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2010 DIGILAW 231 (CAL)

Santi Ranjan Paul v. Food Corporation Of India

2010-03-03

DIPANKAR DATTA

body2010
JUDGMENT 1. THE petitioner is a transport contractor who earlier had business dealings with the Food Corporation of India (hereafter FCI). However, he was banned by FCI from participating in further tender processes. The ban was lifted on March 18, 2009 subject to conditions mentioned therein. On the ground that the petitioner had not abided by the conditions, FCI did not consider his offer to execute a particular work. The petitioner challenged the action by filing a writ petition before this Court. The same was dismissed on June 29, 2009 with liberty to the petitioner to correct himself by complying with the conditions imposed by FCI within a period of fortnight from date. FCI was directed to consider the desirability of allowing the petitioner to participate in tender processes if he satisfied the conditions imposed by it. 2. THE order dated June 29, 2009 was carried in appeal at the instance of the petitioner. By an order dated August 17, 2009, the appeal was disposed of with the following direction: Considering the aforesaid submissions and suggestions of both the parties, we modify the order under appeal and direct the Food Corporation of India to permit the appellant to participate in all future tenders without insisting on his having experience of execution of contract with the F.C.I. authorities in the years immediately preceding such future tenders. On August 28, 2009, FCI issued tender notice for appointment of transport contractor from Barasat Railway siding to ARDC-BARASAT and ARDC-DOHARIA and vice-versa for a period of two years. The estimated value of the contract worked out at Rs. 1,55,50,000/-. 3. THE petitioner, intending to participate in the process, responded to the notice and offered his bid. 4. IN terms of paragraph 4 of the tender notice, the bids were to be offered in two separate envelopes marked technical bid and price bid. From the records that have been produced before this Court by Mr. L.K. Gupta, learned senior counsel representing the respondents, it is not in dispute that on opening of the technical bid of the petitioner on September 24, 2009, the Tender Scrutinizing Committee (hereafter the Committee) found the petitioner eligible to have his price bid opened. From the records that have been produced before this Court by Mr. L.K. Gupta, learned senior counsel representing the respondents, it is not in dispute that on opening of the technical bid of the petitioner on September 24, 2009, the Tender Scrutinizing Committee (hereafter the Committee) found the petitioner eligible to have his price bid opened. It is also not in dispute that the petitioner was asked by message dated November 24, 2009 to extend validity of his offer dated August 28, 2009 for another 30 days beyond December 3, 2009 and that accordingly, by letter dated December 1, 2009, he duly extended the validity of his offer. The petitioner claims that on January 11, 2010, he came to learn that FCI had decided not to open his price bid without, however, assigning any reason in support thereof and that it would proceed to open the price bid of the only other bidder found eligible. It is further claimed that no letter of intimation, however, to this effect was served upon him. 5. IT has been alleged in the petition that only two bidders had participated in the process and the decision taken by FCI not to open the price bid of the petitioner was really to accommodate the other bidder by excluding him from the zone of consideration. 6. IT has also not been disputed at the bar that the price bid of the other bidder, found eligible, was opened and it transpired that his offer is higher than the one offered by the petitioner. Feeling aggrieved by the decision taken by FCI not to open the price bid of the petitioner, this writ petition dated January 12, 2010 has been presented. This Court has heard Mr. Majumder, learned counsel and also Mr. Sengupta, learned senior counsel, in reply, for the petitioner. Mr Gupta, while opposing the petition on behalf of FCI, produced the records of the case. This Court has heard him as well as perused the records. 7. DISPUTE of the nature raised herein ought not to be decided without a reference to the celebrated decision of the Supreme Court in Tata Cellular vs. Union of India, (1994) 6 SCC 651 . In paragraph 77 thereof the Court ruled : 77. The duty of the court is to confine itself to the question of legality. Its concern should be : 1. In paragraph 77 thereof the Court ruled : 77. The duty of the court is to confine itself to the question of legality. Its concern should be : 1. whether a decision-making authority exceeded its powers. 2. committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. 8. THEREFORE, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be 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. iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R.V. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, consider whether something has gone wrong of a nature and degree which requires its intervention. Keeping the aforesaid principle in mind, this Court proceeds to decide whether interference is called for or not. 9. AS has been referred to above, the Committee verified the technical bids submitted by the bidders and so far as the petitioner is concerned recorded a finding that he fulfilled the tender qualifications and was entitled to have his price bid opened. Mr. Sengupta, urged that under what circumstances was this decision reviewed has neither been disclosed in the counter affidavit nor is revealed from the records placed before the Court. Similarly, who originated the process for reconsideration of the decision of the Committee has also not been disclosed. He further contended that it has not been pleaded that the finding of the Committee, as arrived at on September 24, 2009 was not final. Similarly, who originated the process for reconsideration of the decision of the Committee has also not been disclosed. He further contended that it has not been pleaded that the finding of the Committee, as arrived at on September 24, 2009 was not final. He referred to the minutes of the Committee dated September 24, 2009 to also contend that the petitioner having fulfilled the tender qualifications, the only other observation made by the Committee was that the opinion of the legal branch may be obtained pertaining to the decision of the Honble Division Bench dated August 17, 2009 referred to above. 10. THE submission of Mr. Sengupta has not impressed this Court. It appears from the records that a note dated December 9, 2009 was given by an officer of FCI [probably the DGM(R)]. The note reads: Discussed with Mgr (illegible). Committee is requested to reexamine the work experience once again as per the MTF provisions. On re-examination of the petitioners credentials, as directed, the Committee proposed as follows: THE Committee has stated in their report that since the instant tender was floated during August, 09, the immediate proceeding two years starts from August-2007 to July, 09. As per TDS certificate for the period 2007-2008 issued by Area Manager, FCI, Birbhum, it is seen that Sri Santi Ranjan Pal was paid an amount of Rs. 3,48,074/- during August, 07 and thereafter no payment was made to him because his contractual period was upto 23.9.07. The said amount does not cover 25% of the single contract of the estimated value of the instant of Rs. 38,87,500/- and hence Sri Santi Ranjan Pal does not qualify in the Technical Bid. Not only this, legal opinion that was sought for by FCI was to the effect that although the work experience with FCI in the preceding two years may not be insisted upon in terms of the order of the Honble Division Bench, there is no bar to consider eligibility of the petitioner vis--vis his work experience in the two immediate preceding years with any other organization. Although the legal opinion has not been placed before this Court, a note dated January 4, 2010 of the Deputy General Manager (Legal) of FCI seems to convey what the Court has recorded above. 11. Although the legal opinion has not been placed before this Court, a note dated January 4, 2010 of the Deputy General Manager (Legal) of FCI seems to convey what the Court has recorded above. 11. FOR the purpose of deciding whether the subsequent opinion of the Committee holding the petitioner ineligible is valid and legal or not, it is necessary to look into the opening paragraph of the notice inviting tender. It reads thus: On behalf of Food Corporation of India, the General Manager (WB) Regional Office (West Bengal), invites Sealed Offer of Rates from past or existing Transport Contractor (TC)/Handling and Transport Contractor (HTC) of FCI, Government Departments, Public Sector undertakings or Public Limited Companies, dealing in food grains, fertilizers, cement or similar products, for appointment of Transport Contractor (TC) on Regular basis for 02 (Two) years for the following works. The tenderer should have executed in the immediately preceding two years transport contracts, the total value of which is not less than 50% of the value of the contract to be awarded OR The tenderer should have executed in the immediately preceding two years any single contract, the value of which is not less than 25% of the value of the contract to be awarded, otherwise work experience will not be considered: It appears from a bare reading of the aforesaid extract that an intending bidder is necessarily required to have worked as Transport Contractor/Handling Transport Contractor of FCI/Government Department/Public Sector Undertakings/Public Limited Companies for two years and must have executed in the immediately preceding two years transport contracts of the value mentioned therein. As a consequence of the order of the Honble Division Bench referred to above, FCI could not insist that the petitioner must have executed transport contracts in the immediately preceding two years with it of the specified value; but by reason of the terms of the notice inviting tender, FCIs right to say that the petitioner in order to be eligible ought to have executed transport contracts of the specified value with any of the other organizations mentioned therein cannot be said to be fettered. This Court cannot agree with Mr. Sengupta that FCI could not have made any enquiry in this behalf having regard to the order of the Honble Division Bench. The said order does not purport to give unlimited protection to the petitioner. This Court cannot agree with Mr. Sengupta that FCI could not have made any enquiry in this behalf having regard to the order of the Honble Division Bench. The said order does not purport to give unlimited protection to the petitioner. It cannot be construed to mean that FCI cannot insist on work experience with other organizations. Admittedly, the petitioner did not execute any such contract with other organizations. Therefore, the Committee on being directed by the DGM (R) acted within its authority in seeking to explore the petitioners eligibility afresh. Further examination by the Committee revealed that the petitioner had not executed transport contract during immediately preceding two years either with any of the organizations mentioned in the tender notice other than FCI or even with FCI during the stipulated period for the specified value, thereby rendering the petitioner ineligible on this ground. The process of decision-making leading to the ultimate decision does neither suffer from error of law nor jurisdiction. It cannot therefore be faulted. 12. IT is true that the reason why the petitioner was not found eligible has not been indicated with any degree of clarity in the counter affidavit filed on behalf of FCI. IT is equally true that FCI has not assigned non-execution of transport contract by the petitioner of the specified value during immediately preceding two years with any of the organizations other than FCI, as mentioned in the tender notice, as a ground in any of the departmental notes including the minutes of the Committee as the ground to hold that he is ineligible to have his price bid opened. Mr. Gupta contended that a mistake of the departmental officers in failing to deal with the issue in the proper manner cannot lead to accrual of right in favour of the petitioner particularly when, on the face of the materials placed before the Court, it is established that the petitioner did not fulfil the eligibility criteria. The contention is unexceptionable. The petitioner has sought to invoke the writ jurisdiction of this Court. A Writ Court exercises discretion in favour of the party approaching it if it is found equitable to do so. Based on the materials placed before this Court, the conclusion is irresistible that the petitioner did not fulfil the eligibility criteria. The contention is unexceptionable. The petitioner has sought to invoke the writ jurisdiction of this Court. A Writ Court exercises discretion in favour of the party approaching it if it is found equitable to do so. Based on the materials placed before this Court, the conclusion is irresistible that the petitioner did not fulfil the eligibility criteria. The mere fact that the price offered by the petitioner is much less than that offered by the other bidder cannot tilt the scales in his favour. The stipulation made in the tender notice to the effect that the prospective bidder must have executed transport contracts of the value specified therein is with the view to ascertain whether the bidder would be in a position to successfully execute the contract having regard to its magnitude. An essential eligibility criterion cannot be overlooked. Applying the principles laid down in Tata Cellular (supra) to the facts of the present case, this Court is inclined to hold the view that no injustice has been meted out to the petitioner warranting interference. In the result, the writ petition stands dismissed without any order for costs.