bid. There is no dispute that the petitioner has become L-2 in terms of the quoted rate. In this regard, there is no dispute.
2. According to the petitioner, the respondent No.5 is incompetent to participate in the process inasmuch as the supply has to be made within Sepahijala District, Tripura. But the certificate of registration under No.204 of 2003 part of Annexure-2 to the writ petition [page- 52] as uploaded by the respondent No.5, shows that "the area of operation of the society, so registered shall be confined within Padmapur, Sripur, Dewanpasha and Radhapur". Thus, the said society could not have participated in the said tendering process. Further, it has been asserted by the petitioner that from the resolution adopted by the society in the meeting held on 06.02.2020, it would appear Page 4 of 12 that the Chairman of the society [the respondent No.5] Debejya Kumar Chowdhury handed over all the relevant documents to the Manager, Sri Biswajit Nath through the Dharmanagar Court, along with the power of attorney and an affidavit. The said decision, vide the resolution No.2, was adopted in the said meeting in respect of participation in the said tendering process. It was also decided in the said meeting [see the resolution No.1] that Sri Biswajit Nath, the Manager of the society is given full authority to submit the tenders with necessary documents of the society. It is the allegation of the petitioner that the President of the society has made an incorrect statement inasmuch as from the general power of attorney by which Sri Biswajit Nath was constituted the attorney of the society, it appears that the said general power of attorney was authenticated on 07.02.2020 with photographs of Sri Debejya Kumar Chowdhury and Sri Biswajit Nath, pasted and attested on the said power of attorney. According to the petitioner, apart that discrepancy, the signatures of Debejya Kumar Chowdhury as appearing on the documents as uploaded are so dissimilar that authenticity of those document has come under cloud of suspicion. The tendering authority ought not have declared the bid of the respondent No.5 as formal.
3. Mr. B.N. Majumder, learned counsel appearing for the petitioner has submitted that those two serious aspects were not at all examined on 26.02.2020 when the bids were opened and the bid of Page 5 of 12 the respondent No.5 was declared formal. The petitioner has raised objection by filing the representation on 02.03.2020 recording his objection in respect of declaring the bid of the respondent No.5 as formal. Later on, at the instance of the respondent No.4 [the tendering authority] a reference was made to the Registrar of Societies who has by the communication dated 14.05.2020, communicated to the respondent No.3 as follows :
"In reference to your note Nos.4 to 6 contained in the enclosed file No.II(2)/CE/DWS/LC/2018(5), this office has examined the issue under reference and the observation are noted below for your kind reference :
i) "Sree Maa Multi-Purpose Co-operative Society Ltd."- is a registered Society and the undersigned issued Registration Certificate vide registration No.2004 dated 26.09.2003 as per the provision of section-9 of Tripura Co-operative Societies Act, 1974.
At that time the area operation of the Society was confined within Padmapur, Sreepur, dewanpasha & Radhapur. But subsequently, the Society had approached to the Department on 26.03.2016 along with all supporting papers for amendment of bye- laws of the Society. Accordingly, the Bye-laws (under Clause-5-"Area of operation") was amended by this office. As a result of the amendment, now the area of operation of the Society is entire State of Tripura.
ii) The Co-operative Society, by status, is a body corporate entity and its affairs are manages by elected Board of Directors. Accordingly, the last election of the Board of Directors of the Society was held on 08.06.2018 through a General Body meeting. The Board of Directors was elected for 5(five) years and Sri Devajoy Kumar Chowdhury is the Chairman of the Society. It may be added here that, as per the relevant provision of Tripura Co-operative Societies Act, 1974 Sri Sadhan Chakma, Auditor (Coop) O/o the DRCS, Dharmanagar was entrusted by the Authority to act as Election officer of "Sree Maa Multi-Purpose Society Ltd." Sri Biswajit Nath, has been working in the Society since the period of 08.12.2003 as Manager.
Page 6 of 12In view of the above stated fact, I would like to confirm you that, "Sree Maa Multi-Purpose Society Ltd" is a bonafied registered Co-operative organization and with the strength of its bye-laws the Society is authorized to participate in the tender process as and when called by any Department."
[Emphasis added]
4. Mr. Majumder, learned counsel appearing for the petitioner has submitted with vehemence that the said action of the respondents No.3 and 4 indicates to their bias. Moreover, on 26.02.2020, there was no material before the respondent No.4 to infer that the respondent No.5 can operate throughout the State of Tripura. Thus, the respondent No.4 has declared the bid of the respondent No.5 as formal without any supportive document and hence, the bid of the respondent No.5 be declared informal and the impugned decision be set aside. That apart, the bid of the petitioner [L-2] be accepted and the supply order be issued to the petitioner forthwith.
5. Mr. C.S. Sinha, learned counsel appearing for the respondent No.5 has, having relied on the reply filed by the said respondent No.5, has stated that the certificate of registration was amended following the due process as is reflected in the communication under No.F.2- 2004/RGN/COOP/2003/5616-15 dated 06.06.2016 issued by the Registrar, Co-operative Societies, Government of Tripura [Annexure- R/1 to the reply filed by the respondent No.5.]. Clause-5 of the amended by-laws of the said society, as approved by the Registrar, Co-operative Societies, Government of Tripura reads as follows : Page 7 of 12
"AREA OF OPERATION
5.The area of operation of the society in regard to membership shall be confined to Padmapur under Dharmanagar Municipal council and Sripur, Dewanpasha & Radhapur gram panchayats under Jubarajnagar Block of Dharmanagar sub-division, North Tripura district and its business area of operation shall be the entire state of Tripura."
6. That apart, Mr. Sinha, learned counsel has submitted that the contention of the petitioner that the respondent No.5 did not upload the copy of the amended registration is grossly incorrect, inasmuch as the certificate of registration after amendment of by-laws was uploaded by the respondent No.5 where there is no clause in respect of area of operation and that certificate dated 30.05.2016 has issued by the Registrar, Co-operative Societies, Government of Tripura. The said certificate of registration is available with the writ petition as Annexure-2 [see page-88]. Thus, there is no infirmity in respect of the competence of the respondent No.5.
7. Mr. Sinha, learned counsel has further submitted that the objection relating to execution of the power of attorney is without any substance as if the minutes in the vernacular is read it would transpire clearly that the President of the Society namely Debejya Kumar Chowdhury was given the responsibility of supplying all necessary papers and of execution of the power of attorney in favour of Sri Biswajit Nath, the Manager of the Society. It would be appropriate to note that this court is convinced that the translation as done by the petitioner is not proper. It has created the confusion. But in respect of Page 8 of 12 the handwriting - if apparently those show some dissimilarities, but this court is not in a position to arrive at a definite finding that those signatures were subscribed by two different persons.
8. At the last lap of submission, Mr. Sinha, learned counsel has referred to a decision of the Gauhati High Court in Binoy Kumar Das versus State of Tripura and 5 Others [the order dated 15.11.2011 delivered in WP(C)No.284 of 2011] where in respect of area of operation, as was superscribed in the certificate of registration, it had been contended that such areas were mentioned for purpose of registration of membership but not for area of business. The said proposition was accepted by the Gauhati High Court in the said order. According to this court, after amendment of the certificate of registration, as stated, no necessity arises to interpret the words "area of operation."
9. Mr. D. Bhattacharya, learned G.A. appearing for the respondents No.1 to 4 has submitted that the bid of the respondent No.5 was found formal inasmuch as in the amended certificate of registration dated 30.05.2016, the words "area of operation", etc. have been deleted. Thus, there is no restrictive clause in the certificate of registration in any manner. Mr. Bhattacharya, learned G.A. has submitted that making of the reference to the Registrar, Co- operative Societies, Government of Tripura cannot be perceived as bias or as the process of collecting materials for establishing the Page 9 of 12 eligibility of the respondent No.5. Further, Mr. Bhattacharya, learned G.A. has submitted that this court cannot act as the court of appeal while exercising the power of judicial review. In this regard, Mr. Bhattacharya, learned G.A. has referred to a decision in Tata Cellular versus Union of India reported in (1994) 6 SCC 651 where the apex court has dilated the law and expounded that the principles of judicial review would apply to the exercise of contractual powers by government bodies in order to prevent arbitrariness or favouritism. However it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the state. It is expected to protect the financial interest of the state. The right to refuse the lowest or any other tender is always available to the government. But the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. The right to choose cannot be considered to be an arbitrary power. If the said power is exercised for any collateral purpose, the exercise of that power will be struck down.
In Amin versus Entry Clearance Officer reported in (1983) 2 All ER 864 Lord Fraser observed as under :
"Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made...Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision on the merits for that of Page 10 of 12 the administrative officer."[quoted from Tata Cellular versus Union of India:(1994) 6 SCC 651].
10. Mr. Bhattacharya, learned G.A. has also placed his reliance on Consortium of Titagarh Firema Alder S.P.A.- Titagarh Wagons Ltd. versus Nagpur Metro Rail Corporation Limited reported in (2017) 7 SCC 486 to contend that the principles of Wednesbery reasonableness [Associated Provincial picture houses Ltd. versus Wednesbery Corporation reported in (1948) 1 KB 223 (CA) can be applied for purpose of judicial review but that shall be exercised with restraint keeping due regard to the limitations as discussed in Tata Cellular (supra). The grounds upon which an administrative action can be examined by way of judicial review are classified as under :
(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at. The decision is Page 11 of 12 such that no authority properly directing itself on the relevant law and acting reasonably could have reached it.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. Another development is0 that, referred to by Lord Diplock in R.V. Secretary of State for the Home Deptt., is the possible recognition of the principle of proportionality. Two other facets of irrationality may be mentioned: (1) It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision- maker. If the weight of facts pointing to one course of action is overwhelming, then a decision of the other way, cannot be upheld and (2) A decision would be regarded as unreasonable if it is partial and unequal in its operation as between different classes.
11. Mr. Bhattacharya, learned G.A. has quite emphatically submitted that none of such vices has visited the decision making Page 12 of 12 process in accepting the bid of the respondent No.5. The writ petition is structured on misconception and non-reading of relevant document viz. the amended certificate of registration.
12. Having appreciated the submissions of the learned counsel for the parties this court is of the view that two grounds on which the petitioner has challenged the acceptance of the bid of the respondent No.5 do not survive inasmuch as the amended certificate of registration was uploaded by the respondent No.5 with the bid, and secondly, the resolution dated 06.02.2020 has been grossly misconceived by the petitioner for erroneous translation.
As consequence of the above observation, the writ petition stands bereft of merit and accordingly, the same is dismissed.
There shall be no order as to costs.
Interim order, if any, stands vacated.
JUDGE JUDGE Sabyasachi B