Calcutta High Court (Appellete Side)
Rajib Roy vs The State Of West Bengal And Others on 5 September, 2022
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(Appellate Side)
MAT 891 of 2022
With
CAN 1 of 2022
CAN 2 of 2022
Reserved on: 24.08.2022
Pronounced on: 05.09.2022
Rajib Roy
...Appellant
-Vs-
The State of West Bengal and Others
...Respondents
Present:-
Mr. Satrajit Sinha Roy, Advocate
... for the appellant
Ms. Amrita Panja Moulick, Advocate
... for the State
Mr. Saptansu Basu, Sr. Advocate
Mr. Swarup Paul,
Mr. Surya Maity,
Ms. Amrita Maji, Advocates
Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA,
CHIEF JUSTICE
THE HON'BLE JUSTICE RAJARSHI BHARADWAJ,
JUDGE
Prakash Shrivastava, CJ:
1. By this intra-court appeal writ petitioner has challenged the
order of the learned Single Judge dated 13.01.2022 dismissing WPA
19550 of 2021 and the subsequent order of the learned Single Judge
dated 10.06.2022 dismissing the review application being RVW 14 of
2022.
2. The appellant had filed the writ petition with the plea that he
was one of the prospective bidder of NIT dated 7th of October, 2021
issued by the respondent No. 3 for establishment, operation,
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maintenance and management of mechanized laundry facility at
Bankura SMCH on public private partnership mode. The appellant
participated in the pre-bid meeting held on 26th of October, 2021 and
raised verbal objection on the tender terms and conditions contained in
the NIT. According to the petitioner, earlier the tender notification
dated 16th of September, 2019 was issued with the criteria of
minimum average annual turnover of Rs. 1 crore in the last 3 financial
years but this was cancelled and subsequently, after 2 years, by
splitting, 4 separate NITs for different zones were issued. The
appellant was aggrieved with the condition of e-tender issued for
Bankura Zone dated 7th of October, 2021, therefore, he had filed the
writ petition questioning the said e-tender.
3. Learned Single Judge by order dated 13th of January, 2022
had examined the plea of the appellant and had dismissed the writ
petition. The appellant had approached the Division Bench by filing
MAT 56 of 2022 and raising the plea that due to the technical glitch
Counsel for the appellant could not argue before the learned Single
Judge all the grounds in support of challenge to the NIT. By order
dated 27th of January, 2022, appellant had withdrawn MAT 56 of 2022
with liberty to file an appropriate application for review/recall of the
order before the learned Single Judge. Learned Single Judge by order
dated 10.06.2022 has dismissed the application for review.
4. Submission of the learned Counsel for the appellant is that
the criteria of an average annual turnover of Rs. 3 crore is arbitrary,
which a bidder with 200 bed hospital cannot achieve and that 72 hours
prescribed in appendix III for performing the work is too short
keeping in view the distance.
3 MAT 891 of 2022
5. As against this, learned Counsel for the respondent has
supported the impugned order.
6. We have heard the learned Counsel for the parties and
perused the record. The law relating to scope of interference in
contract matters is well settled. Hon'ble Supreme Court in the matter
of Silppi Constructions Contractors vs. Union of India and
Another reported in (2020) 16 SCC 489 has held that Court should
exercise a lot of restraint while exercising their powers of judicial
review in contractual or commercial matters and that they should not
use a magnifying glass while scanning tenders and make every small
mistake appear like a big blunder. It has also been held that the Courts
must give "fair play in the joints" to the government and public sector
undertakings in the matter of contract and that the Courts do not sit
like a court of appeal against the orders of the appropriate authorities.
It has also been settled that 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.
7. Learned Counsel for the appellant has placed reliance upon
the judgment of the Hon'ble Supreme Court in the matter of Ramana
Dayaram Shetty vs. International Airport Authority of India and
Others reported in (1979) 3 SCC 489, but in that case it has been held
that the Courts may refuse relief to the petitioner if the equities are in
favour of the respondent who meanwhile has changed his position. He
has also placed reliance upon the judgment of the Hon'ble Supreme
Court in the matter of Tata Cellular vs. Union of India reported in
(1994) 6 SCC 651 wherein the Hon'ble Supreme Court has culled out
the principle relating to scope of interference as under:
4 MAT 891 of 2022
"94. The principles deducible from the above are:
(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.
(6) Quashing decisions may impose heavy administrative
burden on the administration and lead to increased and
unbudgeted expenditure.
Based on these principles we will examine the facts of this
case since they commend to us as the correct principles."
8. Examining the present matter in the light of the limited
scope of interference, we find that the criteria of minimum average
annual turnover of Rs. 3 crores in last 3 financial years was later
reduced to 2 crores. So far as clause 2.2.4 sub-clause I(2) is
5 MAT 891 of 2022
concerned, the requirement was of having the experience in providing
laundry services to minimum 200 beds in aggregate in last 3 years. It
has been pointed out by the learned Counsel for the State that several
bids have been received in response to the impugned NIT. Hence, it
cannot be said that the criteria of having minimum average annual
turnover was arbitrary or tailor made. The number of bids received
indicate also that there is no substance in the argument of the Counsel
for the appellant that it is not practicable to do the work prescribed in
the tender within the stipulated period because of the distance
mentioned in appendix III.
9. We have also been informed that in meanwhile the contract
has been awarded to the successful bidder, hence subsequent
development furnishes additional ground for not interfering with the
order of the learned Single Judge.
10. Considering the above factual and legal position, we find
that no ground is made out to interfere in the present appeal. Hence,
the appeal is dismissed.
(PRAKASH SHRIVASTAVA)
CHIEF JUSTICE
(RAJARSHI BHARADWAJ)
JUDGE
Kolkata
05.09.2022
___________
PA(SS)
(A.F.R./N.A.F.R.)
