Page No.# 1/9 vs The State Of Assam And 7 Ors
2022 Latest Caselaw 3910 Gua

                                                                Page No.# 1/9

GAHC010186962022




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

                         Case No. : WP(C)/6046/2022

         M/S KHONA TEA ESTATE LLP AND 2 ORS.
         REPRESENTED BY ITS PARTNER SRI SIDDHARTHA SHANKAR BHUSAN
         BORUAH, HAVING ITS REGISTERED OFFICE NEAR K.P.M. HALL, A.T.
         ROAD, SIVSAGAR-785640

         2: MEKONG ENGINEERING AND INFRASTRUCTURES PRIVATE LIMITED
          REPRESENTED BY MANAGING DIRECTOR
          MR. MRIDUL PHUKAN
          HAVING ITS REGISTERED OFFICE PIOLI NAGAR
         AT ROAD
          NAMTIAL PATHAR
          SIVSAGAR
         ASSAM-785640

         3: S.K. PETRO SERVICES PRIVATE LTD.
          REPRESENTED BY MANAGING DIRECTOR
          SHRI KRISHNA AGARWALLA
          HAVING ITS REGISTERED OFFICE ADDRESS AT ANAND NAGAR
          BHAGVATI BHAWAN
          SIVSAGAR-78564

         VERSUS

         THE STATE OF ASSAM AND 7 ORS.
         REPRESENTED BY THE PRINCIPAL SECRETARY, INDUSTRIES AND
         COMMERCE DEPARTMENT, DISPUR-781006

         2:THE COMMISSIONER
          OFFICE OF THE COMMISSIONERATE OF INDUSTRIES AND COMMERCE
          GOVT. OF ASSAM
          UDYOG BHAWAN
          BAMUNIMAIDAM
          GUWAHATI-781021
                                                   Page No.# 2/9

3:ASSAM TEA CORPORATION LIMITED
 REPRESENTED BY THE MANAGING DIRECTOR
A GOVT. OF ASSAM UNDERTAKING
 HOUSEFED COMPLEX
 C-BLOCK
 7TH FLOOR
 DR. B.N. SAIKIA ROAD
 DISPUR
 GUWAHATI
ASSAM-781006

4:TENDER EVALUATION COMMITTEE
ASSAM TEA CORPORATION LIMITED
 HOUSEFED COMPLEX
 C-BLOCK
 7TH FLOOR
 DR. B.N. SAIKIA ROAD
 DISPUR
 GUWAHATI
ASSAM-781006

5:BOKAKHOLA TEA COMPANY PRIVATE LIMITED
 REPRESENTED BY DIRECTOR
 HAVING ITS REGISTERED OFFICE AT TORAJAN
 JORHAT
 PIN-785101

6:JALINGA TEA CO (INDIA) PRIVATE LIMITED
 REPRESENTED BY DIRECTOR
 HAVING ITS REGISTERED OFFICE AT 21
 RN MUKHERJEE ROAD
 KOLKATA-700001

7:GIRIRAJ PLANTATIONS PRIVATE LIMITED
 REPRESENTED BY DIRECTOR
 HAVING ITS REGISTERED OFFICE BERLIA COMPLEX
 2ND MILE
 SEVOKE ROAD
 SILIGURI
WEST BENGAL-734401

8:DENISH KUKURACHOWA
 HAVING ITS OFFICE UNPURA NEAR HARIPARA TINIALI
 P.O.-NOGAGAON
 SIBSAGAR
ASSAM
 PIN-78570
                                                                           Page No.# 3/9

Advocate for the Petitioner     : MR. JYOTIRMOY ROY

Advocate for the Respondent : SC, INDUSTRIES AND COMMERCE




                                   BEFORE
                  HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                           ORDER

Date of Hearing : 26.09.2022.

Date of Order : 29.09.2022.

This Court, while issuing notice of motion vide order dated 14.09.2022, had also considered the prayer for interim order.

2. Upon consideration and on being prima facie satisfied, it was directed that the respondent-Assam Tea Corporation (hereinafter referred to as the ATC) shall not further proceed in terms of the RFP No. ATC/RFP/LTEs-01 of 2022, dated 01.07.2022.

3. The contesting respondents have, in the meantime, entered appearance and few of them have also filed their affidavits-in-opposition. The principal respondent, ATC, however, is yet to file its affidavit-in-opposition.

4. Today's hearing was on the aspect of continuation or otherwise of the interim direction contained in the order dated 14.09.2022 and/or the requirement of any modification thereof.

5. I have heard Shri M Vashist, learned Senior Counsel along with Shri J Roy, learned Senior Counsel assisted by Shri R Hazarika, learned counsel for the petitioners. Also heard Shri D Saikia, learned Advocate General, Assam assisted by Shri B Gogoi, learned counsel for the ATC as well as Shri DK Mishra, learned Senior Page No.# 4/9

Counsel assisted by Shri B Prasad, learned counsel for the respondent no. 5. Respondent no. 6 is represented by Ms. SG Baruah, learned counsel. Shri GN Sahewalla, learned Senior Counsel appears for the respondent no. 8. Shri A Kalita, learned counsel appears for the Industries and Commerce Department.

6. The present challenge is with regard to the 2 Tea Gardens of Golaghat and Sivasagar districts out of the 12 numbers of Tea Gardens which are the subject matter of the RFP which is for leasing out the said Gardens. The petitioners are aggrieved by the action of the ATC in holding their bids to be technically non-responsive and also by ignoring their price bids, which, according to the petitioners, is much higher than the bids of the other bidders which have been held to be successful. The petitioners also contend that a different yardstick is used to evaluate the bids of the other competitive bidders.

7. Shri M Vashist, learned Senior Counsel for the petitioners have submitted that vide communication dated 25.08.2022, their bids for the 2 Tea Gardens of Golaghat and Sivasagar districts were held to be technically responsive. However, by the impugned notification dated 05.09.2022, their bids have been rejected on the ground of being technically non-responsive. On the other hand, he submits that for other bidders, the conditions of the RFP dated 01.07.2022 have not been followed and in violation of such mandatory conditions, bids of certain bidders have been considered and evaluated.

8. The learned Senior Counsel for the petitioners submits that the petitioner no. 1 is a Limited Liability Partnership (LLP), which has formed a consortium with the petitioner nos. 2 and 3. In response to a RFP dated 01.07.2022 published by the ATC for 12 Gardens, the petitioners had submitted their bids for 2 Gardens situated at Golaghat and Sivasagar districts which was a two bids system, namely, Technical and Page No.# 5/9

Financial. The petitioners claim to have met all the eligibility requirements and in this connection, the learned Senior Counsel has referred to a communication dated 25.08.2022. However, as indicated above, by the impugned communication dated 05.09.2022, the technical bid of the petitioners has been held to be non-responsive. The learned Senior Counsel submits that in a tender system of this nature where amount has to be offered for the lease, revenue plays a paramount role and as the rates of the successful bidders have been disclosed, the petitioners have submitted that their financial bids are much higher than those of the successful bidders and therefore, the impugned action in rejecting the bids of the petitioners is wholly unjustified. It is, accordingly submitted that the interim order be extended.

9. Per contra, Shri D Saikia, learned Advocate General, Assam representing the ATC has submitted that the projection made by the petitioners is not correct. By straightaway referring to the communication dated 25.08.2022 which has been interpreted by the petitioners to be a communication holding them to be technically responsive, the learned Advocate General has submitted that the said communication only takes into account the fact of the submission of bids and informs that the bids submitted by the respective bidders are accepted for technical evaluation. The learned Advocate General, however, has submitted that the actual evaluation was done in the meeting dated 03.09.2022 in which, it has been decided that the technical bid of the petitioners is non-responsive on certain grounds, the gist of which is as follows:

i) The lead member, as per the RFP was to have a stake of at least 51% and the other consortium members was to have a minimum 10% stake whereas, in the instant case, the lead member had 50% stake and one of the members had 5% stake.

ii) The joint bidding agreement was found to be substantially inconsistent Page No.# 6/9

with the format and therefore, violative of the applicable clauses under the RFP.

10. The learned Advocate General, accordingly submits that the impugned decision being supported by reasons, this Court will be reluctant in applying the test of judicial review upon such reasons unless, the reasons are palpably illegal, irrational and arbitrary.

11. As regards the averments made that the financial bids of the petitioners are much higher, the learned Advocate General has submitted that apart from the fact that those are matters of speculation, even assuming that the statement made is a correct one, the same will be a relevant fact only when the petitioners are able to cross over the first hurdle of being technically responsive, which they had failed. It is lastly submitted that the RFP dated 01.07.2022 concerns 12 numbers of Tea Gardens and the present challenge is with regard to the two numbers of Tea Gardens, one in Golaghat and the other in Sivasagar. Therefore, in any case, there is no challenge with regard to the 10 other Tea Gardens which are outside the purview of this writ petition.

12. Shri DK Mishra, learned Senior Counsel has appeared for the respondent no. 5, namely, Bokahola Tea Company Pvt. Ltd., which is the successful bidder in so far as the Tea Garden at Golaghat is concerned. The learned Senior Counsel submits that apparently, the technical bid of the petitioners is a faulty one and rightly held non- responsive and therefore, the interim order is not liable to be vacated. The learned Senior Counsel has drawn the attention of this Court to various documents to substantiate his argument. He also relies upon on the recent judgment of the Hon'ble Supreme Court in the case of N.G. Projects Ltd. Vs. Vinod Kumar Jain & Ors., reported in (2022) 6 SCC 127 whereby, a caveat has been given not to pass interim orders in matters where public interest is involved. It may, however, be noted that the Page No.# 7/9

subject matter in the said case was road infrastructure.

13. Ms. SG Baruah, learned counsel for the respondent no. 6, while supporting the stands of the learned Advocate General, Assam as well as Shri Mishra, learned Senior counsel for the respondent no. 5, has submitted that mandatory clauses of the contract of the aforesaid RFP have not been fulfilled by the petitioners which include that in case of a joint venture, the lead partner should have at least 51% of the share which, admittedly, is not fulfilled by the petitioners. She refers to the Glossary of the RFP to substantiate her submission.

14. In his rejoinder, Shri Vashist, learned Senior Counsel has submitted that there is a second corrigendum as per which, the Appendix-VII format was to be filled up and the same does not mention any specific percentage of share in the joint venture and in fact, the requirement of 51% for the lead partner was done away with. By drawing the attention of this Court to the Net Worth, the learned Senior Counsel for the petitioners submits that the lead partner-petitioner no. 1 has got net worth of more than Rs. 44 crores, the petitioner no. 2-Mekong Engineering & Infrastructure Pvt. Ltd. has got net worth of more than Rs. 5 crores and that of the petitioner no.3-SK Petro Services Pvt. Ltd. is Rs. 1.99 crores approximately. By reiterating the submission that higher amount of revenue is of paramount importance in a contract of this nature, the learned Senior Counsel for the petitioners has placed before this Court, in a sealed cover, the rates quoted by the petitioners in respect of the 2 Tea Gardens and submits that for the Tea Garden at Golaghat, the offer of the petitioners was Rs. 106 crores (approx) whereas, the successful bidder-respondent no. 6 had offered a price of Rs. 26.38 crores. Similarly, for the Garden at Sivasagar, against the offer of Rs. 29.91 of the respondent no. 8, the offer of the petitioners was about Rs. 44 crores. The difference in the prices is a very huge amount.

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15. In support of his submissions, Shri Vashist, learned Senior Counsel for the petitioners places reliance upon the following case laws:

i) Food Corporation of India vs. M/s Kamdhenu Cattle Feed Industries , (1993) 1 SCC 71;

ii) Tata Cellular Vs. Union of India, (1994) 6 SCC 651;

iii) LIC of India & Anr. Vs. Consumer Education & Research Centre & Ors., (1995) 5 SCC 482; and

iv) B.S.N. Joshi & Sons Ltd. Vs. Nair Coal Services Ltd. & Ors. , (2006) 11 SCC 548.

16. The aforesaid cases have been cited to bring home the point of the scope and jurisdiction of a Writ Court exercising powers of judicial review. The proposition regarding the importance of higher revenue has also been advanced in, amongst others, the case of B.S.N. Joshi & Sons Ltd. (supra).

17. After hearing the learned counsel for the parties, this Court is of the opinion that the controversy raised in this writ petition, pertaining to 2 Tea Gardens in the districts of Golaghat and Sivasagar would require a detail hearing after final completion of the pleadings. As indicated above, the affidavit-in-opposition by the ATC is yet to be filed for which, the learned Advocate General, Assam had sought for time.

18. At the same time, this Court cannot be oblivious of the fact that the impugned challenge is restricted to 2 (two) numbers of Tea Gardens, which are part of the RFP dated 01.07.2022 concerning 12 numbers of Tea Gardens and in the order dated 14.09.2022, it appears that the entire process pursuant to the aforesaid RFP dated 01.07.2022 has been stayed.

Page No.# 9/9

19. On balancing the equities and after hearing the parties, this Court is of the considered opinion that the interim order dated 14.09.2022 is required to be modified to the extent that the embargo imposed by the said order would be restricted only to the 2 (two) numbers of Gardens at Golaghat and Sivasagar with which the present writ petition is involved. Accordingly, it is directed that except for the 2 (two) numbers of Gardens in the districts of Golaghat and Sivasagar, the authorities are at liberty to go ahead with the process of RFP dated 01.07.2022.

20. List this case after the ensuing Autumn Vacation by which time, the ATC may file its affidavit-in-opposition. Further affidavit-in-opposition may be exchanged, in the meantime.

JUDGE

Comparing Assistant