Kc Suman Pal vs State Of West Bengal & Ors
2021 Latest Caselaw 1736 Cal

     41                            WPA 6188 of 2021
08.03.2021
     KC                                  Suman Pal
                                            Vs.
                                State of West Bengal & Ors.



             Mr. Debabrata Saha Roy
             Mr. Pingal Bhattacharya
             Mr. Subhankar Das.
                   ... for the petitioner.

             Mr. Susovan Sengupta
             Mr. Subir Pal.
                  ... 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 Jangipara 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.)