East India Supply Centre vs The State Of Assam And 4 Ors
2022 Latest Caselaw 1302 Gua

                                                               Page No.# 1/6

GAHC010075832022




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/2678/2022

         EAST INDIA SUPPLY CENTRE
         SRCB ROAD, FANCY BAZAR, GUWAHATI-1 REPRESENTED BY ITS
         PARTNER MR. MRINAL GANERIWAL, S/O LATE RAVINDRA KUMAR
         GANERIWAL, R/O SRCB ROAD, FANCY BAZAR, GUWAHATI-1

         VERSUS

         THE STATE OF ASSAM AND 4 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, HOME (B) DEPARTMENT, DISPUR, GUWAHATI-781006, DIST-
         KAMRUP(M), ASSAM

         2:THE DIRECTOR GENERAL OF CIVIL DEFENCE AND COMMANDANT
         GENERAL OF HOME GUARDS
         ASSAM
          BELTOLA
          GUWAHATI-28
          DIST-KAMRUP(M)
         ASSAM

         3:THE SENIOR STAFF OFFICER (A)
          O/O THE DIRECTOR GENERAL OF CIVIL DEFENCE AND COMMANDANT
         GENERAL OF HOME GUARDS
         ASSAM
          BELTOAL
          GUWAHATI-28
          DIST-KAMRUP(M)
         ASSAM

         4:M/S NACOF
          GUWAHATI BRANCH
          REPRESENTED BY ITS BRANCH HEAD
          HOUSE NO. 4
          2ND FLOOR
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             DIMBESWAR NEOG PATH
             ANANDA NAGAR
             P.O. AND P.S.-BHANGAGARH
             DISPUR
             GUWAHATI
             ASSAM-781005

            5:M/S PUBERUN
             REPRESENTED BY ITS MANAGING DIRECTOR
             R.G. BARUAH ROAD
             GUWAHATI-

Advocate for the Petitioner   : MR B D DAS

Advocate for the Respondent : GA, ASSAM




                                            BEFORE
                 HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

                                            ORDER

19-04-2022

Heard Mr. B. D. Das, learned Senior counsel assisted by Mr. D. Kalita, learned counsel for the petitioner and Mr. D. Sarmah, learned Additional Senior Government Advocate, Assam for the respondent Nos. 1 to 3.

The petitioner is a Partnership Firm and is in the business of supply of dry ration and other articles to various establishments.

The Director General of Civil Defence and Commandant General of Home Guards (DGCD & CGHG), Assam on 28.03.2022 issued a Notice Inviting e-Tender (NIeT) for supply of dry ration to ASRF Bn-I, II and AISF Bn-I, II for the year 2022-23 specifying that the bid submission start time and date is 10:00 am of 01.04.2022 and last time and date is 2:00 pm of 18.04.2022 through e-tendering system and that technical bids will be opened online at the office of the Director General of Civil Defence and Commandant General of Home Guards, Assam on 18.04.2022 at 3:00 pm.

The petitioner earlier supplied such dry rations to the personnel of ASRF Bn-I, II and AISF Bn-I, II.

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The concerned Nodal Officer of the respondent Director General of Civil Defence and Commandant General of Home Guards, Assam on 29.03.2022 issued a Corrigendum relating to said NIeT dated 28.03.2022 modifying Clause 6.3 (A) (xi) of the Instructions to Bidders (ITB) specifying that - The Tenderer should have experience of successful execution of supply works with any other forces like Army / Central Armed Police Forces / Police / Home Guards / Assam Rifles for similar Food & Ration Items of Rs.200.00 lakhs during the last for a minimum value 3 (three) years. Certified copies from concerned Department/Agency showing proof of such supply works executed must be furnished.

By the said Corrigendum dated 29.03.2022 (Annexure 5 to this petition) last date and time for receipt of bids through e-Tendering has also been extended upto 02:00 pm of 20.04.2022 specifying that the technical bids will be opened online at the office of the DGCD & CGHG, Assam on 20.04.2022 at 03:00 pm.

The petitioner on 05.04.2022 submitted a representation before the DGCD & CGHG, Assam relating to said modification of Clause 6.3 (A) (xi) of the ITB whereby supply of food items and ration items for a minimum value of Rs.200.00 lakhs during the last 3 years have been specified in the said NIeT dated 28.03.2022. However, the respondent authorities by communication dated 11.04.2022 informed the petitioner, reiterating the modifications specified in the Corrigendum dated 29.03.2022.

Being aggrieved the petitioner has preferred this writ petition stating that for the last 5-6 years the respondent Nos. 4 and 5 supplied such dry rations to the personnel of ASRF Bn- I, II and AISF Bn-I, II and only to favour those two private respondents, the respondent authorities by the impugned Corrigendum dated 29.03.2022 have modified the Clause 6.3 (A)

(xi) of the ITB pertaining to said NIeT dated 28.03.2022.

In this regard Mr. Das, learned Senior counsel placed reliance on the judgment of the Hon'ble Apex Court in the case of Meerut Development Authority Vs. Association of Management Studies & Anr., reported in (2009) 6 SCC 171.

Mr. Sarmah, learned Additional Senior Government Advocate, Assam on behalf of the State respondent Nos. 1 to 3 submitted that the authorities in the DGCD & CGHG, Assam being the employer has the right to modify/alter any such terms and conditions of the NIT Page No.# 4/6

considering the fact that the bidder must have the capacity to supply such dry ration commodities to the personnel of ASRF and AISF Battalions.

It is also submitted by Mr. Sarmah that tomorrow i.e., 20.04.2022 is the last date for submission of bid and tomorrow i.e., 20.04.2022 at 03:00 pm are the time and date fixed for opening of the bids, whereas the petitioner has approached this Court at the very last though the impugned Corrigendum was issued on 29.03.2022 and therefore, it is not entitled to get any relief, as prayed for more particularly, the interim prayer.

Mr. Sarmah also submitted that the petitioner alone cannot be given any such benefit to participate in the said Tender process since there may be some similarly placed suppliers who does not fulfill the said criteria of supplying dry ration commodities of Rs.200.00 lakhs during the last 3 (three) years.

It is seen that the ITB with regard to the said NIeT dated 28.03.2022 issued by the DGCD & CGHG, Assam at Clause 6 of the ITB relates to Preparation of Bids and Clause 6.3 (A) (x) of the said ITB stipulates that - The Tenderer should have a total annual turnover of minimum of Rs.200.00 lakhs (two hundred lakh only) during the last three Financial Years (2018-19, 2019-20 and 2020-21) and in that regard the bidder must submit the certified copies from the competent authority.

Clause 6.3 (A) (xi) of the ITB of said NIeT dated 28.03.2022 stipulates that - The Tenderer should have experience of successful execution of supply works with any other forces like Army / Central Armed Police Forces / Police / Home Guards / Assam Rifles for similar Food & Ration Items. Certified copies from concerned Department/Agency showing proof of such supply works executed must be furnished.

By the impugned Corrigendum dated 29.03.2022 the Clause 6.3 (A) (xi) of the ITB has been modified inserting "of Rs.200.00 lakhs during the last for a minimum value 3 (three) years" after .............. for similar Food & Ration Items and before Certified copies ............, which was not there in the ITB of said NIeT dated 28.03.2022.

It is also seen that Clause 12 of the ITB dated 28.03.2022 stated about the 'Pre Bid Meeting' and it stipulates that - a pre bid meeting will be held at office of the Director Page No.# 5/6

General of Civil Defence and Commandant General of Home Guards (DGCD & CGHG), Assam, Beltola, Guwahati-28 on 31.03.2022 at 03:00 pm. Intending bidders are requested to submit queries, if any, at least two (2) days ahead of the pre-bid meeting.

It is also seen that the NIeT was issued on 28.03.2022 and on the very next day i.e., on 29.03.2022 the Corrigendum was issued by the respondent authorities modifying the said Clause 6.3 (A) (xi) of the ITB.

Petitioner is silent as to whether it attended the Pre Bid Meeting held on 31.03.2022 or not and whether it made quarries regarding such amendment of said Clause 6.3 (A) (xi) of the ITB, except submitting its representation with regard to the same on 05.04.2022.

The terms and conditions of the ITB modifying the Clause 6.3 (A) (xi) that requires experience for supply of such dry ration commodities for a minimum value of Rs.200.00 lakhs during the last three years apparently minimized the competition as only those bidders who supplied such dry ration commodities minimum of the said value during the last three years will only be entitled to participate in the said bid process.

From the Annexure -1 of the NIeT dated 28.03.2022, it is seen that bidders have to supply Rice, Atta, Sugar, Salt, different types of Dals like - Masur, Arahar, Moong, Channa, etc., Tea Leaf, Mustard Oil, Vegetable Ghee and Match Box to the personnel of DGCD & CGHG, Assam during the financial year 2022-23.

Issue notice, returnable by 05.05.2022.

As Mr. D. Sarmah, learned Additional Senior Government Advocate, Assam has accepted notices on behalf of the respondent Nos. 1 to 3, no formal notices need be issued to those respondents.

Petitioner shall serve requisite extra copies of this writ petition including the annexures appended thereto to Mr. D. Sarmah, learned Additional Senior Government Advocate, Assam during the course of the day obtaining necessary acknowledgment from him in that regard.

Petitioner shall take steps for service of notice on the respondent Nos. 4 and 5 by Registered post with A/D by tomorrow i.e., 20.04.2022 providing their correct and proper addresses with requisite postal stamps.

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In addition to the above, the petitioner shall also take steps for service of notice on the respondent Nos. 4 and 5 by Dasti/Personal service to be routed through the Registry of this Court. Such Dasti/Personal service shall be made on the respondent Nos. 4 and 5 obtaining their signatures with the date in presence of one or more witnesses. Thereafter, the petitioner shall file an affidavit towards completion of such Dasti/Personal service on those respondents.

In the interim, the petitioner is allowed to participate in the said Notice Inviting e- Tender (NIeT) dated 28.03.2022 issued under No. CG(Q)1/2022-23/16 by the Director General of Civil Defence and Commandant General of Home Guards (DGCD & CGHG), Assam, respondent No.2 and the respondent authorities in the Director General of Civil Defence and Commandant General of Home Guards (DGCD & CGHG), Assam shall not proceed further in opening the E-Tenders in terms of the NIeT No. CG(Q)1/2022-23/16 dated 28.03.2022 and the impugned Corrigendum under No. CG (Q) 1/2022-23/26 dated 29.03.2022 till the returnable date i.e., 05.05.2022 and/or without the leave of the Court.

It is also made clear that any such submission of bid by the petitioner in respect of said Notice Inviting e-Tender dated 28.03.2022 issued under No. CG(Q)1/2022-23/16 by the Director General of Civil Defence and Commandant General of Home Guards, Assam, pursuant to this order of the Court, shall be subject to the outcome of this writ petition.

JUDGE

Comparing Assistant