Chattisgarh High Court
Harish Kumar Agrawal vs Indira Gandhi Krishi ... on 21 June, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 2510 of 2022
Harish Kumar Agrawal Son Of Shri Suresh Kumar Agrawal Aged About 43
Years Proprietor of M/s Siddharth Enterprises, Resident of Village
Nandouri, Tehsil Dhamdha, District : Durg, Chhattisgarh
---- Petitioner
Versus
Indira Gandhi Krishi Vishwavidyalaya through its Director, Directorate of
Research Services, Krishak Nagar, Raipur, District : Raipur, Chhattisgarh
---- Respondent
(Cause-title taken from Case Information System)
For Petitioner : Mr. B.P. Sharma, Advocate
For Respondent : Mr. D. N. Prajapati, Advocate
Hon'ble Shri Arup Kumar Goswami, Chief Justice
Hon'ble Shri Parth Prateem Sahu, Judge
Judgment on Board
Per Arup Kumar Goswami, Chief Justice
21.06.2022
Heard Mr. B.P. Sharma, learned counsel for the petitioner. Also heard
Mr. D.N. Prajapati, learned counsel, appearing for the respondent.
2. By filing this writ petition under Article 226 of the Constitution of India,
the petitioner, essentially, calls into question Clauses 'f' and 'j' of Stage-I or
Envelope I (Pre-qualification stage) of the Notice Inviting Tender (NIT)
dated 11.05.2022 issued by the respondent inviting sealed tenders / rate
contracts from the manufacturers/company or their authorized dealers for
Hi-tech Mist Chamber and Nursery Green House with Hardening Facility
(Tender-I). By the said NIT, tenders / rate contracts were also invited in
respect of Laboratory equipment, enzymes and/or pilot plant production
systems for protein and sugar (Tender-II).
3. The last date for submission of sealed tender was 10.06.2022 at
2.00 pm. Tenders received were to be opened on the same very day at
3.00 pm.
4. The petitioner had not participated pursuant to the aforesaid NIT.
5. In order to appreciate the grievance expressed, it will be appropriate
that Clauses 'f' and 'j' are reproduced at the very outset. They read as
follows :
"Stage-I or Envelope I (Pre-qualification stage) : .........
xxx xxx xxx
f. The participating company / Firm / Party should have minimum
turnover of Rs. 5.0 crores every year in the last three
consecutive financial years (2019-20, 2020-21 & 2021-22)
which should be reflected by submission of audited balance
sheets.
xxx xxx xxx
xxx xxx xxx
j. The manufacturing license of the similar products under
proposed to be purchased from the competent authority must
be enclosed."
6. Mr. Sharma submits that the world has faced devastating effect of the
Covid-19 pandemic which started in March, 2020 and even now business
activities had not reached the pre-Covid-19 stage, and therefore, there is
no justification for laying down an eligibility criteria that participating
tenderers must have minimum turnover of 5.0 crores every year in last
three consecutive years, more so, in view of the fact that the value of the
tender is only 2.0 crores. It is his contention that such condition has been
fixed only to sub-serve the interest of blue-eyed tenderers of the tendering
authority. It is also contended that a dealer is not in a position to produce
manufacturing license though a dealer is also allowed to participate under
the NIT in question and the same reflects total non application of mind.
Accordingly, he submits that the aforesaid Clauses 'f' and 'j' are liable to be
struck down.
7. Abiding by the stand taken in the reply, Mr. Prajapati submits that the
scope of work, as indicated in the NIT, is a specialized work, which can be
completed by experienced and reputed firms only and, therefore, condition
of having minimum turnover of 5.0 crores every year in last three
consecutive financial years has been prescribed and to ensure smooth
progress of work, the manufacturing license of similar products proposed to
be purchased has been asked to be submitted in terms of Clause 'j'. He
submits that 6 (six) tenderers had submitted tenders. It is submitted by him
that a tendering authority is the best judge of its requirement and
accordingly, aforesaid Clauses have been inserted so that work can be
completed smoothly and without any hindrance. It is further submitted that
in the reply, it is stated that if the petitioner is a manufacturer, his production
license could also be considered.
8. The aforesaid reply was filed by the respondent on 08.06.2022 i.e.,
two days before the last date of submission of tender.
9. We have considered the submissions of learned counsel for the
parties and have perused the materials on record.
10. A perusal of the documents annexed in the writ petition would go to
show that a new certificate of commencement of production dated
06.07.2021 was issued in the name of Sidhharth Enterprises, of which the
petitioner is the proprietor, by the District Trade and Industries Centre,
Durg.
11. On a query of the Court as to whether the petitioner manufactures the
scope of work under Tender-I, Mr. Sharma submits that the petitioner does
not manufacture the aforesaid item, but the petitioner is in a position to
supply the same.
12. A perusal of the NIT would go to show that the tenders are invited
only from the following categories of tenderers, namely, manufacturers /
company or their authorized dealers.
13. In the writ petition, it is stated that the petitioner is in the business of
manufacturing and trading of different goods and having a certificate of
registration in its favour issued by the Government of India. There is no
averment that the petitioner is a dealer of any manufacturer of the scope of
work in Tender-I. In absence of any such averment, it has to be understood
that the petitioner does not fall in the category of the entities who are
eligible to submit tender. There is no challenge that the NIT has restricted
participation of tenderers only to a few categories of entities. If that be the
position, though it is really not necessary to consider as to whether Clauses
'f' and 'j' are terms which are not justified, we notice that the turnover of the
petitioner for the year 2019-20 was Rs.39,40,000.00, for the year 2020-21
Rs.41,74,988.00 and for the year 2021-22 Rs.3,68,54,515.94. It goes to
show that total turnover of the preceding three years is not even 5.0 crores
though the requirement of the NIT is 5.0 crores every year in the last three
consecutive years. In two of the years, turn over was less than even Rs. 50
lakh, while the value of the work is Rs.2.0 crores. Though the Covid-19
pandemic has adversely affected all activities, Clause 'f' cannot be held to
be unreasonable at the instance of the petitioner. We also do not find any
irregularity in insisting as an eligibility condition that the intending tenderer
has to submit the manufacturing license. If the manufacturer is interested
to participate, obviously, it can enclose a copy of the manufacturing license.
Not all dealers are permitted to participate. Only dealers who have been
authorized by the Company and / or the Manufacturer can participate in the
NIT. If the dealer is authorized, we see no reason as to why it would not be
in a position to submit copy of manufacturing license.
15. In that view of the matter, we are of the considered opinion that there
is no merit in this petition and, accordingly, the same is dismissed.
16. The interim order passed earlier shall stands vacated. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
Chief Justice Judge
Chandra
