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2023 DIGILAW 566 (UTT)

SIDCUL Solutions Network v. State of Uttarakhand

2023-10-05

RAKESH THAPLIYAL, VIPIN SANGHI

body2023
JUDGMENT : Rakesh Thapliyal, J. By the present writ petition, the petitioner is seeking the following reliefs:- “(i) Issue a writ, order or direction in the nature of Certiorari calling for the record and quashing the impugned Clause 74(vii), (viii), (xiii) and (xviii) of the Bid Document dated 10.08.2023 (Annexure No. 4 to the writ petition) inasmuch as the said document required to be submitted by the prospective bidder has no relevancy and connection with the contract work and more particularly when the tender document does not mention about tender amount. (ii) Issue a writ, order or direction in the nature of Mandamus directing the respondents to consider the Tender Document of the petitioner for the work in question without insisting on the documents mentioned at Clause 74(vii), (viii), (xiii) and (xviii) of the Bid Document dated10.08.2023 (Annexure No. 4 to the writ petition). (iii) Issue any suitable writ, order or direction which this Hon’ble Court may deem fit and proper in the circumstances of the case.” 2. The facts of the case are that the a tender was floated by the Nagar Palika Parishad, Kichha on 14.08.2023, whereby bids were invited from the prospective bidders for the work of cleaning, sanitation and disinfection services, collection, transportation and segregation of garbage. The last date for submission of the bid document was 24.08.2023. The case of the petitioner is that he wanted to participate in the tender process, however, after examining the bid documents, he found that there is Clause 74 in the Bid Document, which requires submission of “SLBR Certificate”. However, there is no description of this Certificate, and further no such Certificate is issued by the State Authorities, and it appears that the said condition was imposed only to facilitate the award of the tender to a particular bidder. The relief, as sought in respect of Clause 74(vii), (viii) (xiii), & (xviii) of the Bid Document is on the ground that the condition, as stipulated in this Clause, has no relevancy in connection with the contract work. 3. The relief, as sought in respect of Clause 74(vii), (viii) (xiii), & (xviii) of the Bid Document is on the ground that the condition, as stipulated in this Clause, has no relevancy in connection with the contract work. 3. It is the submission of the learned counsel for the petitioner that the petitioner is a partnership firm carrying-on business in the name and style of “M/S SIDCUL SOLUTION NETWORK”, and the partnership deed was originally signed on 1st June, 2011, and the partnership was reconstituted from time to time by amending the partnership deed, and the same was lastly amended on 25.03.2020. The petitioner firm is engaged in the business of supply of all types of materials and equipment, including food items and prepared foods, outdoor catering, solid waste management, door-to-door garbage collection and recycling, sanitation and cleaning work, etc. The petitioner firm is also registered with the Government of India as well as with the Labour Department of the State. 4. On 14.08.2023, the Nagar Palika Parishad, Kichha issued a bid document for the work of cleaning, sanitation and disinfection service as well as for collection, transportation and segregation of the garbage. The last date of submission of the bid document was 14.08.2023, and on the same day, the bid was opened at 17:30 Hours. The bid document stipulated the condition that the prospective bidder should have the minimum average turnover of Rs. 2.5 crores for three years. 5. The Nagar Palika Parishad, Kichha further issued letter No. 648 dated 10th August, 2023, wherein necessary guidelines were laid-down, which pertain to the scope of work and other conditions. As per Clause 74, all the information required are compulsory, failing which the technical bid will be treated ineligible and the bid will be rejected. 6. As per Clause (vii), the bidder is required to submit certain documents, which includes the certificate issued by the Chartered Accountant regarding turnover of the bidder of last three financial years and the minimum average turnover should not be less than 2.5 crores. 7. Further as per Clause 74(viii), the prospective bidder should possess the latest Insolvency Certificate issued by the competent authority, which should not be more than six months old. 8. Clause 74(xiii) requires that the prospective bidder should submit the copy of the IAF approved ISO 90012015, ISO 14001-2015 certificates. 9. 7. Further as per Clause 74(viii), the prospective bidder should possess the latest Insolvency Certificate issued by the competent authority, which should not be more than six months old. 8. Clause 74(xiii) requires that the prospective bidder should submit the copy of the IAF approved ISO 90012015, ISO 14001-2015 certificates. 9. Clause 74(xviii) requires the bidder to submit the copy of the SLBR Certificate. 10. Learned counsel for the petitioner submits that the petitioner approached the Nagar Palika Parishad, Kichha seeking clarification with regard to the meaning of “SLBR Certificate”, and further to inquire, which authority is competent to issue such certificate, but no response or information has been given by the Nagar Palika Parishad, Kichha. 11. It is further submitted by learned counsel for the petitioner that the petitioner made an attempt to inquire, through internet, about the said certificate and he came to know that the SLBR 62 Certificate is a certificate issued by the Brazilian Ministry of Agriculture, Livestock and Supply to certify that a product has been produced in accordance with the requirements established by the Brazilian agriculture sector. The information, as collected from the internet, is also enclosed in the writ petition as Annexure-5. 12. Learned counsel for the petitioner further submits that no such response and information has been supplied by the Nagar Palika Parishad, Kichha with regard to the said certificate. 13. Lastly, the counsel for the petitioner submits that Clause 74 (vii), (viii), (xiii), and (xviii), as stipulated in the bid document, are discriminatory and illegal, and have no relevancy with the nature of work for which the bid was invited, and these conditions have been included in the Bid Document only to facilitate the award of the contract to a particular bidder, which is apparent from the fact that the Bid Document nowhere mentions about the value of the tender and, thus, there is no nexus with the Turnover Certificate and the Insolvency Certificate to be submitted by the bidder. 14. It is submitted that the petitioner is being deprived from participating in the tender process, due to the inclusion of the aforesaid conditions. 15. This matter came-up before this Court on 24.08.2023, and on that day, learned counsel, who represents respondent Nos. 14. It is submitted that the petitioner is being deprived from participating in the tender process, due to the inclusion of the aforesaid conditions. 15. This matter came-up before this Court on 24.08.2023, and on that day, learned counsel, who represents respondent Nos. 3 & 4/ Nagar Palika Parishad, Kichha was not in a position to inform this Court as to what is the meaning of the document, i.e. “a certificate of SLBR”. 16. Thereafter, a counter-affidavit was filed on behalf of respondent No. 4, but surprisingly, a very casual reply has been given in reference to the query as raised in respect of the document relating to “SLBR Certificate”. What the respondent No. 4 has contended in Para-2 of the counter-affidavit is being extracted herein below:- “2. That the contents of paragraph no. 2, of the writ petition is absolutely misleading because as per the section 62(2) of the Income Tax Act the SLBR certificate is a Slab Rate of annual income certificate and it is necessary condition for the every contractor and this condition is imposed by the Govt. of India which is being implemented all over State.” 17. As it appears from the aforesaid statement, as made in Paragraph-2, respondent No. 4 tried to justify the condition by giving a reference to Section 62(2) of the Income Tax Act. After going through Section 62(2) of the Income Tax Act, it appears to this Court that Section 62(2) of the Income Tax has nothing to do with the “SLBR Certificate”. 18. When a question was asked from the counsel representing the Nagar Palika Parishad, no justification has been given why the reference of Section 62(2) of the Income Tax Act has been given in Paragraph-2 of the counter-affidavit. 19. The matter came-up before this Court on 14.09.2023, and the learned counsel for the petitioner pointed out that the counter-affidavit filed by the Nagar Palika Parishad, Kichha failed to address the issue raised by this Court in the previous order with regard to the clarification in respect of “a certificate of SLBR”. Consequently, this Court directed that respondent No. 4/Executive Officer, Nagar Palika Parishad, Kichha should remain present in the Court on 05.10.2023. Mr. Gurmit Singh-the Executive Officer of Nagar Palika Parishad, Kichha was present, and this Court put a question to him as to what is the meaning of “SLBR Certificate”. Consequently, this Court directed that respondent No. 4/Executive Officer, Nagar Palika Parishad, Kichha should remain present in the Court on 05.10.2023. Mr. Gurmit Singh-the Executive Officer of Nagar Palika Parishad, Kichha was present, and this Court put a question to him as to what is the meaning of “SLBR Certificate”. The said official respondent states that “SLBR Certificate” stands for “State Line Border Restriction”. This Court, in its order dated 05.10.2023, observed that the statement of respondent No.4 is contrary to the stand taken in the counter-affidavit. Consequently, on 05.10.2023, we allowed the writ petition and quashed the tender-in-question. While allowing the writ petition with costs quantified at Rs.25,000/-, to be recovered from the concerned officials who are responsible for issuance of a completely defective tender document, we further observed in that short order that the detailed judgment shall follow. 20. At this juncture, Paragraphs-5 to 9 of the order passed by this Court on 05.10.2023, in short, are being reproduced here as under:- “5. Mr. Gurmit Singh, the Executive Officer of the Nagar Palika Parishad, Kichchha, District Udham Singh Nagar is present in terms of our order. We have put questions to him, as to what is the meaning “SLBR Certificate”. He states that “SLBR Certificate” stands for “State Line Border Restriction”. Pertinently, there is not a whisper in the tender, as to the meaning of the “SLBR”. Even when the petitioner asked for its meaning, the same was not provided to him. The statement of respondent no. 4 is contrary to the stand taken in the counter affidavit. In paragraph no. 2 of the counter affidavit, the respondents have stated that as per Section 62(2) of the Income Tax Act, the “SLBR Certificate” means “slab rate of annual income certificate”. Section 62(2) of the Income Tax Act, insofar as it is relevant, reads as follows:- “62. Transfer irrevocable for a specified period. – (1) ... ... (2) Notwithstanding anything contained in subsection (1), all income arising to any person by virtue of any such transfer shall be chargeable to income-tax as the income of the transferor as and when the power to revoke the transfer arises, and shall then be included in his total income.” 6. The said clause nowhere discloses, as to what is the meaning of “SLBR Certificate”. The said clause nowhere discloses, as to what is the meaning of “SLBR Certificate”. We also find that the respondents have not disclosed in the tender document, as to why estimated cost of the work has not been disclosed. 7. During the course of arguments, it has been argued that the work in question involves collection of garbage, and, therefore, the estimation was not made. 8. In our view, this is no explanation. Firstly, this aspect should have been disclosed in the tender document itself. Secondly, the respondents should have clarified that, when the estimated cost is not disclosed, how the bidders are expected to comply with the clauses of the tender, namely Clause 3, which reads as follows:- “3. Estimated Bid Value indicated above is being declared solely for the purpose of guidance on EMD amount and for determining the Eligibility Criteria related to Turn Over, Past Performance and Project / Past Experience etc. This has no relevance or bearing on the price to be quoted by the bidders and is also not going to have any impact on bid participation. Also this is not going to be used as a criteria in determining reasonableness of quoted prices which would be determined by the buyer based on its own assessment of reasonableness and based on competitive prices received in Bid / RA process.” 9. We are, therefore, inclined to allow this Writ Petition, and quash the tender in question. We, accordingly, do so. The Writ Petition is allowed, with costs quantified at Rs.25,000/-. The costs may be recovered from the concerned officers, who are responsible for issuance of the completely defective, and laconic tender document.” 21. In view of the aforesaid observations, as recorded in the short order dated 05.10.2023, the writ petition is allowed with the same terms and conditions, as recorded in that order.