Tripura High Court
Shree Vam Industries vs (1) The State Of Tripura on 20 December, 2022
Page 1 of 6
HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
WP(C) No.776 of 2022
Shree Vam industries, a partnership firm having its registered office at Plot
Nos.249-250-251, Road H, Kuvedva, GIDC NH-8-B, District-Kuvadva,
Rajkat-360003 and its local office at plot No.4833, Khatian No.109/9, Shed
No.5, Bodhjungnagar Industrial Complex, Bodhjunnagar, West Tripura,
Pin-799210 constituted by its partners namely,
(i) Sri Vishal Dipakbhai Sarvaiya, son of Sri Dipakbhai Sarvaiya resident
of village Swagat, 2 Prakash Soceity, Nirmala Convent Road, Rajkot.
(ii) Sri Alpesh Govabhai Patel, son of Sri Govabhai Patel resident of village
Mohanpura, Govind Parati Villa Ta. Idar, District- Sabarkantha.
(iii) Sri Mukesh Natavarlal Patel, son of Sri Natavarlal Patel, resident of
village Therasana, Ta Vadali, District- Sabarkantha.
All the partners are having their offices, situated at Plot Nos.249-250-251,
Road H, Kuvedva, GiDC NH 8-B, District- Kuvadva, Rajkat-360003,
represented by its authorized representative/local manager Sri Ashis
Choudhury, son of Sri Satyendra Choudhury, resident of village Barjala,
near Modern Club, P.O. Barjala, P.S. New Capital Complex, Agartala,
West Tripura, aged about 35 years.
......Petitioner(s)
VERSUS
(1) The State of Tripura, represented by the Commissioner & Secretary,
Public Works Department, Government of Tripura, having his office at
Secretariat Building, P.O. Kunjaban, P.S. New Capital Complex, District-
West Tripura, Pin-799006.
(2) The Commissioner & Secretary, Public Works Department,
Government of Tripura, having his office at Secretariat Building, P.O.
Kunjaban, P.S. New Capital Complex, District- West Tripura, Pin-799006.
(3) The Chief Engineer, Drinking Water and Sanitisation, Public Works
Department, Government of Tripura, having his office at Secretariat
Building, P.O. Kunjaban, P.S. New Capital Complex, District- West
Tripura, Pin-799006.
(4) The Executive Enginer, Drinking Water and Sanitisation, Public Works
Department, Government of Tripura, having his office at Store Division,
Nandannagar, Agartala, West Tripura.
........Official Respondent(s)
(5) Joydeep Chemicals, a proprietorship Firm, having its registered office
at D.K. Road, Dewanpassa, Dharmanagar, North Tripura, represented by its
Proprietor Smt. Rakhi Debnath daughter of not known resident of
Haricharan Road, Padmapur, Dharmanagar, North Tripura.
........Private Respondent(s)
For Petitioner(s) : Mr. Somik Deb, Sr. Advocate,
Mr. Abir Baran, Advocate.
For Respondent(s) : Mr. D. Bhattacharya, G.A.,
Mr. C.S. Sinha, Advocate.
HON'BLE THE CHIEF JUSTICE (ACTING)
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Date of hearing and Judgment : 20th December, 2022.
JUDGMENT & ORDER(ORAL)
Heard Mr. Somik Deb, learned senior counsel appearing for
the petitioner and also heard Mr. D. Bhattacharya, learned Government
Advocate and Mr. C.S. Sinha, learned counsel appearing for the
respondent.
[2] The writ petition has been filed by the petitioner under Article
226 of the Constitution of India for directing the official respondents to
transmit the records appertaining to this writ petition lying with them for
rendering substantive and conscionable justice to the petitioner and for
quashing/setting aside the impugned offer of the respondent No.5
(Annexure-6) lying in the custody of the official respondents.
[3] The petitioner has prayed for the following reliefs :
"(i) Issue Rule calling upon the official respondents and eacgh
one of them, to show cause as to why a writ of certiorari and/or
in the nature thereof, shall not be issued, for directing them, to
transmit the records, appertaining to this writ petition lying with
them for rendering substantive and conscionable justice to the
petitioner and for quashing/setting aside the impugned offer of
the respondent No.5(Annexure-6 supra) lying in the custody of
the official respondents, as informal;
(ii) Issue Rule, calling upon the official respondents and each
one of them, to show cause as to why a writ of mandamus
and/or in the nature thereof, shall not be issued for
mandating/directing them, to forthwith declare the impugned
offer of the respondent No.5(Annexure-6 supra) lying in the
custody of the official respondents, as informal on account of
the detailed grounds and reasons set out infra;
(iii) Issue Rule, calling upon the official respondents and each
one of them, to show cause as to why a writ of prohibition
and/or in the nature thereof, shall not be issued for
restraining/prohibiting them, from opening the financial bids, till
the declaration of informality of the impugned offer of the
respondent No.5 (Annexure-6 infra), and further for
restraining/prohibiting them from considering the said offer of
the respondent No.5;
(iv) In the Ad-interim, and thereafter, on hearing the parties, in
the interim, an order, in terms of relief (iii) supra;
(v) Call for the records appertaining to this petition;
(vi) After hearing the parties, be pleased to make the Rule
Absolute in terms of i. to iv above;
(vii) Costs of and incidental to this writ proceeding;
(viii) Any other Relief(s) as to this Hon'ble High Court may
deem fit and proper."
[4] The facts of the case, in brief, are that for procurement of
alumino ferric in two bids system from the original manufacturers of
alumino ferric holding valid registration for manufacturing at least 4,000
MT of aluino ferric annually and having valid license to use BIS standard
mark for an estimated cost of Rs.4,39,61,246.00/-, the Executive Engineer,
DWS, Store Division, Nandannagar, PWD issued a notice inviting tender
inviting the bidders to participate in the bidding process with a bid fee of
Rs.8,000.00/-. Subsequent thereto, the petitioner along with the respondent
No.5 participated in the said NIT by submitting their respective quotation
of the tender. The petitioner made a communication to the Executive
Engineer, PWD, DWS, PWD by confirming the depositing of earnest
money from its account and further urging for furnishing information as to
the deposition of earnest money by the bidders. It may be placed on record
that Finance Department, Government of Tripura issued a memorandum,
whereby it has been provided that online payment of the earnest money has
to be made by the bidder himself. Urging for rejection of the offer of the
respondent No.5 as informal, the petitioner through his engaged counsel
had tendered a Legal Notice to the Executive Engineer, DWS, PWD, to
which the said respondent did not respondent.
[5] The Executive Engineer, DWS Store issued an instruction to
bidders (ITB, for short) mandating the payment of earnest money @ 2% of
the estimated cost put to tender. By the said ITB, the bidders were
instructed that the earnest money for an amount of Rs.25 lakh be paid
electronically over the online payment facility. Relevant portion of the ITB
is reproduced hereunder :
"........8. The amount of Earnest Money(EM) is equivalent to @
2% of estimated cost put to the tender. Payment of Earnest
Money is mandatory.
9. Earnest Money for an amount upto Rs.25 lakh, is to be paid
electronically over the online payment facility provided in the e-
procurement portal any time after start date of bid submission
and before bid submission end date using net banking facility by
the bidders.
10. Earnest money for an amount more than Rs.25 lakh is to be
paid through offline mode using any of the offline payment
instrument like deposit at call receipt or, demand draft or baker's
cheque or, bank guarantee drawn in favour of the Tender
Inviting Authority (TIA) from a well recognized
scheduled/commercial Bank guaranteed by the Reserve Bank of
India having branch at Agartala, Tripura....."
[6] Subsequent thereto, the petitioner along with the respondent
No.5 participated in the said NIT by submitting their respective papers and
laying their respective officers. The petitioner made communication to the
Executive Engineer, PWD, DWS, PWD dated 01.07.2022 by confirming
the deposition of Earnest Money from its account and further urging for
furnishing information as to the deposition of earnest money by the
bidders. The Finance Department, Government of Tripura issued a
Memorandum dated 17.08.2019 whereby it was provided that online
payment of the earnest money was to be made by the bidder himself.
[7] It is alleged that the petitioner at the time of submission of
offer noticed that the respondent No.5 did not deposit the earnest money
itself in its own name but the earnest money was deposited by some other
agency. Urging for rejection of the offer of the respondent No.5, the
petitioner through his engaged counsel had tendered a legal notice to the
Executive Officer, DWS, PWD dated 04.08.2022 to which the said
respondent did not respondent thereto. It is also alleged that at the time of
submission of the offer, the respondent No.5 had uploaded its documents in
the official website of the official respondents and the petitioner has
downloaded those documents submitted by the respondent No.5.
[8] Mr. Somik Deb, learned senior counsel appearing for the
petitioner submits that for participation in the tender process, it was
obligatory on part of the respondent No.5 to deposit its own earnest money
and any deposit made by any other agency is of no retrieve, and therefore,
the official respondents ought to have declared the bid of the respondent
No.5 as informal and any submission of any earnest money by any other
agency for and on behalf of the said respondent No.5 is grossly
unsustainable. On the other hand, Mr. D. Bhattacharya, learned
Government Advocate vehemently opposed the petition and prays for
dismissal of the same.
[9] After hearing the learned counsel for the respective parties,
this Court disposed the writ petition directing the respondents to consider
the legal notice issued to the petitioner with regard to contentions and
speaking reply shall be given by the respondents to the petitioner within a
period of 4(four) weeks from the date of receipt of the copy of this order
and till a decision is taken upon the notice, status quo in all terms shall be
maintained.
[10] With the above observations and directions, this petition is
disposed of. Pending application(s), if any, also stands disposed of.
(S.G. CHATTOPADHYAY, J) CHIEF JUSTICE (ACTING)
Dipesh
