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2016 DIGILAW 1083 (GAU)

Pradip Dutta v. Airport's Authority of India

2016-12-02

ACHINTYA MALLA BUJOR BARUA

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JUDGMENT AND ORDER : Achintya Malla Bujor Barua, J. Heard Sri PD Nair, learned counsel for the petitioner and Sri R. Dubey, learned counsel for respondent Nos.1 to 5 and Sri MP Goswami, learned counsel for respondent No.7. None appears for the respondent No.6. 2. Pursuant to a Tender Notice No.VP-11/2015, issued by the Airport Authority of India (for short, the AAI) for grant of licence of 'vehicle parking rights at the city side of terminal building' at Lokapriya Gopinath Bordoloi International (for short, LGBI) Airport for a period of 3 years, the petitioner had participated in the tender process. It is the case of the petitioner that as per Clause 15 of the notice inviting tender, scanned copies of all documents are to be uploaded by the tenderer, including the sign and seal of the authorised signatory, which should be clearly visible/readable. As per the said clause in case any of the documents uploaded by the tenderer is not visible to the tender opening committee, such document shall not be considered for technical qualification. Along with the writ petitioner, respondent No.6 and respondent No.7 had also submitted their tendered bids by following the process of uploading the bid in the website of the AAI. 3. It is the submission of Sri Nair that when the tenders were obtained on 15.12.2015, the representatives of the petitioners could see that the balance sheet and stamp of the chartered accountant in respect of the document submitted by respondent Nos.5 and 6 were not clearly legible. Further in respect of respondent No.6., the service tax registration certificate did not bear the sign of the issuing authority. Hence it is the case of the petitioner that the illegible documents submitted by respondent No.6 is contrary to Clause 15 of the NIET and hence, the said document could not have been considered for technical qualification of the bid of the respondent No.6. 4. It is the further submission of Sri Nair that as per Clause 3 (c) and (d) of the General Information/Guidelines, self attested copies of the PAN card, sale tax registration certificate and service tax registration are to be submitted by the tenderers. Further Clause 3(d) provides that copies of profit and loss account and balance sheet (duly audited and certified by a practicing Chartered Accountant) of the sole proprietorship concern or partnership firm etc., are also required to be submitted. Further Clause 3(d) provides that copies of profit and loss account and balance sheet (duly audited and certified by a practicing Chartered Accountant) of the sole proprietorship concern or partnership firm etc., are also required to be submitted. In this context, Sri Nair submits that the service tax registration certificate submitted by respondent No.6 did not bear the signature of the issuing authority. Sri Nair refers to the note appearing after Clause 3, which provides that in case the tender uploaded by the tenderer is not accompanied by any of the documents stated above at paragraph 3(a to k), such tender shall not be considered. Accordingly, the learned counsel submits that the proper and acceptable self attested copy of the service tax registration certificate was not submitted by respondent No.6. 5. It is the further contention of Sri Nair that in respect of respondent No.7 the 'No Dues Certificate' was not submitted. Sri Nair, learned counsel, accordingly, submits that in view of the above lacunas pointed out, the bid of respondent No.7 also ought not be technically accepted for further consideration. 6. Per contra, Sri R. Dubey, learned counsel for AAI i.e., the Tendering Department submits that, in the meantime, the respondent No.7 had submitted a 'No Dues Certificate'. Sri Dubey, learned counsel appearing for the AAI also submits that since it is not an existing contract the respondent No.7 is not required to submit a no dues certificate as the earlier contract has already been concluded and the security money has been refunded and, therefore, no further no due certificate is required to be submitted by respondent No.7. 7. Sri MP Goswami, learned counsel appearing for respondent No.7 points out to the Certificate dated 21.04.2009, which was issued by the Airport Director, LGBI, Guwahati, which is annexed as Annexure-A to the affidavit-in-opposition of respondent No.7, which, inter alia, certifies that as per the record available in the Office of the AAI, there is no due outstanding as on March, 2009, against the respondent No.7, Satyajit Kalita. Accordingly, the learned counsel refers to the letter dated 26.08.2013 of the Assistant Manager of the AAI to project that security money pertaining to the earlier contract dated 17.12.2009 had already been refunded to the respondent No.7. 8. Accordingly, the learned counsel refers to the letter dated 26.08.2013 of the Assistant Manager of the AAI to project that security money pertaining to the earlier contract dated 17.12.2009 had already been refunded to the respondent No.7. 8. The respondent No.7 has also filed an affidavit wherein it has clearly been submitted that there is no due pending to be paid to the AAI. 9. As regards, respondent No.7, the issue involved is whether the non-submission of the no due certificate would be a curable defect or it would be an incurable defect so as to adversely affect the entitlement of his tender being entertained. As regards the allegation of the petitioner against the respondent No.6 that the required document being his balance sheet was not legible and the service tax certificate was not duly signed by the issuing authority, the question for consideration before this Court would be whether the Clause 15 of the NIET, requiring the uploading of documents to be legible is a mandatory requirement or it is a directory requirement and whether the service tax registration certificate submitted by the respondent No.6 which was allegedly not signed by the issuing authority would be construed to be an incurable defect. 10. Sri Dubey, in this respect, submits that the tendering committee which consisted of 3 members, only one member, namely, Sri NK Panwar, Senior Manager (Finance) had raised objection that the bid of respondent No.6 should not be accepted as it is not legible and accordingly, the said tendering committee member had called for a clarification from the respondent No.6 regarding the illegibility of the concerned document. It is the submission of Sri Dubey that the other two members of the tendering committee had accepted the said documents as it is. Hence out of the 3 members of the committee two members have accepted the bid of respondent No.6. Therefore, Sri Dubey submits that this acceptance of the purported illegible document should be accepted. 11. At this stage, Sri Nair submits that the clarification as has been sought for by respondent No.6 is required to be done within a period of 15(fifteen) days. But the said clarification was given after expiry of 22 days and hence there is a delay of 7 days. Such delay of 7 days cannot be construed to be of such relevance as to vitiate the entire tendered bid of the respondent No.6. But the said clarification was given after expiry of 22 days and hence there is a delay of 7 days. Such delay of 7 days cannot be construed to be of such relevance as to vitiate the entire tendered bid of the respondent No.6. 12. In view of the above, the issues for determination before this Court is whether the requirement of Clause 15 of the NIET that the uploaded documents should be legible and any document which is not legible should not be considered for technical evaluation is a mandatory requirement or directory requirement. The second issue for determination is whether non-signing of the service tax registration certificate by the appropriate authority, without there being any allegation that the said certificate is otherwise obtained by some illegal means, on its own, can be construed to be an incurable defect or a curable defect. 13. On a bare perusal of Clause 15 of the tender notice, it can be seen that the provision requires that scanned copies of all documents are to be uploaded by the tenderer, which should be clearly visible and readable and in case any of the document uploaded by the tenderers is not legible to the tender opening committee, such documents shall not be considered for technical qualification. The said provision by itself on a plain reading merely provides that the documents which are not clearly legible should not be considered for technical qualification which, per se, indicates that the tendered bid itself should be technically disqualified for the reason. The said provision when read in the context that scanned copies of all the documents are to be uploaded in the websites of the tendering committee; it by itself cannot be construed that original documents which has been scanned are also not clearly legible so as to make it impossible for the tendering committee to form opinion in respect of the documents. 14. The question whether a provision is mandatory or not has been discussed by the Apex Court in K. Narasimhah v. H.C. Singri Gowda, reported in AIR 1966 SC 330 , wherein paragraph 12 the Apex Court was of the view that in order to ascertain as to whether a provision is mandatory or directory, the Court has to examine carefully the object of the provision, the consequence that may follow from construing such provision to be mandatory. As held by the Apex Court the consequence of a strict interpretation that the provision is mandatory would be relevant consideration in arriving at a conclusion whether the concerned provision is mandatory or directory. Paragraph 12 of the said judgment is quoted herein below : "12. The question then is: Is the provision of three clear days' notice mandatory, i.e., does the failure to give such notice make the proceedings of the meeting and the resolution passed there invalid ? The use of the word "shall" is not conclusive on the question. As in all other matters of statutory construction the decision of this question depends on the ascertainment of the legislature's intention. Was it the legislature's intention in making the provision that the failure to comply with it shall have the consequence of making what is done invalid in law ? That is the question to be answered. To ascertain the intention the Court has to examine carefully the object of the statute, the consequence that may follow from insisting on a strict observance of the particular provision and above all the general scheme of the other provisions of which it forms a part. In the State of U.P. v. Manbodhan Lal Srivastava (1) where the question arose whether the provisions of Article 320(3)(c) of the Constitution are mandatory (which provides that the Union Public Service Commission or the State Public Service Commission shall be consulted on certain disciplinary matters), this Court laid stress on the fact that the proviso to the Article contemplates that the President or the Governor as the case may be make regulations specifying the matters in which either in general or in any particular class or in any particular circumstances, it shall not be necessary for the Public Service Commission to be consulted. Speaking for the Court Sinha J. observed :- "If the provisions of Article 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary." 15. Speaking for the Court Sinha J. observed :- "If the provisions of Article 320 were of a mandatory character, the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary." 15. While examining Clause 15 from the aforesaid point of view of the law as to what would be the consequence if a document which is not legible to the tendering committee would be not considered for technical qualification, the only conclusion that can be arrived at is that the tendered bid containing such document which is not legible will have to be rejected straightway. If such a view is taken, even if the said document is otherwise valid and the concerned tenderer has the original document, which is clearly legible but due to technical error the scanned copies of the documents in the website, appears to be illegible due to certain disturbances during scanning and uploading, such a tender which is otherwise valid would have to be unduly rejected only for a technical reason that at the time of scan and uploading the document was not legible. Such interpretation would result in a consequence of being unduly harsh. 16. In view of the above, by taking into consideration the harsh consequence that may follow, the provision of Clause 15 of NIET that the document uploaded by the tenderers if not legible to the tendering committee, such document shall not be considered for technical qualification, is to be interpreted to be directory provision rather than a mandatory provision. Again the said provision would also be directory because the original document which has been scanned and uploaded is also a pre-existing document and the said document otherwise can be called upon to be verified for its legibility and authenticity. 17. As regards the other allegation that the service tax registration certificate of respondent No. 6 did not bear the signature of the issuing authority, the same has to be looked into from the point of view whether, in the absence of such signature, can it be construed that the said tenderer has not followed the required procedure of law. 17. As regards the other allegation that the service tax registration certificate of respondent No. 6 did not bear the signature of the issuing authority, the same has to be looked into from the point of view whether, in the absence of such signature, can it be construed that the said tenderer has not followed the required procedure of law. It may be that, due to over sight, the issuing authority had failed to put his signature but otherwise the said certificate is valid for all other reasons and the information contained in the certificate that the concerned tender is duly registered is correct. Such defects can be construed to be a curable defect. 18. The concept of curable defects and incurable defects can be examined from the point of view that as to whether the tender had the specified requirement at the time of submission of the tender for which the relevant document was required to have been submitted. If on an examination of the matter, it can be construed that the said requirement which the document depicts, as the case may be was pre-existing at the time of submission of document, such non-submission of the document it can be concluded to be a curable defect. If on the other hand, the requirement that the document depicts did not exist at the time when the tendered bid was submitted and such requirement was subsequently obtained such a defect would have been construed to be an incurable defect. 19. Examining the present case, in the context of curable defect and incurable defect as stated, herein above, the service tax registration certificate of the respondent No.6, which, otherwise is a document to indicate that the respondent No.6 has duly complied with the service tax requirement, would be a curable defect if otherwise the respondent No.6 was duly registered with the service tax department and the said document cannot be rejected straightway merely because the concerned officer due to inadvertence or over sight had failed to put his signature thereon. If on the other hand, it has been projected that, in fact, the respondent No.6 had not duly complied with the requirement of the service tax registration, in such event, the absence of the signature may lead to the conclusion that the defect is not curable. 20. If on the other hand, it has been projected that, in fact, the respondent No.6 had not duly complied with the requirement of the service tax registration, in such event, the absence of the signature may lead to the conclusion that the defect is not curable. 20. But in the instant case, nothing has been pointed out that the respondent No.6 has failed to comply with the service tax law and, therefore, it can be concluded that the absence of signature of the authorised signatory can be construed to be a curable defect in the service tax registration certificate and the tendering authority should otherwise ask for a clarification and allow respondent No.6 to obtain a fresh certificate bearing the appropriate signature. 21. It is submitted by the learned counsel that the service tax authorities being approached by the respondent No.6 had specifically issued another certificate bearing the signature of the authorised signatory and it was also clarified that the earlier certificate did not contain the signature as because these days computer generated certificates are issued, which normally does not bear any signature. 22. Sri Dubey also submits that the purpose of floating a tender is that there may be maximum participation and the most competitive bid can be arrived at so that public interest can be best served. Ousting respondent No.6 and 7 would also not serve the purpose of public interest as the competitiveness of the tendered bid would be reduced. In such view of the matter, the rejection of the bid of the respondent Nos.6 and 7, would not be in the public interest. This writ petition is disposed of by allowing the respondent authorities to proceed with the tender process pursuant to the Tender Notice No.VP-11/2015 by bringing the process to its logical end in accordance with law.