Calcutta High Court (Appellete Side)

Rabindranath Banua vs The State Of West Bengal & Ors on 18 May, 2022

                  IN THE HIGH COURT AT CALCUTTA
                 CONSTITUTIONAL WRIT JURISDICTION
                          APPELLATE SIDE



Before: Honb'ble Justice Shampa Sarkar


                           WPA 16851 of 2021
                           Rabindranath Banua
                                    Vs.
                      The State of West Bengal & Ors.

For the petitioner      : Mr.   Bhaghbat Chowdhury,
                          Mr.   Lal Ratan Mandal,
                          Mr.   Avik Kumar Das,
                          Mr.   Dilip Kumar Sadhu.

For the respondent : Mr. S. Ray,

no.8                 Mr. Ritam Chowdhury.

For the State           : Mr. Jahar Lal De,
                          Mr. Shamim-ul-Bari.

For the respondent       : Mr. Prabhat Kumar Srivastava.
nos.9 to 15

Hearing concluded on: 08.04.2022
Judgment on: 18.05.2022


Shampa Sarkar, J.:-

1. The petitioner is aggrieved by the action of the Pradhan Saoraberia

Jalpai-II Gram Panchayat in issuing four tender notices all dated September

29, 2021 upon cancellation of previously issued four tender notices dated July

20, 2021 for the same works.

2. The petitioner prayed for cancellation of the tender notices dated

September 29, 2021 and all subsequent actions taken thereupon. Further

prayer for a restrain upon the authority from proceeding in respect of the said

tender notices by issuing work orders, has been made.

3. The case of the petitioner in a nutshell is that, the Saoraberia Jalpai II

Gram Panchayat (hereinafter referred to of the said gram panchayat),

published four tender notices under separate memo numbers inviting offers in

sealed covers from experienced and successful bidders for execution of the

works mentioned in the said tender notices. The tender notices were issued on

July 20, 2021.

4. The tender forms were available from July 20, 2021 to July 28, 2021 on

working days between 11.00 a.m. to 2.00 p.m. The last date for dropping the

tender form in a sealed cover was July 29, 2021 up to 1.00 p.m. The date of

opening of the tender was July 29, 2021 at 2.00 p.m.

5. The petitioner, accordingly submitted his application in a sealed cover for

several works under the four tender notices. The petitioner expected to be the

lowest bidder. As no communication was not received from the authorities after

expiry of the last date, suspecting foul play, the petitioner made a

representation before the Pradhan of the said gram panchayat on August 9,

2021 through his learned Advocate. A copy of the same was forwarded to the

District Magistrate, Purba Midnapur, The Sub-Divisional Officer, Tamluk and

the Block Development Officer, Nandakumar Block.

6. By a letter dated August 23, 2021, The District Panchayat and Rural

Development Officer, Purba Medinipur asked the Block Development Officer,

Nandakumar Block to make an inquiry and file a report. Such inquiry was not

made. The petitioner then came to know that the Pradhan of the said gram

panchayat had issued fresh tender notices for the same works which were

notified earlier. Such notices were issued on September 21, 2021. Offers were

invited in sealed covers from experienced and successful bidders for execution

of the works mentioned in the tender notices. The date for issuance of the

tender forms were on all working days, between September 21, 2022 to

September 29, 2021 between 11 AM to 2.00 p.m. The last date for submission

of the tenders was September 30, 2021 up to 1.00 p.m. The date of opening of

the tender was September 30, 2021 at 2.00 p.m.

7. According to the petitioner, the authorities acted contrary to law in

cancelling the earlier tender notices and by issuing the tender notices for the

second time, without any intimation to the petitioner. Such action was mala

fide and only to favour certain chosen persons of the Prahdan of the said gram

panchayat. It was alleged that the said gram panchayat acted contrary to the

West Bengal Panchayat (G.P. Account, Audit and Budget) Rules,

2007(hereinafter referred to as the said Rules). Tender papers filed by the

petitioner in the earlier process should have been considered as the petitioners

bid in the second tendering process, which was not done. Such lapse of the

authority denied the right of the petitioner to participate in the second tender

process.

8. On the date of admission of the writ petition, it was assured to the Court

that the work orders would not be issued. Under such circumstances,

directions for affidavits were given and the writ petition was kept for final

hearing.

9. From the affidavit-in-opposition filed by the Pradhan of the said gram

panchayat, it emerged that all the four tenders initiated by notice dated 20,

2021 were cancelled in terms of the Rules as the petitioner was the single

bidder. Upon cancellation of the tenders, the Pradhan by a notice dated July

30, 2021, intimated all interested parties including the petitioner about the

cancellation. The notice was marked to all relevant authorities and the

petitioner. The copies had been annexed to the affidavit-in-opposition. At the

back of the notice an endorsement had been made by one Gouranga Pramanik,

the special messenger who was assigned the duty to deliver the notices, inter

alia, stating that the petitioner had refused to accept the notice which was

tendered to him.

10. The specific contention of the respondent no. 8/Pradhan was that the

bids were opened on September 30, 2021 and work orders were issued to the

successful tenderers on October 1, 2021. That the learned advocate for the

respondent no. 8 had committed an error by assuring the Court that work

orders would not be issued. The said mistake was due to a miscommunication

between the respondent no. 8 and the learned advocate. It was further stated

that in view of the pending proceeding and the order passed by this court, the

authorities did not proceed further after issuance of the work orders.

11. This court directed that the successful bidders should be added as

respondents. Such addition was done. Copies of the writ petition were served

upon the added respondents and opportunity was also given to them to file

their affidavit in opposition. The respondent No. 15 filed his opposition on

behalf of the added respondents.

12. It was contended by the respondent no.5, that the petitioner did not have

any locus to challenge the subsequent tender notices. The petitioner

intentionally did not participate in the subsequent tender process. That the

writ petition should be dismissed as the infrastructural work could not be

stopped in view of the specific bar incorporated in Section 41(ha) of the Specific

Relief Act, 1963.

13. The court proceeds to deal with the allegations of the petitioner. The first

contention of the writ petitioner was that the tender notices dated July 20,

2021 were cancelled without any authority of law. The second contention was

that the tenders were cancelled only to deprive the petitioner and to favour

persons close to the respondent No.8. The final contention of the petitioner was

that the said Rules mandated that the authorities must consider the bid

documents submitted by the petitioner in the first tendering process as the

petitioner's bid in the second invitation, without expecting the petitioner to

participate in the second process, all over again.

14. The Court does not accept the first contention of the petitioner as the

Sub-Rule (10) of Rule 17 of West Bengal Panchayat (G.P. Account, Audit and

Budget) Rules, 2007 (hereinafter referred to of the said Rules) specifically states

that normally a single bid should not be accepted. The Rule is as follows:-

"17(10). A single tender shall not normally be accepted on the first invitation to the tender. On such occasion, the Pradhan shall invite second tender in the manner laid down in sub-rule (5) without opening the tender paper received on first invitation. The single tenderer may in response submit that the tender paper earlier submitted may be considered as his tender paper on second invitation. If on second occasion also, single tender is received, the same may be accepted by the Gram Panchayat in a meeting if the rate is either below or at par with the scheduled rate antecedents of the tenderer are considered satisfactory and the tender paper is considered as favourable. But if the tender received on second invitation is not found reasonable and the rate quoted therein is above the scheduled rate, fresh tender shall be invited"

15. In this case, it is not in dispute, that the petitioner was a single tenderer

in respect of the works mentioned in the tender notices dated July 20, 2021.

Thus the authority did not act beyond jurisdiction in cancelling the tender

notices dated July 20, 2021.

16. With regard to the allegation that the petitioner ought to have been

informed about the said cancellation, this Court is of the view, that a notice

was issued by the Pradhan on July 30, 2021 cancelling the tender processes

initiated by the tender notices dated July 20, 2021. The reasons for

cancellation had also been mentioned in the said notice. The notice was

marked to all the relevant authorities and the petitioner. A special messenger

was assigned the job of delivering the notices to the relevant authorities and

the petitioner. The petitioner was attempted to be served through the special

messenger. It was the specific contention of the special messenger that the

petitioner refused to accept the notice. These averments are available in the

affidavit-in-opposition. To such specific allegation, the petitioner has made an

omnibus denial, that the petitioner was not informed about the cancellation.

17. Thus, this Court does not accept the second contention of the petitioner

that the petitioner did not know about the cancellation. From the pleadings in

paragraph 6 of the writ petition, it is evident that the petitioner had a reason to

believe that the earlier tenders were cancelled. Noting prevented the petitioner

from approaching the Pradhan in order to ascertain the fate of the tenders,

once the final date for opening the tenders had expired. The petitioner did not

approach the Pradhan. Instead, on August 9, 2021, a representation was made

before the Pradhan through the learned Advocate. By that time, the earlier

tenders had already been cancelled and notices to that effect were circulated

and served upon all the respondent authorities. The petitioner refused to

accept such notice.

18. The averments made in the writ petition clearly indicate that the

petitioner had apprehended that the earlier tender notices must have been

cancelled, as the petitioner was the only bidder.

19. Thus, even if it is assumed that the notice of cancellation dated July 30,

2021 was not delivered to the petitioner, had the petitioner been diligent, the

petitioner would have approached the Pradhan to find out the fate of the earlier

tenders and would have kept himself informed about the next steps which

would have to be taken by him in order to participate in the second tendering

process.

20. The petitioner who claims to be a contractor with experience in such

tender matters, was expected to know the rules of the game and should have

kept himself updated with the situation and ought to have participated in the

second invitation.

21. Thus, the allegation that the cancellation was not informed to anyone

and the same was done in a hush hush manner, behind the back of the

petitioner, only to deprive the petitioner and favour the men of the respondent

no. 8, is not accepted. Such allegations are unsubstantiated.

22. With regard to the allegations of mala fide and favouritism, this court

does not find from the records that there is an iota of evidence in support of

such allegations.

23. Between July 20, 2021 to the date of issuance of the second tender

notices dated September 21, 2021, the petitioner had ample time to approach

the Pradhan and also participate in the second tender process or ask the

respondent no.8 to consider his bid documents which had been filed earlier as

his offer in the second tendering process. There is no reason to believe that the

Pradhan would treat the petitioner differently, when the petitioner had already

participated in the earlier tendering process, without any resistance.

24. There are neither any pleadings nor any instances narrated in the writ

petition, which would lead the court to believe that the respondent No.8 had

intentionally cancelled the earlier tender processes just to deprive the

petitioner. Malice in law and malice in fact have to be specifically pleaded and

proved. The allegation is not backed by supporting documents. The work

orders have been issued to different persons who have all been added in the

proceeding and there does not seem to be any similarity or connection between

these persons, which would persuade the court to doubt the bona fide of the

respondent No. 8/Pradhan and accept the allegation of favoritism levelled

against the said respondent.

25. With regard to the interpretation of a portion of Section sub-rule 17 (10)

of the said Rules which reads as follows:-

"The single tenderer may in response submit that the tender paper earlier submitted may be considered as his tender paper on second invitation",

this court is of the view that it was up to the petitioner to respond to the

second invitation by asking the respondent No.8 to consider his tender papers

filed earlier. The rule does not mandate that the Pradhan was under a duty or

an obligation to automatically transfer the documents submitted by the

petitioner in the first tendering process to the second process, without waiting

for a request from the petitioner.

26. Thus, the allegation of violation of the provision of the said Rules as

quoted above and consequent failure on the part of the authority to act in

accordance with law, is baseless. The onus was on the petitioner to submit

before the authority that his tender papers, already submitted earlier, must be

considered in the second invitation.

27. The petitioner did not accept the notice of cancellation. He did not

approach the authority to know the fate of the earlier tender process and also

did not avail of the opportunity to ask the authority to consider the bids

already filed in the first tendering process as his bid in the second process. The

writ petition is based on baseless and frivolous allegations which are not

supported by proper pleadings and evidence.

28. The other allegation of the petitioner that minimum 15 days time should

have been granted between the date of publication of the tender notices and

submission of the tender documents, are not dealt with as they are not part of

the writ petition. The scope of the writ petition cannot be enlarged by

submissions from the bar. Moreover, the first tender process in which the

petitioner participated also, did not provide the gap of 15 days either. The

petitioner cannot approbate and reprobate. Overall, the court does not find any

blatant illegality or arbitrariness on the part of the respondent no.8. The writ

court must be slow to interfere with any tender process involving public

projects.

29. In the matter of M/S. N.G. Projects limited vs. M/S. Vinod Kumar Jain

& Ors. reported in 2020 SCC Online SC 336, The Hon'ble Apex Court held

that, the approach of the Court should be not to find fault with a magnifying

glass in its hands, rather the Court should examine as to whether the decision-

making process was in compliance with the procedure contemplated by the

tender conditions. If the Court finds that there is total arbitrariness or that the

tender has been granted in a mala fide manner, still the Court should refrain

from interfering in the grant of tender but instead relegate the parties to seek

damages for the wrongful exclusion rather than to injunct the execution of the

contract. The injunction or interference in the tender leads to additional costs

on the State and is also against public interest. Therefore, the State and its

citizens suffer twice, firstly by paying escalation costs and secondly, by being

deprived of the infrastructure for which the present-day Governments are

expected to work.

30. In the matter of Tata Cellular v. Union of India, reported in (1994) 6

SCC 651, the Hon'ble Apex Court laid down the following principles with

regard to judicial review of tender processes:-

(1) The modern trend points to judicial restraint in administrative action.

(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.

(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.

(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of

reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.