Gauhati High Court
Tafe Motors And Tractors Ltd vs The State Of Assam And 11 Ors on 1 June, 2021
Page No.# 1/35
GAHC010288742019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/8696/2019
TAFE MOTORS AND TRACTORS LTD.
( A WHOLLY OWNED SUBSIDIARY OF TAFE) HAVING ITS REGD. OFFICE AT
77 NUNGAMBAKKAM HIGH ROAD, NUNGAMBAKKAM, CHENNAI- 600034
REP. BY ITS COMPANY SECRETARY MR. C.P. SOUNDERARAJAN.
VERSUS
THE STATE OF ASSAM AND 11 ORS.
REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM, AGRICULTURE
DEPTT., DISPUR, GHY.- 781006.
2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
AGRICULTURE DEPTT.
DISPUR
GHY.- 781006.
3:THE DIRECTOR OF AGRICULTURE
GOVT. OF ASSAM
KHANAPARA
GHY.-22.
4:THE CHIEF EXECUTIVE OFFICER
MEGA MISSION SOCIETY
CHIEF MINISTER SAMAGRA GRAMYA UNNAYAN YOJNA
JAYA NAGAR
KHANAPARA
GHY.-22.
5:THE BID EVALUATION COMMITTEE
REP. BY ITS CHAIRMAN CUM SECY. TO THE GOVT. OF ASSAM
AGRICULTURE DEPTT.
DISPUR
Page No.# 2/35
GHY.-06.
6:M/S ESCORTS LTD
HAVING ITS REGD. OFFICE AT 15/5 MATHURA ROAD
FARIDABAD
HARYANA
PIN- 121003
7:M/S ACTION CONSTRUCTION PVT LTD
HAVING ITS REGD. OFFICE AT DUDHOLA LINK ROAD
VILL. DUDHOLA
DIST. PALWAL
HARYANA
PIN- 121102.
8:M/S INTERNATIONAL TRACTORS LTD (SONALIKA)
HAVING ITS REGD. OFFICE AT VILL. CHAK GURJARAN
P.O. PIPLANWALA
JLANDHAR ROAD
HOSHIARPUR.
9:M/S MAHINDRA AND MAHINDRA LTD
SWARAJ DIVISION HAVING ITS REGD. OFFICE AT PAHSE-IV
INDUSTRIAL AREA
SAS NAGAR (MOHALI)
PUNJAB
PIN- 160055.
10:M/S MAHINDRA AND MAHINDRA
HAVING ITS REGD. OFFICE AT FIRST FLOOR
MAHINDRA TOWERS
MURLI ROAD
KANDIVILI (EAST)
MUMBAI
PIN- 400101.
11:M/S CASE NEW HOLLAND INDUSTRIAL PVT LTD
HAVING ITS REGD. OFFICE AT THIRD FLOOR
PLOT NO. 14A
SECTOR 18
ATC BUILDING
MARUTI INDUSTRIAL COMPLEX
GURUGRAM
HARYANA
PIN- 122015.
12:SAKTIMAN (GROMAX)
HAVING ITS REGD. OFFICE AT NEAR VISHWAMITRI RAILWAY OVER
Page No.# 3/35
BRIDGE
VISWAMITRI
VADODRA
GUJRAT
PIN- 399011
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : SC, AGRI. DEPARTMENT
Linked Case : WP(C)/8699/2019
TRACTORS AND FIRM EQUIPMENT LTD.
A COMPANY DULY REGD UNDER COMPANIES ACT
1956
HAVING ITS REGD OFFICE AT 861
ANNA SALAI
CHENNAI
PIN- 600002 REP BY ITS VP MR. CP SOUNDERARAJAN
VERSUS
THE STATE OF ASSAM AND 11 ORS
REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM
AGRICULTURE DEPTT.
DISPUR
GHY.- 781006.
2:THE COMM. AND SECY. TO THE GOVT. OF ASSAM
AGRICULTURE DEPTT.
DISPUR
GHY.- 781006.
3:THE DIRECTOR OF AGRICULTURE
GOVT. OF ASSAM
KHANAPARA
GHY.-22.
4:THE CHIEF EXECUTIVE OFFICER
MEGA MISSION SOCIETY
CHIEF MINISTER SAMAGRA GRAMYA UNNAYAN YOJNA
JAYA NAGAR
KHANAPARA
GHY.-22.
Page No.# 4/35
5:THE BID EVALUATION COMMITTEE
REP. BY ITS CHAIRMAN CUM SECY. TO THE GOVT. OF ASSAM
AGRICULTURE DEPTT.
DISPUR
GHY.-06.
6:M/S ESCORTS LTD
HAVING ITS REGD. OFFICE AT 15/5 MATHURA ROAD
FARIDABAD
HARYANA
PIN- 121003
7:M/S ACTION CONSTRUCTION PVT LTD
HAVING ITS REGD. OFFICE AT DUDHOLA LINK ROAD
VILL. DUDHOLA
DIST. PALWAL
HARYANA
PIN- 121102.
8:M/S INTERNATIONAL TRACTORS LTD (SONALIKA)
HAVING ITS REGD. OFFICE AT VILL. CHAK GURJARAN
P.O. PIPLANWALA
JLANDHAR ROAD
HOSHIARPUR.
9:M/S MAHINDRA AND MAHINDRA LTD
SWARAJ DIVISION HAVING ITS REGD. OFFICE AT PAHSE-IV
INDUSTRIAL AREA
SAS NAGAR (MOHALI)
PUNJAB
PIN- 160055.
10:M/S MAHINDRA AND MAHINDRA
HAVING ITS REGD. OFFICE AT FIRST FLOOR
MAHINDRA TOWERS
MURLI ROAD
KANDIVILI (EAST)
MUMBAI
PIN- 400101.
11:M/S CASE NEW HOLLAND INDUSTRIAL PVT LTD
HAVING ITS REGD. OFFICE AT THIRD FLOOR
PLOT NO. 14A
SECTOR 18
ATC BUILDING
MARUTI INDUSTRIAL COMPLEX
GURUGRAM
HARYANA
PIN- 122015.
12:SAKTIMAN (GROMAX)
HAVING ITS REGD. OFFICE AT NEAR VISHWAMITRI RAILWAY OVER
BRIDGE
VISWAMITRI
VADODRA
Page No.# 5/35
GUJRAT
PIN- 399011.
------------
Advocate for : MR. K N CHOUDHURY
Advocate for : SC
AGRI. DEPARTMENT appearing for THE STATE OF ASSAM AND 11 ORS
BEFORE
HON'BLE MR JUSTICE PRASANTA KUMAR DEKA
For the petitioner : Mr. K. N. Choudhury
Senior Advocate assisted by
Mr. J. Patowary. Advocate for
both the writ petitions.
Mr. K. Srinivasan, Advocate for
Petitioner in WP(C)/8696/2019.
For the respondents : Mr. D. Saikia, Senior Advocate,
Assisted by Mr. B. Choudhury,
Standing Counsel, Agriculture Deptt.
Mr. D. Das, Senior Advocate
assisted by Mr. B. Gogoi.
Advocate for respondent No.6.
Mr. A. D. Choudhury, Advocate for
respondent No.8.
Mr. A. Das, Advocate for
respondent Nos. 9, 10 and 12.
Mr. S. N. Tamuli, Advocate for
Respondent No. 7.
Date of hearing : 24.11.2020
Date of judgment : 01.06.2021
JUDGMENT & ORDER(CAV)
Heard Mr. KN Choudhury, learned Senior counsel assisted by Mr. J. Patowary, learned
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counsel for the petitioners in both the writ petitions. Also heard Mr. K Srinivasan, learned
counsel representing the petitioner in WP(C) 8696/2019., Mr. D Saikia, learned Senior counsel
assisted by Mr. B Choudhury, learned counsel for the State Agriculture Department. Mr. AD
Choudhury, learned counsel for the respondent No. 8, Mr. A Das, learned counsel for the
respondent Nos. 9, 10 and 12, Mr. S N Tamuli, learned counsel for the respondent No. 7 and
Mr. D Das, learned Senior counsel assisted by Mr. B Gogoi, learned counsel for the private
respondent No. 6. Both the writ petitions are taken up for disposal through this common
judgment and order in view of the common cause of action.
2. The Director of Agriculture, Assam, respondent No. 3 vide notice dated 04.02.2019
invited competitive rates of Tractor and Matching Implements from the manufacturers of
tractors for Phase-II of the scheme for "Distribution of Tractor unit under CMSGUY" for one
model of Tractor in each of the three categories namely:
i. 35 PTO HP or more than 35 PTO HP and up to 40 PTO HP.
ii. More than 40 PTO HP and up to 45 PTO HP.
iii. More than 45 PTO HP and 50 PTO HP.
3. Amongst others, the following conditions were stipulated which are reproduced
hereinbelow:
" 4. Most competitive rates offered by manufacturers in each category of models mentioned above would be
selected and notified for procurement by the selected beneficiary groups as per their choice. In a particular
category (Sl. No. 1), the most competitive rate offered by 50 (fifty) % of the technically responsive out of
participating manufacturers against the particular model shall be selected.
11. The beneficiary group may procure the tractor of selected model and make along with implements, if so opted,
from any authorised dealer of the manufacturer in the state. The group may negotiate with the dealer to bring rates
below the price quoted by manufacturer. "
4. The tender evaluation committee on 29.03.2019 took the following decision in respect
of the Tractors:
"The following bidders (manufacturer) were found non responsive due to reasons mentioned against them.
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Name of bidders (manufacturer) Reasons for non-responsive
i. M/s VST Tillers Tractors Ltd. Offered tractor models are not enlisted in GOI
letter No. 13-10/99-M&T (I&P) Vol-II dated
12.10.2018
ii. M/s Skylight Automotive Pvt. Ltd. on behalf Manufacturer himself not registered in the e-
of M/s Action Construction Equipment Ltd. Procurement portal: https//assamtenders.gov.in
iii. M/s Echo Motors & Automobiles Pvt. Ltd. on Manufacturer himself not registered in the e-
behalf of M/s Preet Tractors Pvt. Ltd Procurement portal: https//assamtenders.gov.in
One model of tractor namely DEUTZ FAHR Agromaxx 55 offered by M/s Same Deutz Fahr India (P) Ltd. in the
category "More than 45 up to 50 PTO HP" was found non-responsive due to PTO HP is less than 45, as per the test
report furnished.
On evaluation of technical bids, the committee found the following brand and model of tractors offered by
manufacturers in the three categories as responsive:
Category Equal or more than 35 up More than 40 up to 45 PTO More than 45 up to 50 PTO
to 40 PTO HP HP HP
Name of Brand Model Brand Model Brand Model
manufacturer
M/s Mahindra Swaraj 843XM Swaraj 744FE Swaraj 855FE
& Mahindra
Ltd. (FES)
Swaraj
Division
M/s Sonalika DI-740III Sonalika DI-47 RX Sonalika DI 750 III
International International CM Series International Heavy Duty HDMSI
Tractor Ltd.
M/s Mahindra Mahindra YUVO 415 Mahindra 575 DI MKM Mahindra 555 DI Power
& Mahindra DI Bhumiputra DLX
Ltd.
M/s Tractors TAFE MF 1035 DI TAFE MF 7250 DI TAFE MF 5245 DI
and Farms Mahashakti Power Drive MAHAMAHAAN
Equipment Power
Ltd. VI Steering
Page No.# 8/35
M/s Same DEUTZ FAHR 3040 E DEUTZ FAHR Agromaxx - -
India (P) Ltd.
M/s John John Deere 5042D V3 John Deere 50500 V5 John 5310 V3
Deere India Deere
Pvt. Ltd.
M/s CNH New Holland 3230 New Holland 4710A New 3630 TX
Industrial (I) Holland
Pvt. Ltd.
M/s Tafe Eicher 368 USJ Eicher 485 Eicher 557
Motors & Hydromatic
Tractors Ltd.
M/s Escorts Powertrac 439 E1 Farmtrac 45 F9 Powertrac Euro 50
Ltd.
M/s Gromax Shaktimaan 45 DLX - - - -
Agri
Equipment
Ltd.
5. M/s Tractors and Farms Equipment Limited and M/s Tafe Motors & Tractors Limited the
writ petitioners along with 6 other bidders were found to be technically responsive in the 3
categories as referred hereinabove. On the other hand, as reproduced hereinabove 3 bidders
were found to be non-responsive. The respondent No. 7 who was found to be technically
non-responsive filed WP(C) 2678/2019 which was disposed of vide order dated 19.06.2019
thereby directing the respondent Nos. 1,2 and 3 to consider the tender of the respondent No.
7 as technically responsive and thereafter consider its price bid alongwith the price bids of
other technically responsive bidders. The financial bids were opened on 06.07.2019. The
petitioner in WP(C) 8696/2019 was the L-6 bidder in 35-40 PTO HP amongst 11 numbers of
bidders whose rate was found to be most competitive amongst technically responsive bidders,
L-8 in 40-45 PTO HP amongst 10 numbers of qualified bidders, L-5 in 45-50 PTO HP amongst
9 numbers of qualified bidders. As per clause 4 of the notice dated 04.02.2019 50% of the
most competitive rates offered and the technically responsive out of the participating
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manufacturers against the particular model was the criteria to be selected. The petitioner in
WP(C) 8699/2019 was within the 50% limit as per clause 4 in 35-40 PTO HP and 45-50 PTO
HP (through its subsidiary company as L3).
6. The respondent No. 3 invited for fresh competitive rates of Tractors and Matching
Implements vide notice dated 30.10.2019 and the reasons for such invitation of fresh
competitive rates as mentioned in the said notice dated 30.10.2019 are reproduced
hereinbelow:
"3. Accordingly, the Bid Evaluation committee in its meeting held on 15.10.2019 recommended rank
wise brand/ model of tractors along with matching implements viz. Rotavator, Cultivator, Disc Harrow
and Cage Wheel excluding the trailer and submit its report to the Agriculture Department for necessary
action. The Agriculture Department placed the recommendations of Bid evaluation Committee before
the Hon'ble Cabinet on 21.10.2019 for approval.
4. The decision and direction of the Hon'ble Cabinet in its meeting held on 21.10.2019 is reproduced
below:
"The Council of Ministers discussed the proposal including the fact that price bids were received more
than six months ago and during this period the automobile sector has experienced significant slump in
demand leading to deep discount/ lowering of effective price in the open market. In order that benefit is
passed on to both farmer beneficiaries and the Government, the Council of Ministers directed
Agriculture Department to give opportunity to all technically qualified participating bidders to lower their
price bids by giving 15 days to submit fresh price bids. The Agriculture Department will finalize the bid
evaluation and selection of bidders with Department Minister".
5. In the view of the Hon'ble Cabinet direction and in light of the acceptance of the withdrawal letter of
M/s Skylight and M/s Echo Motors by the Governing Council, MMS-CMSGYY the technically responsive
bidders are requested to submit fresh price bids for their technically approved Tractor models mentioned
at Table-1 along with the technically approved matching implements (excluding trailer) mentioned at
Table-2 as per the prescribed format (Format A) through e-Procurement portal:
https://assamtenders.gov.in on or before 15.11.2019 upto 1.00 p.m. The price bids will be opened on
the same day at 2.00 p.m."
7. The petitioners raised its objection, filed representation to the respondent No. 3 dated
14.11.2019 against the said notice seeking for fresh competitive rates dated 30.10.2019 on
Page No.# 10/35
the ground that as the commercial bids were already opened and the qualifiers declared in
each of the categories accordingly it was not fair to call for re-bid as the same might be
construed to be done in order to accommodate the non-qualified manufacturers. It would not
be out of place to mention herein that as per the standing of the various bidders after
opening of the financial bid and as per criteria adopted under clause 4, the respondent No. 6
did not qualify in any of the three different categories. The said representation of the
petitioner was disposed of by the respondent No. 3 stating that the same was not in
conformity with the decision of the Cabinet and accordingly the said representation was
rejected and disposed of. The evaluation Committee held its meeting on 16.11.2019 and
accordingly the following rank wise brand/ model of Tractors was shortlisted as per clause 4
of the notice:
"Minutes of the Evaluation Committee for fixation of Price of Tractor and Matching Implements under the scheme
for "Distribution of Tractor until under CMSGUY (Phase-II) held on 16.11.2019 at 11.30 AM in the Office Chamber of
Director of Agriculture, Assam as per Govt.
Members Present: Annexure-I
At the outset, Chairman Evaluation Committee welcomed all the members present in the meeting.
Initiating the discussion, the Member Secretary informed the house that as per direction of the Hon'ble Cabinet and
in pursuance of the notice vide No. Agri/Engg/4772/CMSGUY Phase-II/2018-19/339 dated 30.10.2019. The financial
bids were opened on 15.11.2019 at 2.00 p.m. in the conference hall of Chief Engineer, Agriculture in presence of
representative of bidders/ manufacturers of tractor. The online price bids were opened and the details rates quoted
are placed at Annexure-2.
The Committee also observed that the following 05(five) technically qualified bidders did not submit the price bids
viz M/s Tafe Motors & Tractors Limited, M/s Gromax Agri Equipment Ltd., M/s Mahindra & Mahindra Ltd., M/s
Tractor and Farm Equipment Limited and M/s Mahindra & Mahindra Ltd. (FES) Swaraj Division. The member
secretary also appraised the committee that 05 nos. of representations were received from the above said bidders
on 15.11.2019 in the O/o the Directorate of Agriculture, Khanapara just before the scheduled opening time of the
price bids.
In this regard, the member secretary informed the house that the representations were disposed of by the Director
of Agriculture by issuing a Speaking Order (Annexure-3). After threadbare discussion, the Committee accepted the
speaking order.
Further, Committee has deliberated upon the decision of the Cabinet and accordingly in the interest of the farmers
and to reduce the burden on the state exchequer in the form of subsidy to be released, the technically qualified
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bidders were given an option to lower their price quoted earlier due to slump in the auto sector in the country. As
05(five) technically qualified bidders out 11 nos. in the category 35-40 PTO HP 04 (four) technically qualified
bidders out of 09 nos. in category 40-45 PTO HP and 04 (four) technically qualified bidders out of 08 nos. in the
category 45-50 PTO HP did not offer any new lowered rate. Hence the committee decided to accept their price
quoted earlier on dated 06.07.2019.
Accordingly, in the above changed scenario, the following rank wise brand/ model of tractor has been shortlisted as
per Clause-4 of the notice."
Ranking Name of Category Brand Model PTO HP Fresh quoted
Manufacturer price as on
15.11.2019
1 2 3 4 5 6 7
L-1 M/S Skylight Equal ACE 350 NG 37 381888.00
Automotive Pvt.
or more than
Ltd
35 up to 40
PTO HP
L-2 M/s International Sonalika DI-740 III CM 37.9 384000.00
Tractor Limited Series
L-3 M/s Mahindra & Swaraj 843XM 38.9 426720.00
Mahindra Ltd.
(FES) Swaraj
L-4 M/s Gromax Agri Shaktimaan 45 DLX 39 459536.00
Equipment Ltd.
L-5 M/s Escorts Ltd. Powertrac 439 EI 38.5 465000.00
L-6 M/s CNH Industrial New Holland 3230 38.02 468786.000
(I) Pvt. Ltd
L-7 M/s Same Deutz DEUTZ FAHR 3040E 35 469711.00
Fahr India (P) Ltd.
L-8 M/s Tafe Motors & Eicher 368 USJ 35.8 470225.00
Tractors Ltd.
L-9 M/s Tractors and TAFE MF 1035 DI 35.5 485000.00
Farms Equipment Mahashakti VI
Ltd
L-10 M/s John Deere John Deere 5042D V3 497989.00
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India India Pvt.
Ltd.
L-11 M/s Mahindra & Mahindra YOVO 415 DI 35.6 516500.00
Mahindra Ltd.
L-1 M/s International Sonalika DI-47 RX Heavy 43.2 445000.00
Tractor Limited international Duty
More than
L-2 M/s Mahindra & 40 up to 45 Swaraj 744 FE 41.2 478240.00
Mahindra Ltd. PTO HP
(FES) Swaraj
L-3 M/s Tafe Motors & Eicher 485 Hydromatic 41.6 500000.00
Tractors Ltd.
L-4 M/s Escorts Ltd. Farmtrac 45 F9 43.9 510000.00
L-5 M/s Mahindra & Mahindra 575 DI MKM 40.07 513410.00
Mahindra Ltd. Bhumiputra DLX
L-6 M/s CNH Industrial New Holland 4710 A 42.23 516786.00
(I) Pvt. Ltd.
L-7 M/s John Deere John Deere 5050 D V5 43.2 521950.00
India Pvt. Ltd.
L-8 M/s Same Deutz DEUTZ FAHR Agromaxx 50 41.78 536000.00
Fahr India (P) Ltd.
L-9 M/s Tractors and TAFE MF-7250 DI 43.0 550000.00
Farms Equipment
Ltd.
L-1 M/s International More than 40 Sonalika DI 750 III HDM 46.1 480000.00
Tractor Limited up to 45 PTO SI
HP
L-2 M/s Mahindra & Swaraj 855 FE 46.0 490560.00
Mahindra Ltd.
(FES) Swaraj
L-3 M/s Escorts Ltd Powertrac Euro 50 45.3 499000.00
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L-4 M/s Mahindra & Mahindra 555 DI Power+ 48.0 530930.00
Mahindra
L-5 M/s CNH Industrial New Holland 3630 TX 46.0 548786.00
(I) Pvt. Ltd.
L-6 M/s Tractors and TAFE MF 5245 DI 46.6 575000.00
Farms Equipment MAHAMAHAAN
Ltd.
L-7 M/s John Deere John Deere 5310 V3 49.6 603000.00
India Pvt. Ltd.
L-8 M/s Tafe Motors & Eicher 557 45.8 605000.00
Tractors Ltd.
Accordingly, the Committee has recommended that L-1 to L-6 in the category 35-40 PTO HP L-1 to L-5 in the
category 40-45 PTO HP and L-1 to L-4 in the category 45-50 PTO HP to be given the Letter of Award and subsidy
will be limited to L-1 price in each category."
8. From the aforesaid table it is seen that the respondent No. 6 had gone up to L-5 in 35
up to 40 PTO HP, L-4 in 40-45 PTO HP and L-3 in 45-50 PTO HP and prior to the change in
the scenario, the respondent No. 6 nowhere found its place within the 50% technically
responsive bidders with competitive rates. Being ousted from the final standings of the
qualified bidders, the petitioners filed these writ petitions challenging the subsequent action
respondent No. 3 calling fresh competitive price bids once the price bids were opened as
illegal and arbitrary and the consequential reliefs thereof.
9. The respondent No. 3, the Director of Agriculture, Assam filed the affidavit-in-
opposition. It is stated that on the basis of the decision of the Hon'ble Cabinet notice inviting
fresh competitive rates of tractor and matching implement dated 30.10.2019 was issued
giving 15 (fifteen) days time to all technically responsive bidders to reduce their earlier price
quoted against their technically approved tractors. The said notice dated 30.10.2019 also
covers the petitioners. Just prior to completion of the time schedule for submission of fresh
competitive rates i.e. on 15.11.2019 the petitioners alongwith 4 (four) others submitted a
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representation which was disposed of rejecting the same by way of a speaking order dated
15.11.2019 as the demand was not in conformity with the decisioin of Hon'ble Cabinet. The
subsequent notice dated 30.10.2019 was intended only for bringing the prices of tractor
lower in the larger interest of the farmers and saving the expenditure of State exchequer in
the form of lesser subsidy. But 5 (five) numbers of bidders including the petitioners did not
participate in the said process. The subsequent act of asking for fresh competitive price bids
resulted in substantial reduction of prices of tractors. Equal opportunities were given to all the
technically qualified bidders and there were no discrimination to the bidders as sufficient
opportunity were given to the petitioners and others who did not participate.
10. The respondent No. 3 in WP(C) 8696/2019 filed an additional affidavit bringing on
record the act of participation of the petitioner in a similar situation when it came to the
notice of the tender authority that petitioners alongwith other bidders quoted high rates as
against the tender notice dated 07.07.2017 under Phase I CMSGUY scheme for tractors of 35
to 55 HP. The said prices were rejected and notice dated 26.02.2018 was issued calling for
fresh competitive rates. The petitioners participated without any demur and lowered the
prices and reaped the benefit by supplying 732 numbers of tractors.
11. The respondent No. 7 filed an affidavit-in-opposition wherein it is stated that it
preferred WP(C) No. 2678/2019 challenging the act of rejection of its technical bid by the
tender committee. Vide order dated 19.06.2019 the writ petition was allowed whereafter the
bid of the respondent No. 7 was considered as technically responsive. However the
respondent No. 7 confined itself only in 35-40 HP category due to some problem within it. But
in the said category it was adjudged as L4 bidder. In the said affidavit in opposition the
respondent No. 7 stated that the respondent No. 6, Escorts Limited also filed a writ petition
before the court on 03.08.2019 seeking amongst other reliefs a writ of Mandamus directing
the respondent authorities to allow re-submission of financial bids by all the technically
responsive bidders pursuant to the tender notice dated 04.02.2019. The said writ petition was
withdrawn vide order dated 09.12.2019.
12. The respondent No. 8, M/s International Tractors Ltd (Sonalika) in its affidavit-in-
opposition stated that the Bid Evaluation Committee on 06.07.2019 evaluated the financial
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bid. It was L1 in respect of 35-40 PTO HP and 40-45 PTO HP categories and L2 in the 45-50
PTO HP categories. As per the invitation for fresh competitive rates in view of the decision of
the Cabinet meeting held on 21.10.2019 it submitted fresh price bids but the writ petitioners
neither submitted fresh bids nor challenged the Cabinet meeting decision dated 21.10.2019.
The evaluation Committee evaluated the fresh financial bids in its meeting held on
16.11.2019 and the respondent No. 8 was declared L2 in respect of 35-40 PTO HP and L1 in
respect of 40-45 PTO HP and 45-50 PTO HP categories. The writ petitioner in WP(C)
8696/2019 was declared L3 in respect of 40-45 PTO HP category considering the earlier price
bid. All the technically responsive bidders were given equal opportunity to submit their fresh
price bids by the respondent State.
13. The respondent No. 6, Escorts Limited filed its affidavit-in-opposition supporting the
action of respondent authority on the basis of the Cabinet decision. But as the writ petitioners
did not respond to the notice inviting fresh competitive bids it cannot challenge the action of
the respondent authorities. But in the said affidavit the respondent No. 6 was totally silent
about filing of any writ petition and subsequent withdrawal of it.
14. Mr. Choudhury, the learned Senior counsel for the petitioners submits that the process
adopted by the respondents more specifically the respondent No. 3 cannot at all be accepted
inasmuch as the tender process which was yet to be concluded to its logical end cannot be
interfered and that too after opening of the financial bid by calling fresh financial bids.
Referring to the stand taken by the respondent No. 3 in its affidavit in opposition it is
submitted by Mr. Choudhury that after the notice inviting fresh competitive bid was issued,
the petitioner objected before respondent No. 3 explaining the manner in which the petitioner
would be deprived of the benefit of the competitiveness as per the Cabinet decision in the
meeting held on 21.10.2019 which was summarily rejected. Further, referring to the
statement made in the said affidavit-in-opposition it is submitted that the respondent No. 3
had taken recourse to falsehood before this court inasmuch as the present petitioners along
with 3 others did not participate in response to the notice dated 30.10.2019 as such question
of opening of the bid of all the 11 technically responsive bidders including the petitioners
does not arise at all. As per the minutes of the meeting dated 16.11.2019 the evaluation
Page No.# 16/35
committee shortlisted the bidders under clause 4 of the notice upon fresh quoted price as on
15.11.2019 wherein the names of the petitioners are also shown but they along with 3 other
bidders did not quote any fresh price bids.
15. Mr. Choudhury referring to the affidavit-in-opposition filed by the respondent No. 7
submits that from the said affidavit-in-opposition new facts had emerged which the
respondent No. 6 in its affidavit-opposition suppressed. The respondent No. 6 in fact filed writ
petition on 03.08.2019 for a writ of mandamus directing the respondent authorities to allow
re-submission of financial bid by all the technically responsive bidders pursuant to the tender
notice dated 04.02.2019. The said writ petition was filed on 03.08.2019 and subsequently the
same was withdrawn vide order dated 09.12.2019. The said suppression of material facts
itself is an indication that the respondent State in order to accommodate the respondent No.
6 had made changes in the NIT dated 04.02.2019. The delay which was caused from the
date of opening of the technical bid in pursuance of the notice dated 04.02.2019 and the date
i.e. 06.07.2019 on which the financial bid was opened coupled with the fact of filing the writ
petition which the respondent No. 6 failed to bring to the notice of this court itself indicate
that the notice dated 30.10.2019 inviting for fresh competitive rates of Tractors as per the
decision and direction of the Hon'ble Cabinet in its meeting held on 21.10.2019 is purely in
order to accommodate the respondent No. 6. Otherwise the benefit due to the slump in the
market and the discount offered by the manufacturing companies of tractors could have very
well been given to the beneficiaries under clause 11 of the notice dated 04.02.2019.
16. Mr. Choudhury relied on the ratio in Larsen and Toubro Limited and Another Vs.
Union of India and Others reported in (2011) 5 SCC 430 and submits that in a tender
process once the commercial bids are opened there remained no further scope of the rates
being altered. The tender process requires openness, transparency and fair dealing. In the
present case as per Mr. Choudhury all the requirements and procedures adopted by the
respondent No. 3 and the Government of Assam in the tender process are liable to be set
aside. In support of the said contention he relies on Dutta Associates Pvt. Ltd. Vs Indo
Merchantiles Pvt. Ltd. and Others reported in (1997) 1 SCC 53.
17. The terms and conditions in the NIT dated 04.02.2019 are sacrosanct and no one can
Page No.# 17/35
violate once the said terms and conditions are published and put to public domain. If bidders
are to abide the terms and conditions of the NIT similarly the employer is also bound to
accept the said terms and conditions without any deviation. In support of the said contention
Mr. Choudhury relies on Ramana Dayaram Shetty Vs. International Airport Authority
of India and Others reported in (1979) 3 SCC 489.
18. The respondent No. 6 as per Mr. Choudhury, did not disclose about the filing of the writ
petition seeking for the relief as referred hereinabove. It is the duty of the respondent No. 6
to disclose all material facts without any reservation even if such fact goes against him. The
respondent No. 6 without disclosing the facts misled this court inasmuch as the writ
jurisdiction rests in disclosure of true and complete facts. Suppression of material facts would
result impossibility in functioning of the writ court. In support of the said contention Mr.
Choudhury relies on KD Sharma Vs. Steel Authority of India Limited and others
reported in (2008) 12 SCC 481. Accordingly, on aforesaid submission Mr. Choudhury
sought for interference of the tender process seeking appropriate direction to the
respondents.
19. Mr. Srinivasan, learned counsel for the petitioner in WP(C) 8696/2019 submits that as
per the notice dated 04.02.2019 there is no provision for considering second financial bid.
Referring to Central Coalfields Limited and Another Vs. SLL_SML (Joint Venture
Consortium) and Others reported in (2016) 8 SCC 622 it is submitted by Mr. Srinivasan
that tender terms are to be duly followed. Pointing out another instance of act of misleading
on the part of the respondent No. 3 Mr. Srinivasan reverting back to the minutes of the
evaluation committee meeting held on 16.11.2019 submits that it was recorded that 5
technically qualified bidders out of 11 numbers in categories 35-40 PTO HP, 4 technically
qualified bidders out of 9 bidders in 40-45 PTO HP and 4 technically qualified bidders out of 8
numbers in the category 45-50 PTO HP did not offer any new lower rates and accordingly the
committee decided to accept their price quoted earlier on 06.07.2019 which is in gross
violation of terms of tender condition. At the time of opening of the said subsequent price
bids there were only 5 bidders present and the same is a specific violation of the CVC guide-
line as new entrants were considered who never even quoted their prices inasmuch as only
Page No.# 18/35
subsequent 5 bidders were present at the time of opening the price bids on the subsequent
re-bid opening. Earlier bidders were not present. In support of the said violation and the force
of the CVC guidelines Mr. Srinivasan relies on Haffkine Bio-Pharmaceutical Corporation
Limited, A Government of Maharashtra undertaking through Manager Vs. Nirlac
Chemicals through its Manager and Others reported in (2018) 12 SCC 790.
Accordingly, as per his submission the whole process smacks malafide and liable to be set
aside.
20. Mr. D Saikia, learned Senior counsel submits that the writ petitions are not
maintainable inasmuch as the Cabinet decision dated 21.10.2019 is not challenged. Even for
the sake of argument if the writ petitions are allowed till the Cabinet decision remains, the
respondent No. 3 cannot go beyond the said Cabinet decision. Referring to the notice dated
30.10.2019 it is submitted that the benefit is given to the farmers and while doing so if there
are any violation of tender conditions that does not matter and for that purpose no clause for
calling second financial bid is required in the NIT dated 04.02.2019. The tender process was
on level playing ground, it had its reasonableness and fair play. The decision and direction of
the Hon'ble Cabinet remained un-challenged and as it was an exceptional situation for the
Government the said decision was taken. On a specific query to Mr. Saikia he admits that the
logical conclusion of the NIT dated 04.02.2019 was not arrived at when the Cabinet
resolution was taken before 30.10.2019 i.e. the date on which the subsequent request
seeking for fresh financial bid was issued. In fact while the tender process on the basis of
notice dated 04.02.2019 was placed for its approval from the Government than only the
Cabinet decision was taken. The delay factor was due to the Code of Conduct prevailing due
to Parliamentary Election which ended in the month of May, 2020 and subsequent thereto the
tender process on the basis of the NIT dated 04.02.2019 was slowed down as agricultural
season was already over. It is further submitted that the earlier part of the NIT dated
04.02.2019 so far the technical qualification is concerned is kept as it is but modified the
financial price bid of the earlier NIT dated 04.02.2019 and there cannot be any bar to that
effect nor it vitiates the tender process initiated by notice dated 04.02.2019 when equal
opportunities were given to all the technically qualified bidders.
Page No.# 19/35
21. Mr. Saikia submits that as per decision dated 21.10.2019 of the Cabinet, in order to
give opportunity to all the technically responsive bidders, notice dated 30.10.2019 was
uploaded in the website to submit fresh competitive price bids in view of slump in automobile
sector. The representation of the petitioners which was received on 15.11.2019 was rejected
by a speaking order dated 16.11.2019. Notice for fresh competitive price bid dated
30.10.2019 was uploaded in e-portal on 31.10.2019 and subsequently opened for all 11
(eleven) technically responsive bidders. The petitioners opted out from such participation.
The respondent department gave equal opportunities to the petitioners and other technically
qualified bidders to come up with fresh competitive price bids thereby reducing their price
bids in the larger interest of the farmers and to the expenditure of the State exchequer in the
form of lesser subsidy. Such action was with a view to give a level playing ground to all the
technically qualified bidders. Similar exercise was carried on in Phase I as referred in the
additional affidavit by respondent No. 3. The CMSGUY scheme is a beneficial one to the
farmers and decision for fresh price bid and deviation from the terms and conditions of the
NIT was due to larger public interest much higher than the one of the individual interest of
the writ petitioners. The reason for such variation is very much discernible and the question
of malafide against the writ petitioners does not arise as they were treated with equality and
fairness with other technically qualified bidders.
22. Mr. Saikia relied Jagadish Mandal Vs. State of Orissa & Ors. reported in (2007)
14 SCC 517 in support of his contention that court must be reluctant to exercise the power
of judicial review if a decision is taken bonafide and in public interest even if it causes
prejudice to a tenderer. He also relied Central Coalfields & Another Vs SLL-SML (Joint
Venture Consortium) reported in (2016) 8 SCC 622 and submits that if the decision
relating to award of contract is bonafide and is in public interest court will not in exercise of
power of judicial review interfere even if a procedural aberration or error in assessment or
prejudice to a tenderer is made out. Further deviation can be allowed in public interest if
applicable to all bidders. Citing the ratio that tender inviting authority is the best person to
understand and appreciate its requirement and interpret tender documents, Mr. Saikia relied
Montecarlo Ltd. Vs. NTPC Ltd reported in (2016) 15 SCC 272 and goes on to submit
that if such interpretation is not acceptable to the court that by itself is not a reason for
Page No.# 20/35
interfering with such interpretation. Finally relying Ramana Dayaram Shetty Vs.
International Airport Authority of India and Ors. Mr. Saikia submits that opportunity
should be given to everyone if there were changes in norms laid down initially. Accordingly it
is his submission that the writ petitions are liable to be dismissed.
23. Mr. Das the learned Senior counsel for the respondent No. 6 submits that the
respondent No. 6 was technically responsive bidder as per the minutes of meeting of the
Evaluation Committee meeting dated 29.03.2019. The respondent No. 3 issued the notice
inviting fresh competitive price bid on 30.10.2019 from the technically responsive bidders of
the NIT dated 04.02.2019 in respect of their technically approved tractor models along with
technically approved matching equipment on or before 15.11.2019 up to 1 pm. There was no
immediate objection/ protest by the petitioner No. 1 against such issuance of notice seeking
fresh price bid. The tender authorities accordingly proceeded with the fresh price bid quoted
by the rest of the technically responsive bidders leaving aside the writ petitioners and opened
the fresh price bids on the scheduled date and time and published the result on the basis of
fresh financial bid. The petitioners did not qualify amongst 50% of technically responsive
bidders and thereafter they filed this writ petition. During the said course of action already
the tender process was fanalised to its logical conclusion. There was no protest by the
petitioner immediately after issuance of the impugned notice inviting fresh financial bid on
30.10.2019. Rather the writ petitioner in WP(C) 8696/2019 submitted a representation dated
14.11.2019 which was received by the department on 15.11.2019 placing certain suggestions
and seeking clarifications regarding the distribution of tractor and matching implements. In
the said representation the said writ petitioner in WP(C) 8696/2019 sought clarification as
regard to the mode of payment to the manufacturers from the Government which according
to the said writ petitioner was essential before submission of fresh price bid with revised
prices as desired. Further in the said representation it was suggested to the tender authority
to empanel all the technically responsive bidders and leave it to the beneficiaries to choose
from amongst them instead of short listing of 50% of the technically responsive bidders as
per clause 4 of the NIT dated 04.10.2019. The said representation was disposed of by
speaking order dated 15.11.2019 rejecting the suggestions and claims made therein. From
the contents of the representation dated 14.11.2019 it is the contention of Mr. Das that the
Page No.# 21/35
writ petitioner in WP(C) 8696/2019 had no grievance against the fresh invitation of bid rather
willing to participate in the process. Accordingly, the petitioners are estopped in raising the
grievance before this court when there is apparent delay and laches in coming to this court.
24. Mr. Das referring to the decision of the Hon'ble Cabinet in its meeting held on
21.10.2019 submits that the Cabinet consciously felt that if the tractors were procured at the
rate quoted six months back before the slump in the market the beneficiaries as well as the
Government would suffer by paying higher prices for the tractors which are otherwise
available at lower price in the open market. Accordingly, a conscious decision was taken
keeping in view the larger public interest to call for fresh financial bids from all technically
responsive bidders at lower rates within a period of 15 days and thereafter completed the
process expeditiously. Accordingly, if the list of final short listed bidders is interfered after the
notice dated 30.10.2019 by this court the poor beneficiaries would be compelled to procure
tractors at higher rates quoted by the writ petitioners and the same would be against the
larger public interest. The respondent No. 6 being technically qualified bidder in respect of
the tractor manufactured by it responded against the notice inviting fresh price bid dated
30.10.2019 and accordingly short listed along with other bidders offering lower price in all the
three categories and it would be evident that the rates were much lower than the rate quoted
by the writ petitioners. Accordingly, the larger public interest shall have to prevail over the
private interest in a dispute involving private interest and as such the writ petitions are devoid
of any merit and are liable to be dismissed.
25. The other learned counsel for the rest of the private respondents supported the
submission made by Mr. Das and Mr. Saikia.
26. I have considered the submissions of the learned counsel. The Government of Assam
in the Agriculture Department took up a mega scheme through Chief Minister Samagra
Gramya Unnayan Yojana (CMSGUY) under the name and style of "Distribution of Tractor units
at subsidized prices" to one farmer group in each village of the State. The tractors were
divided into three groups i.e. (i) 35-40 PTO HP, (ii) 40-45 PTO HP and (iii) 45-50 PTO HP.
Revised guidelines were issued entitling one applicant group against each revenue village to
avail subsidy under the scheme. As part of phase I of the scheme, notice inviting tender was
Page No.# 22/35
issued. Both the writ petitioners participated along with other participants. As the rates
quoted were found to be on higher side compared to the one against the tender issued by
Char Areas Development Department for procurement of tractors and 3 implements so the
Governing Council of Mega Mission Society of CMSGUY on the basis of findings of a
Committee formed to determine the methodology decided to invite fresh rates from 11
(eleven) manufacturers of GOI approved model. The petitioners participated and successfully
supplied a substantial numbers of tractors.
27. For the phase II of the scheme "Distribution of Tractors unit" NIT No.
Agri/Engg/4772/CMSGUY-Phase II/2018-19/55 dated 04.02.2019 was issued seeking
competitive rates of tractors and matching implements from GOI approved manufactures. On
26.02.2019 online technical bids were opened by the Evaluation Committee. The bids of the
petitioners were found to be technically responsive including those of the private
respondents. On 06.07.2019 the financial bids were evaluated of the technically qualified
bidders and as per the criteria stipulated in Clause 4 of tender conditions the petitioners were
within the most competitive rates offered by 50% of the technically responsive bidders.
28. The Bid Evaluation Committee in its meeting held on 15.10.2019 recommended rank
wise brand/ model of the tractors alongwith matching implements and submitted the report
to the Agriculture Department for necessary action. The Department placed the
recommendation of Bid Evaluation Committee before the Cabinet on 21.10.2019 for approval.
The Council of Ministers considered the fact that the price bids were quoted six months back
and during this period subsequent to quoting of the price bids there was significant slump in
demand leading to discount/ lowering of effective prices in the open market of the
automobile sector. So in order to give the benefit of such slump in the demand and lowering
of effective price to the farmers (beneficiaries) and the Government, the Cabinet directed the
Agriculture Department to give opportunity to all technically qualified bidders to lower the
price bids by giving 15 days to submit fresh price bids.
29. The respondent No. 3 issued notice dated 30.10.2019 seeking for fresh competitive
rates and the subsequent financial bids were opened on 15.11.2019. "TAFE Motors and
Tractors Limited" and "Tractors and Farm Equipment Ltd" are the writ petitioners. Comparison
Page No.# 23/35
of the standings of the petitioners prior to 30.10.2019 (date of issuance of subsequent
notice) and 15.11.2019 (date of issuing of the subsequent price bids lowered one) are made
hereinbelow:
CMSGUY ASSAM PROJECT-PHASE-2 COMMERCIAL BID DETAILS
35-40 PTO HP
Assam commercial bids (7/7/2019)
Brand Model Offer Level
price
ITL 740 III CM 3,85,000 L1
Swaraj 843 XM 4,26,720 L2
SHAKTIMAN 45 DLX 4,59,536 L3
(Gromas)
ACE 350 NG 4,65,999 L4
(Skylight)
TMTL 368 USJ 4,70,225 L5
TAFE MF 1035 Di MS V1 4,85,000 L6
CNH 3230 4,89,786 L7
John Deere 5042 D V3 4,97,989 L8
Escorts PT 439 E1 5,09,000 L9
SAME 3040 E 5,10,932 L10
M&M Yuvo 415 Di 5,16,500 L11
35-40 PTO HP
Assam commercial bids (15/11/2019)
Brand Model Offer price Offer price REDUCTION Level
Page No.# 24/35
(7/7/19) (15/11/19)
ACE 350 NG 4,65,999 381888 8411 L1
(Skylight)
ITL 740 III CM 3,85,000 384000 1000 L2
Swaraj 843 XM 4,26,720 426720 0 L3
SHAKTIMAN 45 DLX 459536 L4
(Gromas)
Escorts PT 439 E1 5,09,000 465000 44000 L5
CNH 3230 4,89,786 468786 21000 L6
SAME 3040 E 5,10,932 469711 41221 L7
EICHER 368USJ 470225 470225 0 L8
TAFE MF 1035 4,85,000 4,85,000 0 L9
John Deere 5042 D V3 4,97,989 4,97,989 0 L10
MAHINDRA YUVO 415 DI 516500 516500 0 L11
40-45 PTO HP
Assam commercial bids (7/7/2019)
Brand Model Offer Level
price
ITL Di 47 Rx HD 4,50,000 L1
Swaraj 744 FE 4,78,240 L2
TMTL 485 Hydromatic 5,00,000 L3
M&M 575 Di MKM DLX 5,13,410 L4
CNH 4710A 5,37,786 L5
Preet (Echo) 4549 5,43,888 L6
Page No.# 25/35
John Deere 5050 D V5 5,43,950 L7
TAFE 7250 Di PD PS 5,50,000 L8
Escorts FT 45 F9 5,59,000 L9
SAME Agro Max 50 5,65,000 L10
40-45 PTO HP
Assam commercial bids (15/11/2019)
Brand Model Offer price Offer price REDUCTION Level
(7/7/19) (15/11/19)
ITL Di 47 Rx HD 4,50,000 445000 5000 L1
Swaraj 744 FE 4,78,240 478240 L2
EICHER 485 5,00,000 5,00,000 L3
Hydromatic
Escorts FT 45 F9 5,59,000 510000 49000 L4
MAHINDRA Mahindra 513410 513410 L5
Bhumiputra
CNH 4710A 5,37,786 516786 21000 L6
John Deere 5050 D V5 5,43,950 521950 22000 L7
SAME Agro Max 50 5,65,000 536000 L8
TAFE MF 7250 DI 5,50,000 550000 L9
Preet (Echo) 4549 5,43.888
45-50 PTO HP
Page No.# 26/35
Assam commercial bids (7/7/2019)
Brand Model Offer Level
price
Swaraj 855 FE 4,90,560 L1
ITL Di 750 III HDM Si 5,00,000 L2
ACE 550 Ng 5,29,999 L3
(Skylight)
M&M 555 Di Power + 5,30,930 L4
TAFE 5245 Di MM 5,75,000 L5
Escorts Euro 50 5,79,000 L6
CNH 3630 TX 5,89,786 L7
John Deere 5310V3 6,03,000 L8
TMTL 557 6.05.000 L9
45-50 PTO HP
Assam commercial bids (15/11/2019)
Brand Model Offer price Offer price REDUCTION Level
(7/7/19) (15/11/19)
ITL Di 750 III HDM 5,00,000 480000 20000 L1
Si
Swaraj 855FE 490560 490560 0 L2
Escorts Euro 50 5,79,000 499000 80000 L3
MAHINDRA 555DI Power+ 530930 530930 0 L4
CNH 3630 TX 5,89,786 548786 41000 L5
TAFE 5245 Di MM 5,75,000 575000 0 L6
Page No.# 27/35
John Deere 5310V3 6,03,000 6,03,000 0 L7
EICHER 557 605000 605000 0 L8
ACE 550 Ng 529999
(Skylight)
30. From the aforesaid comparison it is seen that prior to 30.10.2019 the petitioners were
L6 and L5 in the categories 35-40 PTO HP and 45-50 PTO HP and within the most competitive
rates offered by 50% of the technically responsive bidders satisfying clause 4 of the selection
criteria in the tender document. But after quotation of the lowered price bids in terms of
notice dated 30.10.2019 the petitioners were pushed down to L9 and L6 in the aforesaid
categories resulting in ouster from the selection criteria on the basis of most competitive
rates. On the other hand the respondent No. 6 (Escorts) who was not qualified under clause
4 prior to 30.10.2019 became L5, L4 and L3 in the categories respectively 35-40 PTO HP, 40-
45 PTO HP and 45-50 PTO HP.
31. Mr. Choudhury submits that the procedure adopted amounts to adoption of hidden
criteria inasmuch as there was no enabling provision in the ITB permitting the respondent
State to invite fresh financial bid in respect of NIT dated 04.02.2019. Once the commercial/
price bids were opened there was no further scope of altering the rates to cause prejudice to
the petitioners. Because after opening of the price bid on 06.07.2019 prices were known to all
the bidders. Taking advantage, bidders like respondent No. 6 and 11 who were not short
listed earlier due to high price quoted by them could manage to quote lower price. The
procedure adopted by the respondent No. 3 is against the rule of transparency and fairness in
State's action and violative of Article 14 and 19(1)(g) of the Constitution of India. The
respondent No. 3 vide the impugned action changed the rules of the game after the game
was played which is not permitted under the law.
32. Mr. Choudhury in support of his submission relied Larsen and Toubro Ltd Vs UOI
(Supra). On perusal of the factual matrix it is found that it has no similarity with the one in
the present case. As against the requirement of firm commercial offers, the petitioner Larsen
Page No.# 28/35
and Toubro Limited claimed the benefit of the foreign exchange variation component. The
contract Negotiation Committee concluded the offer of the petitioner was non-responsive as
the offer was variable considering the rate fluctuation of foreign exchange. The petitioner
(L&T) withdrew its offer and offered quoted price without the foreign exchange rate variation.
The contract Negotiation Committee declared however the bid of the petitioner (L&T) as non
responsive and awarded the contract to the respondent No. 4 therein who was declared as
L1. Petitioner after its writ petition being dismissed by Hon'ble Delhi High Court preferred the
Special Leave Petition before the Hon'ble Supreme Court which was dismissed upholding the
findings of the Hon'ble Delhi High Court on the ground that since once the commercial bids
were opened there was no further scope of the rates being altered which is not so in the case
of the present petitioners in the writ petitions who tried to make its bid responsive by
withdrawing the initial offer and submitting the same with another offer. The said ratio is not
applicable in the present case in hand.
33. Mr. Choudhury also relies Educomp Solution Ltd & Ors Vs. State of Assam
reported in 2006 (2) GLT 775 wherein the Hon'ble Division Bench of this court held that if
selection criteria in a tender process is not notified at the beginning, the same should be
made known to all the interested parties before submission of the bids by duly informing
them about the proposed criteria to be applied and the methodology in awarding the marks
to evaluate the technical and commercial bids. The ratio of this decision also cannot be
applied in the present case in hand considering the factual matrix in the present case
inasmuch as it is not the case of non disclosure of the selection criteria in the NIT. Mr.
Choudhury further relied Dutta Associates Pvt. Ltd. Vs. Indo Merchantiles Pvt. Ltd
and Others (supra) wherein the Hon'ble Apex court held the tender process leading to
acceptance of the appellant's tender therein was vitiated as the tendering authority
considered some of the criteria beyond the scope of the tender notice. The subsequent action
of the authority calling upon the appellant therein on the alleged ground he was the lowest
tenderer among the eligible tenderers was held to be outside the tender notice. It was held
that fairness demanded that the authority should have notified in the tender notice itself the
procedure which they proposed to adopt while accepting the tender. This ratio is also not
applicable in the present writ petitions.
Page No.# 29/35
34. Here it is the stand of the respondent No. 3 that the recommendation of the Bid
Evaluation Committee in the meeting held on 15.10.2019 was placed before the Agriculture
Department and in term of the said recommendation placed it before the Cabinet on
21.10.2019 for approval. The Cabinet considered the significant slump in demand of the
automobile sector leading to deep discount/ lowering of the effective price in the open
market. The price bids were received six months prior while there was no slump in demand of
the automobile sector. The beneficiaries of the scheme are the farmers and as per the
scheme the tractors are to be provided to the farmers on subsidized rate and lowering of the
price would benefit the Government in the form of lesser subsidy. So the Council of Ministers
directed the Agriculture Department to give opportunity to all technically qualified
participating bidders to lower their price bids by giving 15 days to submit fresh price bids.
Accordingly in view of the decision of the Cabinet the technically responsive bidders were
requested to submit fresh price bids fixing 15.11.2019 up to 1.00 pm. The same was notified
vide notification dated 30.10.2019 further notifying the price bids would be opened on
15.11.2019 at 2.00 pm.
35. The petitioners had not denied the fact of slump in demand of the automobile sector
nor lowering of effective prices of tractors in the form of discount in the open market. But as
apparent from the objection raised through the representation dated 14.11.2019 by the
petitioners it was to the effect that the said act of inviting fresh price bids was purportedly
done to accommodate the non qualified manufacturers. Rather the petitioners appreciated
the good intent of the department passing the benefit to the farmers. Petitioners demanded
confirmed payment timeline for the pending subsidy payment dues of phase I and similar
timeline was demanded to be stipulated before the petitioners submit fresh price bids with
revised prices as desired. It was also suggested that all the technically qualified bidders be
empanelled leaving it to the beneficiaries to choose the product. This proposal was rejected
on the ground that the same was not in conformity with the Cabinet decision.
36. The petitioners did not submit fresh price bids. The respondent No. 3 as per the
Cabinet decision opened the fresh price bids following which the petitioners were almost
ousted from the earlier standings as per requirement of selection criteria. While doing so the
Page No.# 30/35
respondent No. 3 considered the price bids of all the technically qualified bidders including
the one of the petitioners quoted earlier leaving aside two bidders viz Ms. Skylight and M/s
Echo Motors who were allowed to withdraw from the tender process. Mr. Srinivasan the
learned counsel for the writ petitioner in WP(C) 8696/2019 wanted to project that such
consideration of the price bids of the writ petitioners and opening of the fresh price bids in
absence of the representative of the writ petitioners amounts to violation of the Central
Vigilance Commission (CVC) guidelines and in support of the said submission he relies
Haffkine Bio Pharmaceutical Corp. Ltd (Supra). Therein it was held by the Hon'ble Apex
Court that as per the CVC guidelines the tender must be opened in the presence of the
bidders or representative of the bidders who were present at the time when the bids were
opened.
37. The petitioners' representatives were absent at the time of opening the fresh price bids
and they did not even quote fresh price bids sought for vide notice dated 30.10.2019. The
Hon'ble Apex Court as referred above held that tender must be opened in presence of bidders
who were present. Now the present one is a case wherein it is specifically pleaded and
submitted that the petitioners did not quote fresh price bids nor representative of petitioners
were present at the time of opening. Had the respondent tender authority did not give a
chance to know the details of the bids to the representative of the petitioners present at that
relevant point of time than it would have been a case of violation of CVC guidelines.
Accordingly in my considered opinion the submission of Mr. Srinivasan has no force.
38. Whether the procedure adopted by the respondent No. 3 amounts to adoption of
hidden criteria and the same is bad there being no enabling provision in the ITB to seek for
fresh price bids after the price bid was opened? In answering this issue the cause for taking
such recourse to call fresh price bids from technically qualified bidders requires no further
reference for the sake of brevity. The benefit arising out of reduction of prices was meant for
the farmers and the Government itself. There are no denial of the prevailing market scenario
of automobile sector at the relevant time when the Cabinet took the decision on 21.10.2019
by the petitioners. Mr. Choudhury wanted to project that such action was initiated by the
respondent No. 3 in order to benefit the respondent No. 6 and in support of the said
Page No.# 31/35
contention Mr. Choudhury submits that the respondent No. 6 after it failed to remain amongst
the 50% of the competitive bid value filed a writ petition on 03.08.2019 for a writ of
mandamus directing the respondent authorities to allow re-submission of financial bids by all
the technically qualified bidders. The said writ petition was withdrawn vide order dated
09.12.2019. The said fact was not disclosed by the respondent No. 6 in its affidavit-in-
opposition which amounts to suppression of material fact and indication of the fact that the
subsequent action was totally in order to give the benefit to the respondent No. 6. Mr.
Choudhury however failed to bring on record the copy of the writ petition filed by the
respondent No. 6 for examining the contents thereof by this court nor there is any pleading
to that effect. Accordingly presumption goes against the writ petitioners that the contents of
the writ petition if produced would go against the writ petitioners and as such I am of the
considered opinion that filing of the writ petition and subsequent withdrawal of the same by
the respondent No. 6 had no nexus in the subsequent act of respondent No. 3 in issuing the
notice dated 30.10.2019 seeking for fresh price bids.
39. The notice dated 30.10.2019 for invitation of fresh competitive rates of tractors and
matching implements is perused. It contains the reasoning seeking for such fresh competitive
rates extracting the Cabinet decision dated 21.10.2019. It specifically requested the
technically responsive bidders to submit fresh price bids for their technically approved tractor
models etc as per prescribed format. It was also stipulated that the price evaluation for short
listing of tractor manufacturers and matching implements would be as per the terms and
conditions already laid down in the notice inviting tender published dated 04.02.2019. The
fresh price bids were requested to be submitted on or before 15.11.2019 upto 1.00 pm and
to be opened at 2.00 pm on that day. Thus the notice requested for participation of the
technically qualified bidders which includes the petitioners also. So equal opportunity was
given to all the technically qualified bidders to quote fresh competitive price bids. The
petitioners did not challenge the said notice though an objection was raised through its
representation on 14.11.2019, which was disposed of on 15.11.2019.
40. Thus the issuance of the subsequent notice dated 30.10.2019 by the respondent No. 3
was keeping in view the greater public interest which includes the benefit to the farmer
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beneficiaries of the CMGSUY scheme and the Government itself. The savings in the
Government exchequer is also a benefit which falls within the term of 'public interest' and as
such the issue referred hereinabove is decided against the petitioners i.e. the procedure
adopted by the respondent No. 3 does not amount to adoption of hidden criteria rather it is
only in the larger public interest the same was done. There was no oblique purpose behind
such action to benefit only the respondent No. 6.
41. In Rammana Dayaram Shetty Vs. The International Airport Authority of
India and Others reported in AIR 1979 SC 1628/ (1979) 3 SCC 489 the Hon'ble Apex
Court held the power and authority of the Government while entering into contracts or
granting other form of largen which is extracted hereinbelaow.
"12. .............It must, therefore, be taken to be the law that where the Government is dealing with
the public, whether by way of giving jobs or entering in to contracts or issuing quotas or licences
or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a
private individual, deal with any person it pleases, but its action must be in conformity with standard
or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government
in the matter of grant of largess including award of jobs, contracts etc., must be confined and
structured by rational, relevant and non-discriminatory standard or norm and if the Government
departs from such standard or norm in any particular case or cases, the action of the
Governmentwould be liable to be struck down, unless it can be shown by the Government
that the departure was not arbitrary, but was based on some valid principle which in
itself was non-irrational, unreasonable or discriminatory"
42. The respondent No. 3 initiated the tender process on the basis of the notice dated 04.02.2019. After
opening of the price bids of the technically qualified bidders the Bid Evaluation Committee took decisions and
sent for approval by the Government in the Department of Agriculture. Therein due to reasons herein above
stated the Cabinet took a decision on the basis of which fresh competitive price bids were called for from the
technically qualified bidders. There was no enabling provision in the ITB of the NIT dated 04.02.2019 for such
recalling of fresh competitive price bids after opening of the price bids. But the grounds on the basis of which
the tendering authority had to go beyond the terms of NIT were informed to the petitioners and other
technically qualified bidders which clearly shows that such deviation was for the larger public interest. The
petitioners failed to discharge their burden in order to disprove the fact of larger public interest being involved in
such deviation from the tender terms and conditions. Accordingly, I hold that the act of the respondent No. 3 in
issuing the notice dated 30.10.2019 calling for fresh competitive price bids is based on valid principle and the
same is not irrational, unreasonable or discriminatory towards the petitioners. There was no hidden agenda
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behind such action of the respondent No. 3 and the action is in conformity with the ratio laid down in Ramana
Dayaram Shetty (supra).
43. Accordingly, after evaluation of the fresh competitive price bids the petitioners' position in the
competitive price bids were pushed down resulting ouster from the group of 50% of the competitive price
bidders. It is held that the deviation from the tender conditions was for larger public interest. In such a situation
to what extent this court can exercise its jurisdiction of judicial review.
44. In Jagadish Mandal Vs. State of Orissa (supra) the Apex court held as follows:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality,
unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made
"lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is
invoked in matters relating to tenders or award of contracts, certain special features should be borne
in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are
essentially commercial functions. Principles of equity and natural justice stay at a distance. If the
decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise
of power of judicial review, interfere even if a procedural aberration or error in assessment or
prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked
to protect private interest at the cost of public interest, or to decide contractual disputes.........."
45. In Central Coalfields Ltd vs. SLL-SML (Joint Venture Consortium) (Supra) the Hon'ble Apex
Court relying the scope of judicial review as held in Jagadish Mandal (supra) held as follows:
"43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the
terms and conditions of an NIT, and reintroducing the privilege of participation principle and the level
playing field concept, this court laid emphases on the decision making process, particularly in respect
of a commercial contract. One of the more significant cases on the subject is the three Judge decision
in Tata Cellular Vs. Union of India which gave importance to the lawfulness of a decision and not its
soundness. If an administrative decision, such as a deviation in terms of NIT is not arbitrary, irrational,
unreasonable, malafide or biased, this court will not judicially review the decision taken. Similarly the
court will not countenance interference with the decision at the behest of an unsuccessful bidder in
respect of a technical or procedural violation..............."
46. Now it has been held that the respondent No. 3 for the sake of larger public interest had to issue the
notice dated 30.10.2019 calling for fresh competitive price bids and the decision was not irrational,
unreasonable and discriminatory as such though the petitioners were ousted from the selection criteria in terms
of clause 4 of ITB of NIT dated 04.02.2019 but keeping in view the aforesaid ratio laid down by the Hon'ble
Apex Court, I am not inclined to exercise the scope of judicial review insofar as the decision making process of
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the Bid Evaluation Committee i.e. tender authority is concerned. Moreover equal opportunities were given to all
the technically qualified bidders to quote the fresh competitive price bids and the question of violation of the
fundamental rights of petitioners under Article 14 of the Constitution of India and Article 19 (1)(g) does not
arise.
47. The learned counsel for the respondents urged that the writ petitions are not maintainable as the
petitioners failed to challenge the Cabinet decision dated 21.10.2019 whereby it was resolved for calling fresh
price bids. Unless the Cabinet decision is set aside by a declaration the respondent No. 3 is bound by the same.
The reliefs sought for are consequential one flowing from the declaration that the Cabinet decision is void. Mr.
Choudhury the learned Senior counsel countered the said submission that the Cabinet decision was duly notified
by the notice dated 30.10.2019 whereby the respondent No. 3 requested all technically responsive bidders in the
tender process initiated under NIT dated 04.02.2019 to submit their responsive fresh competitive price bids. The
petitioners are persons affected by the said Cabinet decision and as the same was notified to the petitioners
being the persons affected as such the decision has crystalised to Government action which is under challenge
in this writ petition. In support of the said contention, Mr. Choudhury relies the Constitutional Bench decision of
the Hon'ble Supreme court, Bechhitar Singh Vs State of Punjab and another reported in AIR 1963 SC
395.
48. The submissions made by the learned counsel are taken note of. In Bechhitar Singh (supra), the
Hon'ble Supreme court decided the required ingredients for an order of the State Government under Article 166
of the Constitution of India including conversion of action taken by Council of Ministers to action of State. The
relevant portion of which is extracted hereinbelow:
"10. ................Thus it is of the essence that the order has to be communicated to the person who
would be affected by the order before the State and that person can be bound by that order. For, until
the order is communicated to the person affected by it, it would be open to the Council of Ministers to
consider the matter over and over against and, therefore, till its communication the order cannot be
regarded as anything more than provisional in character."
49. Admittedly in the notice dated 30.10.2019 the decision of the Cabinet dated 21.10.2019 was
extracted and the petitioners being persons interested in the notice and also being affected under such
circumstances the decision of the Cabinet consisting of Council of Ministers was duly notified satisfying the
requirements as held in Bechhitar Singh (supra). The said decision of the Cabinet dated 21.10.2019 was
converted to action of the State once the notice dated 30.10.2019 with the decision of the Cabinet was
published. Accordingly the submission of Mr. Choudhury has force. The writ petitions are maintainable inasmuch
as it is the actions of the State which are challenged and the court has the power to pass appropriate order
against the actions of the State.
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50. In view of the discussions made hereinabove, I donot find any merit in these writ petitions which
stand dismissed. Interim order passed stands vacated. No costs.
JUDGE
Comparing Assistant
