Sanjib Banerjee, J.:— This writ petition has appeared in the usual course in the list today without any of the parties having the courtesy of bringing the appellate order of June 25, 2013 to the notice of this court since such order required the writ petition be disposed of within two weeks from the date of that order.
The grievance of the petitioners is that one of the primary eligibility criteria in the tender documents pertaining to a notice dated May 10, 2013 was formulated to exclude the petitioner company's bid. The petitioners complain of clause (i) on the first page of the notice inviting tenders, which reads as follows:
“(i) A declaration in the form of Affidavit in a non judicial stamp paper should be submitted stating clearly that the applicant is not barred/delisted/blacklisted by any Govt. Deppt/Govt. undertaking/Statutory Body/Municipality and of the like Govt. Bodies in DI Pipe-supply tender during last five years and if any such incident is found at any point of time, the tender will be cancelled summarily without assigning any reason what so ever”.
The petition was moved in the summer vacation on the petitioners' representation that the petitioners were not being permitted to submit the bid, though the bidding was online. By an order of May 28, 2013, the Vacation Bench permitted the petitioner company's bid to be made and required the authorities to consider the same, subject to the fulfillment of the eligibility criteria. The issuance of the work order was temporarily stayed till June 7, 2013.
When the matter appeared before the regular Bench on June 7, 2013, an order was made requiring the Kolkata Metropolitan Development Authority to inform the court whether the petitioner company's bid was the best since it was felt that if the petitioner company's bid was not the best, the issues raised in the petition were unnecessary to be gone into. The matter was next taken up on June 17, 2013 when it was submitted on behalf of KMDA that the petitioner company's bid could not be considered since its technical bid failed to meet the eligibility criteria. Notwithstanding such submission, the order dated June 17, 2013 required the commercial bids to be opened for it to be assessed whether the petitioner company's bid came within the zone of consideration for the other issues to be taken up. The KMDA and another bidder carried appeals from order dated June 17, 2013 wherein the appellate court held that once a bidder had been technically disqualified, it was not proper for the court to pass any order in favour of such bidder to the effect that the commercial bids be opened notwithstanding the employer's perception that the petitioning bidder was not qualified to participate in the process.
The order also recorded that the financial bids would not be opened for a fortnight from the date of the order and the trial court was required to dispose of the petition within such period.
The petitioners refer to the stay petition filed in the appeal by the KMDA. The petitioner company's bid was found to be disqualified on two grounds: that the latest income-tax return had not been submitted in terms of clause (j) of the first page of the tender notice; and, that an unconditional declaration in terms of clause (i) had not been furnished and, in any event, the petitioner company had been debarred by the Hyderabad Metropolitan Water Supply and Sewerage Board and by the Public Health Engineering Department of the Government of West Bengal from participating in works under such authorities.
It is submitted on behalf of the petitioners that it would be evident from a spate of writ petitions which these petitioners have been constrained to file recently against the State and the State-controlled organisations that there is a concerted effort on behalf of the State to ensure that the petitioner company did not obtain any contract issued by State bodies. The petitioners seek to suggest that the KMDA had gone out of its way to obtain information from the Hyderabad Metropolitan Water Supply and Sewerage Board and that the Public Health Engineering order of debarring the petitioners was issued long after the time for opening the bids had expired.
As to the failure on the part of the petitioner company to submit its latest income-tax return, the petitioners say that there was a genuine mistake or oversight; but such failure, not being in derogation of any essential criterion for the tender process, would not warrant the disqualification of the bid of the petitioner company. In such context, the petitioners refer to the judgments reported at AIR 1984 Bom 351 and AIR 1991 SC 1579 for the proposition that if one of the ancillary conditions which had no nexus with the nature of the work required to be performed under the proposed contract had not been met by any bidder, it ought to be regarded as an irregularity and may be glossed over as long as it was not an essential condition. In the Bombay case, paragraph 18 of the report speaks of a signature not having been put in by the bidder on a relevant page and of the earnest money being tendered otherwise than as directed under the notice inviting tender. In the Supreme Court matter, the earnest money was deposited by way of an instrument drawn on a bank other than the bank that had been specified in the tender papers.
It does not appear that the failure - or negligence or mistake - on the part of a bidder to submit its latest income-tax return can be equated with the mistake on the part of a bidder to sign a particular page of a bid or the preparation of an instrument of payment by any mode other than the one specified in the tender terms. The failure to file the latest income-tax return would deny the employer of an opportunity to assess whether the bidder was in a financial position to execute the work. It would not do for the bidder to subsequently come up and suggest that the appropriate document had been mistakenly left out and the court should direct the employer to accept the document at a subsequent stage.
Since it does not appear that upon the petitioner company's failure to submit its latest income-tax return in terms of Clause-(j) of the first page of the tender documents the petitioner company's bid could have crossed the technical stage, it is unnecessary to go into the grounds urged by the petitioners in support of the contention that the disqualification of the petitioner company on account of the petitioner company having been dislisted or debarred or blacklisted by other government organisations or municipalities was without basis and would betray the hostile discrimination of KMDA or other State bodies towards the petitioner company.
No affidavits have been called for in view of the paucity of time following the appellate order coming to the notice of this court.
CAN 6456 of 2013 has been filed by one of the other bidders. Such other bidder, Electrosteel Castings Limited, has been heard and CAN 6456 of 2013 is allowed by directing Electrosteel Castings Limited to be impleaded as a respondent to the present proceedings. The name of Electrosteel Castings Limited should be included in the cause title by advocate for the petitioners in the presence of an officer of court in course of the day.
WP No. 15620 (W) of 2013 fails on the ground of the petitioner company not having submitted its latest income-tax return along with its bid, notwithstanding the lurking suspicion that the employer in this case may have been biased against the petitioner company.
There will be no order as to costs.
Urgent certified photocopies of this order, if applied for, be given to the parties upon compliance of the requisite formalities.