M/S Bhranti Bhusan Singha And ... vs State Of West Bengal And Others
2021 Latest Caselaw 737 Cal

AD. 24.
January 29, 2021.
 MNS.

                                  W. P. A. 2206 of 2021
                                 (Via video conference)

                        M/s Bhranti Bhusan Singha and another
                                         Vs.
                           State of West Bengal and others

                       Mr. Swarup Paul,
                       Mr. Gurusaday Dutta

                                     ... for the petitioners.

                       Mr. Samrat Sen,
                       Mr. Amitava Mitra,
                       Ms. Debangana Dey

                              ...for the respondent-authorities.

Mr. Arup Munshi

...for the private respondents.

Affidavit-of-service filed in Court today be

taken on record.

The petitioner no. 2 sought to participate in

a tender process as proprietor of the petitioner

no.1-firm but was declared ineligible during

scrutiny on the ground that the petitioner did not

have a security licence, which was necessary in

view of the nature of the work to be done.

Learned counsel appearing for the

petitioners submits that although the petitioners

are in possession of certificates issued by several

authorities, including a certificate of enlistment by

the relevant Municipality, certificate of enrolment

and professional taxes payment certificates, the

petitioners' bid was rejected.

Learned counsel further submits that the

father of the petitioner no. 2 was the sole

proprietor of M/s Bhranti Bhusan Singha, a sole

proprietorship firm, which, upon the death of the

original proprietor, devolved upon the petitioner

no. 2. As such, the delay in issuing the security

certificate by the appropriate authority despite the

pendency of the petitioners' application in that

regard could not have prompted the respondent-

authorities to hold that the petitioners' bid is

ineligible.

Learned counsel relied in this context on

Order XXX Rule 10 of the Code of Civil

Procedure, which provides for legal heirs of a

deceased sole proprietor of a firm to be

necessarily impleaded for continuance of a suit.

Learned counsel also relies on a judgment

reported at (2002) 3 Supreme Court Cases 626

(Harshavardhan Chokkani Vs. Bhupendra N.

Patel and others), wherein it was observed by

the Supreme Court that, by the conduct of the

parties therein, being the firm and the vendor of

the respondents therein, the firm had already

become the tenant of the premises before

purchase of the said building.

Learned counsel argues that, if the heir of

the deceased original proprietor of a sole

proprietorship firm can be construed as tenant

under the relevant Rent Control Act and also be

impleaded to espouse the case of the deceased

sole proprietor in a firm in a civil suit, the same

principle ought to be borrowed in the present

context, conferring sufficient right on the

petitioner no. 2 to participate in the bid as an

eligible bidder.

Learned counsel further submits that the

private respondents, who were chosen as eligible

bidders, were also deficient in submission of

similar documents as the petitioners. As such,

violation of the petitioners' fundamental rights to

equality is also urged.

Learned counsel appearing for the private

respondents disputes such contentions and

argues that the private respondents were

otherwise eligible for participation in the bid.

Learned counsel appearing for the

tendering authority places reliance on Clause 3(i),

sub-clause 'm' of the Notice Inviting Tender to

indicate that a private security license obtained

from the Home Department, Government of West

Bengal was necessarily required to be uploaded

along with the bid.

Learned counsel for the respondent-

authorities further relies on Clause -15 of the NIT,

which provides that during scrutiny, if it appears

to the quotation inviting authority that the

credential or any other papers are found

incorrect, manufactured and fabricated, the

"quotationer" will not be allowed to participate in

the quotation and that application will be rejected

outright without any prejudice with forfeiture of

earnest money. As such, the petitioners having

failed in such regard, the rejection of the

petitioners' bid is argued to have been a valid

exercise of discretion by the authority.

Learned counsel further submits that the

private respondents had submitted their tender

documents while their previous licence was

continuing. Subsequently, the licence expired but

was renewed prior to conclusion of the bidding

process. As such, the illegality and inequality,

agitated by the petitioners, do not hold good.

The concept of a tenant continuing in place

of a deceased tenant upon payment of rent

cannot be equated with the legality of a person

offering security services without a security

licence as required by law. The Supreme Court

in Harshavardhan Chokkani (supra) was

considering a case under the relevant rent control

law. In such context, it was held that, in the event

the heir of a deceased proprietor continues to pay

the rent, even in the name of the firm, the same

clothes the heir with tenancy rights. The said ratio

has no nexus with the present case.

Order XXX Rule 10 of the Code of Civil

Procedure is also on a different footing, inasmuch

as the same provides for an acceptance of the

heirs, in consonance with the provisions of Order

XXII of the Code, for the limited purpose of

continuance of the suit on behalf of the deceased.

However, such principle cannot clothe a person,

having no security licence as required by law,

with the right to perform such services.

What is to be considered in the present

case is whether the discretion available to the

tender issuing authority was validly exercised.

In view of the submissions made by the

tendering authority as regards the validity of the

documents of the private respondents and

keeping in mind the relevant clauses of the NIT,

as discussed above, no mala fides or

arbitrariness could be attributed to the impugned

action of the tendering authority to vitiate the

tender process. The authority adopted one of the

plausible views available.

Moreover, in view of the petitioner no. 2

not being eligible himself, in the eye of the

tendering authority and as per the NIT clauses,

the petitioners do not have locus standi to point

out deficiencies in the documents of other

bidders.

In the event the petitioner no. 2 was

selected as an eligible bidder, it might have been

open to the petitioners to point out the

deficiencies in the documents of other bidders

chosen to be eligible, since there would be a

scope of competition, hence equality, between

the petitioner and such other eligible bidders.

In the present case, however, the

petitioners could not cross the milestone of

eligibility itself, thereby denuding the petitioners of

any such right to claim equality on similar footing

with other eligible bidders.

In such view of the matter, the violation of

Article 14 of the Constitution of India cannot be a

relevant factor in the present consideration.

Accordingly, the writ petition fails.

W. P. A. 2206 of 2021 is dismissed on

contest without, however, any order as to costs.

Urgent photostat certified copies of this

order, if applied for, be made available to the

parties upon compliance with the requisite

formalities.

(Sabyasachi Bhattacharyya, J.)