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2018 DIGILAW 210 (CAL)

Rabindra Nath Adak v. State of West Bengal

2018-02-01

DEBANGSU BASAK

body2018
JUDGMENT : 1. Three writ petitions are taken up for analogous hearing as they involve the same issues. 2. Learned senior advocate appearing in support of the writ petition being W.P. 757(W) of 2018 submits that, the writ petition has since become infructuous. 3. In such circumstances, no further order need be passed in the present writ petition. 4. W.P. 757(W) of 2018 is disposed of accordingly. 5. Two writ petitions remain. For the purpose of convenience, W.P. 1563(W) of 2018 is referred to as the ‘first writ petition’ and W.P. 1572(W) of 2018 is referred to as the ‘second writ petition’. Supplementary affidavit filed in the two writ petitions be kept with the record. 6. Learned senior advocate appearing for the first writ petitioner submits that, the State has embarked upon a tender process for grant of contracts for supply of cooked diet to indoor patients in government health facilities. He submits that, a tender process of similar nature had received the consideration of the Court on earlier occasion. He refers to a corrigendum dated September 12, 2017 issued in respect of the earlier tender process. He submits that, Clause C introduced in the general conditions of contract of the tender process was challenged in an earlier writ petition. The same had received the consideration of the Appeal Court. The Appeal Court was of the view that such Clause C should be removed. He submits that, through the fresh tender process, the authorities have sought to reintroduce Clause C which was directed to be deleted by the Division Bench on the earlier writ petition. He submits that, the conditions laid down in Clause 3.1 of the fresh tender process are such that, it has the effect of favouring a section of the participants in the tender process. He draws the attention of the Court to the note appended to the tender conditions. He submits that, the note specifies that one bidder can apply for more than one hospital subject to his credential being calculated on the sum total of all the hospitals where the bidder has submitted his bid. He submits that, such a condition if allowed to stand will permit a section of the participants to participate while disqualify another section. The note is unreasonable so far as the disqualified participants are concerned. There is no rational basis for introducing such a note. He submits that, such a condition if allowed to stand will permit a section of the participants to participate while disqualify another section. The note is unreasonable so far as the disqualified participants are concerned. There is no rational basis for introducing such a note. The note should be read in the context of the two main clauses. The note cannot be read to destroy the two main clauses. Therefore, the note should be struck down. Learned senior advocate appearing for the first petitioner relies upon (2016) 3 SCC 49 (United India Insurance Company Ltd. Vs. Oriental Treasures Pvt. Ltd.) in support of his contentions. 7. Learned senior advocate appearing in support of the second writ petition submits that, the note appearing in the tender process is such that it will permit a section of the existing contract holders to participate and disqualify another section for no fault of the other section. He submits that, the clause is designed at the behest of cartel of suppliers to exclude the other portion. 8. The State is represented. 9. Learned advocate appearing for the State submits that, the issues raised in the present writ petition were considered on earlier occasions. Clause C of the corrigendum were directed to be struck down. The State has not reintroduced Clause C through the note or otherwise. The note permits a participant to participate in a number of hospitals. If there is any such participant, then such participant will have to qualify in terms of the note. The note is of the purpose for finding out whether a participant in the tender process who participates for more than one hospital has the requisite capability to do so or not. He relies upon (2012) 8 SCC 216 (Michigan Rubber (India) Limited Vs. State of Karnataka & Ors.) and submits that, the conditions which are required for the Writ Court to intervene in a tender process does not exist. Therefore, the Writ Court should not intervene. 10. I have considered the rival contentions of the parties and the materials made available on record. 11. The health department had issued a tender process for the purpose of giving contracts for supply of cooked dietary food to indoor patients of government health facilities. The tender process contains various terms and conditions. Clause 3.1 of the tender process is under challenge in the present writ petition. 11. The health department had issued a tender process for the purpose of giving contracts for supply of cooked dietary food to indoor patients of government health facilities. The tender process contains various terms and conditions. Clause 3.1 of the tender process is under challenge in the present writ petition. In particular, the note appended to Clause 3.1 is under challenge. Clause 3.1 is as follows: “3.1 (a) The intending tenderer should produce credential of similar nature of a completed single work having minimum value of 40% (Forty per cent) of the estimated amount put to tender during 3 (Three) years prior to the date of the issue of this e-tender notice. OR (b) The intending tenderer should produce credentials of 2 (Two) similar nature of completed works, each having a minimum value of 30% (Thirty percent) of the estimated amount put to tender during 3 (Three) years prior to the date of issue of this e-tender notice.” 12. Michigan Rubber (India) Limited (supra) is of the view that a Court can interfere in a tender on contractual matters in exercise of power of judicial review. However, it must pose a few questions to itself and if the answers to such questions are in the negative then no interference under Article 226 of the Constitution of India is called for. The questions that are required to be posed by a Writ Court are enumerated in paragraph 24 of the writ petition which is as follows: “24. Therefore, a court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”? and (ii) Whether the public interest is affected? If the answers to the above questions are in the negative, then there should be no interference under Article 226.” 13. In the facts of the present case as noted above, Clause 3.1 and particularly the note appended thereto is under challenge. The tender conditions had received consideration of the Writ Court in an earlier litigation. If the answers to the above questions are in the negative, then there should be no interference under Article 226.” 13. In the facts of the present case as noted above, Clause 3.1 and particularly the note appended thereto is under challenge. The tender conditions had received consideration of the Writ Court in an earlier litigation. In the earlier tender process, the State had issued a corrigendum dated September 12, 2017. The relevant portion of such corrigendum is as follows: “A. The period of three years as mentioned in Clause 3.1 in the above mentioned order means service rendered after April, 2011. B. Similar nature of work (supply of cooked diet) includes service rendered at Public Sector, Corporate Sector and Private Sector. C. Credential should be of 40% of annual turnover of the last 12 months of the bill amount of completed work in 1 (one) facility for three years after April, 2011 or 30% of the annual turnover of the last 12 months of completed work in 2 (two) facilities for three years after April, 2011.” 14. The Appeal Court by a judgment and order dated December 19, 2017 passed in MAT 1970 of 2017 (Pradip Bardhan & Ors. Vs. State of West Bengal & Ors.) had directed that, the State Government will issue a fresh corrigendum by retaining Clauses A and B mentioned in corrigendum dated September 12, 2017 without including the condition mentioned in Clause C therein. 15. The note presently under challenge is not same as that of Clause C dated September 12, 2017. 16. In my understanding, the tender process under challenge allows a participant to opt for participating in a tender for one of the health facilities or several of them. In the event, a participant chooses to participate in one of the health facilities, then he has to satisfy the conditions enumerated in Clause 3.1A or B. However, if he seeks to participate in more than one of the facilities, then he is required to satisfy the condition 3.1A or B and additionally the condition prescribed in the note appended thereto. As a Writ Court, I need not substitute the wisdom of the tender authorities with regard to the terms and conditions of the tender process. Nothing has been placed before me to suggest that, the note introduced is for the purpose of favouring a particular participant and to exclude the others. As a Writ Court, I need not substitute the wisdom of the tender authorities with regard to the terms and conditions of the tender process. Nothing has been placed before me to suggest that, the note introduced is for the purpose of favouring a particular participant and to exclude the others. It is, however, contended on behalf of both the petitioners that, the note as it stands today, if allowed to stand would allow a section of the contract holders to participate by ousting the other section of the contract holders. With respect, a participant has the option of participating in one of the health facilities or in several of the health facilities simultaneously. In the event, such participant seeks to participate in all the health facilities simultaneously, then such participant has to satisfy the additional condition of the note. That by itself cannot be said or inferred to mean that, the State is seeking to favour a section of the participants. 17. United India Insurance Company Limited (supra) deals with a provision of the Consumer Protection Act, 1986 and is of the view that a note in a section has to be read in a particular way. In the facts of the present case, the note is appended to a tender condition. Such a note need not be read as a statute. The note clarifies the situation in the facts of the present case with regard to participant seeking to bid for more than one health facility. 18. In such circumstances, I find no merit in the two writ petitions. W.P. No. 1563(W) of 2018 and W.P. No. 1572(W) of 2018 are dismissed. There shall, however, be no order as to costs. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.