The central legal point established in the judgment is the importance of adhering to government notifications and principles of natural justice in tender processes, while also highlighting the discretion of the Tendering Authority in determining the participation of Joint Ventures.

JUDGMENT

Sabyasachi Bhattacharyya, J. - The petitioner challenges a Notice Inviting e-Tender (NIT) dated January 9, 2021 floated by respondent no.1 for the work of installation of Solar Submersible Pump (50 nos.) at Jhargram District. Learned counsel for the petitioner argues that Clause 2.12 of the NIT, debarring Joint Ventures and consortia from participating in the tender, was illegal, being violative of Article 14 of the Constitution of India. That apart, the said Clause contravenes an Order dated December 18, 2020 issued by the Department of Water Resources Investigation & Development, Government of West Bengal, wherein it was stipulated that Joint Ventures, if required, will also be allowed in the tender processes as contemplated therein, which covers the present tender as well.

2. Learned counsel next argues that Clause 22 of the NIT, disallowing price preference and other concessions, violates the Notification dated November 19, 2004 issued by the Finance Department, Audit Branch of the Government of West Bengal. By the said Notification, Rule 47A was inserted in the West Bengal Financial Rules, Volume I, which provides that the State Government Departments/Directorates/Offices, etc., shall adopt the measures stipulated therein in the matter of making of purchases and execution of all works. Sub-rule (1) of Rule 47A stipulates that all registered SSI units of the State are to be given 15 per cent price preference vis- -vis large and small scale Industrial Units and other SSI units located outside the State.

3. It is further argued on behalf of the petitioner that, by the same Notification dated November 19, 2004, it was provided that registered SSI units of the State shall be exempted from payment of earnest money for tenders. Such clause was violated in the impugned NIT, since online bids for the said tender could not be uploaded without prior payment of earnest money.

4. Learned counsel for the petitioner argues that tenders having similar illegal clauses were floated earlier by respondent no.1, on which representations were made by a sister concern of the petitioner. Pursuant to such representation, such previous tenders were withdrawn, but again the same illegalities were repeated in the present impugned tender. The petitioner made a representation on January 11, 2021, pointing out the illegalities and asking for withdrawal of such illegal tender. Without considering such representation in the pre-bid meeting, the authorities proceeded with the tender and opened the technical bid on February 1, 2021, subsequently uploading it on February 4, 2021.

5. After service of the writ petition and filing of the same, the matter was enlisted on February 5, 2021, when the respondents went unrepresented. Subsequently, despite having full knowledge of the writ petition, work order was issued in favour of a third party on the morning of February 8, 2021, on which date the writ petition was taken up for hearing.

6. Learned counsel argues that Joint Ventures are independent legal entities and enjoy similar rights as partnerships, while participating in Government Tenders. Thus, such Ventures are protected under Article 14 of the Constitution of India, vitiating the clause of the impugned NIT preventing Joint Ventures from participating in the tender.

7. In this context, learned counsel relies on New Horizons Limited and another vs. Union of India and others, (1995) 1 SCC 478 and Gammon India Limited vs. Commissioner of Customs, Mumbai, (2011) 12 SCC 499 , where the concept of Joint Venture was discussed.

8. Learned counsel for the petitioner lastly contends that the clauses of the tender were tailor-made to suit the purpose of some chosen contractors. A comparison of the respective quotations, evident after opening of the price bid, proves such fact. The financial bid was opened on February 6, 2021, on a Holiday, to frustrate the instant writ petition. At least two participants have quoted the same rates, which match each other comp