Allowed

Manomohan Talukdar v. the State of Assam and 3 Ors.

Gauhati HC5 Apr 2018WP(C)/5805/2016

Case brief

AI extract

What is this about?

In a writ petition by a rejected bidder, the Gauhati High Court found the revocation irregular. The court held that while the submission deadline for specific tenders was extended, the first tender's deadline was not explicitly extended. Consequently, the work should have been evaluated based on documents valid on the original date.

What did the court decide?

The work order favoring respondent No. 4 was set aside. Liberty granted to the municipal board to conduct a fresh tender.

Manomohan Talukdar Vs the State of Assam and… — Public Procurement and Tenders | Gauhati HC (2018)

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Page No.# 1/6

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GAHC010025912016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 5805/2016

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1:MANOMOHAN TALUKDAR

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S/O LT. SRI UMESH CH. TALUKDAR R/O UPARHALI, PALASHBARI P.O. UPARHALI, P.S. PALASHBARI DIST. KAMRUP, ASSAM, PIN - 781122.

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VERSUS

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1:THE STATE OF ASSAM AND 3 ORS

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REP. BY THE COMMISSIONER ADMINISTRATION DEPARTMENT, DISPUR, GUWAHATI -6, ASSAM.

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2:THE CHAIRMAN PALASHBARI MUNICIPAL BOARD PALASHBARI KAMRUP ASSAM

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3:THE EXECUTIVE OFFICER PALASHBARI MUNICIPAL BOARD PALASHBARI KAMRUP ASSAM.

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4:MD. MAFIZUL HAQUE

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FATHERS NAME NOT KNOWN C/O PALASHBARI MUNICIPAL BOARD PALASHBARI KAMRUP ASSAM

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Advocate for the Petitioner : MRS.N SAIKIA

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Advocate for the Respondent : MR.SP Choudhury R-2and3

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BEFORE HON BLE MR. JUSTICE PRASANTA KUMAR DEKA

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ORDER

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Date : 05-04-2018

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Heard Ms.N.Saikia, learned counsel appearing for the petitioner. Also heard Mr.S.P.Choudhury, learned counsel appearing for respondent Nos. 2 and 3 and Ms.M.Bhattacharjee, learned Additional Senior Govt. Advocate appearing for the respondent No.1.

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The respondent No. 2 floated NITs i.e.(1).PMB-III/13FC/16/76-90 (2) PMB-III /40/60/105 and (3) PMB III/DDP/76/12/Part I/106-120 all dated 27.6.2016. Amongst the aforesaid NITs, the NIT No. 1 was for repairing of side berms of road, the second one was also for improvement of road and the third one for construction of Ist floor slab of Market building of Polashbari . The eligibility criteria of the contractors must have registration under APWD(R) and other Government department and past experience of executing any similar works. The date of issue of tender documents started from 27.6.2016 to 8.7.2016 between 10-30 to 14.00 hours. Last date of submission of tender was 11.7.2016 up to 12.00 hours and the date of opening of tender was at 13.00 hours on 11.7.2016 , as per the terms stipulated in the aforesaid NITs. In addition to that bidding Contractors must have to deposit up to date VAT, In-come tax (PAN) clearance certificate, Contractors Registration Certificate, labour license and other particulars as stated in the tender documents. Amongst the various NITs the first NIT which was for repairing of road is the subject matter in this writ petition.

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The petitioner who is a registered contractor in APWD(R) participated in the tender process and submitted all the requisite documents including the labour license which was valid up to 14.7.2016. On the other hand, the respondent No.4 also participated by submitting his registration certificate as a Contractor in PWD( Building Division) on 11.7.2016 i.e. the date on which all the tenders were supposed to be opened after closure of submission of bid. The respondent after opening the tender box could find that except the first tender in the rest of the other two tenders, the participants were less than three bidders . However, so far the first tender is concerned, there were three bidders including the present petitioner, respondent No. 4 and another one. On 11.7.2016 after opening the tender box owing to the

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aforesaid short comings the tender committee/Polashbari Municipal Board took a resolution which is reproduced herein below:

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“Resolution No.1- Today on 11.7.2016 Monday after opening of the tender box it is seen that there

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are 3 tenders against 13^th FC Scheme but under the DDP and 14 th FC Scheme there are less than 3 tenders received against the scheme. Therefore the scheme under DDP and 14 th FC Scheme the date of accepting tenders have been extended till 25.7.2016, which is decided and accepted in the meeting.”

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On 25.7.2016 as per resolution No.1, all the three tenders were opened and as per comparative statement of first NIT, it was held that as the labour license of present petitioner and other bidder Sri Jintu Das having not its up to date validity, as such the tender of the respondent No. 4 was accepted. Subsequent thereto the requisite work order was issued to respondent No. 4.

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Being aggrieved by the rejection of the present petitioner owing to non-submission of the up to date labour license, the petitioner has preferred this writ petition challenging the decision making process of the respondent No. 2 to be irregular and vitiated.

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Ms.Saikia submits that the petitioner was having due valid and up to date labour license till 14.7.2016 and date of opening of tender was on 11.7.2016 and had the same been opened on that particular date, his labour license was very much up to date. But with an intent to oust the petitioner the said tender was opened on 25.7.2016 without any prior information nor any resolution was passed to that effect. Referring to the resolution dated 11.7.2016, Ms.Saikia submits that the extension for acceptance of the other two NITs leaving aside the first NIT till 25.07.2016, there is no dispute to that effect. There was no such resolution to the effect so far date of acceptance of the first tender was extended till 25.7.2016. Under such circumstances the respondent No.2 ought to have considered all the facts and figure in the first tender process, considering the documents and the validity as on 11.7.2016 inasmuch as there was no notification thereby extending the opening date of the said bid. It is also submitted that the respondent No. 4 was the Registered Contractor under the PWD(B) and apparently work was for improvement of roads. A contractor having his registration under the PWD(B) cannot be given the work for roads and as such granting of the work order to the respondent No. 4 is with a intention to oust the present petitioner inasmuch as, had the same be opened on 11.7.2016 the petitioner would have been the

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competent participant for awarding the work.

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It is further submitted that the respondent No. 4 though had started the work had left the work incomplete after this writ petition was filed and as such the said work has not yet been completed. Thus Ms.Saikia submits that the petitioner was ousted willfully and illegally as such, he is entitled for compensation. To that effect Ms.Saikia placed reliance on (2005)8 SCC 438 (Subhash Projets & Marketing Ltd Vs W.B.Power Development Corpn. Ltd. And others and 2017 (1) GLT (ML) 612( Power Carriers (India) Pvt.Ltd(M/S) & anr. Vs G.M.Lanong & Anr)

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Mr.Choudhury on the other hand, opposing the submission of Ms.Saikia submits that this is not a fit case for examining the decision making process of the respondent No. 2. Admittedly the labour license of the petitioner is invalid on the date of opening the tender dated 25.7.2016 and accordingly same has been reflected in the comparative statement and as the other participant was also having invalid labour license, the respondent No. 4 was duly awarded the work having fulfilled the criteria of qualification. As per qualifying criteria the bidders must be registered contractor of APWD(R) or any other Government Department having similar work experience. Drawing reference to para 5 of the affidavit of respondent No. 2, Mr.Choudhury submits that at the time of taking resolution on 11.7.2016 the agent of the petitioner was present and was aware that the first tender would be opened on 25.7.2016 and to that effect he put his signature in the minutes of the meeting. Non mentioning of the extension of tender acceptance date of first tender in the resolution thereby notifying the date of reopening cannot be held to be irregular inasmuch as the agent of the petitioner was very much present at the time of taking the resolution. It is further submitted that the scope of judicial review of the decision making process of the tender committee is of very limited scope. The malafide or irregularity must be of such nature that it must show that unreasonableness crept into it while taking the decision by the tender committee. In the present case in hand the petitioner has failed to show such degree of unreasonableness for its judicial review. In support of his submission he relied on (2014) 3 SCC 760(Maa Binda Express Carrier and another Vs.North East Frontier Railway and others)

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Considered the submissions of the learned counsels. Transparency is the other term of reasonableness while examining the decision making process by the Court. The decision making process must be of such unreasonable one that no prudent man would accept the

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said decision and then only the application of judicial review of the decision making process would come into play. Herein the present case in hand the labour license of the petitioner was valid till 14.7.2016 and the opening date of tender was 11.7.2016. On that particular date leaving aside the first NIT in rest of the two other tenders, the participants were below three in numbers. It is admitted that the participants in First NIT were three in numbers. If the resolution taken by the respondent No. 2 on 11.7.2016 is seen, it is very much clear that only the second and third NIT were deficient in number of participants. As such resolution was taken that the scheme under DDP(Second tender) and under 14 FC Scheme(third tender), the date of acceptance of the tenders were extended till 25.7.2016. As per terms of all the NIT the last date of submission of bids were the opening date of bids.

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From the resolution it is very much clear that the date of accepting tenders was extended till 25.7.2016 of the said two NIT. Nowhere it has been mentioned that the date of opening is 25.7.2016. It cannot be inferred from the said resolution that the date of accepting tender was extended in the first tender also. Though the agent of the petitioner was very much present, it cannot be concluded that the opening date of First tender was postponed till 25.7.2016. In the affidavit-in-opposition by the respondent No.2 it is stated that in the extension notice dated 11.7.2016 it was mentioned that the contractors who already submitted tender need not resubmit it. Mentioning of said terms does not show that the date for opening of tender has been extended till 25.7.2016. Again reverting back to the terms of the NIT it was clear and specifically mentioned that the date and time of opening of tender was the last date of submission of tender. If there is no extension of last date of submission of tender, there is no point for inference that the tender would be opened on 25.7.2016. As there was no such specific extension of date of submission of tender mentioned in the notification and /or no resolution was taken, under such circumstances, even if the first NIT was opened on 25.7.2016, the same ought to have been considered, considering the status of the documents as on 11.7.2016. Having not done so it can be concluded that the decision making process of respondent was illegal and arbitrary as there is no resolution/notice to show that the last date of submission of tender was extended. Moreover each of the tenders are separated from each other so far the nature/scheme are concerned.

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