Calcutta High Court (Appellete Side)
Majibur Rahaman vs The State Of West Bengal & Ors on 18 May, 2022
S/L 8
18.05.2022
GB
WPA 8889 of 2022
Majibur Rahaman
VS
The State of West Bengal & Ors.
Mr. Mrityunjoy Chatterjee,
Md. G.N. Imrohi,
Mr. Debapriya Majumder.
... for the Petitioner.
Mr. Rabindra Narayan Dutta,
Mr. Hare Krishna Haldar.
... for the State.
Affidavit-of-service filed in Court today, be kept with
the record.
The petitioner is an unsuccessful tenderer. The
allegation is that in the notice inviting e-tender dated April 6,
2022 tailor made eligibility criteria had been fixed by the
authority, so that competition could be ruled out and only
specific chosen persons of the Manigram Gram Panchayat,
could participate.
As the tender notice, which is under challenge has
already been given effect to and work orders have been
issued, no interim order can be passed. In the decision of
N.G. Projects Limited versus Vinod Kumar Jain and
Others reported in 2022 SCC OnLine SC 336, the Hon'ble
Apex Court held that the courts should refrain from passing
any order of injunction on any tendering process. Such
restraint has been imposed on the courts for two reasons.
First, public projects relating to infrastructural development
should not be stalled as the same would cause hardship and
injustice to the general public and secondly, any injunction,
stay or cancellation of a tendering process, would impose a
heavy burden on the state exchequer. The Hon'ble Apex Court
has gone on to add that even if arbitrariness and irregularities
are detected, the remedy of the persons aggrieved would be by
way of a suit for damages. The relevant portion is quoted
below:-
"23. In view of the above judgments of this Court,
the Writ Court should refrain itself from imposing its
decision over the decision of the employer as to
whether or not to accept the bid of a tenderer. The
Court does not have the expertise to examine the
terms and conditions of the present-day economic
activities of the State and this limitation should be
kept in view. Courts should be even more reluctant
in interfering with contracts involving technical
issues as there is a requirement of the necessary
expertise to adjudicate upon such issues. The
approach of the Court should be not to find fault with
magnifying glass in its hands, rather the Court
should examine as to whether the decision-making
process is after complying 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 malafide 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."
In this case, the petitioner submits that the tendering
authority at least must be warned and cautioned to ensure
that free and fair competition is practiced and chances of
favouritism, arbitrariness and nepotism etc. are eliminated.
The eligibility conditions should not be tailor made or fixed in
a way that participation would be restricted to a minority
group.
In this case, as the work orders have already been
issued, no protection can be granted to the petitioner in view
of the decision, of the Hon'ble Apex Court.
The petitioner and other similarly situated contractors
like the petitioner have filed a complaint before the Block
Development Officer, Sagardighi. Such complaint dated April
11, 2022 shall be disposed of in accordance with law upon
hearing the representative of the unsuccessful bidders/
contractors, the gram panchayat authorities and all other
interested persons.
The question to be determined would be whether the
conditions which have been attached in the instant tender
process only allowed participation of a very few persons.
Whether the other panchayat authorities within the said block
also imposed such restrictive and harsh conditions or allowed
larger participation by framing the conditions of eligibility in
a more liberal way.
This court has not decided the merits of the claim and
counter claims of the parties.
The authority shall dispose of the said representation
by passing a reasoned order, which shall be communicated to
all concerned.
The entire exercise shall be completed within a period
of two months from date of communication of this order.
The writ petition is, thus, disposed of.
There shall be no order as to costs.
Parties are to act on the basis of the server copy of this
order.
(Shampa Sarkar, J.)
