Kc Mohan Sadhukhan vs State Of West Bengal & Ors
2021 Latest Caselaw 1735 Cal

    42                           WPA 6196 of 2021
08.03.2021
    KC                               Mohan Sadhukhan
                                            Vs.
                                  State of West Bengal & Ors.



             Mr. Debabrata Saha Roy
             Mr. Pingal Bhattacharya
             Mr. Neil Basu.
                   ... for the petitioner.

             Mr. Susovan Sengupta
             Mr. Manas Kumar Sadhu.
                  ... for the respondents.

The petitioner has prayed for, inter alia, a writ in

the nature of mandamus to float a fresh tender for

appointment of contractor for handling and transportation

of food grains at Singur RIDF relating the disqualification

clause disqualifying the rice mill owner to participate in the

tender for appointment of handling and transport

contractor. The tender was actually an e-tender for

appointment of contractor for handling and transportation

of food grains and allied services at WBSWC managed

warehouses/godown.

WBSWC stands for West Bengal State

Warehousing Corporation, which is a government undertaking.

Annexure „P-3‟ annexed to the writ application is actually a

tender document which is second call of the tender. I am told

by the learned advocate for the State that in the first call

there was only one applicant and, therefore, that tender could

not be proceeded with and a second call with identical terms

and conditions was made. The first call was on 27th

November, 2020 and the present second call has been

published on 10th February, 2021. The closing date and time

of submission of the bid is 6th March, 2021 at 11.30 hours.

The petitioner here has challenged the

disqualification conditions which are in Section 6 of the said

tender document specially the paragraph 5 thereof under

paragraph 6.1 stating that this ineligibility criteria has been

laid down without any reason and, therefore, this criteria

should be set aside and should not be allowed to be given

effect to. The petitioner here is a flour mill owner. The

disqualification condition contained in paragraph 6.1.5 is as

follows:

"5. (a) Tenderers who are in possession of a

Govt. License issued by the Food & Supplies

Department, Govt. of West Bengal or in

possession of any Rice Mill or a Flour Mill will

be ineligible.

(b) The private investor that is owner of the

PEG godowns will not be eligible to apply."

The petitioner has referred to three judgments

one reported in (1979) 3 SCC 489 (Ramana Dayaram Shetty

Vs. International Airport Authority of India), (1980) 4

SCC 1 (Kasturi Lal Vs. State of Jammu and Kashmir &

another) and the third one is (2012) 6 SCC 502 (Brij Mohan

Lal Vs. Union of India & others). The first two decisions

are relating to disclosing adequate reasons. According to the

petitioner, if the adequate reasons are not given in support of

disqualification the clause in the tender document should be

set aside or cancelled. The third judgment is on policy

decision of State and when the same can be interfered by the

Courts in the face of the general principle that policy

decisions are generally not interfered with by Courts.

In support of his statement, learned advocate for

the State Mr. Sengupta has placed three judgments one is

(2005) 1 SCC 679 (Association of Registration Plates Vs.

Union of India & Ors.), (2005) 6 SCC 138 (Master Marine

Services (P) Ltd. Vs. Metcalfe & Hodgkinson (P) Ltd. &

Anr.) and the last one is (2014) 3 SCC 493(Sanjay Kumar

Shukla Vs. Bharat Petroleum Corporation Limited & Ors.).

These judgments are for demonstrating when the Court will

not interfere with the tender conditions of a tender.

I have heard the parties extensively but I am of

the opinion that this is purely a contractual matter. An

instrumentality of the State being WBSWC has invited for

appointment of contractor and has laid down certain criteria

namely eligibility criteria in Section 4 of the tender document

and laid down disqualification condition in Section 6. Section

11 of the said tender document also speaks of resolution of

dispute by way of arbitration. I find on perusal of the

petition and the documents enclosed therein and after

hearing the parties, there is no public law element involved in

it. It is out an out a contract of commercial nature for which

there cannot be any claim of legal right and violation of the

same and remedy to be enforced by a writ court. All the

rights arise from the contract and not from any statute. This

contract is also not a statutory contract.

For the reasons as aforesaid, I restrain myself

from interfering with the tender and the tender conditions as

there is no public law element involved in it and this Court will

not exercise its extraordinary writ jurisdiction for redressing

the grievance of the petitioner arising from clauses of a

contract and not from any statue or from any instrument

having statutory force.

Hence, this writ application is dismissed without

any order as to costs.

(Abhijit Gangopadhyay, J.)