Co-Operative Society Ltd. & Anr vs State Of West Bengal & Ors
2023 Latest Caselaw 6706 Cal

  09
04.10.2023
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              IN THE HIGH COURT AT CALCUTTA
             CONSTITUTIONAL WRIT JURISDICTION
                      APPELLATE SIDE

                    W.P.A. No. 18411 of 2023

             Gangarampur Unemployed Engineer's
               Co-operative Society Ltd. & Anr.
                             Vs,
                 State of West Bengal & Ors.


                   Mr. Sunil Kumar Gupta,
                   Mr. Arindam Paul
                               ...for the petitioners

                   Mr. Tanoy Chakraborty,
                   Ms. Rajyashree Mukherjee,
                   Mr. M. Majumder
                              ...for the State


              1.   The petitioner no. 1 is one of the unsuccessful

                   participants in a tender process regarding the

                   protection of river embankment.

              2.   Learned counsel for the petitioners submits

                   that the petitioners' technical bid was rejected

                   by considering the petitioners to be disqualified

                   in view of trade licence having not been

                   furnished by the petitioners.

              3.   Learned counsel for the petitioners submits

                   that the mere submission of the trade licence

                   could not have been an essential eligibility

                   criterion in the tender process.

              4.   The petitioners made a representation for

                   reconsideration in that regard on July 20,
                        2




     2023.     However, the said representation was

     rejected by the respondent-authorities, who

proceeded ahead with the bidding process.

5. It is submitted that in hot haste, immediately

after filing of the writ petition, the work order

has also been issued in favour of third parties.

6. It is contended by the petitioners that even as

per the provisions of the tender document, the

submission of trade licence could not have been

an essential criterion.

7. Learned counsel places reliance on a tabular

chart with the head 'Document format for

uploading in OID folder'. In Item No. II thereof,

'Company Details' has been mentioned as the

category concerned. Under the sub-category

description, it has been mentioned that for the

purpose of participation, a valid trade

licence/acknowledgement or receipt of

application for trade licence/revalidation

should be furnished by the bidder.

8. It is contended that, thus, it is clear that the

furnishing of a valid trade licence was not an

essential criterion, since a mere

acknowledgement or receipt of application for

trade licence would suffice. Hence, the

disqualification of the petitioners on such

technical ground ought to be set aside.

9. Learned counsel places reliance on a

Memorandum dated January 15, 2019, issued

by the Principal Secretary to the Government of

West Bengal, whereby it was clarified that the

bids in the e-portal system of the Government

of West Bengal should not be rejected on

clerical/rectifiable deficiencies. The bidders

ought to be given an opportunity to make good

such deficiencies or clarify the deficiencies, as

per the memorandum.

10. The same tenor can be seen in the

Memorandum dated June 07, 2022, which is

also annexed to the writ petition, as per the

General Instructions Clause 3(d) of which,

sometimes it is seen that tenders are being

rejected in pre-qualification stage due to minor

clerical/rectifiable deficiencies. The same was

deprecated and it was observed in the said

memorandum that in such cases, the bidders

would be given an opportunity to explain their

position within seven working days through e-

mail.

11. It is, thus, submitted that the rejection of the

technical bid of the petitioners ought to be set

aside and the tender process ought to be

restarted from the stage of participation of the

petitioners.

12. Learned counsel places reliance on the

judgment of Rashmi Metaliks Limited and

Another vs. Kolkata Metropolitan Development

Authority and Others, reported at (2013) 10 SCC

95 for the proposition that if a clause in a

tender document cannot be viewed as an

essential term or ingredient, the tender ought

not to be rejected on the ground of non-

compliance of the same.

13. Learned counsel appearing for the respondent-

authorities controverts the submissions made

by learned counsel for the petitioners and

places reliance on Silppi Constructions

Contractors vs. Union of India and Another,

reported at (2020) 16 SCC 489. In the said

judgment, the Supreme Court observed, inter

alia, that the court should exercise a lot of

restraint while exercising their powers of

judicial review in contractual and commercial

matters. The courts must realize their

limitations and the havoc which needless

interference in commercial matters can cause.

In contracts involving technical issues, the

courts should be even more reluctant because,

as held by the Supreme Court, most of us in

Judges' robes do not have the necessary

expertise to adjudicate upon technical issues

beyond our domain. The essence of law laid

down in the judgments referred to therein, it

was observed, 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 was highlighted in the said

judgment.

14. Learned counsel further submits that the

contract has already been issued to a third

party on August 02 and August 04, 2023. The

entire period of the contract was two months,

which has elapsed in the meantime.

15. Although learned counsel for the respondent-

authorities is not certain as to whether the time

for completion of the work has been extended in

the meantime, it is submitted that there ought

not to be any interference at this juncture.

16. Learned counsel for the respondent-authorities

also argues that the memoranda and Circulars

relied on by the petitioners are in respect of

different departments of the Government and

do not apply to the present case.

17. In the present case, the dispute hinges around

the question as to whether the furnishing of

trade licence was an essential or non-essential

criterion of the tender. As pointed out by the

petitioners, in Row- II of the Table given in the

tender document, it was mentioned that for

proprietorship firms, partnership firms,

registered companies, etc., valid trade licence,

alternatively acknowledgement or receipt of

application for trade licence or revalidation

should be furnished by the bidders.

18. However, the argument of the petitioners that

the said provision itself indicates that the

provision was non-essential may or may not be

correct.

19. The question of furnishing of valid trade licence

or acknowledgment of receipt of application for

trade licence would depend on the

circumstances of the bidder. Undoubtedly, the

said clause indicates that the existence of a

valid trade licence is not necessary but mere

acknowledgment or receipt of application for

trade licence would suffice. However, the said

requirement is a bit distinct from the

requirement to furnish whichever of the

documents is applicable, be it a trade licence or

an application for trade licence is an essential

or non-essential consideration. Even if a trade

licence was not essential and an application for

trade licence might suffice, either of the two

documents must have been submitted at the

time of e-filing.

20. In Clause 4.2C(II) of the tender document, all

documents mentioned in the tabular format

under Clause 4.2B and detailed thereinbelow, it

is mentioned, should be uploaded during

electronic bid submission in PDF files. The

language used is "should" and not "may".

21. Indeed, to furnish a trade licence or at least an

application for trade licence is essential to

indicate the bona fides of the bidder to

complete the work, which is to be assigned

under the tender.

22. Insofar as the memorandum dated July 15,

2019 and/or the other memorandum of 2022,

which have been relied on by the petitioners,

the said memoranda merely indicate that in

case of minor clerical rectifiable deficiencies, an

opportunity of explanation should be given to

the petitioners. Although in the present case, it

may be argued that the deficiency was

rectifiable on the part of the petitioners, the

petitioners' representation was heard and it

cannot be said that opportunity was not given

to the petitioners to rectify the deficiency.

23. In any event, the clauses-in-question of the

memoranda are applicable only in case of non-

essential ingredients of the tender documents.

The question as to whether a particular

qualification is essential or not depends not

solely on the perspective of the bidder or the

court but primarily on the perspective of the

employer, who chooses to float the tender and

seeks to get its work done.

24. In the present case, the perception of the

respondents, as reflected in the tender

document itself, appears to be that the

documents pertaining to trade licence/

application for trade licence had to be furnished

at the juncture when the e-bidding was going

on. Having not done so, the petitioners cannot

claim as a matter of right to be given another

opportunity of furnishing such document.

25. The present matter does not pertain to the

infringement of any legal or fundamental right

of the petitioners but revolves around the

discretion of the respondent-authorities, which

in the present case, has not been exercised in

favour of the petitioners.

26. That apart, we cannot give a go-bye to the fact

that the respondent-authorities proceeded as

per the timeline of the tender document and

completed the award of the work order to a

third party, who was successful in the bidding

process, strictly in terms of the tender

document. The haste of the respondent

authorities in doing so, keeping in view the

nature of the job, that is, protection of river

embankment during or just prior to the

monsoon season, cannot be said to be a factor

which goes against the respondent-authorities.

In certain cases, haste may rather be

appreciated in view of the nature of the work

sought to be done.

27. Thus, I do not find any occasion to hold that

the respondents acted in an arbitrary or mala

fide manner to suit the particular needs of a

third party bidder apart from the petitioners in

their actions.

28. Thus, the high ground for interference in

judicial review under Article 226 of the

Constitution of India is not satisfied in the

present case.

29. Insofar as Rashmi Metaliks (supra) is

concerned, the Supreme Court proceeded on

the premise that the clause under discussion

therein was not an essential one for the

purpose of the tender document. It is, at best,

arguable as to whether the furnishing of income

tax return, in the particular context of a tender,

would be an essential or non-essential element

or ingredient or concomitant of the subject NIT.

30. There is a difference between furnishing of

income tax return, which indicates the financial

capability of a bidder, and a trade licence or an

application for trade licence, which might be

construed to hit at the very eligibility of the

participant in tender to complete the work in

itself.

31. The proposition laid down in Silppi Construction

(supra) also cannot be said to be strictly

applicable in the present case, since in the said

case, the Supreme Court was of the opinion

that Judges need not ordinarily interfere in the

commercial domain in case where expertise is

necessary, which is best left to experts.

32. In the present case, the arguments made by the

parties do not touch or involve any exercise of

expertise at all but are merely restricted to

construction of the terms of the tender

document and the consequential

circumstances.

33. Hence, there is no question of interference in

commercial matter on question of expertise in

the present case. Thus, Silppi Construction is

also not applicable here.

34. In any event, since the period of work

contemplated in the impugned tender in the

present case is almost complete and a third

party has started the work, this Court is of the

opinion that there need not be any interference

at this stage.

35. Hence, W.P.A. No. 18411 of 2023 is dismissed

without, however, any order as to costs.

36. Urgent photostat certified copies of this order, if

applied for, be made available to the parties

upon compliance of all necessary formalities.

Sabyasachi Bhattacharyya, J.