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2017 DIGILAW 748 (CAL)

Uma Corporation v. Union of India

2017-09-06

NISHITA MHATRE, TAPABRATA CHAKRABORTY

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JUDGMENT : Tapabrata Chakraborty, J. 1. The writ petitioner/appellant preferred an application under Article 226 of the Constitution of India being WP No.16876 (W) of 2017 challenging the notice inviting online tender issued by Kolkata Port Trust (hereinafter referred to as KPT) and the impugned attempt on the part of the respondent nos.3 and 4 to award the contract in favour of Hindustan Steel Works Construction Limited (hereinafter referred to as HSCL). By the said e-tender notice (hereinafter referred to as NIT) applications were invited from experienced, bonafide and reliable manufacturers, suppliers and operators of road weighbridges for supply, installation, operation and maintenance of road weighbridges at Haldia Dock Complex (hereinafter referred to as HDC). The appellant participated in the said tender and qualified in the techno-commercial bid but did not emerge to be successful in the price bid. The primary ground of challenge in the writ petition was that HSCL did not possess any direct work experience in respect of weighbridges. Upon considering the eligibility criteria as specified in the e-tender vis-a-vis the technical capability of HSCL, the learned Single Judge arrived at a finding that HSCL fulfils the eligibility criteria and accordingly the letter of intent had been rightly issued in favour of HSCL. Challenging the said order dated 13th July, 2017, the appellant has preferred the present appeal. 2. Mr. Jayanta Kumar Mitra, learned senior advocate appearing for the appellant submits that HSCL is neither a manufacturer of road weighbridge nor has experience of executing “similar work” which term has been defined in the tender notice. HSCL in support of its eligibility has placed reliance upon a letter dated 20th November, 2013. By the said letter only land was allotted to HSCL for installation of weighbridges. On the basis of such allotment of land, HSCL did not earn any experience towards supply, installation, operation and maintenance of road weighbridges. 3. He further submits that in reply to an application submitted under the Right to Information Act, 2015 (hereinafter referred as RTI Act) it was stated by the Senior Assistant Estate Manager that KPT has not given any contract for supply, installation and maintenance of weighbridges or any related works to any agencies in last 7 years and that no experience certificate has been provided to HSCL by KPT. From such information as furnished it is explicit that HSCL does not fulfil the eligibility criteria as stipulated and accordingly the letter of intent (hereinafter referred to as LOI) has been issued to an ineligible person and such infirmity warrants interference of this Court. 4. Mr. Mitra further submits that HSCL does not have any experience towards installation of weighbridges and it would be engaging an agency for executing the work. On the contrary the appellant has direct work experience as regards supply, installation, operation and maintenance of road weighbridges. The tender committee could not have declared HSCL to be eligible only on the basis of an order of allotment of land in favour of HSCL. Such decision is whimsical, arbitrary and unfair and is an instance of uncanalized exercise of discretion. HSCL is nothing but a busy body and it does not fulfil the eligibility criteria. 5. Per contra Mr. Abhrajit Mitra, learned senior advocate appearing for KPT submits that the price bid was opened on 5th April, 2007, the LOI was issued on 16th June, 2017 whereas the writ petition was filed on 23rd June, 2017. Prior to filing of the writ petition it was within the knowledge of the appellant that HSCL had been awarded contract for installation and operation of weighbridges as per letter dated 20th November, 2013. Such fact would be explicit from the averments made in paragraph 10 of the writ petition. The appellant had been thus indolent in approaching the Court and as such the learned Single Judge rightly refused to exercise discretion in appellant’s favour. 6. He further submits that in the e-tender notice there is no requirement towards production of any experience certificate. The eligibility criteria provides that a manufacturer of road weighbridge as well as a person having experience of executing work towards supply, installation, operation and maintenance of road weighbridges would be eligible for being awarded the work under the tender. Being satisfied that HSCL has experience towards supply, installation, operation and maintenance of road weighbridges, the authorities allotted land in its favour for installation and operation of weighbridges. 7. He further submits that the scope of judicial review of a commercial transaction is very limited and there is no allegation of any malafide. HSCL has already been issued the LOI and any interference at this stage would delay the work and would be derogatory to the public interest. 7. He further submits that the scope of judicial review of a commercial transaction is very limited and there is no allegation of any malafide. HSCL has already been issued the LOI and any interference at this stage would delay the work and would be derogatory to the public interest. 8. In reply, Mr. Jayanta Kumar Mitra submits that there had been no delay in approaching the Court inasmuch as the price bid was opened on 5th April, 2007 and till such date the appellant had no knowledge as to whether HSCL would be awarded the contract. Immediately thereafter the appellant submitted an application on 7th April, 2017 seeking relevant information in terms of the provisions of the RTI Act. In reply thereto, the information was furnished on 14th June, 2007 and only thereafter the appellant could approach this Court. 9. Heard the learned advocates appearing for the respective parties and considered the materials on record. 10. The very first paragraph of the NIT it has been stated that “E-Tender under two part system (Part I: Techno-Commercial Bid and Part II: Price Bid) are invited from experienced, bonafide and reliable manufacturer, supplier and operators of road weighbridges for Supply, Installation, Operation and Maintenance of Road Weighbridges at HDC, KoPT”. The contents of the said paragraph read with the eligibility criteria and technical capability (essential experience) under clauses 2 and 2.3.1 of the NIT reveal that a manufacturer of road weighbridge as well as a person having experience of executing similar work, i.e., supply, installation, operation and maintenance of road weighbridges with associated facilities would be eligible to participate in the tender and proforma to that effect stands annexed to the NIT. The document dated 20th November, 2013 clearly reveals that HSCL was allotted land for installation and operation of road weighbridges. It would also be explicit from the reply dated 5th July, 2017 issued in response to an application under the RTI Act that the tender committee at HDC, upon considering the contents of the letter dated 20th November, 2013 and the lease terms, found that HSCL to be eligible for the work under the contract. There exists no bar in the NIT to the effect that a manufacturer or a supplier or an operator cannot apply. There exists no bar in the NIT to the effect that a manufacturer or a supplier or an operator cannot apply. There is also no absolute bar to the effect that a successful tenderer cannot appoint an agency for completion of the work in question. However, such engagement would be subject to the approval of KPT as would be explicit from clause 1.16 of the Instructions for E-Tender. 11. The fact that HSCL was allotted land for operation and installation of road weighbridges was within the knowledge of the appellant while participating in the tender process. The techno-commercial bid was opened on 3rd February, 2017 and at that juncture the appellant did not raise any objection. The price bid was opened on 5th April, 2017 and the LOI was issued on 16th June, 2007 and thereafter on 23rd June, 2017 the writ petition was filed. The appellant failed to explain such delay in preferring the writ petition. In the backdrop of said facts the learned Single Judge refused to exercise discretion in favour of the petitioner and such refusal, in our view, is neither arbitrary nor unreasonable. 12. The scope of judicial review in award of contracts is very limited. In support of contracts entered into on behalf of the State or an instrumentality of the State, the Court is concerned primarily to ascertain as to whether there has been any infirmity in the decision making process. The Court does not sit as a Court of appeal over the decision of the authority floating the tender. There is also no allegation of mala fide in the writ petition. It is also well settled that some technical/procedural evaluation would not warrant judicial interference in commercial matters. 13. Applying the above proposition of law to the facts of the case, we are of the opinion that the order impugned does not suffer from any palpable infirmity warranting interference of this Court. The learned Single Judge, upon dealing with all the factual issues arrived at specific findings and we do not find any error in the same. The order stands fortified with cogent reasons. The impugned order does not suffer from any jurisdictional error or any manifest injustice warranting interference of this Court. 14. For the reasons discussed above, we do not find any reason to interfere with the order impugned and accordingly the appeal and the connected applications are dismissed. The order stands fortified with cogent reasons. The impugned order does not suffer from any jurisdictional error or any manifest injustice warranting interference of this Court. 14. For the reasons discussed above, we do not find any reason to interfere with the order impugned and accordingly the appeal and the connected applications are dismissed. There shall, however, be no order as to costs.