Point of Law: Contract - Tender - Authority floating the tender is the best judge of its requirements, therefore, the Courts interference should be minimal.

JUDGMENT :

PRAKASH SHRIVASTAVA, J.

1. This order will govern the disposal of MAT No. 1409 of 2021, MAT No. 1410 of 2021, MAT No. 1411 of 2021 and MAT No. 1412 of 2021 as it is jointly submitted by the Counsel for the parties that all these appeals are in respect of same issue on identical fact situation.

2. For convenience facts have been taken out from MAT No. 1410 of 2021 which has been argued as lead appeal in this batch of matters.

3. The executive engineer, DPMU, Bankura had issued invitation of bids (IFB) for construction of Water Detention Structure in district Bankura under Matir Shristi Project. The construction work was detailed in table of IFB. The successful bidder was to complete the work within the specified period. Clause 4.5 (A)(d) of the IFB provides that a bidder could participate in one bid i.e. in any one number of serial of S. No. 20 to 61 of bid reference number specified therein. The appellants being aggrieved with this clause restricting the bidder to participate only in one bid had filed the writ petition before the learned Single Judge which has been dismissed by the orders under challenge.

4. Submission of learned Counsel for the appellants is that executive engineer had no power to impose such a restrictive condition in the IFB. In support of his submission he has placed reliance upon Rule 47, 48, 177 and 184 of the West Bengal Financial Rules. He has further submitted that public policy is necessary, to have such restriction clause and clause is arbitrary, therefore, it cannot be sustained. He has also submitted that in respect of tender floated in other districts no restrictive clause has been incorporated.

5. Learned Counsel for the State supporting the order of the learned Single Judge and opposing the appeal has submitted that the object of the work is to irrigate barren land and the work is required to be completed before the monsoon, therefore, in order to avoid any delay in completion of work, the condition of one bid per bidder has been imposed and that the focus is on the dried districts where there is urgency, therefore, as per the prevailing circumstances, conditions have been imposed as per requirement in different districts. He has further submitted that the petitioner’s first bid has been considered and they have even awarded the contract and the subsequent bids have been treated to be non-responsive and have not been considered. He has also submitted that the criteria has been applied uniformly, therefore, there is no arbitrariness.

6. Having heard the learned Counsel for the parties and on the perusal of the records, we have noticed that the learned Single Judge has considered the issue in detail and has reached to the conclusion that the tender condition under challenge does not affect any basic and fundamental right and is in the nature of reasonable restriction which is an accepted exception to fundamental right. He has duly considered the stand of the State that it wanted to hedge and limit the fall out of failure of one person to fulfill many contracts. He has also considered that the appellants after participating in the tender process cannot turn around and challenge the tender condition. No absence of transparency and unfairness has been found by the learned Single Judge, hence the petition has been dismissed.

7. This Court by the previous order dated 30th of December, 2021 passed in MAT No. 1410 of 2021, after taking note on rival contention of the Counsel for the parties, had directed the respondents to file the report and justify as to why the embargo was incorporated in district Bankura and not in district Purulia and also to point out if there is any policy decision of the department of the Government in this regard.

8. In pursuance to the said directions, learned Counsel for the State has submitted the report which discloses that similar kind of restriction was imposed in other different divisions/circulars also. It has been disclosed that tender notice of Purba Midnapur DPMU -