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2022 DIGILAW 50 (MEG)

Droshing Lyngdoh v. Shillong Cantonment Board

2022-03-16

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The appeal is directed against a judgment and order of December 13, 2021 by which the appellant's writ petition was dismissed. The challenge in the writ petition was to the first respondent, Shillong Cantonment Board, awarding a contract in favour of the fifth respondent herein despite the appellant's perception that the fifth respondent was not qualified to participate in the bidding as the fifth respondent may not have possessed the requisite experience in terms of one of the general conditions indicated in the tender papers. 2. The relevant condition is found at the sixth clause under the general terms and conditions laid down in the tender documents. There is no doubt that the relevant clause indicates the minimum experience that the bidder must possess to be entitled to obtain the contract. The relevant clause is set out: 'The Agency/Contractor must have minimum one year experience in executing/providing similar services/works to Central Government/State Government/Cantonment Boards/offices or reputed public /private sector organizations for the last financial year i.e upt March, 2020. Copy of work order/documents are to be attached.' 3. Though there is nothing shown from the tender documents by the appellant that would indicate that a bidder would have to comply with all the conditions indicated in the general terms for the bid to be even considered, there is sufficient basis to the appellant's assertion that the manner in which clause 6 under the general terms is worded, it is inescapable that the minimum experience as stipulated therein ought to be possessed by a bidder for such bidder to be eligible to obtain the work, subject to the commercial and other terms. To such extent, the case brought by the appellant is sound. 4. In dealing with the writ petition pertaining to the tender notice issued on or about January 11, 2021, the writ court referred to the relevant clause and to a few Supreme Court judgments that instruct on the scope of judicial review available in such a situation. As is elementary, it is the decision-making process rather than the decision itself that calls for examination. As is elementary, it is the decision-making process rather than the decision itself that calls for examination. As long as the writ court discovers that a fair procedure was followed, that the bidders had sufficient opportunity to participate in the process and that the final decision was not tainted with favouritism or mala fides or was otherwise arbitrary, the writ court would scarcely interfere in how an employer, even though such employer may answer to the description of State or other authority under Article 12 of the Constitution, may choose its contractor. High authorities instruct that there ought to be a level playing field and even State employers seeking to engage contractors must be given sufficient room for play in the joints to choose the contractor they wish to work with, subject to the caveat that the decision must not be irrational or arbitrary and must be arrived at in accordance with the procedure established by law. 5. According to the appellant, a query raised by the appellant under the Right to Information Act, 2005 revealed a document that had been furnished by the fifth respondent herein in support of the fifth respondent's experience in terms of the relevant clause. As per such document, the fifth respondent had apparently 'undertaken contracts for management of collection of fees from Parking Lot under Shillong Municipal Board from 2008-2010.' The document also asserted that the contracts were successfully completed to the satisfaction of the office. The document was issued by the Shillong Municipal Board. 6. The appellant appears to have posed a question to the Shillong Municipal Board, again under the Act of 2005. In response to such query of April 5, 2021, the Shillong Municipal Board responded to the following effect: 'Shri Ricky Kharkongor (the fifth respondent herein) was a collector with Shri E. Langstieh who was awarded the contract for collection of the parking fees from Mawlong Hat on 22nd May 2009 and with Shri M. Langstieh who was awarded the contract for collection of parking fees from Mawlong Hat on 23rd August 2010.' 7. What is evident from the Municipal Board's aforesaid reply is that the fifth respondent herein was associated in the work of collecting parking fees for a period in excess of a year. 8. What is evident from the Municipal Board's aforesaid reply is that the fifth respondent herein was associated in the work of collecting parking fees for a period in excess of a year. 8. The appellant apparently sought and obtained the documents executed by the Shillong Municipal Board in respect of the parking fee collection contracts; but such documents, according to the appellant, did not bear the name of the fifth respondent herein. The appellant asserts that in the absence of the contract being awarded to the fifth respondent herein, the allegation that the fifth respondent was associated with the person who was awarded the contract by the Shillong Municipal Board should not be countenanced, particularly in the light of the clauses in the relevant contracts that prohibited assignment or sub-letting of the work thereunder to any other. 9. The relevant clause in the tender documents issued by the first respondent required the would-be contractor to 'have minimum one year experience in executing/providing similar services' to the specified agencies. What is evident from the documents on record, particularly the response of the Shillong Municipal Board to the query raised by the appellant under the Act of 2005, is that, it was the fifth respondent who was responsible for collection of the parking fees. Clause 6 of the general conditions of the tender documents in this case did not require the qualification to be such that the contract for collection of parking fees would have to be awarded in favour of the bidder; but only that the bidder must have such experience in such work. 10. As it has been appropriately noticed in the judgment impugned passed by the writ court that the author of a contract would understand or interpret the contract best and unless a court, in exercise of its authority of judicial review, found nepotism or crass arbitrariness or perceived that the entire thing was opposed to public policy or against public good, it would not seek to interfere in the process. The appellant fell short of the high test that was required to be met in succeeding in the challenge carried to the writ court. 11. The appellant fell short of the high test that was required to be met in succeeding in the challenge carried to the writ court. 11. Since the relevant clause is capable of being understood to imply that the bidder would have to have the experience in similar work and the clause cannot be interpreted to imply that the bidder must have been awarded a previous similar contract in his own name for the bidder to qualify to obtain the subject contract with the Cantonment Board, it was possible in the circumstances, for the first respondent to regard the fifth respondent as eminently qualified for the fifth respondent's bid to be considered in accordance with law. 12. There does not appear to be any obvious wrongdoing on the part of the first respondent. The judgment and order impugned do not call for any interference. 13. WA No. 23 of 2021 is dismissed. 14. There will, however, be no order as to costs.