M/S Maa Manosha Trade Com vs The State Of Assam And 3 Ors
2025 Latest Caselaw 5407 Gua

Gauhati High Court

M/S Maa Manosha Trade Com vs The State Of Assam And 3 Ors on 17 June, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                 Page No.# 1/16

GAHC010198192023




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

                          Case No. : WP(C)/5465/2023

         M/S MAA MANOSHA TRADE COM.
         A SOLE PROPRIETORSHIP CONCERN, HAVING ITS OFFICE AT F.A. ROAD,
         MACHKHOWA, GUWAHATI, DIST. KAMRUP(M), ASSAM, PIN- 781009,
         REPRESENTED BY ITS PROPRIETOR, SRI MANOJ KUMAR SAHA, SON OF
         LATE PRIYALAL SAHA.



         VERSUS

         THE STATE OF ASSAM AND 3 ORS
         REPRESENTED BY THE SECRETARY DEPARTMENT OF SCHOOL
         EDUCATION, DISPUR, GUWAHATI-781006, ASSAM

         2:THE ASSAM STATE TEXT BOOK PRODUCTION AND PUBLICATION
         CORPORATION LIMITED

         AN UNDERTAKING OF THE GOVT. OF ASSAM UNDER THE INDIAN
         COMPANIES ACT
         1956
         HAVING ITS REGISTERED OFFICE AT G.N.B. ROAD
         PANBAZAR
         GUWAHATI-781001
         REPRESENTED BY ITS MANAGING DIRECTOR.

         3:M/S. R.J. ENTERPRISE
         A SOLE PROPRIETORSHIP CONCERN
          HAVING ITS OFFICE AT A.K. DEV ROAD
          KATABARI
          GARCHUK
          GUWAHATI
          DIST. KAMRUP(M)
         ASSAM-781035
          REPRESENTED BY ITS PROPRIETOR
                                                                      Page No.# 2/16

             AYNAL ALI.

            4:M/S TARA AND RATNAMOULI
            A PARTNERSHIP FIRM HAVING ITS OFFICE AT N.H.-37
             PASCHIM BARAGAON
             GUWAHATI
             DIST. KAMRUP(M)
            ASSAM-781033
             REPRESENTED BY ITS PARTNER
             SRI MADAN SARMA



                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

For the petitioner             : Mr. A. Dhar        .... Advocate.


For the respondent no.2       : Mr. I. Borthakur    .... Advocate.

For the respondent no.3 : Mr. S. Islam .... Advocate.

Date of hearing               : 05.06.2025.


Date of judgment              : 17.06.2025



                          JUDGMENT AND ORDER (CAV)

1. Heard Mr. A. Dhar learned counsel for the petitioner. Also heard Mr. I. Borthakur, learned counsel for the respondent no.2 and Mr. S. Islam, learned counsel for the respondent no.3.

2. The petitioner has preferred the writ petition on the ground that the tendering authority, i.e. the respondent no. 2, has deviated from the tender condition, in declaring the respondent no. 3 and the respondent no. 4 as Page No.# 3/16

technically responsive bidders, along with the petitioner. By referring to Clause 1.9, Clause 1.10, Clause 2.2 & Clause 2.4 of the Tender Document, the petitioner has contended that the respondent no. 3 and the respondent no. 4 did not satisfy the above conditions. Despite such non-compliance, the tendering authority has declared the Technical Bids of the said two respondents as responsive bids.

3. Clause nos.1.9, 1.10, 1.16, 2.2, 2.4 and 2.6 of the e-tender document are reproduced hereinbelow, as follows :

"1.9 Bidder must have minimum annual turnover of Rs.1.00 Crore or above for each of the last 3 financial years 2020-2021, 2021-2022 and 2022-2023.

1.10 Bidder should have up-to-date Income Tax Return for the financial year 2019-2020, 2020-2021 and 2021-2022.

1.16 All eligible/Interested Bidders are required to download Tender documents from ASTPPC Ltd's website http://assamtextbook.gov.in or Assam Govt.'s e-procurement portal which is to be uploaded along with all supporting documents in the e-procurement portal after filling up,

2.2 In case of Registered firms, the bidders have to produce one Certificate from reputed Waste Paper Re-Cycling Industry that the party is authorized to lift old/used paper/ books etc. and they have to submit certificate from Waste Paper processing Mill stating that the vendor is a regular supplier of Obsolete Books/waste papers and other printed paper materials for the last 3 consecutive financial years with a minimum value of Rs. 1.00 Crore per year.

2.4 In case of the Bidders being other than waste paper processing Mills, they Page No.# 4/16

should have experience of lifting Obsolete Books/waste papers and other printed paper materials from Government Organizations/Universities/State Educational Boards and Councils/ other reputed organizations etc. and submit supporting documents in this regard.

However, in case of waste paper processing Mills, no experience is required.

2.6 After online submission of the E-Tender (both the Technical and Commercial Bids), the parties have to submit hard copies of the Technical Bid along with all supporting documents in a sealed envelope super scribing as "Technical Bid Document of E-Tender No. ATC/SM/23/2018 (pt) dated 12-05-2023" which is to be submitted to The Corporation's Head Office at Panbazar, Guwahati before the scheduled time of opening of the Technical Bid."

4. The petitioner's counsel submits that the Financial Bid of the respondent no.3 was the highest (H1), while the Financial Bid of the respondent no.4 was the second highest (H2). Another tenderer, who is not a party to this case, i.e.

"Jumbo Roofings and Tiles" was having the 3rd highest Financial Bid (H3), while the petitioner's Financial Bid was number 4 (H4). The bids of the four highest bidders, out of eight bidders, are as follows:-

H1 Bidder M/s R.J. Enterprise Rs.40,01,550.00 (Rupees forty lakh (respondent no.3) one thousand five hundred fifty only) H2 Bidder M/s Tara and Ratnamouli Rs.37,61,050.00 (Rupees thirty seven (respondent no.4) lakh sixty one thousand fifty only) H3 Bidder M/s Jumbo Roofings and Rs.28,02,935.00 (Rupees twenty Tiles eight lakh two thousand nine hundred thirty five only) H4 Bidder M/s Maa Monasha Trade Rs.26,91,750 (Rupees twenty six Com. lakhs ninety one thousand seven Page No.# 5/16

(petitioner) hundred fifty only)

5. The petitioner's counsel submits that the e-tender notice dated 12.05.2023 had been issued for lifting of obsolete/damage books, waste papers and other printed paper materials from the go-down of the respondent no.2. In terms of clause 1.9 of the e-tender notice, the bidders were to upload and submit hard copies of their minimum Annual Turnover for the year 2020-2021, 2021-2022 and 2022-2023. However, the respondent no.4 had not uploaded and submitted his minimum Annual Turnover for the year 2022-2023. The bidders were also to upload and submit up-to-date hard copies of the Income Tax Returns for the years 2019-2020, 2020-2021 and 2021-2022 in terms of Clause 1.10. However, the respondent no.3 had not uploaded and submitted his Income Tax Return for the year 2021-2022. Instead he had submitted hard copy of the Income Tax Return for the year 2022-2023.

6. The petitioner's counsel submits that the respondent nos.3 & 4 did not upload the required Income Tax Returns and minimum Annual Turnover in the e-portal for a particular year. He submits that the State respondents having accepted the incomplete bids of the respondent nos.3 & 4, the same amounted to violation of the essential terms and conditions of the e-tender notice. As such, the Technical Bids of the respondent nos.3 & 4 should have been disqualified by the State respondents at the e-Bid Evaluation Stage. However, the State respondents, by violating the essential conditions of the e-tender notice, have held that the bids of the respondent nos.3 & 4 were technically qualified. He submits that the same is illegal and the same has to be set aside.

Page No.# 6/16

In this regard, he has relied upon the judgment of the Supreme Court in the case of Bakshi Security and Personnel Services Private Limited vs. Devkishan Computed Private Limited and Others, reported in (2016) 8 SCC 446.

7. Mr. I. Borthakur, learned counsel for the respondent no.2 submits that though Clause nos.1.9 and 1.10 of the e-tender notice are essential conditions of the tender notice, the relaxation had been applied to not only the respondent nos.3 & 4, but also to all the tenderers. As such, no prejudice has been caused to the petitioner, whose technical bid was also considered by the authorities.

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

9. As can be seen from Clause 1.9 of the e-tender document, a bidder must have the minimum Annual Turnover of Rs.1,00,00,000/- (Rupees one crore) or above, for each of the last 3 financial year 2020-2021, 2021-2022 and 2022- 2023. However, the respondent no.4 did not upload or submit his Annual Turnover for the year 2022-2023 along with his tender documents in the portal. Despite the same, the bid of the respondent no.4 has been held to be technically qualified by the State respondents.

On the other hand, the technical bid of one Monu Enterprise, who was also a tenderer, has been technically disqualified for non-submission of his Annual Turnover for the year 2022-2023 and for 2 other reasons. The bid of Monu Enterprise had also lacked a Certificate from a reputed Waste paper recycling Page No.# 7/16

industry for the last 3 financial years and also the Experience Certificate of lifting of waste paper.

10. Clause 1.10 of the e-tender document required a bidder to upload up-to- date Income Tax Returns for the last 3 financial years 2019-2020, 2020-2021 and 2021-2022. Though the respondent no.3 did not upload his Income Tax Return for the year 2021-2022, the technical bid of the respondent no.3 has been declared to be technically qualified on account of the respondent no.3 submitting the hard copy of the Income Tax Return for the year 2022-2023, which was not the required Income Tax Return as per the e-tender document.

On the other hand, Technical Bid of one Marami Enterprise has been declared to be technically disqualified for not uploading and submitting documents under four categories, one of them being non-submission of Income Tax Return for the year 2021-2022.

11. The technical bids of all the tenderers had first been considered by a Scrutiny Committee which made it's report on 12.05.2023. The report of the Scrutiny Commission with respect to Marami Enterprise, Monu Enterprise, R.J. Enterprise (respondent no.3) and Tara and Ratnamouli Enterprise (respondent no.4) are as follows :

Sl. Name of the Bidder Observation of the Scrutiny Committee No

3. MARAMI ENTERPRISE 1. Instead of IT returns for the financial year 19-20, 20-21 & 21-22, the bidder submitted the ITRs for the Page No.# 8/16

Katabari, Guwahati-35 FY 18-19, 19-20 & 20-21(Clause No. 1.10).

Ph: 90850-53284

2. Certificate from "Bajaj Kagaj Limited" found Mail: [email protected] regarding receipt of waste paper from the bidder for the last 3 financial year which are above Rs. 1.00 Cr. supported by party's ledger the FY 22-23 only.

Copies of supply orders/challans are not submitted (Clause No. 9 checklist of bid document).

3. The bidder has submitted a valid authorization certificate from "Rayana Paper Board Industries Ltd." but in the Undertaking, the bidder had mentioned to sale the waste paper directly to "Bajaj Kagaj Limited"

instead of 'Rayana Paper Board Industries Ltd. (Clause No.1.8).

4. Up-to-date GST return not uploaded (Clause No. 6 checklist of bid document).

4. Monu Enterprise 1. Annual Turnover certificate from Ca found for the FY 2019-20, 2020-21 & 2021-22 (Clause No.8 checklist of bid document.) Athgaon, Guwahati-9

Ph-88128-69061

2. Certificate from reputed Waster paper recycling industry for last three financial year minimum of Rs.1 Mail: [email protected] Cr. Per year is not found (Clause No.9 checklist of bid document.)

3. Experience certificate of lifting of waste paper is not found (Clause No.11 checklist of bid document.)

7. R J ENTERPRISE 1.Certificate from 'Sapphire Paper Mills' found regarding receipt of waste papers from the bidder for the last 3 financial years which are above Rs. 1.00 Cr., supported by party's ledger with Tax Invoice Page No.# 9/16

(respondent no.3) where e-way bill number is mentioned (Clause No. 9 checklist of bid document).

       A.K.   Dev    Road,    Katabari,
       Garchuk, Guwahati-35

2. Instead of IT returns for the financial year 19-20, Ph: 88227-79825 20-21 & 21-22, the bidder has uploaded the ITRs for the FY 19-20 & 20-21(Clause No. 1.10). However, the bidder has submitted the hardcopy of the ITR for Mail:[email protected] the FY 22-23 along with the hard copies of Bid documents in sealed envelope.

8. TARA & RATNAMOULI 1. Annual Turnover certificate from CA found for the financial year 2019-20, 2020-21 & 2021-22 instead of 20-21, 21-22 & 22-23(Clause No. 8 checklist of (respondent no.4) the bid document).

N/H-37, Pachim Boragaon,

2. Certificate from 'Sapphire Paper Mills.' found Guwahati-33 regarding receipt of waste papers from the bidder for the last 3 financial years which are above Rs. 1.00 Cr. Ph:94351-03748 But copies of supply orders /challans etc. not submitted instead of which party's ledger copies submitted as proof of supply(Clause No. 9 checklist Mail:[email protected] of bid document).

12. The report of the Scrutiny Committee dated 12.05.2023 was thereafter verified by the Supervisory Committee on the same day i.e. 12.05.2023, wherein the Supervisory Committee made the following observations with regard to the report made by the Scrutiny Committee in respect of Marami Enterprise, Monu Enterprise, R.J. Enterprise (respondent no.3) and Tara and Ratnamouli Enterprise (respondent no.4), which are as follows :

Sl. Name of the bidder Observation of the Supervisory Committee No Page No.# 10/16

1. MARAMI ENTERPRISE Observations of the Scrutiny Committee verified and found to be in order, in view of which the Bidder may Katabari, Guwahati-35 perhaps be considered as technically dis-qualified for non-submission of significant documents Ph: 90850-53284

Mail:

[email protected]

2. Monu Enterprise Observations of the Scrutiny Committee verified and found to be in order, in view of which the Bidder may Athgaon, Guwahati-9 perhaps be considered as technically dis-qualified for non-submission of significant documents.

Ph-88128-69061

Mail:

[email protected]

3. R J ENTERPRISE Observations of the Scrutiny Committee verified and found to be in order.

A.K. Dev Road, Katabari, Garchuk, Guwahati-35

Since the Bidder has submitted the hard copy of the ITR Ph: 88227-79825 for the FY 2021-22 along with the Bid Documents instead of uploading it online, we may perhaps accept it Mail:[email protected] since it was submitted and available in public domain before the date of submission his Bid. Accordingly, the (Respondent No. 3) Bidder may perhaps be considered as technically qualified.

4. TARA & RATNAMOULI Observations of the Scrutiny Committee verified and found to be in order.

N/H-37, Pachim Boragaon, Since the Bidder has submitted Annual Turnover certificate for three previous financial years 2019-20, 2020-21 & 2021-22 except for the year 2022-23, the Guwahati-33 Bidder may perhaps be considered as technically qualified considering their sound financial position during Ph:94351-03748 the financial years 2019-20, 2020-21 & 2021-22 where their Turnover stands far above the required Turnover of Mail:madansarma16@yahoo. Rs. 1.00 Crore per year as per Bid condition. Although in the Bidder has submitted the ledger of 'Sapphire Paper Mills' as proof of supply of materials, they may perhaps Page No.# 11/16

(Respondent No. 4) be considered as technically qualified in view of the word "etc." contained in the clause itself.

13. The report of the Supervisory Committee dated 12.05.2023 was thereafter considered by the Tender Committee in it's meeting held on 27.06.2023, wherein it passed the resolution to the effect that out of 8 (eight) tenderers, M/s Jumbo Roofing and Tiles and M/s Maa Monasha Trade Com (petitioner) had submitted all required documents and thus their bids were declared to be technically qualified, whose price bids could be opened.

14. The bids of the Marami Enterprise and Monu Enterprise along with 2 other tenderers were "technically disqualified due to non-submission of requisite significant basic documents as required under the bid conditions". The resolution declaring the bid of the respondent nos.3 & 4 as technically qualified, is provided in paragraph 1 & 2 of the meeting minutes of the Tender Committee dated 27.06.2023, which is as follows :

"1. In respect of M/s R.J. Enterprise, their technical bid is considered to be responsive in view of the fact that the Bidder although did not upload the ITR for the FY 2022-23 online, a hard copy of the same was available along with the hard copies in the Bid documents submitted by the bidder in sealed envelope. Considering the fact that the bidder had paid the taxes for the Financial Year in question which is evident from the ITR that was submitted on 31.12.2022 and which is prior to the date of submission of the Bid, and it is in the IT departmental domain and that there are other evidential financial documents in the certificate from "Sapphire"

Paper Mills regarding the receipt of waste papers from this bidder for the last three financial years which is above Rs 1.00 crore supported by ledger and Tax invoices. Considering all the supportive financial documents which Page No.# 12/16

indicates towards compliance of our terms and conditions in the bid document, hence the Bidder is considered as responsive and thus technically qualified.

2. In respect of M/s Tara & Ratnamouli, although the bidder had uploaded the annual turnover certificates for the FY 2019-20, 2020-21 and 2021-22 Instead of FY 2020-21, 2021-22 & 2022-23, In view of their turnover for those financial years being far above the required annual turnover of the Rs.1.00 Crore as per the bid condition, further, although the bidder did not upload the copies of supply orders/ challans against supply of obsolete books/waste papers and other printed materials as proof of supply to paper mills but they have submitted a certificate showing their turnover for the financial years 2019-20, 2020-21 & 2021- 22 Issued by M/s Saphire Papers Mill (P) Ltd. along with supporting ledgers which is considered as the proof of supply. Considering all the supportive financial-documents which indicates towards compliance of our terms and conditions in the bid document, hence the Bidder is considered as responsive and thus technically qualified."

15. As can be seen from the above, the bid of M/s Marami Enterprise had been disqualified due to non-submission of the Income Tax Returns for the year 2021-2022 and the bid of M/s Monu Enterprise had been disqualified on the ground of non-submission of the Annual Turnover Certificate for the year 2022- 2023, besides other grounds. However, the State respondents have declared the technical bid of the respondent nos.3 & 4 to be technically qualified, despite the respondent no.3 not having uploaded the Annual Turnover Certificate for the year 2022-2023 and the respondent no.4 not having uploaded the Annual Turnover Certificate for the year 2021-2022.

16. The above clearly goes to show that the relaxation of Clause 1.9 and 1.10 Page No.# 13/16

of the tender document has not been applied to all the tenderers and as such, a case of discrimination and arbitrariness has been made out. Besides that, documents which were not required to be submitted, such as Income Tax Return for 2022-2023 were considered.

17. In the case of Poddar Steel Corporation vs. Ganesh Engineering Works, reported in (1991) 3 SCC 273, the Supreme Court has held that the requirements in a tender notice can be classified into two categories. Those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. With respect to the essential conditions of eligibility, the authority is required to enforce them rigidly. In other cases, it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases.

18. The above being said, the Supreme Court in the case of B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd., reported in (2006) 11 SCC 548 has held that if there are essential conditions, the same must be adhered to. If, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing. Thus, there appears to be a distinction between the judgment of the Supreme Court in B.S.N. Joshi & Sons Ltd. (supra), wherein a relaxation of the essential conditions of a tender notice can be made, if the same is made applicable to all the bidders. The Supreme Court in the case of Bakshi Security and Personnel Services vs. Devkishan Computed Private Limited, reported in (2016) 8 SCC 446, at para 19 has held as follows:-

Page No.# 14/16

"19. It is also well to remember the admonition given by this Court in Michigan Rubber (India) Limited v. State of Karnataka in cases like the present, as under:- (SCC p.228, para 22) "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. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;

OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached';

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/ contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."

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19. A reading of the above judgments shows that the essential conditions of a tender have to be rigidly implemented. However, if the same is to be relaxed, the relaxation of the essential condition of a tender has to be made applicable to all the tenderers. On considering the facts of the case, this Court finds that the decision to declare the technical bids of the respondent no.3 and respondent no.4 is arbitrary, inasmuch as, not only has there been violation of the essential conditions of the tender notice which has not been relaxed for all, but the respondents have taken into consideration documents which were not to be considered, i.e. the respondent no.3's Income Tax Return for the year 2022- 2023. Despite the respondent Nos. 3 & 4 not having uploaded all the required documents, their technical bids were declared to be qualified. Though the technical bids of M/s Marami Enterprise and Monu Enterprise were disqualified on various grounds, including non-submission of ITR and annual turnover certificate for a certain year, the observation of the Scrutiny Committee, Supervising Committee and the Tender Committee shows that the alleged relaxation of Clause 1.9 and 1.10 of the e-tender document, had not been made applicable to them. As the case of the respondent Nos. 3 & 4 was similar to the case of M/s Marami Enterprise and Monu Enterprise, in so far as Clause 1.9 and 1.10 of the e-tender document was concerned, the bids of M/s Marami Enterprise and Monu Enterprise could not have been disqualified on the ground of non-compliance of Clause 1.9 and 1.10. Thus, the bids of the respondent Nos. 3 & 4 would also have to be rejected/disqualified, as the same was not in consonance with the above said clauses and Clause 2.6 of the e-tender document.

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20. In view of the reasons stated above, this Court holds that the resolution passed by the Tender Committee, in its meeting minutes dated 27.06.2023, declaring the technical bids of the respondent Nos. 3 & 4 responsive as qualified, is not sustainable. The same is accordingly set aside. Any consequential order passed by the State respondents is also set aside. The matter is remanded back to the Tender Committee to take a decision with regard to considering the bids of the remaining valid tenderers, as they deem fit and proper.

21. The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant