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2019 DIGILAW 126 (GAU)

BTL EPC Ltd. v. State of Assam

2019-01-29

UJJAL BHUYAN

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JUDGMENT : UJJAL BHUYAN, J. 1. This order will dispose of both WP(C) Nos. 8167 and 8168 of 2018. 2. Heard Mr. N.J. Gogoi, learned counsel for the petitioner in both the cases and Mr. R. Dhar, learned Government Advocate, Assam, for the respondents. 3. Challenge made in both the writ petitions is to the e-tender notices dated 3.11.2018 for supply of power tillers. 4. While in WP(C) No. 8167, the e-tender pertains to supply of power tillers to Scheduled Tribes (ST) and Other Backward Classes (OBC) beneficiaries in different districts of Assam vide the e-tender notice dated 03.11.2018 issued by the Director of Welfare of Plain Tribes and Backward Classes, Assam; in WP(C) No. 8168 of 2018, the challenge is to the e-tender notice dated 03.11.2018 issued by the Director of Welfare of Scheduled Castes, Assam, for supply of power tillers to the beneficiaries belonging to the Scheduled Castes (SC) in different district of Assam. 5. When the writ petitions were moved on 28.11.2018, learned counsel for the petitioner contended that the prime grievance of the petitioner is that the number of power tillers to be supplied has not been mentioned in the two e-tender notices dated 03.11.2018. On such submission made, Mr. Dhar, learned Government Advocate was directed to obtain instructions regarding the number of power tillers required to be supplied by the successful bidder. 6. Thereafter, State filed affidavit. 7. After hearing the matter at some length, an order was passed on 07.12.2018, giving liberty to the petitioner to submit his tender in response to the e-tender notices dated 03.11.2018 with the observation that such submission of tender would be without prejudice to the rights and contentions advanced by the petitioner in the two writ petitions. 8. On 17.12.2018, Mr. Gogoi, learned counsel for the petitioner submitted that pursuant to leave granted by the Court, his client had submitted tender. He also submitted that technical bids were expected to be opened shortly. On such submissions, this Court passed an interim order to the effect that while the respondents may open the technical bids, price bids may not be opened thereafter. 9. Petitioner has filed reply affidavit to the affidavit filed on behalf of the respondents. 10. He also submitted that technical bids were expected to be opened shortly. On such submissions, this Court passed an interim order to the effect that while the respondents may open the technical bids, price bids may not be opened thereafter. 9. Petitioner has filed reply affidavit to the affidavit filed on behalf of the respondents. 10. Respondent No. 3 in his counter affidavit stated that in the pre-bid meeting held on 21.11.2018, the representative of the petitioner, who was present, did not raise any objection regarding the number of power tillers to be procured. It is further stated that in view of the clarifications sought for by the prospective bidders, the last date for filing e-tender was extended to 10.12.2018. It is stated that objections raised by the petitioner were more or less addressed, except the "Make in India" clause. It is stated that it is an endeavour of the Government in increase manufacture and exports to achieve the primary goal of making India a global manufacturing hub by encouraging multinationals as well as domestic companies to manufacture their products in India. In this context, reference has been made to letter dated 6.7.2018 of the Ministry of Agriculture and Farmers Welfare, Department of Agriculture, Cooperation and Farmers Welfare (Mechanization and Technology Division), Government of India, which clearly spells out the distinction and differences between imported power tillers and indigenous power tillers. The letter also highlighted the problems faced by farmers due to technical deficiencies of imported power tillers. Therefore, emphasis has been made to ensure that India-made power tillers are only procured. The tenders were floated for two financial years. The number of power tillers to be procured would be estimated after the tender process is over. The scheme has been undertaken with the objective of development of people belonging to the backward communities, such as, Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Classes (OBC). 11. Petitioner has filed reply affidavit to the affidavit of respondent No. 3. 12. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record. 13. Main grievance of the petitioner has already been noticed above. 14. As noticed above, substance of the two e-tender notices is supply of power tillers to the people belonging to SC, ST and OBC categories for the financial years 2018- 19 and 2019-20. Also perused the materials on record. 13. Main grievance of the petitioner has already been noticed above. 14. As noticed above, substance of the two e-tender notices is supply of power tillers to the people belonging to SC, ST and OBC categories for the financial years 2018- 19 and 2019-20. The e-tender provides for supply of power tillers to such categories of people on rate contract basis. Clause-3 of the e-tender notice deals with eligibility criteria. As per Clause-3.1, bidder should be manufacturers/distributors (authorized by manufacturers to participate in the tender process)/dealers (authorized by manufacturers to participate in the tender process) of power tillers. As per Clause-3.2, the bidder should have a network of dealers in the State of Assam for delivery of power tillers in all the Sub-Divisional Welfare Offices of Assam. 15. Further, the e-tender visualizes two bid system, technical bid and price bid. As per Clauses- 7.1 and 7.2, the rates quoted for item should be quoted should be per unit and shall include all taxes and other levies. As per Clause-9, delivery of goods shall have to be initiated within 30 days of issue of order to the destinations mentioned in the order and completed within 90 days from the date of issue of the order. As per general specifications contained in Annexure-B to the e-tender notices, bidder should mention the name of make, model, number etc. and provide a small commentary on the model offered stating place of manufacture and the performance details, enclosing therewith the original printed product leaflets in addition to maintenance manual along with the tender. The model offered should be of recent standard range of production and included in the latest tested list of Farm Machinery Training and Testing Institute, Ministry of Agriculture and Farmers Welfare, Department of Agriculture, Cooperation and Farmers Welfare (Mechanized and Technology Division), Government of India A manufacturer should have industrial license for manufacture of the product offered and state the same along with documentary support, which should be 100% Start Up/Make in India/Stand up India manufacturer. 16. In the course of hearing, Mr. Dhar, learned Government Advocate submitted that the entire objective of the e-tender is to select the best power tiller, which is also affordable. Once the power tiller is finalized along with the rate, the number of power tillers would then be determined depending upon the budgetary allocation and the number of beneficiaries. 17. 16. In the course of hearing, Mr. Dhar, learned Government Advocate submitted that the entire objective of the e-tender is to select the best power tiller, which is also affordable. Once the power tiller is finalized along with the rate, the number of power tillers would then be determined depending upon the budgetary allocation and the number of beneficiaries. 17. From the nature of tender, it appears that the tendering authority has laid emphasis on procuring power tillers, which are made in India. In fact, the eligibility criteria itself mentions that bidder should be manufacturers or distributors or dealers. In the general specification, it is clearly provided that the mode and make of power tiller, which is to be offered by a bidder, should be of recent standard range of production and included in the latest tested list of Farm Machinery Training and Testing Institute. 18. In the light of the above, objection raised by the petitioner that in the absence of the quantum of power tillers required to be supplied the bidders would be prejudiced would not be of much substance. The requirement or quantum of power tillers to be supplied is not the object of the e-tender notices. The objective of the e-tender notices is to select the eligible manufacturer/distributor/dealer for supply of power tillers to the intended beneficiaries on rate contract basis. Once the model, make and rates are finalized, upon depending the budgetary allocation and the number of beneficiaries who would be supplied power tillers, the requirement of power tillers would be worked out. 18.1. It was further submitted at the time of hearing by Mr. Dhar that supply of power tillers by the contractor, who would be finally selected, would be directly to the beneficiaries, thereby eliminating involvement of any middleman. 19. If that is the scope and nature of the tender, there is hardly any scope for interference by the Court in such a matter. Confining the eligibility to manufacturers/distributors/dealers of power tillers cannot be said to be unreasonable, irrational or arbitrary. Insistence on bidders, who manufacture power tillers in India as per start up policy of Government of India, cannot also be said to be against public interest; rather it is in the public interest. 20. In Michigan Rubber India Limited Vs. Confining the eligibility to manufacturers/distributors/dealers of power tillers cannot be said to be unreasonable, irrational or arbitrary. Insistence on bidders, who manufacture power tillers in India as per start up policy of Government of India, cannot also be said to be against public interest; rather it is in the public interest. 20. In Michigan Rubber India Limited Vs. State of Karnataka reported in (2012) 8 SCC 216 , Supreme Court after surveying the entire law relating to judicial review of administrative decision making pertaining to tenders and contracts held that a Court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following two questions:- 1. Whether the decision making process is vitiated by malafide or whether it is so arbitrary that no responsible authority acting reasonably and in accordance with law could have reached? 2. Whether public interest is affected? 20.1. Supreme Court held that if the answers to the above two questions are in the negative, then there should be no interference under Article 226 of the Constitution of India. 21. After careful consideration of the assailment made by the petitioner to the two e- tender notices, Court is of the view that answers to the above two questions in the factual context of the present case would have to be in the negative. If that be so, interference by the Court under Article 226 of the Constitution of India is ruled out. 22. That apart, since petitioner has already submitted tender pursuant to liberty granted by the Court its tenders may be considered on their own merit while evaluating the technical bids and, thereafter, the price bids. 23. Subject to the observations made above, both the writ petitions are dismissed. 24. Interim order passed earlier stands vacated.