Manipur High Court
M/S Assam Supply Agency A ... vs The Union Of India Represented By ... on 15 November, 2021
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.P. (C) No. 179 of 2021
1. M/S Assam Supply Agency a proprietary Firm registered under
the Manipur Trade Articles (Licensing and Control) Order/1986
being Licence No. 366/2001/TL represented by the Power of
Attorney holder namely Mohd Bila Ali, aged about 39 years old,
S/o Zafar Ali of BT Road, P.O. Imphal, P.S. City, Imphal West
District, Manipur-795001.
2. M/S Usha Singh Chouhan, a proprietary Firm registered under
the Manipur Trade Articles (Licensing and Control) Order/1986
being Licence No. 353/2k/TL represented by its Proprietor Usha
Singh Chouhan, aged about 49 years old, D/o Girdhari Singh of
Khwai Brahmapur Nagamapal, P.O. Imphal & P.S. Lamphel,
Imphal West District, Manipur-795001.
... Petitioners.
-Versus -
1. The Union of India represented by the Secretary, Ministry of
Home Affairs, Government of India, North Block, New Delhi-
110001.
2. The Director General of Assam Rifles, Shillong, Meghalaya State,
Pin - 793010.
3. M/S Uday Kumar Sing, represented by its proprietor Uday Kumar
Singh, aged about 45 years old, S/o Chandradip Singh, House
No. 112, Upper Jail Road, Shillong Meghalaya State-793001.
.......Respondents
B E F O R E
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the petitioners : Mr. N. Ibotombi, Sr. Advocate
For the respondents : Mr. B. Ravi Sharma, CGSC &
Mr. L. Shashibhushan, Advocate
Date of Hearing : 22.06.2021, 31.08.2021, 07.09.2021
& 09.09.2021.
Date of Order : 15.11.2021
W.P. (C) No. 179 of 2021 Page 1
JUDGMENT & ORDER
(CAV)
Heard Mr. N. Ibotombi, learned senior counsel appearing for the
petitioners, Mr. BR Sharma, learned CGSC appearing for the respondents
No. 1 & 2 and Mr. L. Shashibhushan, learned counsel appearing for the
respondent No. 3.
[2] The present writ petition had been filed with the prayer of quashing the
acceptance letter dated 19.02.2021 in so far as, it relates to the private
respondent No. 3 in respect of tender No. Q-Fresh/2021-22/Sch-47 dated
06.11.2020 for supply of Group B ration to HQ IGAR(S) and 15 AR under
schedule No. 47 for the financial year 2021-22, tender No. Q-Fresh/2021-
22/Sch-48 dated 06.11.2020 for supply of Group C ration to HQ IGAR(S) and
15 AR under schedule No. 48 for the financial year 2021-22, tender No. Q-
Fresh/2021-22/Sch-55 dated 06.11.2020 for supply of Group B ration to HQ 9
Sector AR and 16 AR under schedule No. 55 for the financial year 2021-22
and tender No. Q-Fresh/2021-22/Sch-56 dated 06.11.2020 for supply of
Group C ration to HQ 9 sector AR & 16 AR under schedule No. 56 for the
financial year 2021-22.
[3] According to the petitioners, they are registered proprietorship firm
registered under the Manipur Trade Articles (Licensing and Control) licensing
order/1986 having licence No. 366/2001/TL and licence No. 353/2K/TL
respectively.
[4] The Director General of Assam Rifles, Shillong Meghalaya, who is the
respondent No. 2 herein, issued different notices bearing No. Q-Fresh/2021-
W.P. (C) No. 179 of 2021 Page 2
22 dated 06.11.2020 inviting electronic bids (online/e-tender) under 2 (two)
bids system, i.e., technical bids and cost bids for supply of Group B ration
(Vegetable) under schedule No. 47 and Group C ration (non-vegetable) under
schedule No. 48 to HQ IGAR (south) including No. 12 Field Workshop Assam
Rifles, S & T Coy of No. 4 MGAR Bn. HQ 15 Assam Rifles including 2 (two)
Rifle Coys at Mantripukhari, Assam Rifles Transit Camp at Minuthong and
four COBS of 15 (fifteen) Assam Rifles at Yaingangpokpi (YKPI),
Chingmeirong, Sawombung, Koirengei and one TOB at Sagolmang during the
financial year 2021-22. The tender value in respect of Group B ration under
schedule No. 47 is Rs. 1,75,98,000/- (Rs. One crore seventy five lakh ninety
eight thousand) only and the tender value in respect of Group C ration under
schedule No. 48 is Rs. 3,58,47,000/- (Rs. Three Crore fifty eight lakh forty
seven thousand) only.
[5] The respondent No. 2 also issued different notices bearing No. Q-
Fresh/2021-22 dated 06.11.2020 inviting electronic bids (online/e-tender)
under 2 (two) bids system, i.e., technical bids and cost bids for supply of
Group B ration (vegetable) under schedule No. 55 and Group C ration (non-
vegetable) under schedule No. 56 to HQ 9 sector Assam Rifles, Bn. HQ 16
Assam Rifles including 2 (two) Rifle Coys and No. 4 Workshop Assam Rifles
at Keithelmanbi, 3 (three) COBs at Singjamei, Chanchipur & Lilong during the
financial year 2021-22. The tender value in respect of Group B ration under
schedule No. 55 is Rs. 92,03,000/- (Rs. Ninety two lakh three thousand) only
and the tender value in respect of Group C ration under schedule No. 56 is
Rs. 2,13,80,000/- (Rs. Two crore thirteen lakh eighty thousand) only.
W.P. (C) No. 179 of 2021 Page 3
Altogether 4 (four) firms including the present petitioners and the
respondent No. 3 herein submitted their tender bids in respect of supplying
Group B and Group C rations under schedule Nos. 47, 48, 55 & 56.
[6] The guidelines/procedures for submissions of the bids in respect of the
aforesaid NIT were also published and in paragraph 6 of the said guidelines,
the documents required to be submitted/ uploaded by the tenderers/ bidders
in connection with their technical bids are elaborately given. Under paragraph
6 (d) of the said guidelines, it is provided as under:-
(d) Past Experience/Performance Certificate. Past
experience/performance issued by Army/Central Paramilitary
forces/Central Govt/State Govt. Departments for three years (i.e.
2017-18, 2018-19 and 2019-20) for supply of fresh ration items
(Group 'B', 'C' &similar items e.g. Veg, Fresh & meat group items)
entitled for personnel of Army/Central Para Military Forces/Central
Govt/States Govt. Deptts. Past experience value should be equal to
50% or more than the value of the ibid tender. Past experience of any
one year with maximum value out of three years will be counted. Past
experience value will be considered for contract (s) awarded in a
single year only and not by counting two or more years. Bids of all
those firms whose performance is judged as 'Not Satisfactory' or
Below Satisfactory/level are liable to be rejected. Relevant and
authenticated documents supporting the performance/experience
issued by the department concerned where the bidder has made the
supply is required to be submitted to tender inviting authority as and
when called for, by the competent authority for necessary verification.
Bids without supporting documents are liable to be rejected. Past
experience certificate will be evaluated for any 01 (one) FY out of
total 03 latest years & not on all 03 years combined together. Past
experience certificate will be furnished for a period of any 03 latest
FYs (e.g. FY 2017-18, 2018-19 & 2019-20)."
W.P. (C) No. 179 of 2021 Page 4
[7] According to the petitioners, while submitting his bids on 29.12.2020
for supply of Group B & C rations under schedule Nos. 47, 48, 55 & 56, the
respondent No. 3 enclosed performance certificates dated 04.09.2019,
15.09.2020 and 10.12.2020 issued by competent authorities for the amount of
Rs. 2,50,000/- (Rs. Two lakhs fifty thousand) only for the financial year 2017-
2018, Rs. 3,05,93,296/- (Rs. Three crore five lakh ninety three thousand two
hundred ninety six) only for the financial year 2018-19 and Rs. 17,66,700/-
(Rs. Seventeen lakh sixty six thousand and seven hundred) only for the
financial year 2019-20 respectively. It has also been stated that while
submitting his bids, the respondent No. 3 also enclosed a copy of his licence
bearing No. 118/2019/TL dated 27.09.2019 wherein, it is clearly indicated that
there was no partner at all in the firm.
[8] According to the petitioners, the total value of the tenders in respect of
schedules 47, 48, 55 & 56 is Rs. 8,40,28,000/- (Rs. Eight crore forty lakhs
twenty eight thousand) only and as per the terms and conditions provided
under Para No. 6 (d) of the guidelines, all the tenderers/bidders are required
to submit the past experience value of not less than Rs. 4,20,14,000/- (Rs.
Four crore twenty lakh and fourteen thousand) only, i.e., 50 % of the total
value of the tenders.
According to the petitioner, as the respondent No. 3 submitted his past
experience certificates altogether amounting to Rs. 3,05,93,296/- (Rs. Three
crore five lakh ninety three thousand two hundred ninety six) only, which is
less than 50 % of the total value of the tenders, the bids submitted by the
respondent No. 3 cannot be acted upon and should be rejected by the
W.P. (C) No. 179 of 2021 Page 5
respondent No. 2. In view of the above, the petitioners submitted separate
representations dated 04.01.2021 to the respondent No. 2 stating, inter alia,
that while submitting his bids, the respondent No. 3 submit forged documents
and also violates the terms and conditions under Para No. 6 (d) of the
guidelines and therefore, requesting the authorities to consider their
representations and to investigate in the matter against the respondent No. 3.
[9] It has also been stated that in spite of objections raised by the
petitioners, the respondent No. 2 did not take up any steps to reject the
technical bids submitted by the respondent No. 3 and instead the authorities
open the technical bids on 19.02.2021 and issued an order to the effect that
the technical bids submitted by the 4 (four) bidders, including the petitioners
and the respondent No. 3 herein, are accepted in respect of schedule Nos.
47, 48, 55 & 56.
Feeling aggrieved by issuance of the said acceptance letter, the
petitioners filed the present writ petition assailing the same and this Court
passed an interim order on 23.02.2021 directing that the respondent No.2
may continue with the tender process but it shall not be finalized without the
leave of this Court and no work order shall be issued in favour of any person
till the next date. Subsequently, by an order dated 26.03.2021, this Court
extended the earlier interim order and directed that the present arrangement
for supplying of rations made by the authority shall continue.
[10] Mr. N. Ibotombi, learned senior counsel appearing for the petitioners
raised the following 2 (two) points in assailing the impugned acceptance
letter:-
W.P. (C) No. 179 of 2021 Page 6
(a) the licence dated 27.09.2019 submitted by the respondent No. 3 in
connection with his tender bids is a forged and fabricated
document manufactured by tempering and accordingly, the
respondent No. 2 ought to have rejected the technical bids
submitted by the respondent No. 3; and
(b) as the total value of the past experience certificates submitted by
the respondent No. 3 is less than 50 % of the total value of the
tender, the technical bids of the respondent No. 3 cannot be acted
upon and ought to have been rejected by the authorities in terms of
the conditions provided under Para 6 (d) of the guidelines.
[11] To elaborate the first point, it has been submitted by the learned senior
counsel appearing for the petitioners that it is on record that there are 2 (two)
different licence issued by the Collector, Imphal West in favour of the
respondent No. 3 bearing the same number and the same date which are
enclosed as annexure A/7 and A/10 to the writ petition. In one of the licence,
it is indicated that the respondent No. 3 is the sole proprietor of the firm
without any partner and whereas in the other licence, the petitioner is shown
to be proprietor of the firm with a partner, viz., S. Thoiba Singh. It has been
submitted that the said 2 (two) licence cannot stand together and either one
of the licence is not a genuine documents but forged and fabricated
documents. It has also been submitted that while participating in an earlier
tender process, the respondent No. 3 submitted the licence indicating the
firm to be a partnership firm and whereas, in the present tender process the
respondent No.3 submitted the licence indicating the firm as a sole proprietor
W.P. (C) No. 179 of 2021 Page 7
firm without any partner. In view of the above, it has been submitted by the
learned senior counsel that it is crystal clear that the respondent No. 3
tempered with the licence and submitted a forged and fabricated documents
in connection with the present tender and accordingly, the respondent No. 2
ought to have rejected the technical bids submitted by the respondent No. 3.
[12] In connection with the second point, the learned senior counsel
submitted that the total value of the tender under schedules No. 47,48,55 &
56 is altogether Rs. 8,40,28,000/- (Rs. Eight crore forty lakh twenty eight
thousand) only and 50 % of the said amount comes to Rs. 4,20,14,000/- (Rs.
Four crore twenty lakh fourteen thousand) only. Since the total value of the
past experience/performance certificates submitted by the respondent No. 3
is only Rs. 3,05,93,296/- (Rs. Three crore five lakh ninety three thousand two
hundred ninety six) only, it is less than 50 % of the total value of the tender
and accordingly, the technical bids submitted by the respondent No. 3 does
not fulfill the conditions prescribed under Para 6 (d) of the guidelines and the
same cannot be acted upon and is liable to be rejected.
[13] Countering the arguments advanced by the learned counsel for the
petitioner with regard to the first point, Mr. BR Sharma, learned CGSC
appearing for the respondents No. 1 & 2 submitted that the bids including the
said trade licence of the respondent No. 3 were submitted in connection with
an earlier tender process initiated by the DY. D.G. NCC and not by the
present respondent No. 2 and that the said bid submitted by the respondent
No. 3 was rejected at the stage of opening of the technical bids and as such,
W.P. (C) No. 179 of 2021 Page 8
there is no question of acting or accepting the trade licence submitted by the
respondent No. 3.
On receiving the complaints submitted by the petitioners with regard to
the genuineness of the trade licence submitted by the respondent No. 3 in
the present tender process, steps were taken for verification of the said trade
licence and in the process, the Deputy Commissioner, Imphal West District,
the authority who issued the said trade licence in favour of the respondent
No. 3, issued a certificate dated 20.03.2021 certifying that the respondent
No. 3 M/S Uday Kumar Singh having trade licence No. 118/2019/ TL is a
proprietor firm own by Shri Uday Kumar Singh. In view of the above, it has
been submitted that the respondent No. 2 cannot reject the technical bids of
the respondent No. 3 purely on the basis of the false and baseless allegation
of competing bidders as that will lead to a situation were no tender process
can be concluded.
[14] With regard to the arguments of the petitioners in connection with point
No. 2, it has been submitted by Mr. BR Sharma, learned CGSC, that in every
financial year, electronic tenders for supply of fresh ration (Group B & C) to
Assam Rifles formation/units are prepared and floated online. For the
financial year 2021-22, different NITs for a total of 122 schedules were
floated online and schedule numbers 47, 48, 55 & 56 involved in the present
writ petitions are among the said 122 schedules.
During bidding process, the petitioners submitted complaints alleging,
inter alia, that the respondent No. 3 submitted a forged and fabricated
documents along with his bidding documents. The complaints were verified
W.P. (C) No. 179 of 2021 Page 9
by the respondent No. 2 from the issuing authority of the documents and the
allegations leveled by the petitioners were found to be false. Thereafter, the
technical bids as well as the cost bids of all the 4 (four) bidders who were
found to be qualified in eligible were opened by the authorities. On opening
the cost bids, the respondent No. 3 was declared as the lowest bidder in all
the 4 (four) schedules, i.e., schedule Nos. 47, 48, 55 & 56.
[15] Mr. BR Sharma, learned CGSC submitted that the petitioners have
given incorrect facts regarding the total value of the respondent No. 3's past
experience/performance certificates. It has been submitted that the total
value of past experience/performance certificates submitted by the
respondent No. 3 is Rs. 5,17,01,016/- (Rs. Five crore seventeen lakh one
thousand sixteen) only and not Rs. 3,23,84,996/- (Rs. Three crore twenty
three lakh eighty four thousand nine hundred ninety six) only as claim by the
petitioners. The details of the value of the past experience/performance
certificates in respect of the respondent No. 3 as sown in paragraph 7 of the
counter affidavit of respondent No. 1 & 2 are as under:-
Sl. FY Past Actual Past Performance Certificate
No Experience Experience/ issued by
reflected by Performance
Petitioner No. 1 submitted by
(C) No.179 / (M/s Uday Kumar
2001 Singh)
(a) 2017-18 2,50,000/- 2,50,000/- Asst Inspector General
of Police (Admn),
Meghalaya, Shillong
(b) 2018-19 3,05,93,296/- 3,05,93,296/- Directorate General
Assam Rifles, Shillong
(c) 2019-20 17,66,700/- 1,90,76,020/- Directorate General
Assam Rifles, Shillong
17,66,700/- Asst Inspector General of
Police (Admn),
Meghalaya, Shillong
W.P. (C) No. 179 of 2021 Page 10
15,000/- Asst Inspector General of
Police (Admn),
Meghalaya Shillong
Total 3,23,84,996/- 5,17,01,016/-
[16] It has also been submitted by Mr. BR Sharma, learned CGSC that the
total value of all past experience certificates should be 50 % or more of the
total tender value that the contractor have applied for, as claim by the
petitioners, is incorrect. In Para 6 (d) of the guidelines, it is clearly provided
that past experience value should be equal to 50 % or more than the value of
the ibid tender and that past experience of any one year with maximum value
out of 3 (three) years will be counted. Past experience value will be
considered for contract (s) awarded in a single year only and not by counting
2 (two) or more years. In view of the above, it is crystal clear that past
experience value of one year with maximum value out of 3 (three) years of a
contractor should be equal to 50 % or more than the value of the ibid tender,
i.e., for one schedule/tender and not for the combine or total value of all
tenders for which a contractor had submitted his bids.
[17] Mr. BR Sharma, learned CGSC submitted that the respondent No. 3
fulfill all the conditions under Para 6 (d) of the guidelines as will be evident
from the schedule/tender wise submission of past experience in respect of
respondent No. 3, which are as under:-
Tender/ Value of 50 % of the Past experience/ Performance Remarks
Schedule the Tender Tender submitted by respondent No. 3
Schedule/ FY Contract Meetin
Tender Amount g/ Not
Meetin
g 50 %
of
Tender
Value
W.P. (C) No. 179 of 2021 Page 11
Schedule 1,75,98,000/- 87,99,000/- 2017-18 2,50,000/- Not As per
No. 47 meeting Clause 6 (d)
2018-19 3,05,93,296/- Meeting the
2019-20 2,05,57,720/- Meeting respondent
% of tender
value of two
years for
schedule
hence
technically
qualified for
opening of
cost bid.
Schedule 3,58,47,000/-1,79,23,500/- 2017-18 2,50,000/- Not As per
No. 48 Meeting Clause 6 (d)
2018-19 3,05,93,296/- Meeting the
2019-20 2,05,57,720/- Meeting respondent
% of tender
value of two
years for
schedule
hence
technically
qualified for
opening of
cost bid.
Schedule 92,03,000/- 46,01,500/- 2017-18 2,50,000/- Not As per
No. 55 Meeting Clause 6 (d)
2018-19 3,05,93,296/- Meeting the
2019-20 2,05,57,720/- Meeting respondent
No. 3 met
50 % of
tender
value of two
years for
schedule
hence
technically
qualified for
opening of
cost bid
Schedule 2,13,80,000/-1,06,90,000/- 2017-18 2,50,000/- Not As per
No. 56 Meeting Clause 6 (d)
2018-19 3,05,93,296/- Meeting the
2019-20 2,05,57,720/- Meeting respondent
No. 3 met
50 % of
tender
value of two
years for
W.P. (C) No. 179 of 2021 Page 12
schedule
hence
technically
qualified for
opening of
cost bid
[18] Mr. BR Sharma, learned CGSC also submitted that if the respondent
No. 2 is to go by misconceived logic of the petitioners that the total value of
past experience/performance certificate should be equal to or more than Rs.
4,20,14,000/- (Rs. Four crore twenty lakh fourteen thousand) only, even
then, the respondent No. 3 is still qualified and eligible as the combined
value of the past experience/performance certificate of the respondent No. 3
is Rs. 5,17,01,016/- (Rs. Five crore seventeen lakh one thousand sixteen)
only, which is more than 50 % of the total value of the tender under
schedules No. 47, 48, 55 & 56.
On the other hand, as the petitioners have submitted their bids
in respect of 23 and 12 schedules, the total tender value of which is Rs.
30,79,67,000/- (Rs. Thirty crore seventy nine lakh sixty seven thousand) only
and Rs. 17,59,61,000/- (Rs. Seventeen crore fifty nine lakh sixty one
thousand) only, they will never be qualified and eligible as the value of their
past experience/performance certificate is not equal to 50 % or more of the
total value of their tenders.
[19] It is lastly submitted by Mr. BR Sharma that the petitioners did not
approach this Court with clean hands and clean heart, inasmuch as they
have concealed material facts and presented incorrect facts with an ulterior
motive of misdirecting this Court and accordingly, the present writ petition is
W.P. (C) No. 179 of 2021 Page 13
not maintainable and deserves to be dismissed outright. In support of his
contentions, the leaned counsel relied on the following judgments of the
Hon'ble Apex Court :-
1) (1996) 5 SCC 589 "Lourdu Mari David Vs. Louis
Chinnaya Arogiaswamy."(Para 2); and
2) (2007) 8 SCC 449 "Prestige Lights Ltd. Vs. State
Bank of India." (Para 33, 35 & 37)
[20] In connection with the first point raised by the counsel for the
petitioners, it has been submitted by Mr. L. Shashibhushan, learned counsel
appearing for the respondent No. 3 that the Licensing Authority under the
Manipur Trade Articles (Licensing & Control) order 1986, issued a trade
licence dated 27.09.2019 in favour of the respondent No. 3, wherein, it was
inadvertently shown, in the front page of the licence, the firm to be a
partnership firm consisting of 2 (two) partners, even though, in the last page
of the said trade licence, the respondent No. 3 was clearly shown as the sole
proprietor of the firm.
[21] On detecting the mistake committed by the licensing authority in the
first page of the said trade licence, the alleged partner viz., Shri. S. Thoiba
Singh filed an application dated 27.09.2019 to the Deputy Commissioner,
Imphal West, who is the licensing authority, highlighting the aforesaid
mistake of showing the said Shri S. Thoiba Singh as a partner of the said
firm and requesting to strikeout/ delete his name from the aforesaid trade
licence.
W.P. (C) No. 179 of 2021 Page 14
[22] On receipt of the said application dated 27.09.2019 submitted by Shri.
S. Thoiba Singh and also on bringing to the notice of the licensing authority
the aforesaid mistake committed at the time of issuing the said trade licence,
the licensing authority corrected the aforesaid mistake and issued a fresh
licence in favour of the respondent No. 1, wherein, the respondent No. 3 is
correctly shown as the sole proprietor of the firm. In view of the above, it has
been submitted that the allegation raised by the petitioners that the
respondent No. 3 submitted a forged and fabricated trade licence and that he
tempered with the said trade licence are totally false and without any basis.
[23] Mr. L. Shashibhushan, learned counsel also submitted that on a plain
reading of the aforesaid application dated 27.09.2019 submitted by Shri. S.
Thoiba Singh, it can be clearly seen that the said S. Thoiba Singh is just the
land owner whose land had been taken on lease by the respondent No. 3 for
the purpose of running his business and that the said S. Thoiba Singh never
entered into any partnership agreement with the respondent No. 3 at any
point of time and accordingly, the question of Shri S. Thoiba Sing being a
partner with the respondent No. 3 does not arise at all and that his name had
been wrongly entered in the first page of the said trade licence, even though,
the true and correct nature of proprietorship of the respondent No. 3 is
reflected/ shown in the last page of the said trade licence. It has further been
submitted that the respondent No. 3 had submitted a copy of the incorrect
trade licence in connection with an earlier tender process due to oversight
and bona fide mistake, however, his tender bids were rejected and as such,
W.P. (C) No. 179 of 2021 Page 15
there is no question of utilizing the incorrect trade licence by the respondent
No. 3.
[24] The learned counsel for the respondent No. 3 also submitted that the
validity of the said trade licence had been accepted by the respondent No. 2
after making necessary enquiries and after proper verification. Accordingly,
the petitioners have no right or locus standi to allege that the trade licence
issued in favour of the respondent No. 3 is not a valid documents unless they
challenge the validity of the said trade licence by filing appropriate
proceedings before the competent authorities or Court. Moreover, whether
the trade licence issued in favour of the respondent No. 3 is valid or not is
purely a disputed question of fact and such disputed questions of fact cannot
be decided by this Court in exercise of its power for Judicial review under
article 226 of the constitution of India. In support of his contentions, the
counsel for the respondent No. 3 relied on the following judgments of the
Apex Court:-
1) (1977) 1 SCC 561 "P. Radhakrishna Naidu & Others Vs.
Government of Andhra Pradesh and Others." (Para 13);
2) (1999) 7 SCC 298 "Chairman, Grid Corporation of Orissa
Ltd. (Gridco) & Others Vs. Sukamani Das (Smt) and
Another." (Para 6) and
3) (2010) 11 SCC 186 "Zonal Manager, Central Bank of
India Vs. Devi Ispat Ltd." (Para 25).
[25] In connection with second point raised on behalf of the petitioners, it
has been submitted by Mr. L. Shashibhushan that different NITs for a total of
W.P. (C) No. 179 of 2021 Page 16
122 schedules were floated online by the respondent No. 2 and in fact, 4
(four) different NITs in respect of schedules No. 47, 48, 55 & 56 were issued
and the same are enclosed as Annexures B/3, B/3(i), B/3(ii) and B/3 (iii) in
the counter affidavit filed by the respondent No. 3. All the said NITs and
contract works under different schedules cannot be combined and club
together at all since the contract works are distinct and different from each
other.
[26] The learned counsel further submitted that the conditions under Para 6
(d) of the guidelines have not been correctly interpreted by the petitioners. In
Para 6 (d) of the guidelines, it is clearly mentioned that "past experience
value should be equal to 50 % or more than the value of the Ibid tender.
Past experience of any one year with maximum value out of 3 (three) years
will be counted" meaning thereby that past experience value of 1 (one) year
with maximum value should be equal to 50 % or more than the value of a
particular tender.
If the interpretation given by the respondents that the combine past
experience value of 3 (three) years of a contractor should be equal to 50 %
or more than the combine value of all the tenders participated by the
contractor is accepted, then there will be serious consequences. The
petitioners, who have submitted their bids in connection with 23 schedules
and 12 schedules respectively, amounting to Rs. 30,79,67,000/- (Rs. Thirty
crore seventy nine lakh sixty seven thousand) only and Rs. 17,59,61,000/-
(Rs. Seventeen crore fifty nine lakh sixty one thousand) only respectively, will
not be qualified or eligible at all as their past experience/performance
W.P. (C) No. 179 of 2021 Page 17
certificate is much less than 50 % of the total value of their tenders. On the
other hand, the respondent No. 3 who have submitted his bids in respect of
only 4 (four) schedules will be qualified and eligible inasmuch as his combine
past experience value of 3 (three) years is more than 50 % of the total value
of the said 4 (four) tenders.
[27] By relying on several Supreme Court Judgments, it has been
submitted by the learned counsel for the respondent No. 3 that the owner or
the employer of a project, having author the tender documents is the best
person to understand and appreciate its requirements and interpret its
documents. The constitutional Courts must differ to his understanding and
appreciation of the tender documents, unless there is mala fide or perversity
in the understanding or appreciation or in the application of the terms of the
tender conditions. It is possible that the owner or employer of a project may
give an interpretation to the tender documents that is not acceptable to the
constitutional Courts but that by itself is not a reason for interfering with the
interpretation given. It has also been submitted that exercise of powers of
Judicial review would be called for, if the approach are arbitrary or mala fide
or procedure adopted is meant to favour one. But where a decision is taken
that is manifestly in consonance with the language of the tender document or
sub serves the purpose for which the tender is floated, Court should follow
the principle of restraint. Technical evaluation or comparison by the Court
would be impermissible. The principle that is applied to scan and understand
an ordinary instrument relatable to contract in other spheres has to be
treated differently than interpreting and the appreciating tender documents
W.P. (C) No. 179 of 2021 Page 18
relating to technical works and projects requiring special skills. The owner
should be allowed to carry out the purpose and there has to be allowance for
free play in the joints. The learned counsel have cited the following
judgments of the Hon'ble Apex Court:-
1) (2016) 15 SCC 272 "Montecarlo Limited Vs. National
Thermal Power Corporation Limited." (Para 19-26);
2) (2017) 4 SCC 170 "JSW Infrastructure Limited and
Another Vs. Kakinada Seaports Limited and Others."
(Para 10);
3) (2020) 16 SCC 489 "Silppi Constructions Contractors
Vs. Union of India and Another." (Para 19-20) and
4) (2020) 16 SCC 759 "Bharat Coking Coal Ltd. Vs. Amr
Dev Prabha." (Para 50-52).
[28] After hearing the rival contentions advanced by the counsel for the
parties and after perusal of the record, this Court is of the considered view
that initially a trade licence bearing No. 118/2019/TL dated 27.09.2019 was
issued by the Collector, Imphal West, who is the licensing authority, in favour
of the respondent No. 3. In the front page of the said trade licence, the firm is
shown to be a partnership firm with Shri S. Thoiba Singh as its partner and at
the same time in the last page of the said trade licence, the respondent No. 3
is shown to the sole proprietor of the firm. On realizing the mistake
committed by the licensing authority, the said Shri S. Thoiba Singh submitted
an application dated 27.09.2019 to the licensing authority with a request for
striking out/ deleting his name from the said trade licence by stating that he is
W.P. (C) No. 179 of 2021 Page 19
the owner of the land which has been taken on lease by the respondent No.
3 for business purpose.
On receiving the said application, the licensing authority issued a fresh
trade license bearing the same number and same date as that of the earlier
licence issued in favour of the respondent No. 3. In the said fresh trade
licence, the respondent No. 3 is shown as the sole proprietor and this Court
did not find any material to doubt the validity of the said trade licence. This
Court also find no reason to doubt the statements made by the respondent
No. 3 that he had submitted the incorrect trade licence while submitting his
bid in the earlier tender process for the year 2019-2020 due to oversight and
bona fide mistake.
[29] Since the incorrect trade licence of the respondent No. 3 had not been
utilized for obtaining any earlier contract work and since the respondent no. 2
had accepted the validity of the corrected trade licence of the respondent No.
3 after making necessary enquiries and verification, this Court is not incline
to interfere with the impugned acceptance letter on the basis of the first point
urged by the learned senior counsel appearing for the petitioners.
[30] With regard to the second point, this Court is of the considered view
that the respondents have correctly interpreted the conditions prescribed
under Para 6 (d) of the guidelines, more so, when the respondent No. 2 is
the author of the said guidelines. On careful consideration of the conditions
prescribed under Para 6 (d) of the guidelines, this Court is of the considered
view that the condition postulated therein is that past
experience/performance with maximum value of 1 (one) year out of 3 (three)
W.P. (C) No. 179 of 2021 Page 20
years will be counted and such past experience value should be equaled to
50 % or more than the value of a particular tender.
[31] On examination of the charts given by the respondent No.2, which are
reproduced herein-above at paragraph 15 & 17, this Court finds that the
respondent No. 3 is qualified and eligible and this Court finds no reason to
hold otherwise or to reject the decision of the respondent No. 2 in accepting
the technical bids of the respondent No. 3.
[32] Even if the Petitioners' interpretations of the conditions under Para 6
(d) of the guidelines are accepted, this Court still finds that the respondent
No. 3 is still qualified since the total value of his past experience/performance
certificate is Rs. 5,17,01,016/- (Rs. Five crore seventeen lakh one thousand
sixteen) only, which is more than 50% of the total tender value of the contract
works under schedules No. 47, 48, 55 & 56. On the other hand, the writ
petitioners will not be qualified and eligible as the value of their past
experience/performance certificate is not equal to 50 % or more of the total
value of their tender.
[33] For the findings and reasons given herein above and in view of the
well settled principles of law laid down by the Apex Court regarding the
parameters and limitations of this Court for interfering with the process of
tender for awarding contracts, which have been clearly and elaborately laid
down by the Hon'ble Apex Court in the Judgments relied on by the
respondent No. 3 hereinabove, this Court find no ground or reason for
interfering with the impugned acceptance letter. In the result, the present writ
W.P. (C) No. 179 of 2021 Page 21
petition fails and accordingly, the same is dismissed, however, without any
cost.
Earlier interim order stands vacated.
JUDGE
FR/NRF
Sapana
Digitally
KABOR signed by
AMBAM KABORAMBA
M SAPANA
SAPAN CHANU
Date:
A 2021.11.15
CHANU 10:52:06
+05'30'
W.P. (C) No. 179 of 2021 Page 22
