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2004 DIGILAW 656 (CAL)

CYGNUS PRODUCTS (P) LTD v. KOLKATA PORT TRUST

2004-09-28

ALTAMAS KABIR, ASIT KUMAR BISI

body2004
KABIR, J. ( 1 ) THERE will be an order in terms of prayer (a) of the petition. ( 2 ) THESE two matters have been taken up for consideration together, inasmuch as, they arise out of a common order passed by the learned Single judge on the two writ applications filed by the appellants, one under W. R No. 1643 of 2004 and the other under W. R No. 1549 of 2004. By the said order and/or judgment dated 31. 8. 2004 the learned Single Judge dismissed the two writ applications on the ground that since the writ petitioners had chosen not to participate in the tender process but had made an offer only once the tender had been opened, they were not entitled to any relief and the action of the respondents did not, therefore, call for any interference of the Court. ( 3 ) AGGRIEVED by the said order of the learned Single Judge the appellants have preferred these two appeals. ( 4 ) APPEARING on behalf of the appellant in APOT No. 572 of 2004 Mr. Gautam Chakraborty, learned senior Counsel submitted that although the appellant had not participated in the tender process, it was still entitled to bring to the notice of the Court the fact that certain circulars which had been issued by the Ministry of Finance (Department of Revenue), Central Board of excise and Customs, New Delhi, in relation to the provisions of the Customs act, 1962 and the Major Port Trust Act, 1963, had not been followed. ( 5 ) ON the question of locus standi to move the writ application without having participated in the tender process, Mr. Chakraborty submitted that the appellant was entitled to bring to the notice of the Court the illegalities referred to by him which, according to him, had vitiated the entire tender process. Mr. Chakraborty laid particular stress on the fact that it had been decided by the Kolkata Port Trust authorities to dispose of certain goods not by public auction but by inviting tenders which, according to Mr. Chakraborty, was not in conformity with the provisions of Section 62 of the Major Port Trust act, 1963 and the provisions of three different circulars, being Circular No. 49/97-COS dated 14. 10. 97, Circular No. 7/2004-COS, dated 28. 01. 04 and circular No. 35/2004-COS, dated 20. 05. Chakraborty, was not in conformity with the provisions of Section 62 of the Major Port Trust act, 1963 and the provisions of three different circulars, being Circular No. 49/97-COS dated 14. 10. 97, Circular No. 7/2004-COS, dated 28. 01. 04 and circular No. 35/2004-COS, dated 20. 05. 04, where-under disposal of goods under the custody of authorities such as the Port Trust was directed to be made by public auction. Mr. Chakraborty submitted that when the authorities had acted in violation of the statute and the circulars issued by the government from time to time. It was open to the appellant to bring the said facts to the notice of the Court and to seek relief by way of quashing of the entire process adopted by the Port Trust authorities for disposal of the goods in question. Mr. Chakraborty submitted that the learned Single Judge had misunderstood the scope of the writ petition in summarily dismissing the same only on the ground that not having chosen to participate in the tender process the appellant was not entitled to question the same subsequently. ( 6 ) THE arguments advanced by Mr. Chakraborty were generally adopted by Mr. Pratik Prakash Banerjee, who appeared for the appellant in the second matter. In addition, Mr. Banerjee referred to Section 128 of the major Port Trust Act, 1963, where-uncler the power or authority vested in the Customs authorities under any law for the time being in force was to remain unaffected by anything contained in the aforesaid Act. Mr. Banerjee tried to show us from the tender documents that by including a clause that the successful tenderers wiil not be required to pay any customs duty on the goods so purchased by them, the respondents had acted in clear violation of section 128 of the 1963 Act referred to hereinabove. According to Mr. Banerjee, such illegalities, in fact, gave the appellant the right to question the transactions entered into by the Kolkata Port Trust, having regard to the fact that the said authority was a public body and was dealing with public money which would ultimately be ploughed back into the public exchequer. Mr. Banerjee also submitted that the writ petition filed by the appellant was not entirely for enforcement of a personal right and/or private right but involved an element of public interest which gave his client the right to question the entire transaction. Mr. Banerjee also submitted that the writ petition filed by the appellant was not entirely for enforcement of a personal right and/or private right but involved an element of public interest which gave his client the right to question the entire transaction. ( 7 ) MR. Banerjee submitted that the respondents should be directed to explain their position by affidavit and for the said purpose it would be necessary to stay both the orders passed by the learned Single Judge, as also the order of the authorities of the Kolkata Port Trust accepting the tender of the private respondent No. 6 in APOT No. 572 of 2004, M/s. Tulsyan NEC ltd. , which has been impleaded as respondent No. 9 in the other appeal. ( 8 ) MR. Kishore Dutta, learned Advocate appearing for the Kolkata port Trust authorities, strongly submitted that neither of the two appellants were entitled to maintain the writ applications filed by them and/or the appeals arising therefrom since they had not participated in the tender process. Mr. Dutta submitted that it was not the case of the appellants that the tender process had not been sufficiently publicized or that the appellants were denied an opportunity in participating in the said tender. Mr. Dutta submitted that the arguments advanced on behalf of the appellants may have had some force if they had participated in the tender process, but not having done, so they had no locus standi whatsoever to question the tender process and/or the orders passed by the learned Single Judge rejecting the writ applications filed by them basically on the ground of their lack of locus standi to challenge the tender process. ( 9 ) MR. Dutta also echoed the sentiment expressed by the learned. Single Judge to the effect that the appellants had watched on the side-lines while the tenders were opened and only after the contents of the tender were known, they had taken a chance to try and stall the process by indicating a higher offer. Mr. Dutta also submitted that the sanctity of a tender process could not be violated in the manner in which it has been sought to be done as otherwise there would be no end to such a process. ( 10 ) MR. Dutta urged that the two appeals along with the stay applications were liable to be dismissed with costs. ( 11 ) MR. ( 10 ) MR. Dutta urged that the two appeals along with the stay applications were liable to be dismissed with costs. ( 11 ) MR. Tapas Hazra, appearing for the Customs authorities, supported the stand taken by Mr. Dutta and submitted that the customs authorities had no grievance as to the manner in which the tender process had been conducted by the authorities of the Kolkata Port Trust. ( 12 ) ON behalf of the private respondent, which was the successful tenderer, it was submitted by Mr. Talukdar that after the tenders had been opened and the offer of the private respondent had been accepted, there was no further scope to reopen the entire process which was a concluded contract. According to Mr. Talukdar, any interference at this stage would be contrary to all the norms relating to invitation to tenders and acceptance thereof. He too prayed that the appeals along with the stay applications be dismissed with costs. ( 13 ) HAVING considered the submissions made on behalf of the respective parties, we are also of the view that not having participated in the tender process it was not open to the appellants to question the same subsequently. Not having filed the tender papers it was not open to the appellants to make any offer and by doing so they have, in fact, acted contrary to the provisions relating to the invitation to tender. ( 14 ) WE may point out that Section 62 of the Major Port Trust Act, 1963, empowers the Port Trust Authorities, as the custodian of unclaimed goods, to dispose of the same by different methods which include by invitation to tender along with public auction. It is true that in the circulars referred to by Mr. Gautam Chakraborty and also by Mr. Pratik Prakash Banerjee reference has been made to disposal of unclaimed goods by public auction, but, in our view, such a direction in a circular could not have prevented the authorities of the Kolkata Port Trust from exercising their power under the statute itself. Since the statute empowers the authorities of the Kolkata Port trust to dispose of the unclaimed goods by any of the methods prescribed in Section 62 of the Act, it was entirely upto the said authorities to take recourse to whichever of the procedures which were convenient for them. As has been submitted by Mr. Since the statute empowers the authorities of the Kolkata Port trust to dispose of the unclaimed goods by any of the methods prescribed in Section 62 of the Act, it was entirely upto the said authorities to take recourse to whichever of the procedures which were convenient for them. As has been submitted by Mr. Kishore Dutta, there is no allegation that the appellants had been prevented from participating in the tender by the authorities or that the tender process had been conducted in an unlawful manner. The fact is that they were prevented by other causes from participating in the tender process. In such a situation it cannot be said that the appellants are before the Court to ensure the public interest in respect of the goods sought to be disposed of, inasmuch as, personal interest runs through the cases made out by the two appellants. We also have to take note of the fact that the contract with the private respondent has been concluded and it would be contrary to public policy to re-open the same. ( 15 ) IN such circumstances, we are not inclined to interfere with the order passed by the learned Single Judge and the stay applications are, accordingly, dismissed. ( 16 ) SINCE nothing further remains in the two appeals, the same are also treated as on day's list and are disposed of by this order. ( 17 ) THERE will be no order as to costs. ( 18 ) PARTIES are to act on a xerox of the signed copy of this judgment and order on the usual undertaking.