Manipur High Court
M/S Nezone Pipes & Structures vs The State Of Manipur Through The ... on 11 October, 2021
SHOUGRA Digitally
by
signed
[1]
KPAM SHOUGRAKPAM
DEVANANDA
DEVANAN SINGH
IN THE HIGH COURT OF MANIPUR
DA SINGH Date: 2021.10.11
12:21:36 +01'00'
AT IMPHAL
WA No. 39 of 2021
M/s Nezone Pipes & Structures, registered addressed at
Extended EPIP Lower Balian Ri-Bhoi District, Byrnihat,
Meghalaya-793101, correspondence address at DD Tower,
5th Floor, G.S. Road, Christian Basti, Guwahati, Assam-
791005, through its authorized person Shri Rajesh Chetri,
DGM Marketing, S/o Gopal Chetri, a resident of House No.
24, Nizora Path, Guwahati, Assam-781018.
... Appellant
-Versus-
1. The State of Manipur through the Commissioner/
Secretary, PHED, Government of Manipur, Secretariat
Building, Babupara, Imphal West, P.O. & P.S. Imphal,
Manipur-795001.
2. The Joint Secretary (PHE), Government of Manipur,
Secretariat Building, Babupara, Imphal West, P.O. & P.S.
Imphal, Manipur-795001.
3. The Chief Engineer, PHED, Government of Manipur,
Khuyathong, P.O. & P.S. Imphal, Imphal West, Manipur-
795001.
4. The Superintending Engineer, Planning and Monitoring
Circle, PHED, Government of Manipur, Khuyathong, P.O.
& P.S. Imphal, Imphal West, Manipur 795001.
5. M/s. BST Infratech Limited, having its registered office at 1
No. R.N. Mukharjee Road, 2nd Floor, Kolkata - 700001
through its authorized person Shri Tapan Banerjee, S/o.
(L) Mohit Mohan Banerjee, a resident of 94, Sunit
Banerjee Road, Sodepur, Ghola, Kolkata - 700111.
6. M/s Vishal Pipes Limited, having its registered office at 32,
Nishant Kunj, Kohat Enclave, Pitampura, Delhi-110034
through its authorized person Mr. Vivek Mundhra, a
resident of Ashoka Enclave, Faridabad-121003.
... Respondents
WITH
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[2]
WA No. 40 of 2021
M/s Nezone Pipes & Structures, registered addressed at
Extended EPIP Lower Balian Ri-Bhoi District, Byrnihat,
Meghalaya-793101, correspondence address at DD Tower,
5th Floor, G.S. Road, Christian Basti, Guwahati, Assam-
791005, through its authorized person Shri Rajesh Chetri,
DGM Marketing, S/o Gopal Chetri, a resident of House No.
24, Nizora Path, Guwahati, Assam-781018.
... Appellant
-Versus-
1. The State of Manipur through the Commissioner/
Secretary, PHED, Government of Manipur, Secretariat
Building, Babupara, Imphal West, P.O. & P.S. Imphal,
Manipur-795001.
2. The Joint Secretary (PHE), Government of Manipur,
Secretariat Building, Babupara, Imphal West, P.O. & P.S.
Imphal, Manipur-795001.
3. The Chief Engineer, PHED, Government of Manipur,
Khuyathong, P.O. & P.S. Imphal, Imphal West, Manipur-
795001.
4. M/s. BST Infratech Limited, having its registered office at 1
No. R.N. Mukharjee Road, 2nd Floor, Kolkata - 700001
through its authorized person Shri Tapan Banerjee, S/o.
(L) Mohit Mohan Banerjee, a resident of 94, Sunit
Banerjee Road, Sodepur, Ghola, Kolkata - 700111.
5. M/s Vishal Pipes Limited, having its registered office at 32,
Nishant Kunj, Kohat Enclave, Pitampura, Delhi-110034
through its authorized person Mr. Vivek Mundhra, a
resident of Ashoka Enclave, Faridabad-121003.
... Respondents
WITH
WA No. 41 of 2021
M/s Nezone Pipes & Structures, registered addressed at
Extended EPIP Lower Balian Ri-Bhoi District, Byrnihat,
Meghalaya-793101, correspondence address at DD Tower,
5th Floor, G.S. Road, Christian Basti, Guwahati, Assam-
791005, through its authorized person Shri Rajesh Chetri,
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[3]
DGM Marketing, S/o Gopal Chetri, a resident of House No.
24, Nizora Path, Guwahati, Assam-781018.
... Appellant/Petitioner
-Versus-
1. The State of Manipur through the Commissioner/
Secretary, PHED, Government of Manipur, Secretariat
Building, Babupara, Imphal West, P.O. & P.S. Imphal,
Manipur-795001.
2. The Joint Secretary (PHE), Government of Manipur,
Secretariat Building, Babupara, Imphal West, P.O. & P.S.
Imphal, Manipur-795001.
3. The Chief Engineer, PHED, Government of Manipur,
Khuyathong, P.O. & P.S. Imphal, Imphal West, Manipur-
795001.
4. M/s. BST Infratech Limited, having its registered office at 1
No. R.N. Mukharjee Road, 2nd Floor, Kolkata - 700001
through its authorized person Shri Tapan Banerjee, S/o.
(L) Mohit Mohan Banerjee, a resident of 94, Sunit
Banerjee Road, Sodepur, Ghola, Kolkata - 700111.
5. M/s Vishal Pipes Limited, having its registered office at 32,
Nishant Kunj, Kohat Enclave, Pitampura, Delhi-110034
through its authorized person Mr. Vivek Mundhra, a
resident of Ashoka Enclave, Faridabad-121003.
... Respondents
B E F O R E
HON'BLE MR. JUSTICE KH. NOBIN SINGH
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the appellants ∷ Shri Prashant Bhushan, Sr. Advocate;
Shri I. Denning, Advocate; Ms. Neha
Rathi, Advocate
For the respondents ∷ Shri H.S. Paonam, Sr. Advocate; Shri
Pradip Tarafder, Advocate; Shri Rajiv
Malik, Advocate, Shri N. Kumarjit, AG
Date of Hearing ∷ 29-09-2021
Date of Judgment & Order ∷ 11-10-2021
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[4]
JUDGMENT AND ORDER
Kh. Nobin Singh, J.,
[1] Heard Shri Prashant Bhushan, learned Senior Advocate with
Shri I. Denning, learned Advocate and Ms. Neha Rathi, learned Advocate
appearing for the appellants; Shri H.S. Paonam, learned Senior Advocate
with Shri Pradip Tarafder, learned Advocate appearing for the
respondent, M/s BST Infratech Limited; Shri Rajiv Malik, learned
Advocate appearing for the respondent, Vishal Pipes Limited and Shri N.
Kumarjit, learned AG appearing for the State respondents.
[2] The above writ appeals are directed against the common
judgment and order dated 16-08-2021 passed by the learned Single
Judge of this Court and since they have arisen out of the said common
judgment and order, the writ appeals are being disposed of by this
Common judgment and order.
[3.1] The facts and circumstances as narrated therein, which have led
to the filing of these writ appeals, are, in short, that an NIT dated 26-03-
2021 was issued by the Chief Engineer, Public Health Engineering
Department, Government of Manipur (hereinafter referred to as "the
PHED") inviting bids for supply of G.I Pipes. The appellant being eligible
for it, submitted its bids. The technical bids were opened on 21-04-2021,
while financial bids were opened on 06-05-2021 but on 05-05-2021, a
communication was sent to the appellant, through e-mail, informing that it
was not qualified in the technical bid.
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[5]
[3.2] On 06-05-2021 itself, the appellant submitted an application, via
e-mail, to the authority concerned requesting him to clarify and provide
the specific reason for rejecting its technical bid. As there was no
response from the authority, the appellant approached this Court by way
of a writ petition being WP(C) No.410 of 2021 wherein an interim order
dated 18-05-2021 was passed directing that the respondents therein
should communicate the reason why the appellant was found technically
not qualified. In compliance with the said order, the Joint Secretary
(PHE), Government of Manipur issued a letter dated 01-06-2021 to the
appellant informing that it did not have the minimum average turnover in
terms of the tender conditions. Questioning it, an application being
MC(WP) No.113 of 2021 was filed but when the matter was listed on 08-
06-2021 for consideration, this Court was of the opinion that it would be
appropriate for the appellant to challenge it in a fresh writ petition.
[3.3] The writ petition being WP(C) No.427 of 2021 came to be filed by
the appellant on 15-06-2021 challenging the validity and correctness of
the letter dated 01-06-2021. On 15-07-2021 when the matter was listed
for consideration, this Court passed an interim order and at the same
time, it allowed the application for impleadment of the successful bidders
as the private respondents. Although the respondent, M/S BST Infratech
Limited did not file counter affidavit, the respondent No.1 to 3 and the
respondent, M/S Vishal Pipes Limited did file their respective counter
affidavits on 05-08-2021. Three applications were filed by the
respondents praying for vacation of the interim order which remained
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[6]
pending for disposal. On 09-08-2021, the appellant filed its rejoinder
affidavits to the said counter affidavits filed on behalf of the respondents
as stated hereinabove.
[3.4] Immediately after WP(C) No.427 of 2021 having been filed, the
appellant submitted an application dated 17-06-2021 under the provisions
of RTI for furnishing information, followed by a legal notice for keeping the
execution of work in abeyance. A representation dated 18-06-2021 was
also submitted requesting the authority to furnish copies of the approval
letter, letter of acceptance and supply order and in respect thereof, a writ
petition being WP(C) No.446 of 2021 was filed before this Court but it
was dismissed on 06-07-2021.
[3.5] The State respondents uploaded a letter dated 24-05-2021
addressed to the Chief Engineer, PHED, enclosing therewith a copy of
the proceedings of the HTC, informing him to take up the necessary
action as per the recommendation made therein. This letter dated 24-05-
2021 came to be challenged by the appellant by way of WP(C) No.454 of
2021. While issuing notice to the respondents, this Court passed an order
dated 15-07-2021 staying the execution of the work. The counter
affidavits on behalf of the respondents were filed on 26-07-2021 and 05-
08-2021 to which the rejoinder affidavits were filed by the appellant on
09-08-2021. As has been done in respect of WP(C) No.427 of 2021,
some applications were filed by the respondents for vacating the stay
order.
[3.6] From the application filed by M/S BST Infratech Limited and the
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[7]
affidavit-in-opposition filed by M/S Vishal Pipes Limited, the appellant
learnt that the letters dated 31-05-2021 were sent to them by the
Superintending Engineer, Planning and Monitoring Sell, PHED and in
response thereto, they submitted their letters of acceptance dated 01-06-
2021. Being aggrieved by the letters dated 31-05-2021 and the letters of
acceptance dated 01-06-2021, the writ petition being WP(C) No.490 of
2021 came to be filed by the appellant.
[4] All the said writ petitions were heard together and were dismissed
by the learned Single Judge vide its common judgment and order dated
16-08-2021. The main issue, involved therein, which was considered by
the learned Single Judge, was as to whether the rejection of the technical
bid of the appellant was arbitrary, illegal and discriminatory or not. Other
ancillary issues were also considered by the learned Single Judge. All the
issues were decided in favour of the respondents, in the sense that all the
issues were answered in the negative. The relevant paragraph 27 of the
judgment and order dated 16-08-2021 reads as under:
"27. A consideration of the Appendix-4 as furnished by the
petitioner while submitting his bid would indicate that he has
submitted the certificate indicating Total Turnover and the
Galvanized Iron Pipes (G.I Pipes) turnover for the last (3)
complete financial years. The turnover of GI Pipes (INR Crores)
is indicated as 106.94 for the financial year 2017-18. For the
financial year 2018-19, it is indicated as 114.96 and for the
financial year 2019-20 it is indicated as 109.92. The audited
financial reports submitted by the petitioner‟s firm for the
financial year 2017-18 to 2019-2020 clearly indicates that for
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[8]
the year 2017-18 there is no indication of turnover for GI Pipes
under Schedule „I‟ Sales. Again for the financial year 2018-19
there is no turnover indicated for GI Pipes under Schedule-„H‟
sales. However, for the financial year 2019-2020 the turnover
for GI Pipes under Schedule-„H‟ Sales is indicated as
1,149,568.350 for the financial year ending 31.03.2019 and for
the financial year ending 31.03.2020 it is indicated as
1,099,164.183.
At this stage, it would be pertinent to consider the
impugned letter dated 1.6.2021 written by the Joint Secretary,
PHED, Government of Manipur and addressed to the
petitioner‟s firm wherein the reason for rejecting the case of the
petitioner‟s firm is given and the same reads as under:
"The Auditor‟s reports for the FY 2017-18 and FY 18-19 do
not show turnover separately for the product under
consideration of the Tender and whereas the Auditor‟s
report for FY 2019-20 shows the turnover from the
produce under consideration as Rs.109.92 crore.
Therefore, Average turnovers for three years is Rs.36.64
crore."
On a consideration of the reasons given as well as
comparison of the audited financial report for the financial year
2017-18 to financial year 2019-20 as well as Appendix-4
submitted by the petitioner‟s firm in the bid documents, it can be
clearly assumed that the reasons given for rejecting the
petitioner‟s firm is on the basis of the documents furnished by
the petitioner while submitting the tender bid."
[5] Being aggrieved by the common judgment of the learned Single
Judge, the said writ appeals were preferred by the appellant on the main
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[9]
ground that the learned Single Judge failed to appreciate the fact that the
appellant had complied with the terms and conditions under NIT dated
26-03-2021 particularly, Appendix-4 read together with Section 2-II, C 2
Sub Clause C 2.1 and Section-III A.1 Sl. 4. The other grounds are inter-
alia that the learned Single Judge erred in not appreciating the fact that
the appellant had shown a minimum average turnover for the product
under consideration i.e. G.I. Pipes which is more than 40.00 crores. The
findings and conclusions of the learned Single Judge made in the
impugned judgment and order are erroneous and not sustainable in the
eyes of law and need to be interfered with by this Division Bench. The
learned Single Judge erred in not appreciating the fact that the appellant
had submitted performance certificates with respect to the Appendix-6
and that the appellant had supplied more than Rs.40.00 crores for the last
5 financial years i.e. 2015-16 to 2019-20. The learned Single Judge erred
in not appreciating the fact that for the financial year 2017-18 to 2019-20,
the appellant had supplied/sold the product under consideration i.e. G.I.
Pipes to Government Department which is more than 40.00 crores for the
three financial year 2017-18 to 2019-20 and that the appellant had clearly
shown that the average turnover for the product under consideration i.e.
G.I. Pipes for the financial year 2017-18 to 2019-20 is above 40 crores.
The finding and observation of the learned Single Judge is liable to be
interfered with by this Court to provide justice to the appellant and to
maintain the rule of law. The learned Single Judge failed to appreciate
that the performance certificate (Appendix-6) of the respondent No 4 was
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[10]
not in the format or form with details as required under the terms and
conditions of the NIT dated 26-03-2021 and that the respondent No.4 did
not submit his audited financial statement for the last 3 (three) financial
years i.e. 2017-18 to 2019-20. Thus, a non-responsive bidder was
erroneously declared as successful bidder.
[6] It is not in dispute that the NIT dated 26-03-2021 was issued by
the Chief Engineer, PHED, Government of Manipur inviting online rate
quotation from amongst the reputed manufacturers of GI Pipes. The said
NIT contains and lays down various conditions, of which condition 1
provides that the bidding documents shall be downloaded from the
website; that condition 15 provides that the authority reserves the right to
cancel any or all bids without assigning any reason and that condition 17
provide that the details can be seen from the bidding documents. Section-
1 of the bidding documents provides for the preparation of bids and para
C 2 thereof provides that the technical bid shall comprise the documents
mentioned in C 2 1 (Part-I). Section-III of the bidding documents provides
for the evaluation and qualification criteria, of which the Sl. No.3 & 4 of
the technical criteria which are relevant for the present case, read as
under:
3 The manufacturer should have credential of Performance
supply for a minimum value of Rs.40.00 certificate issued by
crore (Rupees forty crore) only in one year an officer not below
to any Government Department during the the rank of Executive
last five financial years from FY 2015-16 toEngineer shall be
FY 2019-20 submitted as per
Appendix-6.
4 The manufacturer should submit the audited Audited Financial
financial statements for the last 3 (three) Statements for last 3
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[11]
financial years from FY 2017-18 to FY 2019- financial years along
20 to demonstrate the current soundness of with Turnover
the bidders‟ financial position showing a Certificate issued by
minimum average turnover of not less that Chartered Accountant
Rs.40.00 crore (Rupees forty crore) for the as per Appendix-4.
product under consideration in the tender.
The wordings of these two technical criteria are plain and
unambiguous which require no interpretation at all. The criteria as
mentioned in Sl.No.4 can be divided into three conditions-one, the
manufacturer should submit the audited financial statements for the last
three financial years from the year, 2017-18 to 2019-20; two, they should
show a minimum average turnover of not less than Rs.40.00 crore and
three, they should be for the product under consideration in the tender. It
may be noted in this regard that the documents which are required to be
submitted by the bidders, are the audited financial statements along with
the turnover certificate issued by the Chartered Accountant as per
Appendix-4 which is nothing but a format of the certificate to be issued by
a Chartered Accountant and only the requisite details are to be filled up
therein. A careful reading of the said criteria makes it very clear that a
minimum average turnover will have to be one which can be easily and
conveniently ascertained from the audited financial statements for the
aforesaid years. In other words, the audited financial statements to be
submitted by the bidders ought to reflect the turnover of the product under
consideration in the tender so that the authority could easily verify and
identify the minimum average turnover as shown in the certificate issued
by the Chartered Accountant as per Appendix-4.
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[12]
[7] It has been submitted by Shri Prashant Bhushan, learned Senior
Advocate appearing for the appellant that the appellant being eligible,
submitted its bids and all documents as required under the terms and
conditions laid down in the bidding documents, had been furnished and
therefore, the rejection of its technical bid by the authority was absolutely
illegal. Alternatively, it has been submitted by him that even if there was
an ambiguity as regards the documents furnished by the appellant, the
authority ought to have sought a clarification from the appellant by
invoking the provisions of para D 2.1, as had been done by the authority
in respect of the respondent, M/S BST Infratech Limited. The failure on
the part of the authority in not doing that, was highly unreasonable, unfair
and discriminatory. Combating his submissions, it has been submitted by
Shri N. Kumarjit Singh, learned Advocate General that the appellant did
not have the minimum average turnover as required under Sl. No.4 of the
A.1-Technical Criteria. The appellant did not furnish the certificate of the
Chartered Account strictly in tune with the Appendix-4 and on top of that,
the minimum average turnover for the said three financial years as
mentioned in the certificate of the Chartered Accountant, is not
substantiated by the audited financial statements submitted by the
appellant for the said three financial years. In other words, the audited
financial statements for the years from 2017-18 and 2018-19 did not
reflect the turnover of the product under consideration at all. Therefore,
on the basis of the documents submitted by the appellant, the appellant
was found by the authority to be unqualified in the technical bid. As the
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[13]
submissions of Shri H.S Paonam, learned Senior Advocate appearing for
the respondent, M/S BST Infratech Limited are similar to that of the
learned Advocate General and moreover, since he had adopted them, the
same are not repeated here for the sake of brevity. It has further been
submitted by him that since the letters of acceptance had not been
challenged and they had already started supplying the G.I Pipes, there is
not point of entertaining the instant writ appeals. The fact that the
clarification was not sought for from the appellant, cannot not be said to
have rendered the inaction on the part of the authority, unreasonable and
discriminatory. It is the appellant who committed the mistake of not
submitting the requisite documents in terms of the bidding documents,
cannot take the advantage of its own mistake. It has further been
submitted by him that a similar issue pertaining to the appellant had been
decided by this Court in WP(C) No.974 of 2019 & ors. Shri Rajiv Mallik,
learned Advocate appearing for the M/S. Vishal Pipes Limited submitted
that there was no plea against it and in other words, there was no ground
advanced against it except the allegation that although it had been
blacklisted, a false affidavit was filed and that it did not qualify to be
considered in the technical bid. It has further been submitted by him that
as its blacklisting was for a period upto 31-03-2016, the contention that its
technical bid should have been rejected, is misconceived.
[8] The average turnover certificate as per Apepndix-4 submitted by
the appellant is on record and on perusal thereof, it is seen that the
contention of the learned Advocate General that it is not strictly in terms
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[14]
of the Appendix-4, appears to be correct to that extent. As has been
observed hereinabove, the Appendix-4 is nothing but a format of the
certificate to be submitted by all the bidders, after the same being filled up
with the requisite details/information. It is beyond our comprehension as
to why the appellant being a partnership firm carrying on such a big
business, could not submit its bids in the manner prescribed in the
bidding documents and in particular, the certificate as per Appendix-4. Be
that as it may, the turnovers for the financial years, 2017-18; 2018-19 and
2019-20 as shown in the certificate submitted by the appellant read as
under:
Financial year Total Turnover (INR Turnover of G.I. Pipes
Crores) (INR Crores)
2017-18 279.66 106.94
2018-19 363.75 114.96
2019-20 322.42 109.92
The said certificate will have to be given by the Chartered
Accountant on the basis of the audited financial reports for profit/Loss
Account and Balance Sheets. The audited financial statements of the
appellant for the financial years, 2017-18, 2018-19 and 2019-20 on
the basis of which the certificate was given by the Chartered
Accountant, are on record. The relevant portion of the auditor's report
dated 31-07-2018 for the financial year, 2017-18 reads as under:
YEAR ENDED YEAR ENDED
31-03-2018 31-03-2017
_________ ____________
(Rs.) (Rs.)
SCHEDULE „I‟ SALES
Finished goods 2,70,70,85,367 1,72,96,54,690
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[15]
By products 5,46,05,596 3, 27,97,608
HR Coll/Slitt Sale 3,45,74,106 10,29,482
____________ ____________
Total 2,79,63,65,069 1,76,34,81,780
____________ ____________
The relevant portion of the auditor's report dated 26-06-2019
for the financial year, 2018-19 reads as under:
YEAR ENDED YEAR ENDED
31-03-2019 31-03-2018
_________ ____________
(Rs.) (Rs.)
SCHEDULE „H‟ SALES
Finished goods 3,519,801,645 2,707,085,367
By products 70,288,736 54,605,596
HR Coll/Slitt Sale 33,902,188 34,674,106
____________ ____________
3,623,992,569 2,796,365,069
____________ ____________
Job work charges received 220,712 211,862
Freight recovered 12,677,935
Inspection fee recovered 617,402
___________ ___________
Total 3,637,508,618 2,796,576,931
____________ ___________
The relevant portion of the auditor's report dated 17-10-2020
for the financial year, 2019-20 reads as under:
YEAR ENDED YEAR ENDED
31-03-2020 31-03-2019
_________ __________
(Rs.) (Rs.)
SCHEDULE „H‟ SALES
Finished goods
MS Black Pipes 1,640,321,371 1,823,311,876
Galvanised Iron Pipes 1,099,164,183 1,149,568,350
Steel Tibular Poles 284,743,054 478,904,230
Steel Scafolding 65,582,791 44,146,302
Steel structures 3,890,700 1,927,869
Metal Crash Barriers 24,867,378 21,943,018
____________ ____________
3,118,569,477 3,519,801,645
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[16]
By products 66,112,939 70,288,736
HR Coll/Slitt Sale 37,405,919 33,902,188
___________ ____________
3,222,088,335 3,623,992,569
___________ ____________
Job work charges received 345,549 220,712
Freight recovered 294,949 12,677,935
Inspection fee recovered 1,504,220 617,402
___________ ___________
Total 3,224,233,053 3,637,508,618
____________ ___________
[9] From the perusal of the auditor's reports for the financial years,
2017-18 and 2018-19 and in particular, the relevant portions thereof as
reproduced hereinabove, it is clearly seen that the turnovers of the
product under consideration are not reflected separately at all. But the
Chartered Accountant, in his certificate, has shown the turnovers of the
product under consideration for the said years but the basis on which the
turnovers for the financial years, 2017-18 and 2018-19 have been shown
in the certificate, is not disclosed and in other words, there is no material
on record which would clearly demonstrate the separate turnovers of the
product under consideration. Moreover, in the auditor's report for the
year, 2019-20, the relevant portion of which is reproduced hereinabove,
the turnover of the product under consideration for the financial year,
2018-19 is reflected, even though the auditor's report for the same
financial year, 2018-19 is silent about it. The turnovers as shown in the
certificate issued by the Chartered Accountant and that of the auditor's
reports as mentioned above, do not tally each other. If that be the case,
the correctness of the certificate issued by the Chartered Accountant is
doubtful and it was not correctly accepted and relied upon by the
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[17]
authority at its wisdom. The learned counsel appearing for the appellant
made an endeavour to contend that since the appellant being a
partnership firm, the turnover was not given separately for the product
under consideration and therefore, the minimum average turnover could
be ascertained by reading all the documents as a whole and in particular,
the performance certificates. His contention has no merit and substance
for the reason that the performance certificates will have to be submitted
as per Appendix-6, while the average turnover certificate will have to be
submitted as per Appendix-4. Both the certificates are not one and the
same. They are different conditions to be fulfilled by the bidders while
submitting their bids. It may further be noted that the documents to be
furnished by the bidders must be plain and clear for the reason that they
ought to speak for themselves so that the authority could verify the
minimum average turnover without any effort being made for it. In fact,
the bidding documents are made known to the bidders well in advance
and all that the authority will have to do, is to see that the documents are
submitted in terms of the bidding documents and the authority cannot be
expected to examine the documents furnished by the bidders by
interpreting them to understand their meaning. If the documents are not
submitted in terms of the bidding documents or for that matter, they are
not in proper order, the authority has the right to reject it. This is what has
been done by the respondents herein in the present case and there is
nothing wrong in it. In a tender, the submission of bids is an offer and the
authority has a right to reject it, provided the bidder has failed to fulfill the
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[18]
terms and conditions of the tender. The only safeguard in a tender
process is that the authority being an institution, ought to act fairly and
reasonably. It is the appellant who is to be blamed for its own mistake.
Having considered the circumstances as aforesaid, the authority has
rightly rejected the technical bid of the appellant.
[10] The other point which the learned counsel appearing for the
appellant has emphasized during the course of hearing, is that the
appellant was not given an opportunity to clarify the doubt on the part of
the authority, although such an opportunity had been given to the
respondent, M/S BST Infratech Limited. It has been vehemently
submitted by him that such inaction on the part of the authority is
unreasonable and discriminatory being violative of the provisions of
Article 14 of the Constitution of India. It is no doubt true that under para
2.1 of Section-II, the authority is empowered with a discretion to seek
clarification from the bidder. But it is nowhere provided therein that all the
bidders should be asked for clarification. It is for the authority to decide
whether a clarification is required to be sought from a bidder or from all
the bidders depending upon the circumstances and the requirement. In
the present case, the authority appears to have felt that there was no
need of seeking a clarification from the appellant, as the appellant was
found to be unqualified in the technical bid on the ground that it did not
have a minimum average turnover of the product under consideration.
Merely because the appellant was not given an opportunity to give a
clarification as regards the minimum average turnover, it cannot be said
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[19]
that the inaction on the part of the authority was unfair and unreasonable.
Even assuming that the appellant was given the opportunity, it could not
have improved or modified the audited financial statements for the years,
2017-18 and 2018-19 for the reason that they had formed part of the
records of the Income Tax Department. The facts and circumstances of
the writ petition being WP(C) No.974 of 2019 are not exactly the same as
that of the present appeals. In other words, the issues involved in both
the cases are not exactly the same. But the only observation made by
this Court in WP(C) No.974 of 2019 which is relevant for the present
appeals, is that the average turnover as furnished by the appellant in that
case as per Appendix-4, was found to be of overall turnover and not of
product under consideration. In the present case, the basis of the
minimum average turnover as shown in the certificate of the Chartered
Accountant is not there at all in the audited financial statements for the
years, 2017-18 and 2018-19, because of which the authority had no
option but to reject the technical bid of the appellant.
[11] In view of the above, we are of the considered view that there is
no infirmity in the judgment and order dated 16-08-2021 passed by the
learned Single Judge and accordingly, the instant writ appeals are
dismissed with no order as to costs.
JUDGE JUDGE
FR / NFR
Victoria
WA Nos. 39, 40 and 41 of 2021 Contd.../-
[20]
WA Nos. 39, 40 and 41 of 2021 Contd.../-
