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1997 Supreme(Cal) 77
High Court Of Calcutta
SATYABRATA SINGH
NIRANJAN NATH - Appellant
Versus
STATE OF W.B - Respondent
W. P. 1605 Of 1997
Decided On : 02/18/1997
ASHIM ROY, BALAI CHANDRA ROY, DEBASIS KAR GUPTA, SUBRATA MUKHOPADHYAY
The State is expected to award contracts fairly, impartially and in terms of its own policy-decision and the marks obtained by the respective parties.
Headnote:
TENDER - PRE-QUALIFICATION - ELIGIBILITY - AWARD OF CONTRACT - JUDICIAL REVIEW - SCOPE - ARBITRARINESS - FAIRNESS - PRINCIPLES OF NATURAL JUSTICE - INTERPRETATION OF DOCUMENTS - TENDER NOTICE - CONSTRUCTION - DISCRETION OF AUTHORITIES - PLAY IN THE JOINTS - LIMITS - JUDICIAL INTERFERENCE - CONTRACTUAL OBLIGATIONS - PERFORMANCE - COMPLETION WITHIN TIME - SPECIAL ASSISTANCE FUND - CONDITIONS - PUBLIC WORKS DEPARTMENT - AGENCY CHARGES - TIME SCHEDULE - ADDITIONAL COSTS - EXPERTISE - SPECIALIZED SKILLS - EVALUATION OF PRE-QUALIFICATION DOCUMENTS - CRITERIA - RELEVANT FACTORS - MARKS OBTAINED BY TENDERERS - SIMILAR NATURE OF WORK - EXPERIENCE - INTERPRETATION OF TERMS - RELEVANT CRITERIA - TECHNICALITIES - ESSENTIAL ITEMS - JUSTIFICATION - INTERIM ORDERS - UNJUST ENRICHMENT - ASSISTANCE OF COURT - ILLEGALITY - WRONG INTERPRETATION - TWO POSSIBLE VIEWS - CONSTRUCTION OF DOCUMENTS - INTENTION OF MAKER - PRINCIPLES OF NATURAL JUSTICE - STRICT SENSE - SHORT LISTING - INDEPENDENT AUTONOMOUS STATUTORY BODY - DECISION-MAKING PROCESS - MALA FIDE - JUDICIAL REVIEW - LIMITED SCOPE - DECISION-MAKING AUTHORITY - ABUSE OF POWER - RATIONALITY - RELEVANCE - NON-DISCRIMINATORY STANDARD - ARBITRARY DEPARTURE - VALID PRINCIPLE - SCOPE OF JUDICIAL REVIEW - FAIRNESS - IMPARTIALITY - ADEQUATE REASON - EXCLUSION FROM DEALING WITH GOVERNMENT - UNFAIR PROCEDURE - EXTENT OF DUTY TO ACT FAIRLY - FACTORS CONSIDERED BY COURT - EXECUTIVE NECESSITY - COMMERCIAL VENTURE - PUBLIC PURPOSE - NORMS AND PROCEDURES - STRICT ADHERENCE - CONTRACT AWARD - PUBLIC INTEREST - WELL-SETTLED NORMS AND RULES - EXECUTIVE DISCRETION - LIBERTY TO ASSESS OVERALL SITUATION - BONA FIDE DECISION - JUDICIAL INTERFERENCE - MINIMAL - PLAY IN THE JOINTS - FREEDOM OF ACTION - JUDICIAL REVIEW - CONSTITUTIONAL VALIDITY OF EXECUTIVE DECISIONS - GRANT OF LARGESS - JOBS - CONTRACTS - QUOTAS - LICENCES - FAIRNESS - NON-ARBITRARINESS - RATIONALITY - RELEVANCE - NON-DISCRIMINATION - DEPARTURE FROM STANDARD OR NORM - VALID PRINCIPLE - BURDEN OF PROOF - GOVERNMENT UNDERTAKINGS - QUASI JUDICIAL AUTHORITY - CONTRACT AWARDING - DISCRETION - OVERALL ASSESSMENT - COMMERCIAL ELEMENT - PUBLIC PURPOSE - STRICT ADHERENCE TO NORMS AND PROCEDURES - PUBLICATION OF DIRECTORIES - SERVICE TO PEOPLE - PRIMARY OBJECT - COMMERCIAL VENTURE - CONSTITUTIONAL VIOLATION - INTERFERENCE - PASSAGE OF TIME - APPREHENSIONS - SURMISES AND CONJECTURES - LACK OF EXPERIENCE - ESSENTIAL ITEM - TECHNICAL JOB - EXPERTISE - DETERMINATION OF REQUIREMENTS - INTERPRETATION OF DOCUMENTS - JUDICIAL REVIEW - PERVERSE INTERPRETATION - TENDER OR NOTICE INVITING TENDER - INTENTION OF MAKER - TWO POSSIBLE VIEWS - CONSTRUCTION BY MAKER - NON-INTERFERENCE - ILLEGALITY - WRONG INTERPRETATION - JUDICIAL REVIEW - SCOPE - GRANT OF CONTRACT - SHORT LISTING - PERMISSIBLE - PRINCIPLES OF NATURAL JUSTICE - STRICT SENSE - NON-APPLICABILITY - TENDERERS - PERSONAL OPPORTUNITY OF HEARING - JUDICIAL REVIEW - PARAMETERS - PRINCIPLES OF NATURAL JUSTICE - DECISION-MAKING PROCESS - MALA FIDE - WRONG DECISION - JUDICIAL CHALLENGE - SUBSTITUTION OF DECISION - WISDOM OR LACK THEREOF - JUDICIAL REVIEW - SCOPE - JUDICIAL REVIEW - LIMITED SCOPE - APPEAL OVER DECISION - DECISION-MAKING PROCESS - JUDICIAL REVIEW - SCOPE - FAIRNESS - IMPARTIALITY - ADEQUATE REASON - EXCLUSION FROM DEALING WITH GOVERNMENT - UNFAIR PROCEDURE - EXTENT OF DUTY TO ACT FAIRLY - FACTORS CONSIDERED BY COURT - EXECUTIVE NECESSITY - COMMERCIAL VENTURE - PUBLIC PURPOSE - NORMS AND PROCEDURES - STRICT ADHERENCE - CONTRACT AWARD - PUBLIC INTEREST - WELL-SETTLED NORMS AND RULES - EXECUTIVE DISCRETION - LIBERTY TO ASSESS OVERALL SITUATION - BONA FIDE DECISION - JUDICIAL INTERFERENCE - MINIMAL - PLAY IN THE JOINTS - FREEDOM OF ACTION - JUDICIAL REVIEW - CONSTITUTIONAL VALIDITY OF EXECUTIVE DECISIONS - GRANT OF LARGESS - JOBS - CONTRACTS - QUOTAS - LICENCES - FAIRNESS - NON-ARBITRARINESS - RATIONALITY - RELEVANCE - NON-DISCRIMINATION - DEPARTURE FROM STANDARD OR NORM - VALID PRINCIPLE - BURDEN OF PROOF - GOVERNMENT UNDERTAKINGS - QUASI JUDICIAL AUTHORITY - CONTRACT AWARDING - DISCRETION - OVERALL ASSESSMENT - COMMERCIAL ELEMENT - PUBLIC PURPOSE - STRICT ADHERENCE TO NORMS AND PROCEDURES - PUBLICATION OF DIRECTORIES - SERVICE TO PEOPLE - PRIMARY OBJECT - COMMERCIAL VENTURE - CONSTITUTIONAL VIOLATION - INTERFERENCE - PASSAGE OF TIME - APPREHENSIONS - SURMISES AND CONJECTURES - LACK OF EXPERIENCE - ESSENTIAL ITEM - TECHNICAL JOB - EXPERTISE - DETERMINATION OF REQUIREMENTS - INTERPRETATION OF DOCUMENTS - JUDICIAL REVIEW - PERVERSE INTERPRETATION - TENDER OR NOTICE INVITING TENDER - INTENTION OF MAKER - TWO POSSIBLE VIEWS - CONSTRUCTION BY MAKER - NON-INTERFERENCE - ILLEGALITY - WRONG INTERPRETATION - JUDICIAL REVIEW - SCOPE - GRANT OF CONTRACT - SHORT LISTING - PERMISSIBLE - PRINCIPLES OF NATURAL JUSTICE - STRICT SENSE - NON-APPLICABILITY - TENDERERS - PERSONAL OPPORTUNITY OF HEARING - JUDICIAL REVIEW - PARAMETERS - PRINCIPLES OF NATURAL JUSTICE - DECISION-MAKING PROCESS - MALA FIDE - WRONG DECISION - JUDICIAL CHALLENGE - SUBSTITUTION OF DECISION - WISDOM OR LACK THEREOF - JUDICIAL REVIEW - SCOPE - JUDICIAL REVIEW - LIMITED SCOPE - APPEAL OVER DECISION - DECISION-MAKING PROCESS - JUDICIAL REVIEW - SCOPE
Fact of the Case:
The petitioner, a construction firm, challenged the tender process for the construction of the Third Mahananda Bridge in West Bengal, alleging that the evaluation criteria were arbitrary and discriminatory, and that the respondents had failed to follow the principles of natural justice. The petitioner also sought to restrain the respondents from proceeding with the tender process or awarding any work orders.
Finding of the Court:
The court found that the petitioner did not meet the eligibility criteria for pre-qualification, as it did not have the requisite experience in constructing pre-stressed concrete bridges. The court also found that the evaluation criteria were not arbitrary or discriminatory, and that the respondents had acted fairly and impartially in the tender process. The court further held that the petitioner's apprehensions that a particular contractor would be awarded the contract were based on surmises and conjectures, and that the petitioner had no locus standi to challenge the tender process as no contract had yet been awarded.
Issues: 1. Whether the petitioner had a right to be considered for the tender process. 2. Whether the evaluation criteria were arbitrary and discriminatory. 3. Whether the respondents had failed to follow the principles of natural justice. 4. Whether the petitioner had locus standi to challenge the tender process.
Ratio Decidendi: 1. The petitioner did not meet the eligibility criteria for pre-qualification, as it did not have the requisite experience in constructing pre-stressed concrete bridges. 2. The evaluation criteria were not arbitrary or discriminatory, and the respondents had acted fairly and impartially in the tender process. 3. The petitioner's apprehensions that a particular contractor would be awarded the contract were based on surmises and conjectures, and the petitioner had no locus standi to challenge the tender process as no contract had yet been awarded.
Final Decision: The court dismissed the writ petition with costs.
( 1 ) IN the writ application the petitioner has prayed for the following reliefs :-" (A) A writ and/or order or orders and/or directions in the nature of a writ of mandamus directing the respondents their agents, subordinates, employees and/or transferees to issue tender form to the petitioner's firm and to permit the petitioner's firm to participate in tender of construction of 3rd Mahanada Bridge in terms of the Memo No. 440 dated 1 October, 1996 issued by the Superintending Engineer, P. W. D. , Planning Circle the respondent No. 3; (b) A Writ and/or order or orders and/or directions direction the respondents their agents, servants and subordinates directing them not to proceed with the process of tendering or accepting any tender from giving any work order to any tender or taking any further step pursuant to such acceptance of any tender : (c) A Writ and/or order or orders and/or directions in the nature of a Writ of Certiorari directing the respondents to certify to this Hon'ble Court the record of the case leading to the issuance of the tender form in terms of the abridge notice issued under Memo No. 440 dated 1 October, 1996 by the Superintending Engineer, P. W. D. , Planning Circle the respondent No. 3. "
( 2 ) BEREFT of all unnecessary details the fact of the matter is as follows :- for construction of Third Mahananda Bridge in the district of Jalpaiguri measuring about 480 metres in length the Urban Development Department of the Government of West Bengal was granted a sum of Rs. 8 crores by way of Special Assistance Fund by the Planning Commission, Government of India subject to the following conditions :" (I) the work will be a deposit work to P. W. D. (ii) the time for completion of the work will be 30 months; (iii) The works will be carried out by the Public Works Directorate, but the said directorate will not charge any agency charges as stipulated under the P. W. D. Code (11% ). (iv) the work will commence by October, 1996 and to be completed in all respect by December, 1998. "
( 3 ) IT is stated that the said construction has to be completed within a time schedule failing which the entire additional cost has to be borne by the State of West Bengal.
( 4 ) ON or about 1-10-1996 the Superintending Engineer, Public Works Directorate issued a notice for pre-qualification of the contractor for the work, the date of purchase whereof was fixed by 8-11-1996. The relevant clauses of the said documents read thus :-"the prospective applicants should have executed similar nature of work worth at least Rs. 400 lakhs successfully during the last 5 years in a single contract. Cost of Pre-qualification document is Rs. 3000/- per set. For further details, Superintending Engineer, P. W. D. , Planning Circle, P-16, India Exchange Place Extn. , C. I. T. Building (2nd floor), Calcutta - 700 073, may be contacted between 11. 00 a. m. to 2. 00 p. m. after 31-10-1996 and upto 8-11-1996. "
( 5 ) ACCORDING to the respondents the said contract involved specialised skill and, therefore, a decision had been taken to get the work done preferably by those who are experts in such works i. e. construction of pre-stressed concrete bridge worth at least Rs. 400 lakhs successfully during the last five years in a single contract. The job of evaluation of pre-qualification document was entrusted to three experts, namely, Chief Engineer, P. W. D. , Superintending Planning Engineer, P. W. D. and the Executive Engineer, Design Division No. 1, P. W. D. .
( 6 ) THE petitioner although had no experience in the said type of job, he filed an application before the Chief Engineer and the said authority directed supply of a tender paper. All the participants submitted their respective documents. The evaluation details of the pre-qualification documents were sub-divided into two groups, Schedule-A being the performance whereas the other qualifications were sub-divided into Schedules-B, C, D and E, being financial statement, personnel, pl
