Pathak Engineering Corporation And Anr vs. State Of West Bengal And Ors.

Held

The Court held that the appellants lacked the locus standi to maintain the writ petitions because they did not participate in the tender process. While the issue of locus standi was not raised before the learned Single Judge, the Court permitted its argument by the respondents as it is a point of law. The Court found the argument successful, stating that not having participated, the appellants had no legal right to assail the tender process. Regarding the merits, the Court noted that the learned Single Judge had negated the petitioners' contentions about missing documents, observing that KMC relied on its database of previously submitted documents. The Court also addressed the argument about fewer than three eligible bidders, stating that even if this were true, it would not per se nullify the tender process, especially for a public utility service, citing Uflex Limited. The Court found no irregularity or procedural impropriety in KMC’s decision to award the contract to Universal, and no case of relaxation of tender conditions in favour of Universal was made out. The Court concluded that none of the established grounds for challenging a tender process were available to the appellants.

Facts

The Kolkata Municipal Corporation (KMC) floated a tender for the supply and delivery of liquid chlorine for the financial year 2023-24, with an estimated value of Rs. 4,22,50,158. The eligibility criteria included possessing a valid PAN, GSTIN, professional tax returns, a trade license (if applicable), and credentials for similar completed works. The tender also required bidders to have a valid explosive license and the L1 bidder to submit an authorization certificate from the manufacturer. Three parties participated: Universal Mineral Corporation (Universal), Rishikesh Chem (Rishikesh), and SSS Enterprises (SSS). Universal emerged as the L1 bidder. Rishikesh had previously challenged the tender process, which was dismissed by a learned Single Judge and subsequently by a Division Bench of this Court. After Universal was awarded the work order, the appellants, Pathak Engineering Corporation & Anr., filed two writ petitions challenging the same tender process. These writ petitions were dismissed by a learned Single Judge, leading to the present appeals.

Key Issues

1. Whether the appellants have the locus standi to challenge the tender process, not having participated in it, and if so, whether the respondent’s contention regarding locus standi is legally sustainable, turning on the principles of administrative law and Article 226 of the Constitution of India. 2. Whether the tender process was irregular due to the alleged non-submission of statutory documents by the participating bidders, and if the condition of having at least three eligible bidders was violated, requiring a fresh tender, as argued by the appellants based on a notification dated April 24, 2014. Contentions: Appellants: Argued that none of the three participants qualified at the technical bid stage due to non-submission of statutory documents. They relied on a Finance Department notification requiring a fresh tender if fewer than three bidders qualify technically. They also contended that if KMC had intended to relax NIT conditions, they could have participated, thus alleging a violation of Article 14 of the Constitution. They cited Monarch Infrastructure (P) Ltd., W.B. State Electricity Board, and Ramana Dayaram Shetty decisions. Revenue/State (KMC): Contended that there was no irregularity and that SSS possessed a valid trade license. They argued that the appellants were set up by SSS and Rishikesh and lacked locus standi as they did not participate in the tender, citing Subir Ghosh, Mahalakshmi Engineering Works, Praxair India Private Limited, and Sri Durga Enterprises decisions. They also submitted that the work order was issued in favour of Universal.