Calcutta High Court (Appellete Side)

Syed Rejaul vs State Of West Bengal & Ors on 20 September, 2021

20.09.2021
 Sl. No.72
  srm
                                W.P.A. No. 13604 of 2021

                                      Syed Rejaul
                                          Vs.
                              State of West Bengal & Ors.


                       Mr. Biswaroop Bhattacharyya,
                       Mr. Arif Ali,
                       Mr. Prabhat Shrivastava
                                                         ...for the Petitioner.

                       Mr. Jishnu Chowdhury,
                       Ms. Amrita Panja
                                                ...for the State-Respondents.

Mr. Uttam Kumar Bhattacharya ...for the Respondent No.3.

Supplementary affidavit filed by the petitioner is taken

on record.

In the writ petition, the petitioner has challenged the

cancellation of the provisional work order issued to the

petitioner who was the lowest bidder. The writ petition was

admitted on the last occasion with a direction upon the

Sabhadhipati, Purba Medinipur Zilla Parishad to produce the

records before this Court to substantiate the claim of the Zilla

Parishad that the technical bid documents produced by the

petitioner showing experience in execution of work, were not

similar to the work involved in the writ petition.

It was the specific contention of the Zilla Parishad that

the present work involved use of tar and bitumen and the

petitioner did not execute similar work for the Haldia

Development Corporation.

This Court prima facie relying upon the description of the

work as appeared at page 63 of the writ petition against serial

No.5, was of the view that the description of the work in the

tender notice dated June 10, 2021 did not specify that bitumen

and tar should be used for construction of the road.

The petitioner is aggrieved by the cancellation of the

offer made by the authorities to the petitioner. It is alleged that

calling a new tender by issuing a separate tender notice for the

self-same work was arbitrary and in order to favour same

persons.

This Court had directed that the pre-qualification bid

documents pursuant to the second tender notice could be

opened but no further steps would be taken thereafter. It was

also directed that the opening of the pre-qualification bid

documents would be subject to the result of this writ petition.

Today, records have been produced in Court as per the

direction of this Court. The financial bid documents which

were a part of the notice inviting tender and which have not

been annexed to the writ petition clearly categorises the rates

which include specific rates for laying of bitumen for the

execution of the work.

Thus, this Court is of the view that the entire tender

documents considered as a whole pre-supposes that the

construction work involved in this case included extensive use

of tar and bitumen. The technical bid documents which had

been submitted by the petitioner before the authority does not

contain any document to show that the petitioner had

executed any work in the last five years of similar nature

involving tar and bitumen.

Reliance placed by the petitioner on the tender

documents of the Haldia Development Authority and the

decision of the said authority to treat construction of bitumen

roads to be at par with the work of upgradation for

development of industrial road with paver block pavement,

cannot be a reason to persuade the Court to prima facie hold

that the Purba Medinipur Zilla Parishad should alternatively

consider the construction of upgradation and development of

industrial road with paver block pavement to be similar to the

nature of work involved in the instant tender process. It is the

authority itself which is the expert to decide on the eligibility

criteria. It is on record that the work order was provisionally

issued to the petitioner, subject to verification of documents

with the original. The authority decided not to treat the work

executed by the petitioner for the Haldia Development

Authority similar to that of the work involved in the tender

process, as tar and bitumen were not used by the petitioner in

the works executed within the preceding five years. The

authorities who have authored the documents are the best

judge to interpret the eligibility criteria. There is also nothing

on record to prima facie take a view that the tender process

has been cancelled to favour any particular person.

Unless there are instances of glaring mala fide,

favouritism or procedural lapse, a Court of law should not stay

a tender process floated for public purpose. The amendment to

the Specific Relief Act also makes it very clear. The provision is

quoted below:-

"20A. (1) No injunction shall be granted by a court in a suit under this Act involving a contract relating to an infrastructure project specified in the Schedule, where granting injunction would cause impediment or delay in the progress or completion of such infrastructure project."

The court refers to some observation of the Hon'ble

Supreme Court in this regard.

In Michigan Rubber (India) Ltd. v. State of Karnataka,

(2012) 8 SCC 216, Hon'ble Supreme Court held as follows

"24. Therefore, a court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions:

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in

accordance with relevant law could have reached"? and

(ii) Whether the public interest is affected? If the answers to the above questions are in the negative, then there should be no interference under Article 226."

In my prima facie view, these questions are under (i) are

answered in the negative in this case. The work is for benefit of

the public.

In Silppi Constructions Contractors v. Union of India,

2019 SCC OnLine SC 1133, the Hon'ble Supreme Court held as

follows:

"20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case."

In Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517,

the Hon'ble Supreme Court held as follows:

"22. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold."

In Montecarlo Ltd. v. NTPC Ltd., 2016 (15) SCC 272, the

Hon'ble Supreme Court stated as follows:

"26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes thirdparty assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are

workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve 15 high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints."

Thus, there cannot be any stay of the tender process

subsequently initiated on August 24, 2021. The order dated

September 13, 2021 is modified. The authority shall proceed in

accordance with law with the tender process. As the technical

bid has not yet been opened, the petitioner is given one week

time to participate in the tender process, failing which the

authority shall proceed with the tender, in terms of the tender

notice dated August 24, 2021 strictly in accordance with law. If

the petitioner participates, his papers shall be considered in

accordance with law.

As this order is being passed upon considering the

original records, this Court is of the opinion that the fact