Gauhati High Court
WA/93/2023 on 12 June, 2023
Page No.# 1/11
GAHC010034162023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/93/2023
1. PRISM LOGISTICS PRIVATE LTD.,
A COMPANY WITHIN THE MEANING OF THE COMPANIES ACT, 2013,
HAVING ITS REGISTERED OFFICE AT 33A, JAWAHARLAL NEHRU ROAD,
4TH FLOOR CHATTERJEE INTERNATIONAL SUITE NO. 3 KOLKATA-700071.
2. ANSHUMAN BANKA, DIRECTOR OF PRISM LOGISTICS PRIVATE
LIMITED, WORKING FOR GAIN AT 33A, JAWAHARLAL NEHRU ROAD 4TH
FLOOR CHATTERJEE INTERNATIONAL SUITE NO.3, KOLKATA-700071.
......Appellants
-VERSUS-
1. THE UNION OF INDIA,
SERVICE THROUGH THE PRINCIPAL SECRETARY, MINISTRY OF MICRO,
SMALL AND MEDIUM ENTERPRISES, HAVING ITS OFFICE AT A-WING, 7TH
FLOOR, NIRMAN BHAWAN, MOULANA AZAD ROAD, NEW DELHI-110108.
2:UNION OF INDIA,
SERVICE THROUGH THE PRINCIPAL SECRETARY,
MINISTRY OF PETROLEUM AND NATURAL GAS HAVING ITS OFFICE AT A-
WING, SHASTRI RAJENDRA PRASAD ROAD, NEW DELLHI-110001.
3:NUMALIGARH REFINERY LIMITED,
A GOVERNMENT COMPANY HAVING ITS REGISTERED OFFICE AT122A
G.S. ROAD, CHRISTIAN BASTI, GUWAHATI, ASSAM-781005.
4:TECHNIP INDIA LIMITED,
A COMPANY WITHIN THE MEANING OF COMPANIES ACT,
2013 HAVING ITS REGISTERED OFFICE AT 19,
VELACHERY MAIN ROAD, GUINDY, CHENNAI-600032
Page No.# 2/11
5:CENTRAL VIGILANCE COMMISSION,
GOVERNMENT OF INDIA,
HAVING ITS OFFICE AT SATARKATA BHAWAN,
BLOCK-A, GPO COMPLEX, INA,
NEW DELHI-110022.
6:ABC INDIA LIMITED,
A COMPANY WITHIN THE MEANING OF COMPANIES ACT,
2013 HAVING ITS REGISTERED OFFICE AT P-10,
NEW C.I.T. ROAD KOLKATA-700073.
...... Respondents
7:ALL CARGO LOGISTICS LIMITED,
A COMPANY WITHIN THE MEANING OF COMPANIES ACT,
2013 HAVING ITS REGISTERED OFFICE AT 6TH FLOOR,
AVASHYA HOUSE, CST ROAD,
KALINA SANTACRUZ (EAST), MUMBAI-40009.
.......Proforma Respondent
- BEFORE -
HON'BLE THE CHIEF JUSTICE
HON'BLE MRS. JUSTICE MITALI THAKURIA
For the Appellants : Mr. Indraneel Choudhury, Senior Advocate assisted by
Mr. S. Biswakarma, Advocate, Mr. C. Agarwal, Advocate
and Mr. N. R. Surana, Advocate.
For the respondent(s) : Mr. N. Deka, Advocate and Mr. M. Gogoi, Advocate (for
respondent No.3)
Mr. Diganta Das, Senior Advocate assisted by Mr. K.
Talukdar, Advocate and Mr. Deepak Agarwal, Advocate
for respondent No.6.
Date of Hearing : 07.06.2023
Date of Judgment : 12.06.2023.
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JUDGMENT & ORDER
[Sandeep Mehta, CJ]
The instant intra Court writ appeal is directed against the judgment/final
order dated 22.12.2022 passed by the Single Bench in WP(C) No.2871/2022
along with I.A.(Civil) No.1628/2022.
2. The writ petitioners/appellants herein filed the aforesaid writ petition
being aggrieved of the cancellation of its bid and acceptance of the bid of the
respondent No.6 including the work order granted in favour of the respondent
No.6 pursuant to the NIT dated 26.03.2021 issued by the respondent Nos.3 and
4 inviting bids from eligible persons/entities for erection/installation of
ODC/OWC including Multimodal Transportation from Haldia Port/Kolkata Port to
the sites specified in the NIT.
3. The appellants have questioned the legality of the order dated
22.12.2022 rejecting the writ petition wherein, challenge was laid to the
declaration of the respondent No.6 as the successful bidder and rejection of the
consortium bid offered by the appellants/writ petitioners and the proforma
respondent No.7 for the said work on the grounds that, the bid offered by the
appellants/writ petitioners was the lowest; that the respondents, tinkered with
the technical criterion of the bidder qualification requirement just in order to
favour the respondent No.6.
4. The learned Single Bench non-suited the appellants/writ petitioners and
dismissed the writ petition primarily on the ground that the appellants/writ
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petitioners had filed a bid in consortium with the proforma respondent No.7 but
the said consortium partner did not join the writ petitioners/appellants herein as
a petitioner in the writ petition. Despite the opportunity given by the Court, the
respondent No.7 was not transposed as a petitioner; that the writ petitioners
along with the proforma respondent No.7 could only have been regarded as a
bidder and hence, individually the writ petitioners could not be termed to be
persons aggrieved so as to maintain the writ petition.
5. Mr. Indraneel Choudhury, learned Senior counsel representing the
appellants/writ petitioners, vehemently and fervently contended that the learned
Single Judge, virtually accepted all the submissions advanced on behalf of the
appellants/writ petitioners on merits of the case but while concluding the matter
on the aspect of maintainability, the judgment of this Court in the case of
Merolyn Engineering Works(P) Ltd. and Anr. Vs. State of Assam,
reported in (2022) 1 GLR 715 was applied so as to non-suit the
appellants/writ petitioners whereas, the said judgment is not applicable to the
controversy at the hand because in that case, the bid was filed in joint venture
as against the bid, in the present case, which was as a consortium. Mr.
Choudhury further urged that the appellants' case on merits that the procuring
entity, tweaked and modified the conditions of the original bid so as to suit the
cause of the respondent No.6, was virtually accepted by the learned Single
Bench and hence, it was his contention that it is a fit case, wherein the writ
appellants should not be non-suited merely on technicality and the case should
be decided on merits.
6. Mr. Choudhury urged that at para No.37 of the impugned judgment
dated 22.12.2022, the learned Single Judge held that the bid submitted by the
petitioner No.1 and the proforma respondent No.7 as a consortium was not a
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bid as a joint venture and rather, it was merely a bid as a consortium of bidders.
As per Mr. Choudhury, having held so, the learned Single Judge was totally
unjustified in rejecting the writ petition by applying the ratio of a judgment
dealing with a case of joint venture bid. He, thus, urged that the writ appeal
deserves to be allowed by holding that the appellants/writ petitioners are
entitled to file the writ petition in their individual capacities and thereafter, to
direct the learned Single Bench to decide the matter on merits by setting aside
the impugned order dated 22.12.2022. His alternative submission was that while
deciding the issue of locus standi of the appellants/writ petitioners to bring in
the writ petition in their own capacity, the matter may be considered on merits
in this appeal itself.
7. Per contra, Mr. Diganta Das, learned Senior counsel representing the
contesting respondent No.6, who has been awarded the work in question after
accepting its bid, urged that the learned Single Bench was absolutely justified in
non-suiting the appellants/writ petitioners and dismissing the writ petition
because the proforma respondent No.7 who was the second member of the
consortium bid did not join the appellants/writ petitioners as a petitioner in the
writ petition in spite of liberty granted by this Court. He urged that even before
the work order was issued, the consortium bidder had sold its business and
thus, the bid of the appellants/writ petitioners in consortium with the proforma
respondent No.7 did not sustain. He further urged that the allegation leveled by
the appellants/writ petitioners that the conditions of the original NIT were
modified so as to facilitate the bid of the respondent No.6 who was not qualified
in terms of the original NIT, is not tenable. The appellants/writ petitioners and
the respondent No.7 as a consortium and the respondent No.6 (the successful
bidder) submitted their bids in pursuance of the original NIT, however, none of
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the bidders were qualifying in terms of the original NIT dated 26.03.2021 and
accordingly, a pre-bid meeting was held on 09.04.2021 and thereafter, in order
to give a fair chance to all the prospective bidders, an amended NIT was issued
on 12.06.2021 in light of the discussions held in the pre-bid meeting. He urged
that in the original NIT, a consortium bid was not acceptable but just in order to
facilitate the consortium bid filed by the appellants/petitioners, this condition
was relaxed and a consortium was also permitted to file a bid. He further urged
that the technical bid was opened on 16.07.2021 and the financial bids were
opened on 24.09.2021 wherein, the respondent No.6 qualified as the successful
bidder. The LOI was issued on 29.10.2021 which has not been challenged in the
writ petition which came to be filed in the month of April, 2022. Before the writ
petition was filed, the proforma respondent No.7 sold its business which fact
was concealed by the writ petitioners/appellants herein.
It was urged that the appellants/writ petitioners having participated were
not entitled to challenge the conditions of the modified NIT dated 12.06.2021.
He, thus, urged that the learned Single Bench was justified in rejecting the writ
petition filed by the appellants/writ petitioners.
8. Learned counsel Mr. N. Deka, representing the employer NRL, urged
that the writ petitioners/appellants herein were not eligible to file the bid in their
individual capacities. Thus, after pre-bid discussions, the appellants/writ
petitioners herein forwarded a letter dated 15.06.2021 requesting relaxation in
the criterion of past experience of 450 Metric Tons by multimodal transportation
for consortium members. The said prayer of the appellants/writ petitioners was
acceded and a corrigendum was issued to this effect, wherein the earlier
criterion that both the consortium partners shall have to meet the criterion
specified in 3.1 of the NIT (Technical Criteria), 3.2 of the NIT (Commercial
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Criteria) and 3.3 of NIT (Financial Criteria) was relaxed.
9. It was further contended that after the initial NIT, discussions for
relaxing the criterion were made in the pre-bid meeting wherein, the
representative of the appellants/petitioners also participated and its request to
allow consortium bidding was accepted. It was thus contended that alteration in
the conditions of the NIT was made in terms of the discussions held in the pre-
bid meeting. It was further contended by learned counsel for the NRL that the
appellants/writ petitioners having participated in the modified NIT, cannot be
allowed to question the conditions thereof. It was further submitted that the
appellants/writ petitioners in their individual capacity, could not have maintained
the writ petition because the other member of the consortium, i.e. proforma
respondent No.7 was to perform specific tasks as per the distribution of work
presented along with the bid of the appellants/petitioners. As the said
respondent did not question the rejection of the consortium bid and acceptance
of the bid of respondent No.6, the writ petitioners/appellants in their individual
capacities are not entitled to challenge the decision of the authorities by
invoking the extra-ordinary writ jurisdiction of this Court.
10. On these submissions, the learned counsel for the respondents,
implored the Court to affirm the judgment rendered by the learned Single Bench
and dismiss the writ appeal.
11. We have given our thoughtful consideration to the submissions
advanced at Bar and have gone through the material available on record.
12. There is no dispute on the aspect that in pursuance of the first NIT
when bids were received and evaluated, none of the bidders qualified therein.
Thereafter, pre-bid meetings were held and the suggestions were received for
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relaxing certain criterion including those put forth on behalf of the
appellants/writ petitioners and their consortium partner i.e. the respondent
No.7. The most important issue raised on behalf of the appellants/writ
petitioners was that they should be allowed to bid as a consortium, which was
not permissible in the original NIT. The said condition was relaxed in the revised
NIT being Condition No.3.5.6. Thus, there is no substance in the allegation
leveled on behalf of the appellants/writ petitioners that the conditions of the
NIT were altered simply to suit the respondent No.6.
13. Be that as it may, as the learned Single Bench did not delve deep into
the merits of the matter and decide the writ petition on the grounds of
maintainability at the instance of the appellants only, we need not make any
further comments on this aspect. However, the fact remains that the
appellants/writ petitioners and the proforma respondent No.7 filed their joint bid
as a consortium pursuant to the revised NIT. The Technical bids were opened on
16.07.2021 and the financial bids were opened on 24.09.2021. Since the bid of
the respondent No.6 was found to be lowest, LOI was issued to it on
29.10.2021. It is not in dispute that the appellants/writ petitioners, while filing
the writ petition in April, 2022 did not challenge the decision of the procuring
entity, i.e. respondent No.3 in accepting the financial bid of the respondent No.6
and awarding the work to it with the issuance of the LOI on 29.10.2021. The
respondent No.7, being the consortium partner of the appellants/writ
petitioners, sold its business in the month of March, 2022 and the writ petition
came to be filed in the month of April, 2022.
14. The learned Single Bench, discussed in detail the entitlement and locus
of the writ petitioners/appellants herein to bring in the writ petition without
joining the second player in the co-petitioner i.e. the proforma respondent No.7
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as a competitor. Opportunity was given to the appellants/writ petitioners by
order dated 15.11.2022 to transpose the proforma respondent No.7 as a co-
petitioner or to file a separate application challenging the action of the
respondent authorities. However, neither any such application for transposition
nor any separate application for challenging the impugned action came to be
filed on behalf of the proforma respondent No.7. However, an additional affidavit
was filed by the appellants/writ petitioners annexing therewith a letter
addressed by the proforma respondent No.7 to the petitioner No.1, dated
01.12.2022 in which, it was mentioned that proforma respondent No.7 acted as
a consortium member to the tender of the respondent No.4 for the respondent
No.3 and the writ petitioner No.1 acted as a lead bidder for the consortium in
the tender. Thus, this letter reaffirms the fact that the proforma respondent
No.7 is an entity in itself and fully capable to perform the scope of work outlined
in the MoU. The fact regarding proforma respondent No.7 having sold its
business, is also not disputed. It is also not in dispute that from the overall
scope of works to be performed under the NIT, precise tasks to be performed by
the respective members of the consortium were identified and defined in the
MoU filed along with the bid of the appellants/writ petitioners and the proforma
respondent No.7.
15. Thus, the petitioners in their individual capacity could not qualify as
successful bidders.
In this background, it was imperative that the respondent No.7 should
either have joined the appellants/writ petitioners in the writ petition or else, it
should have also in its own capacity, challenged the decision of the procuring
entity in rejecting the bid of the consortium and accepting that of the
respondent No.6. In addition, this Court is not in a position to lose sight of the
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fact that the terms of the original NIT were modified after the pre-bid meeting
was held in April, 2021 whereafter a revised NIT was issued. The terms and
conditions of the revised NIT were not questioned by the appellants/writ
petitioners nor the respondent No.7. Furthermore, even after opening of the
financial bids on 24.09.2021, no action or protest was forthcoming from the side
of the appellants/writ petitioners. Even the LOI dated 29.10.2021 issued in
favour of the respondent No.6, was not challenged in the writ petition. Thus,
foundation of challenge laid by the petitioners/appellants in the writ petition that
the terms of the original NIT were tweaked so as to suit the respondent No.6
has no legs to stand.
16. In this background, we are of the firm opinion that the appellants/writ
petitioners in their individual capacities, even as the even lead partners of the
consortium were not entitled to lay challenge to the decision of the procuring
entity in awarding the work to the respondent No.6. Non-joinder of the
proforma respondent No.7, i.e. the second member of the joint venture as a
petitioner in the writ petition in spite of opportunity being given, clearly reflects
that it was not inclined to continue with its bid for the work in question.
Furthermore, the omission to challenge the LOI issued to the successful bidder
i.e. respondent No.6 in the writ petition is also fatal to the cause of the
appellants.
17. As a consequence of above discussion, we affirm the judgment dated
22.12.2022 rendered by the learned Single Bench rejecting WP(C)
No.2871/2022 with I.A.(Civil) No.1628/2022 filed by the appellants/writ
petitioners.
18. The instant writ appeal is dismissed as being devoid of merit.
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Pending Interlocutory Applications filed by the appellants/applicants are
also dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
