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2018 Supreme(Cal) 645
IN THE HIGH COURT OF CALCUTTA
TAPABRATA CHAKRABORTY, J.
In the matter of : Ashok Kumar Agarwala - Petitioner
Versus
Habra Municipality & Ors. - Respondents
W.P. 11691 (W) of 2018
Decided On : 18-07-2018
For the Petitioner: Mr. Amales Roy, Mr. Debu Chowdhury.
For the Respondent: Mr. Pradyumna Sinha, Mr. Manas Sadhu, Mr. Piyush Chaturvedi.
The production of E.S.I. registration certificate was a mandatory eligibility criterion for participation in the tender process, and the scope of judicial review in award of contracts is limited.
Headnote:
TENDER PROCESS - E.S.I. REGISTRATION - The court analyzed the tender process initiated by a municipality and concluded that the E.S.I. registration certificate was a mandatory eligibility criterion for participation in the tender process, rejecting the petitioner's bid for not uploading the certificate.
Fact of the Case:
The petitioner challenged the tender process initiated by a municipality, claiming that his bid was rejected for not uploading the E.S.I. registration certificate, which he argued was not a mandatory requirement.
Finding of the Court:
The court found that the E.S.I. registration certificate was a mandatory eligibility criterion for participation in the tender process, and there was no error in the decision-making process warranting interference.
Issues: The issues involved the mandatory eligibility criterion of E.S.I. registration certificate, equal treatment of participants, and the scope of judicial review in award of contracts.
Ratio Decidendi: The court held that the production of E.S.I. registration certificate was a mandatory eligibility criterion, and the evaluation of tender and awarding of contracts are essentially commercial functions with limited scope of judicial review.
Final Decision: The writ petition was dismissed, and no costs were awarded to the petitioner.
1. The present writ petition has been preferred challenging the tender process initiated by Habra Municipality (in short, the said municipality) through issuance of a notice inviting e-tender (in short, NIT) dated 25th May, 2018.
2. Mr. Roy, learned advocate appearing for the petitioner submits that responding to the said NIT, the petitioner uploaded his bid online pertaining to the work proposal in serial no.2 for “supply, erection, fitting & fixing of 6 MTR. Octagonal Pole with 60W and 45W LRD Street light at Ward No. 13-24 under Habra Municipality”. Along with his bid, the petitioner uploaded all the relevant documents. Subsequent thereto, the technical bid evaluation sheet was uploaded in the website. From the same, the petitioner came to learn that his bid has been rejected for “not uploaded, E.S.I. Registration Certificate”.
3. Mr. Roy submits that E.S.I. registration was not an essential and mandatory eligibility criterion for participation in the said tender process. Submission of such E.S.I. registration certificate is not a mandatory requirement and the said document is not included in the list of documents required to be uploaded under non-statutory cover. In support of such contention, he has drawn the attention of this Court to clause 10 of the NIT and to clause “technical proposal” as incorporated in Section-A of the “Instruction to Bidders”. A composite reading of the said clauses would reveal that E.S.I. registration certificate was not a mandatory eligibility criterion in the said tender process and as such the petitioner’s bid could not have been cancelled for non-production of such certificate.
4. Mr. Roy further submits that by submitting a representation on 7th July, 2016, the petitioner brought to the notice of the said municipality that the successful bidder does not fulfil the eligibility criteria as prescribed in the said NIT inasmuch as it has failed to upload the original partnership deed. It would thus be evident that all the participants have not been treated equally on level playing field concept. In support of such contention reliance has been placed upon the judgment delivered in the case of Reliance Energy Limited and Anr. Vs. Maharashtra State Road Development Corporation and Ors. reported in [2007(8) SCC 1 (para 38)].
5. Per contra Mr. Sen, learned advocate appearing for the said municipality submits that the work proposal was towards supply, erection, fitting and fixing of six MTR Octagonal pole 60wt. 45W. LED Street Light. In view of the nature and scope of work, the tender was floated with a mandatory criterion to the effect that the applicant should be having E.S.I registration certificate. In support of such contention he has drawn the attention of this Court to the eligibility criteria as prescribed in NIT wherein under clause 3(g), the E.S.I. registration certificate has been included. There has been no error in the decision making process warranting interference of this Court. Mr. Sen has produced before this Court the tender documents which reveal that the contract was executed and the work order was issued in favour of the respondent no.7 on 10th July, 2017.
6. Mr. Chaturvedi, learned advocate appearing for the respondent no. 7 submits that the petitioner did not satisfy the threshold qualification mandatorily required for participation in the said tender process. The date of uploading of the NIT was 30th May, 2018 and the closing date for submission of bid was 22nd June, 2018. Had there been any doubt in the mind of the petitioner as regards requirement of E.S.I. registration certificate, which the petitioner did not have, the petitioner could have sought for necessary clarification from the authorities within the said span of more than 24 days. The petitioner upon reading the tender terms participated in the tender process and as the result of the same was not palatable, he cannot turn back and challenge the same.
7. The conditions, as incorporated in the NIT need to be consid
