Page No.# 1/9 vs The State Of Assam And 12 Ors
2024 Latest Caselaw 8285 Gua

Gauhati High Court

Page No.# 1/9 vs The State Of Assam And 12 Ors on 12 November, 2024

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                             Page No.# 1/9

GAHC010167452024




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

                         Case No. : WP(C)/4324/2024


         M/S BANTI HANDLOOM PRODUCTS AND ANR
         A SOLE PROPRIETORSHIP CONCERN
         REPRESENTED BY ITS PROPRIETOR
         SIR BASANTA SARMA
         AND HAVING ITS REGISTERED OFFICE
         AT VILL. GOPAL BAZAR NALBARI
         DIST.- NALBARI

         ASSAM
         PIN- 781353.

         2: BASANTA SARMA
         (SOLE PROPRIETOR)

         SON OF LATE BHANU NATH SARMA

         RESIDENT OF GOPAL BAZAR
         NALBARI
         DISTRICT- NALBARI
         PIN CODE- 781353

         ASSAM.
         VERSUS

         THE STATE OF ASSAM AND 12 ORS
         REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF HANDLOOM
         TEXTILES AND SERICULTURE
         GOVERNMENT OF ASSAM
         DISPUR
         GUWAHATI-6
         ASSAM.

         2:THE DIRECTOR OF HANDLOOM AND TEXTILES
         ASSAM
                                           Page No.# 2/9

GNB ROAD
AMBARI
GUWAHATI- 781001
ASSAM.

3:THE BID EVALUATION COMMITTEE
REPRESENTED BY THE CHAIRMAN

BEING THE DIRECTOR
HANDLOOM AND TEXTILES
ASSAM

GNB ROAD
AMBARI
GUWAHATI- 781001
ASSAM.

4:M/S ARUNODOI UDYOG
KAIKARA
MANGALDAI
DIST. DARRANG
ASSAM
PIN- 784125.

5:M/S B.R. TEXTILES
DAKARGHAT BYE-PASS
DIST. NAGAON
ASSAM
PIN- 782003.

6:M/S BARUAH TIMBER DEPOT AND SUPPLIERS
KAIKARA
PATIDARRANG
MANGALDAI
DIST.- DARRANG
ASSAM
PIN- 784125.

7:M/S JIMACHAYA INDUSTRIES
DAKHINGAON
KAHILIPARA
GUWAHATI
DIST.- KAMRUP(M)
ASSAM
PIN- 781019.

8:M/S MAA SLEY HOUSE
CHAMATA
                                                          Page No.# 3/9

DIST.- NALBARI
ASSAM
PIN- 781306.

9:M/S MANOJ BAH BET UDYOG
WARD NO. 12
HAJO ROAD
DIST. NALBARI
ASSAM
PIN- 781102.

10:M/S SIPINI BHANDAR
MUNICIPALITY MARKET
BARPETA ROAD
DISTRICT- BARPETA
ASSAM
PIN- 781315.

11:M/S PALMARIAN ENTEREPRISE
DERGAON TOWN
WARD NO. 2
DIST.- GOLAGHAT
ASSAM
PIN- 785614.

12:M/S POPULAR FURNITURE AND WEAVING INDUSTRIES
NILBAGAN
DIST.- HOJAI
ASSAM
PIN- 782445.

13:M/S RANU INDUSTRIES
RONGAJAN TINIALI
KURUKA
MORONGI
DIST.- GOLAGHAT
ASSAM
PIN- 785613.
------------

Advocate for : MR. B SHARMA Advocate for : SC HANDLOOM TEXTILE AND SERICULTURE appearing for THE STATE OF ASSAM AND 12 ORS Page No.# 4/9

BEFORE HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA

For the petitioner : Mr. B. Sharma, Advocate For the respondent nos.1 to 3 : Mr. R. Dhar, G.A., Assam. For the respondent nos.4 to 13 : Mr. D.K. Nath, Advocate.

Date of hearing & Judgment        : 12.11.2024



                                 JUDGMENT AND ORDER

1. Heard Mr. B. Sharma, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned counsel for the State respondents No.1 to 3. Mr. D.K. Nath, learned counsel appears for the private respondents No.4 to 13.

2. The grievance of the petitioners is that the petitioners' tender bid has been disqualified by the Technical Evaluation Committee, vide meeting minutes dated 22.02.2024, on the ground that the petitioners had submitted documents, which were not in conformity with Clause 3(e) of the NIT.

3. The petitioners' case is that they had participated in e-Tender Notice dated 11.01.2024 (hereinafter referred to as the 'NIT'), for empanelment of manufacturers and suppliers for supply of handloom and handloom accessories under the various schemes of Government of India and Government of Assam, implemented by the Directorate of Handloom and Textiles, Assam.

4. The petitioners' counsel submits that in terms of Clause 3(b) of the NIT, relating to the eligibility criteria of the bidders, bidders were to have not less than Rs. 50 Lakhs as the average annual financial turnover during the last three Page No.# 5/9

years, i.e., 2020-2021, 2021-2022 & 2022-2023 and they were also required to have the experience of supply of handloom and handloom accessories for an aggregated value of a minimum of Rs. 10 Lakh during the last three financial years in terms of Clause 3(c). He further submits that in terms of Clause 3(e) of the NIT, Micro and Small Enterprises (MSEs) are exempt from prior turnover and experience in all public procurements, subject to meeting the quality and technical specification.

5. The petitioners' counsel submits that even though the petitioners were a small enterprise, registered as a Small and Micro Enterprise (MSE), who were not required to submit the average annual financial turnover and the experience of supply of handloom and handloom accessories, in terms of Clause 3(b) &(c) of the NIT, in view of Clause 3(e) of the NIT, the petitioners had submitted the documents in terms of Clause 3(b) &(c) of the NIT. He accordingly submits that as the petitioners were not required to comply with Clause 3(b) &(c) of the NIT, in terms of Clause 3(e) of the NIT, the disqualification of the petitioners' technical bid, on the ground that it's documents were not in conformity with Clause 3(e) of the NIT, does not arise. He further submits that similarly placed bidders as the petitioners, have been empanelled by the State respondents and as such, there is discrimination writ large, in disqualifying the technical bid of the petitioners.

6. Mr. R. Dhar, learned counsel for the State respondents No.1 to 3 submits that the petitioners bid was disqualified on the ground that the Udyam Registration Certificate submitted by the petitioners, was not in terms/consonance with Clause 3(e) of the NIT. He submits that though the petitioner had submitted all his documents in terms of the NIT, the petitioners Page No.# 6/9

being genuine manufacturers of handlooms was not specifically mentioned in the Udyam Registration Certificate, in terms of Clause 3(e) of the NIT. He submits that a perusal of the Udyam Registration Certificate No.Udyam-AS-23- 0000255 shows that the petitioners are manufacturer of machinery and equipment for textile, apparels and leather products, while Clause 3(e) of the NIT requires the bidder to be a genuine manufacturer of handlooms. He submits that as there is nothing to show in the petitioners Udyam Registration Certificate that the petitioners are manufacturers of handlooms, the petitioners' bid was disqualified, as it was not in terms of Clause 3(e) of the NIT. He accordingly submits that there is no reason for allowing the writ petition, as there is no infirmity with the rejection of the petitioners' technical bid.

7. Clause 3(e) of the NIT states as follows :

"3(e) As per the Government Policy Circular No.1(2)(1) 2016-MA, dated

10/03/2016 issued by O/o Development Commissioner (MSME), Ministry of Micro, Small & Medium Enterprises, Government of India, Micro & Small Enterprises (MSEs) are exempted from prior turnover and experience in all public procurements subject to meeting of quality and technical specification. The bidders need to submit the up-to-date copy of Certificate of registration for Micro or Small Enterprises (Udyam Registration Certificate) issued by Ministry of Micro, Small & Medium Enterprises (MSME), Government of India. Moreover, the bidders must be genuine manufacturer of handlooms that clearly mention in the Udyam Registration Certificate. In case of MSE payment of EMD and bid cost are exempted as per Government of India OM, No.F.No.1(3)/2018- MA, Pt-III, dated 27/10.2022."

Page No.# 7/9

8. A reading of Clause 3(e) of the NIT clearly shows that Micro & Small Enterprises (MSEs) are exempt from submitting documents relating to average annual financial turnover and experience in all public procurements, subject to meeting quality and technical specifications. However, while applying the above exemption clause, the bidders who are MSEs, need to submit up-to-date copies of their Certification of Registration, i.e. Udyam Registration Certificate issued by the Ministry of Micro, Small and Medium Enterprises (MSME), Government of India. The bidders should also be genuine manufacturers of handlooms which are clearly mentioned in the Udyam Registration Certificate.

9. Clause 3(e) only relates to manufacturers, who are registered as MSEs, while the NIT in question dated 11.01.2024 is for empanelment of manufacturers/suppliers for supply of handloom and handloom accessories, who need not be registered as MSEs. The NIT does not bar suppliers of handloom from submitting their bids in respect of the NIT. Annexure -R (Collectively) of the affidavit-in-reply dated 20.09.2024 submitted by the petitioners show that the petitioner no.1 M/s Banti Handloom Products, Nalbari, Assam, has been empanelled as a supplier for supply of handlooms and accessories in the Block Level Clusters being implemented in the State of Assam, Meghalaya and Arunachal Pradesh under the National Handloom Development Programme (NHDP), vide letter dated 25.08.2018 issued by the Assistant Director (Proc.), Government of India, Ministry of Textiles, Weavers' Service Centre, Khanapara, Guwahati.

10. The writ petitioners in paragraph-1 of the writ petition have stated that the petitioner no.1 is a proprietary firm engaged in the business of manufacturing handlooms and handloom accessories and is also registered as a MSE under the Page No.# 8/9

Ministry of Micro, Small and Medium Enterprises (MSME), Government of India. The petitioners have also made averments that they have been supplying handlooms and accessories. The fact that the petitioners are empanelled as a supplier of handlooms and accessories in terms of Annexure-R (Collectively) in the affidavit-in-reply dated 20.09.2024, not being controverted by the respondents, the same would have to be considered to be an admitted fact, in terms of the judgment of the Supreme Court in the case of Naseem Bano vs. State of U.P. & Others, reported in 1993 Supp(4) SCC 46, where it has held that averments are deemed to be admitted, if not controverted.

11. Mr. D.K. Nath, learned counsel for the private respondents No.4-13 submits that the bids of the private respondents are all in consonance with Clause 3(e) of the NIT.

12. I have heard the learned counsels for the parties.

13. Though the petitioners' Udyam Registration Certificate has not mentioned that the petitioners are manufacturer of handlooms, the fact that the petitioners are considered to be a supplier of handlooms by the State respondents is not in doubt. In any event, even if the petitioner's Udyam Registration Certificate does not specify that they manufacture handlooms, the same cannot bar their participation in the tender process, if they are actually manufacturing handloom, inasmuch as, tenderers other than registered MSEs can also participate in the tender. As such, the petitioners' bid cannot be disqualified, only because the Udyam Registration Certificate does not specifically mention that the petitioners are manufacturers of handlooms and accessories. Further, Clause 3(e) is only applicable to Manufacturers, who are registered as MSEs and who have availed Page No.# 9/9

of the exemption Clause 3(e). However, the petitioners have submitted all the required documents in terms of the NIT and as such, the petitioners have not invoked the exemption clause under Clause 3(e) of the NIT. The Udyam Registration Certificate of the petitioners not having mentioned that the petitioner no.1 was a manufacturer of handlooms, does not make the petitioners bid unresponsive, as Clause 3(e) is not attracted to this case. Even if it is assumed that Clause 3(e) is attracted, the fact that the petitioner is a supplier of handlooms being an admitted fact, the disqualification of the petitioners' Technical Bid on the ground that the same is not in terms with Clause 3(e) of the NIT, is found to be arbitrary, when the said Clause 3(e) was not applicable to the facts of this case. The disqualification of the petitioners' Technical Bid in terms of the meeting minutes of the Technical Evaluation Committee of the e- Tender Notice dated 11.01.2024 held on 22.02.2024, in so far as it relates to the disqualification of the petitioners' Technical Bid, is hereby set aside. The respondents are accordingly directed to consider the Financial Bid of the petitioners.

14. The writ petition is accordingly allowed.

JUDGE

Comparing Assistant