Malligai Agencies Llp vs The State Of Jharkhand
2022 Latest Caselaw 202 Jhar

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                           IN THE HIGH COURT OF JHARKHAND AT RANCHI
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W.P.(C) No. 258 of 2022 Malligai Agencies LLP, Ram Nagar, Periyasemur, District- Erode, Tamilnadu, through its authorised signatory V. Sathiyamoorthi ... ... Petitioner

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The State of Jharkhand, through its Principal Secretary, Department of Women, Child Development & Social Security, Government of Jharkhand & Ors. ... ... Respondents With W.P.(C) No. 260 of 2022 Suruchi Foods Private Limited, New Delhi through its authorised signatory Anshu Kumar Jindal ... ... Petitioner

-Versus-

The State of Jharkhand, through its Principal Secretary, Department of Women, Child Development & Social Security, Government of Jharkhand & Anr. ... ... Respondents With W.P.(C) No. 309 of 2022 M/s Rasi Nutri Foods India Private Limited, having its office at R. Puliyampatty Village, PO & PS- Puduchatram, District- Namakkal, Tamilnadu, through its authorised signatory Mr. Ayylore Venkateshwaran Srinivasan ... ... Petitioner

-Versus-

The State of Jharkhand, through its Principal Secretary, Department of Women, Child Development & Social Security, Government of Jharkhand & Ors. ... ... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Mr. Indrajit Sinha, Advocate [in W.P.(C) Nos. 258/2022 & 260/2022] Mr. Navniti Prasad Singh, Sr. Advocate Mr. Manoj Tondon, Advocate [in W.P.(C) No. 309/2022] For the Resp. State : Mr. Rajiv Ranjan, Advocate General

Counsel for the Intervenors

For Kota Dall Mill : Mr. Viren Poddar, Sr. Advocate For Interlink Foods Pvt. Ltd : Mr. Gaurang Jajodia, Advocate For Aditya Flour Mills Pvt. Ltd : Mr. Kalyan Roy, Advocate

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03/02.02.2022 The present cases are taken up through video conferencing.

2. At the request of the learned counsel for the petitioners, the defect(s), as pointed out by the office in W.P.(C) No. 258 of 2022 and W.P.(C) No. 260 of 2022, are ignored for the present.

3. Since in all the above writ petitions, the decision taken by the procurement/purchase committee in its meeting dated 18.01.2022 and its technical evaluation summary uploaded online on e-Procurement Portal have been challenged, the same are being tagged and taken up together.

I.A. No. 736 of 2022 in W.P.(C) No. 258 of 2022, I.A. No. 738 of 2022 in W.P.(C) No. 260 of 2022 and I.A. No. 751 of 2022 in W.P.(C) No. 309 of 2022

4. The present interlocutory applications have been filed on behalf of the petitioners of the respective writ petitions seeking impleadment of following successful bidders with respect to Notice Inviting Tender (NIT) under e- Tender Reference No. PRO-01/2021-22 dated 17.11.2021 issued by the Department of Women, Child Development and Social Security, Government of Jharkhand, as party respondents in the above writ petitions :-

(i) Kota Dall Mill, having its office at plot no. IV/H-13 to H-21, Bokaro Steel City, P.O. and P.S.-Bokaro Steel City, District- Bokaro, Jharkhand

(ii) Interlink Foods Private Limited, having its address at plot no. 1B, 2B, 3BP, 4&5B, Patratu Industrial Area, Patratu, P.O. and P.S. Patratu, District- Ramgarh, Jharkhand

(iii) Aditya Flour Mills Private Limited, having its address at plot no. C-3(P), Bokaro Industrial Area, Jharkhand, Phase-IV, Bokaro, P.O., P.S. & District- Bokaro

5. Having heard the learned counsel for the parties and keeping in view that Kota Dall Mill, Bokaro, Interlink Foods Private Limited, Ramgarh and Aditya Flour Mills Private Limited, Bokaro are the successful bidders of the aforesaid NIT and are necessary parties in the present cases, the petitioners are permitted to implead them as party respondents in the respective writ petitions.

6. Considering the present pandemic situation, office is directed to make necessary insertion, as stated above, in the cause title of all the writ petitions.

7. I.A. No. 736 of 2022, I.A. No. 738 of 2022 and I.A. No. 751 of 2022 filed in respective writ petitions stand disposed of.

I.A. No. 734 of 2022 in W.P.(C) No. 258 of 2022, I.A. No. 735 of 2022 in W.P.(C) No. 260 of 2022 and I.A. No. 749 of 2022 in W.P.(C) No. 309 of 2022, I.A. No. 726 of 2022 in W.P.(C) No. 258 of 2022, I.A. No. 727 of 2022 in W.P.(C) No. 260 of 2022 and I.A. No. 752 of 2022 in W.P.(C) No. 309 of 2022, I.A. No. 769 of 2022 in W.P.(C) No. 260 of 2022 and I.A. No. 768 of 2022 in W.P.(C) No. 309 of 2022

8. The applicant- Kota Dall Mill, Bokaro has filed I.A. No. 734 of 2022 in W.P.(C) No. 258 of 2022, I.A. No. 735 of 2022 in W.P.(C) No. 260 of 2022 and I.A. No. 749 of 2022 in W.P.(C) No. 309 of 2022 seeking intervention/impleadment in respective writ petitions.

9. The applicant- Interlink Foods Private Limited, Ramgarh has filed I.A. No. 726 of 2022 in W.P.(C) No. 258 of 2022, I.A. No. 727 of 2022 in W.P.(C) No. 260 of 2022 and I.A. No. 752 of 2022 in W.P.(C) No. 309 of 2022 seeking intervention/impleadment in respective writ petitions.

10. The applicant- Aditya Flour Mills Private Limited, Bokaro has filed I.A. No. 769 of 2022 in W.P.(C) No. 260 of 2022 and I.A. No. 768 of 2022 in W.P.(C) No. 309 of 2022 seeking intervention/impleadment in respective writ petitions.

11. In view of the orders passed in I.A. No. 736 of 2022, I.A. No. 738 of 2022 and I.A. No. 751 of 2022, there is no need to pass any order in the present interlocutory applications and the same are accordingly disposed of.

I.A. No. 670 of 2022 in W.P.(C) No. 258 of 2022 and I.A. No. 671 of 2022 in W.P.(C) No. 260 of 2022

12. The present interlocutory applications have been filed seeking interim relief in these cases.

13. Mr. Navniti Prasad Singh, learned senior counsel for the petitioner in W.P.(C) No. 309 of 2022, submits that Notice Inviting Tender (NIT) under e- Tender Reference No. PRO-01/2021-22 dated 17.11.2021 was issued by the Department of Women, Child Development and Social Security, Government of Jharkhan for supply of micronutrient fortified and/or energy dense food as supplementary nutrition (take home ration) for distribution among children from 06 months to 03 years of age, Severely Acute Malnourished (SAM) children from 06 months to 06 years, pregnant women and lactating mothers under 'Anganwadi Services' Scheme of Umbrella ICDS through 38,432 Anganwadi Centres in the State of Jharkhand. Pursuant to the said NIT, 07 bidders participated in the same namely M/s. Aditya Flour Mills Private Limited, M/s. Arvind Enterprises, M/s. Chemester Food Industry Private Limited, M/s. Interlink Foods Private Limited, M/s. Kota Dal Mill, M/s. Rasi Nutri Foods India Pvt. Ltd and M/s. Suruchi Foods Pvt. Ltd. Out of the aforesaid 07 bidders, bid of M/s. Arvind Enterprises was found unresponsive on the ground that it did not submit required online papers, EMD and Samples. Out of remaining 06 bidders, the technical bids of 03 bidders namely, M/s. Chemester Food Industry Private Limited, M/s. Suruchi Foods Pvt. Ltd. [petitioner of W.P.(C) No. 260 of 2022] and M/s. Rasi Nutri Foods India Pvt. Ltd. [petitioner of W.P.(C) No. 309 of 2022] were found defective by the procurement/purchase committee constituted by the Department of Women, Child Development and Social Security, Government of Jharkhand. Learned senior counsel for the petitioner while assailing the said decision of the purchase committee, submits that so far as the

objection raised by the purchase committee at paragraph-V(a) of the minutes of meeting dated 18.01.2022 is concerned, the same is with regard to non-filing of the 'statement of particulars' in Form No. 3CD though reference of the same was made in the Form No. 3CB i.e., the Auditor's Report for three financial years 2017-18, 2018-19 and 2019-20. The purchase committee has not assigned any reason as to what was the relevance/requirement of Form 3CD for consideration of the technical bid of M/s. Rasi Nutri Foods India Private Limited [the petitioner of W.P.(C) No. 309 of 2022]. The purchase committee has also not disclosed as to how non- filing of Form 3CD affects the integrity of the tender submitted by the said petitioner. It is further submitted that so far objection mentioned at paragraph-V(b) of minutes of meeting dated 18.01.2022 is concerned, the word "qualified" has inadvertently been typed in place of word "unqualified" while making declaration. If the sentence of the said declaration is read in entirety, it would be clearly evident that the word "qualified" is actually a typographical mistake. So far as the objection mentioned at paragraph-V(c) is concerned, the petitioner has rightly made the following declaration:

"A statement by the Bidder (where applicable) or any of their Associates disclosing material non-performance or contractual non-compliance in past in similar projects, contractual disputes and litigation/arbitration in the past with any State/UT Government is given below. (Attach extra sheets, if necessary) "Not Applicable"

14. Learned senior counsel submits that the petitioner has consciously stated in the aforesaid declaration that the same is not applicable in its case as no arbitration proceeding was pending against it, rather the petitioner itself had invoked the arbitration clauses of the respective agreements against certain PSUs. Moreover, a PSU cannot be termed as State/UT as mentioned in the format of declaration and thus the petitioner has made the remark that the same is not applicable to it. The purchase committee has also not mentioned as to what was the rationale/justification of objection raised at paragraph-V(d) of the minutes of the meeting dated 18.01.2022. In fact, the purchase committee had been entertaining the private complaints filed against the petitioner during the tender process which itself was unwarranted and if at all the same were to be entertained by the said committee, the petitioner should have been issued notice prior to taking adverse decision based on the said complaints. It is thus submitted by the learned senior counsel for the petitioner that the decision of the purchase committee technically disqualifying the petitioner of W.P.(C) No. 309 of 2022 namely M/s. Rasi Nutri Foods India Private Limited suffers from irrationality

and arbitrariness. Accordingly, the petitioner may be granted interim relief by staying the further process of the NIT in question.

15. Mr. Indrajit Sinha, learned counsel appearing on behalf of the petitioner in W.P.(C) No. 260 of 2022, submits that the observations made by the purchase committee at paragraphs- VI(b) and VI(c) regarding foreclosure of petitioner's agreement by the Department of Women and Child Development, Government of Gujarat, is factually incorrect. Though, vide letter dated 08.11.2011 issued by the Commissionerate of Women & Child Development, Gandhinagar, Gujarat, the concerned agreement of the petitioner was foreclosed and a certificate/communication dated 30.10.2013 was also issued to that effect, yet the High Court of Gujarat while considering the subsequent development taking place in the matter, vide order dated 19.02.2014 passed in Special Civil Application No. 1581 of 2014, quashed the said remark made in the communication dated 30.10.2013 with a direction to the authorities to issue fresh certificate to the petitioner without incorporating the remarks regarding foreclosure of its agreement. Accordingly, the authorities issued fresh certificate on 03.03.2014 to the petitioner removing the remarks regarding foreclosure of the agreement, copy of which has been annexed as Annexure-10 to W.P.(C) No. 260 of 2022. So far as the observation made by the purchase committee in paragraph-VI(d) of the minutes of the meeting dated 18.01.2022 is concerned, Mr. Indrajit Sinha, submits that the purchase committee while entertaining a complaint that M/s. Murliwala Agrotech Pvt. Ltd. is a group company of M/s. Suruchi Foods Private Limited [the petitioner of W.P.(C) No.) 260 of 2022] whose certain agreement was also foreclosed by the Department of Women and Child Development, Government of Gujarat, applied the same against the petitioner so as to technically disqualify it. It is further submitted that the purchase committee completely misconstrued the difference between "group company" and "common share holders in a company". The petitioner may be a common share holder in a particular company along with M/s. Murliwala Agrotech Pvt. Ltd., but the same does not make both the companies as "group company". Moreover, the petitioner cannot be said to be part of any entity/group by way of administrative or financial linkage with M/s. Murliwala Agrotech Pvt. Ltd. so as to technically disqualify it in terms with the conditions stipulated in Clause 4.1.3 of the eligibility criteria of bidders. Mr. Indrajit Sinha also puts reliance on a judgment rendered by the Hon'ble Supreme Court in the case of UFLEX Limited Vs. Government of Tamilnadu & Ors. reported in (2022) 1 SCC 165 and submits that the Hon'ble Supreme Court in the said case has

clearly held that there is no need of lifting of corporate veil in tender matters to find out the linkage between two companies.

16. So far as W.P.(C) No. 258 of 2022 is concerned, Mr. Indrajit Sinha submits that the petitioner of the said case holds 95% of the issued share capital of M/s. Rasi Nutri Foods India Private Limited [petitioner of W.P.(C) No. 309 of 2022] and hence it is espousing the cause of M/s. Rasi Nutri Foods India Private Limited.

17. Mr. Rajiv Ranjan, learned Advocate General, appearing on behalf of the respondent-State of Jharkhand, while defending the decision taken by the purchase committee in its meeting dated 18.01.2022, submits that the same is completely justified and does not suffer from vice of arbitrariness and malafide against the petitioners. Perusal of the said decision would itself disclose that a detailed and objective analysis of the technical bids of all the bidders has been made. This Court while exercising power conferred under Article 226 of the Constitution of India has limited scope of interference in tender matters. So far as the issue of interpreting different conditions mentioned in the tender document is concerned, the tender issuing authority is the best person to give its rightful meaning as per the requirements of the tender. The observation of the purchase committee regarding non-submission of Form-3CD by M/s. Rasi Nutri Foods India Private Limited [petitioner of W.P.(C) No. 309 of 2022] is fully correct as Form-3CB submitted by the petitioner referred that the details of 'statement of particulars' have been attached in Form-3CB but the same was not submitted by it. Hence, M/s. Rasi Nutri Foods India Private Limited [petitioner of W.P.(C) No. 309 of 2022] cannot blame the purchase committee for non-submission of the said document. Learned Advocate General while taking the Court to the rest part of the observations made by the purchase committee with regard to technically disqualifying the petitioners, submits that there is no infirmity in the same and they have failed to make out any case for interference of this Court against the decision dated 18.01.2022 of the purchase committee. Moreover, the letters of intent for respective works have already been issued to the successful bidders.

18. Having heard learned counsel for the parties, the State respondents as well as the private respondents are directed to file respective counter affidavits in all the writ petitions within three weeks. Rejoinder affidavit, if any, may be filed on behalf of the petitioners within two weeks thereafter.

19. The work awarded to the private respondents and the letters of intent issued to them with respect to Notice Inviting Tender under e-Tender

Reference No. PRO-01/2021-22 dated 17.11.2021 issued by the Department of Women, Child Development and Social Security, Government of Jharkhand, shall be subject to the final outcome of the writ petitions.

20. I.A. No. 670 of 2022 in W.P.(C) No. 258 of 2022 and I.A. No. 671 of 2022 in W.P.(C) No. 260 of 2022 stand disposed of.

21. Put up these cases on 22.03.2022 under the heading "For Admission".

(Rajesh Shankar, J.) Ritesh