Gauhati High Court
M/S Darjeeling Gardens Private Limited vs The State Of Assam And 2 Ors on 5 October, 2021
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/5
GAHC010154812021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5079/2021
M/S DARJEELING GARDENS PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE AT 4D, DIHANG ARCADE, 4TH FLOOR,
ABC, G.S. ROAD, GUWAHATI 781005, ASSAM, DULY REPRESENTED BY SH.
RAJESH KUMAR CHOUDHURY, AGE ABOUT 42 YEARS, DIRECTOR
VERSUS
THE STATE OF ASSAM AND 2 ORS
REPRESENTED BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM,
SOCIAL WELFARE DEPTT., DISPUR, GUWAHATI 781006, DIST. KAMRUP (M),
ASSAM.
2:THE COMMISSIONER AND SECY.
SOCIAL WELFARE DEPTT.
JANATA BHAWAN
DISPUR
GUWAHATI 781006
DIST. KAMRUP (M)
ASSAM.
3:THE DIRECTOR
DIRECTORATE OF SOCIAL WELFARE
ASSAM
UZANBAZAR GUWAHATI 781001
ASSAM
Advocate for the Petitioner : MR. A SARMA
Advocate for the Respondent : GA, ASSAM
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BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
05-10-2021 Heard Mr. K. N. Choudhury, learned Senior counsel assisted by Mr. A. Sarma, leaned counsel for the petitioner and Mr. D. Mozumdar, learned Additional Advocate General, Assam assisted by Mr. K. Goswami, learned Additional Senior Government Advocate, Assam for the respondent Social Welfare Department of the State.
The Director of Social Welfare, Assam, respondent No.3 on 07.09.2021 vide No.DSW(ICDS)G/114/2021/13 issued E-Tender in two bid System for technical and commercial bids inviting reputed manufacturer/authorized dealer of plastic molded furniture for supply of plastic table and chair for the pre-school children (boys and girls) of Anganwadi Centres and Mini-Anganwadi Centres of Assam for the financial year 2021-22 fixing on 01.10.2021 till 05:00 pm as the end date and time for submission of bids, specifying that there shall not be any pre bid meeting due to the COVID-19 pandemic and 02.10.2021 at 11:00 am was fixed for opening of the bid.
The petitioner is an authorized dealer of plastic molded furniture and also supplier of plastic furniture. Some of the conditions pertaining to qualification criteria for the authorized dealers are - condition No.1: The bidders should have a minimum average annual turnover of Rs.75.00 lakhs in the last three financial year's, i.e., 2017-2018, 2018-2019 and 2019-2020; condition No.4: the bidder must have a Work Order to any Government Department; Institutions of 50 lakhs in a single Work Order in any one year during the last three Financial Years 2017-2018, 2018-2019, 2019-2020. Turn over should be certified by qualified Chartered Accountant having UDIN number. The bidder must have submitted the Work Order copies (as per corrigendum dated 16.09.2021). Condition No.5: the Bidder must submit 5 samples of each item with the name of manufacturer which should be similar as per the technical specification. The sample must be duly signed and stamped by the bidder and the sample must be tested and certified by CIPET authority.
The said E-Tender dated 07.09.2021 specified one rectangular student table where Page No.# 3/5 amongst others there should be 759 block holes with a OD of 9.2 mm and ID of 6.2 mm, set of 18 pcs Blocks should be provided along in 3 sizes etc. The said E-Tender dated 07.09.2021 also specified about the multi colour plastic chair made up of non-toxic virgin grade PP plastic.
Petitioner submitted that after thorough enquiry and communications with leading manufacturer of plastic make school furniture of India like Supreme Industries Ltd., Mumbai; Nilkamal Ltd., Mumbai; Uma Plastics Ltd., Kolkata; Cello Industries Pvt. Ltd., Mumbai and many others, it failed to find out such table and chair specified in the said E-Tender dated 07.09.2021. As such, petitioner wrote to the Director of Social Welfare on 15.09.2021 to disclose the names of such companies manufacturing the table and chair as specified in the said E-Tender dated 07.09.2021. But the same has not yet been replied.
Petitioner placed before the Court that as per said E-Tender dated 07.09.2021 Tender fees has been fixed at Rs. 30,000/- which is very high, though the said tender does not specify the value/reserved price of the work/project and at the same time, it mandates that the interested bidders along with his bid has to furnish an Earnest Money Deposit of Rs.50 lakhs, which is also in the higher side; that said E-Tender does not disclose the quantity of supply i.e., the number of plastic tables and plastic chairs to be supplied though no ceiling has been provided as to the highest price a tenderer can quote for the products proposed to be supplied and that the said tender does not disclose the details as to the magnitude of the supplies to be made and the duration within which it needs to be supplied.
Stating all these grounds petitioner submitted that all the terms and conditions of the said E-Tender are tailor made to suit the specifications of the product manufactured and sold by the bidder that has found favour with the respondents so as to eliminate participation of other bidders. The petitioner also stated that for a hardware mould of any given specification or dimension to be created, it takes a minimum of 2 to 3 months and the entire exercise of creating a hardware mould results in expenses in excess of Rs.20 lakhs. The table and chair to be supplied with in terms of the said E-Tender dated 07.09.2021 are moulded one and by not mentioning the related time period the bidders have to incur huge expenses to prepare such mould for those specified table and chair and thereby the bidder would miss the deadline for submitting their bids for the tender involved in the case. As such, petitioner Page No.# 4/5 stated that the same would rule out fair competition amongst the bidders.
Therefore, petitioner stated that the terms and conditions specified in the said E- Tender dated 07.09.2021 are arbitrary, unfair, illegal and discriminatory in nature and in violation of the Articles 14 and 21 of the Constitution of India and as such, amongst others, it prayed to set aside and quash the said impugned E-Tender dated 07.09.2021 and in the interim, prayed to suspend the operation of the said E-Tender dated 07.09.2021 (Annexure - P/1 to this writ petition).
Mr. Mozumdar, learned Additional Advocate General submitted that the Director of Social Welfare issued a corrigendum on 29.09.2021 pertaining to the said E-Tender dated 07.09.2021, whereby tender fee has now been fixed at Rs. 20,000/-, Earnest Money Deposit has now been fixed at Rs. 25 lakhs instead of Rs. 50 lakhs; the bidder is now required to show that he had a Work Order to any Government Department/Institutions of 50 lakhs in a single Work Order in any one year during the Financial Years 2017-2018, 2018-2019, 2019- 2020 instead of during the last three financial years; the bidders should submit 3 samples, each of the table and chair, as per the given specifications instead of 5 samples to be submitted prescribed earlier and that bid submission date has been extended to 04.10.2021 till 05:00 pm and bid opening date and time has now been fixed on 05.10.2021 at 11:00 am.
The Court is aware of catena of decisions of the Hon'ble Apex Court that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract and that the Government/Employer must have a free hand in settling the terms of the tender and that the Courts would not interfere with the terms of the tender notice or shall whittle down the terms of the tender as they are in the realm of contract unless, those are wholly arbitrary, discriminatory or actuated by malice. The Court is also aware of the decisions of the Hon'ble Apex Court that while exercising the power of judicial review of the terms of the tender notice, the Court cannot order change in them.
On perusal of the said E-Tender dated 07.09.2021, it is seen that Clause 3 of the same specified that the total value of work may be increased/decreased depending upon the availability of fund. Further, the Clause 4.6 of Section II under Clause 4 'Quoting of Price' of the said E-Tender, it is stipulated that- the bidder must keep the fact in mind that the total Page No.# 5/5 quantity of Plastic Table and Chair to be supplied will be determined as per the actual requirement. Moreover, the respondent Director of Social Welfare while reducing the Earnest Money Deposit from Rs. 50 lakhs to Rs. 25 lakhs stated that the tender was published for collection of Single Rate of items and that the total value of work will depend of availability of fund.
Issue notice, returnable in 11.11.2021.
As Mr. K. Goswami, learned Additional Senior Government Advocate, Assam have accepted notices on behalf of all the respondents No. 1 to 3, no formal notices need be issued to those respondents. However, the petitioner shall serve requisite extra copies of this writ petition including the annexures appended thereto to Mr. Goswami by tomorrow.
Considering the fact that the impugned E-Tender dated 07.09.2021 have not specified the value of the work; the total quantity of plastic table and chair to be supplied will be determined as per the actual requirement and that the total value of work will depend on the availability of fund; therefore, in the interim, it is directed that the respondent Director of Social Welfare, Assam shall not open the bids submitted by the bidders in terms of the impugned E-Tender No.DSW(ICDS)G/114/2021/13 dated 07.09.2021, (Annexure-P/1 to this writ petition) until further order of the Court.
List accordingly.
JUDGE Comparing Assistant