AKA Logistic Pvt. Ltd. vs Durgapur Projects Ltd.

Arun Mishra, C.J.—The tender notice dated 23rd February, 2013 was questioned in the writ application filed before the Single Bench. The appellant had questioned the legality of the clause 2(ii)(h) of the notice inviting tender, the same is held to be unconstitutional and it has ordered to be deleted. At the same time it has been ordered by the Single Bench that proceedings pursuant to the earlier N.I.T. shall be of no effect. Durgapur Projects Limited (hereinafter referred to as ''D.P.L.'') shall be at liberty to invite fresh tenders. It has also been observed that prospective bidders may be required to submit undertaking in the format of affidavit drawn in terms of Annexure-VI. D.P.L. may consider the desirability of including ''shortage minimisation'' in the ''work description'' and also in the ''qualifying requirements'', since it was included in the scope of work. The appellant M/s. AKA Logistic Pvt. Ltd. has questioned the legality of the part of the order with respect to inviting fresh tenders on the ground of quashment of clause 2(ii)(h) of the N.I.T. would not entail into invitation of fresh tender after quashment of the condition. D.P.L. ought to have been directed to proceed further to finalize the tender on the basis of the financial bids received pursuant to the aforesaid N.I.T.

It is also submitted that in the latter portion of paragraph 37 of the impugned order observations have been made that prospective bidders may be required to submit undertaking in the format of affidavit drawn in terms of Annexure VI. D.P.L. may consider the desirability of including ''shortage minimisation'' in the ''work description'' and also in the ''qualifying requirements'', since it was included in the scope of work.

Shri Samit Talukder, learned counsel, appearing on behalf of the appellant submitted that considering the nature of Clause 2(ii)(h) which related to the pendency of legal proceedings as against the Government/Public Sector Undertaking/Public Sector Enterprise relating to handling of coal in West Bengal for a period of three years was not such to quash the entire process of the N.I.T. The respondents could have proceeded further to finalise the tenders on the basis of financial bids of the rival tenderers. It was also submitted by the learned counsel that in the petition preferred by the appellant M/s. AKA Logistic Private Limited in W.P. 9166(W) of 2012 no relief was sought for quashment of the entire N.I.T.; whereas the said relief was sought for in W.P. 11410(W) of 2012 which has not been entertained and the same relief claimed in the aforesaid writ petition for quashment of entire N.I.T. has been granted. Thus, the order is illegal while dismissing the writ petition being W.P. 11410(W) of 2012, the relief prayed for quashment of the entire N.I.T. dated February 23, 2012 has been granted.

Shri Sumit Kumar Panja, learned counsel, appearing on behalf of Durgapur Projects Limited has supported the order and has submitted that due to holding of clause 2(ii)(h) of the N.I.T. it was necessary to give opportunity to all the applicants who could have submitted the application and would not have been deprived of submitting the tenders as clause 2(ii)(h) permitted that undertaking shall have to be taken by the tenderers that they have not proceeded with any legal proceedings within a period of three years against any Government/Public Sector Undertaking/Public Sector Enterprise relating to handling of coal in West Bengal. Thus, notwithstanding dismissal of W.P. 11410(W) of 2012, the Single Bench has rightly quashed the tender notice dated 23rd February, 2012 and all proceedings in pursuance thereof shall be of no effect, liberty has rightly been granted to invite fresh tenders. No case of interference is made out.

The only question for consideration is whether due to quashment of clause 2(ii)(h) of the N.I.T. it was not necessary to quash the N.I.T. dated February 23, 2012 and all proceedings in pursuance thereof and to direct to invite fresh tenders. Clause 2(ii)(h) is quoted below:

Cl. 2(ii)(h). The party will have to give an undertaking that they have not initiated any legal proceedings against any Govt./Public Sector Undertaking/Public Sector Enterprise relating to handling of coal in West Bengal for a period of three years (as per annexure VI).

A bare reading of the aforesaid clause it is apparent that an undertaking was required to be made mentioning that they have not initiated any legal proceedings against any Government/Public Sector Undertaking/Public Sector Enterprise relating to handling of coal in West Bengal for a period of three years. The condition was such as a result of which several incumbents were unable to submit their tenders, as they were not able to furnish the said undertaking. The condition operated at the threshold and disentitled the incumbents who had initiated legal proceedings against the Government/Public Sector Undertaking/Public Sector Enterprise relating to handling of coal in West Bengal within three years from participating in the tender process.

It is not in dispute that condition has been rightly held unconstitutional by the Single Bench. However, at the same time condition operated at the initial stage itself and might have debarred several deserving applicants to submit tender. Condition being such, in our opinion, due to adjudging the said condition unconstitutional, the Single Bench had rightly quashed tender notice dated 23rd February, 2012 and all proceedings in pursuance thereof, as it was necessary to do so in order to give fair opportunity to all incumbents who might have applied but for the aforesaid illegal condition. We find no illegality in the direction issued. Dismissal of other writ application could not be an impediment in view of the finding of the Single Bench to grant appropriate relief due to quashment of the aforesaid clause of the N.I.T. The relief has been rightly granted. Fresh tenders are required to be invited due to quashment of the aforesaid condition alone. Thus, in our view no case is made out so as to interfere with the aforesaid direction issued by the Single Bench. No other submission has been raised.

The appeals are devoid of merits and hereby dismissed. However, parties do bear the costs as incurred. Urgent xerox certified copy of this order be supplied to the applicants.

Joymalya Bagchi, J.

I agree.