Calcutta High Court (Appellete Side)
Pathak Engineering Corporation & ... vs The State Of West Bengal & Ors on 11 May, 2023
02 & 11.05
03 2023
Ct No In the High Court At Calcutta
24 Constitutional Writ Jurisdiction
DP,
AGM Appellate Side
WPA 11199 of 2023
With
WPA 10017 of 2023
Pathak Engineering Corporation & Anr.
Vs
The State of West Bengal & Ors.
Mr. Ranajit Chatterjee
Mr. Aniruddha Mitra
... For the Petitioners.
Mr. Biswajit Mukherjee
Mr. Gopal Ch. Das ... for the K.M.C.
Mr. Srijib Chakraborty,
Mr. Aditya Mondal ... For the respondent no 8.
Mr. Ayan Kumar Boral ... For the respondent no. 7.
Ms. Noelle Banerjee
Mr. Ritoban Sarkar
Ms. Shreya Ghosh Dastidar
Mr. Bibek Murarka
... For the respondent no. 6.
Mr. Jahar Lal De
Mr. Rudranil De
... For the State.
Both the writ petitions relate to a tender floated by
the Kolkata Municipal Corporation on 17th March, 2023
for supply of liquid chlorine for the financial year 2023-
The eligibility criteria for participation in the tender
process and the documents which were required to be
uploaded were clearly mentioned in the notice inviting
tender.
According to the petitioners, there were three
bidders who participated in the tender process. The
documents which were required to be uploaded in the
portal, were not uploaded as per the requirement. It has
been submitted that the documents which were
mandatorily required to be uploaded, were not uploaded.
The Corporation as per the usual custom did not
seek for the documents which were required later on but
proceeded on the basis of the documents uploaded. As all
documents were not there, the participants ought not to
have been held eligible in the technical bid stage.
Reference has been made to the notification of the
Finance Department dated 24th April, 2014 mentioning
that in case of invitation of tender under two bid system,
if the members of tenderers/bidders qualified in the
technical bid is less than three, tender should be invited
afresh.
The petitioners did not participate in the tender
process, as according to the petitioners all the required
documents were not available with them. It has been
submitted that as there were less than three tenderers,
who allegedly qualified in the technical bid stage,
accordingly, the said tender process ought not to have
proceeded any further and tender should have been
invited afresh.
The petitioners also rely upon the clause mentioned
in the tender document that the cover (folder) for
statutory documents will be opened first and if found in
order, cover (folder) for non-statutory documents will be
opened. If there is any deficiency in the statutory
documents, the tender will be summarily rejected.
The writ petition being WPA 10017 of 2023 was filed
before this Court on 24th April, 2023 and WPA 11199 of
2023 was filed on 4th May, 2023.
It has been submitted that during the pendency of
the first writ petition, the Corporation issued the work
order in favour of the L1 tenderer on 2nd May, 2023.
It has been submitted that the Corporation acted in
undue haste in issuing the work order despite both these
writ petitions remaining pending in Court.
According to the petitioners, the undue haste on the
part of the Corporation reeks of mala fide and the entire
action may be treated as arbitrary. In support of the
aforesaid submission, the petitioners rely upon the
judgment delivered by the Hon'ble Supreme Court of India
in the matter of Noida Entrepreneurs Association -vs-
Noida & Ors. reported in (2011) 6 SCC 508 paragraphs
27 to 30 wherein the Court relied upon earlier decisions
of the Hon'ble Supreme Court where it was held that
when a thing is done in a post-haste manner, mala fides
would be presumed and anything done in undue haste
can also be termed as arbitrary and cannot be condoned
in law. The Court may draw and adverse inference from
such conduct.
It has been submitted that had the petitioners been
aware of the fact that the Corporation would have relaxed
the condition of tender, then the petitioners could also
have participated in the tender process.
The petitioners pray for setting aside the entire
tender process.
Learned advocate appearing for the Universal
Mineral Corporation and SSS Enterprises admits that all
documents statutorily required to be uploaded were not
uploaded.
Learned advocate appearing for Rishikesh Chem,
the L1 tenderer submits that all documents were
uploaded as required.
Learned advocate appearing for the Kolkata
Municipal Corporation has submitted a tabular sheet
indicating the documents submitted by the tenderers. It
appears that the Corporation already maintains a data
base of the documents submitted by the bidders. As
documents of successful bidders in respect of other
tenders of the Corporation are already available on record,
the Corporation relied upon those documents in
connection with the tender in question.
It appears from the said chart that all the three
tenderers who participated in the tender process i.e.,
Rishikesh Chem, SSS Enterprises and Universal Mineral
Corporation qualified in the technical bid stage.
Being qualified in the technical bid stage, all three
bidders participated in the financial bid stage and
Universal Mineral Corporation emerged as the L1 bidder.
Learned advocate appearing for the Corporation has
produced before this Court, photocopy of the order dated
8th May, 2023 passed in WPA (P) 205 of 2023 in the
matter of Nilendra Narayan Ray -vs- The State of West
Bengal & Ors. wherein the same e-tender was under
challenge.
The Court after hearing the parties was pleased to
hold that there is no public interest involved in the matter
and if any person who is really aggrieved has any
grievance, it will be open for the said person to initiate
proceeding in accordance with law.
From the documents that are available on record
and after hearing the submissions made on behalf of all
the parties, it appears that the Corporation acted in
accordance with the tender notice and relied upon the
documents available in their record.
The tender process was earlier under challenge at
the instance of Rishikesh Chem in the writ petition being
WPA 9529 of 2023. The said writ petition was heard at
length and dismissed by the Learned Single Judge. The
said order was carried in appeal and by judgment dated
1st May, 2023 passed in MAT 722 of 2023 with IA No. CAN
1 of 2023, the Hon'ble Division Bench was pleased not to
interfere with the order passed by the Learned Single
Judge.
After dismissal of the appeal the Corporation issued
the work order. It does not appear that the Corporation
acted in undue haste in issuing the work order.
The Universal Mineral Corporation emerged as the
L1 bidder and work order has already been issued in its
favour. There is nothing apparent on record requiring
interference by the Court in the tender process.
The writ petition fails and is accordingly, dismissed.
Urgent certified photocopy of this order, if applied
for, be supplied to the parties expeditiously on
compliance of usual legal formalities.
( Amrita Sinha, J.)
