Jai Prakash Gaggar vs. The Bodoland Territorial Council And 4 Ors
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The petitioner, Jai Prakash Gaggar, proprietor of M/s Prakash Enterprise, challenged the rejection of his technical bids for package Nos. 4 and 5 in an Invitation for Bids (IFB) dated February 15, 2022, floated by the Director of Health Services, Bodoland Territorial Council (BTC). The bids were for the supply of various items under the SOPD Fund. The petitioner's technical bids were rejected by the Bid Tender Committee on March 7, 2022, on the grounds that the Trade License submitted did not match the additional office address mentioned in the GST Registration Certificate. The petitioner contended that this rejection was arbitrary and done to favor other bidders, and that the IFB did not mandate such address matching. The BTC authorities argued that the discrepancy in addresses constituted a valid ground for rejection.
Held
The Court held that the rejection of the petitioner's technical bids was not arbitrary. The petitioner himself submitted documents with different addresses in his Trade License and GST Registration Certificate. The Trade License address was "Ward No. Nil, Athgaon, P.S.- Bharalumukh, Sub-Division-Kamrup (Metro)" issued on February 23, 2022, while his GST Registration Certificate reflected the Principal Place of Business as "Ground Floor, Shop No. 2, M. B. Market, A.T.Road, Bharalumukh, Kamrup, Assam 781109" issued on September 23, 2017, with additional places of business. The Court found that the Bid Tender Committee's action in rejecting the bids due to these discrepancies was reasonable and not arbitrary. The Court also noted that the petitioner's claim of bias due to other bidders not meeting turnover criteria was baseless as the petitioner himself failed to meet eligibility criteria by submitting inconsistent documentation. The Court reiterated that judicial review in tender matters is limited to examining irrationality, unreasonableness, arbitrariness, malafide, and bias, and that the Court should refrain from imposing its decision over the employer's decision on bid acceptance. The interim order of status-quo was vacated.
Key Issues
1. Whether the rejection of the petitioner's technical bids for package Nos. 4 and 5 was arbitrary and unreasonable, violating principles of fairness and non-arbitrariness under Article 14 of the Constitution, considering the alleged discrepancy between the Trade License and GST Registration Certificate addresses? (Question of law and mixed fact and law, turning on the interpretation of tender conditions and principles of judicial review in tender matters). Petitioner's arguments: The petitioner argued that the IFB did not require the addresses on the Trade License and GST Registration Certificate to match. He contended that his Trade License, issued on February 23, 2022, had a different address than his GST Registration Certificate, which was issued earlier. He claimed this was a minor discrepancy that the purchaser could waive as per Clause 22(3) of the Instructions for Bidders. He also alleged that other bidders with less than the minimum annual turnover requirement of 100 Lakhs were not rejected, indicating bias. He relied on Clause 22 of the Instructions for Bidders. Revenue/State's arguments: The respondent BTC authorities argued that the discrepancy in addresses between the Trade License and the GST Registration Certificate was a valid ground for rejecting the technical bids. They relied on Clause 14(18) of the Instructions for Bidders, which mandates submission of GST Certificate and Trade License as supporting documents. They also clarified Clause 14(3) regarding the annual turnover requirement.
Sections Cited
Section 14(3), Section 14(18), Section 22(3)
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORDER 20-05-2022 Heard Mr. U.K. Nair, learned Senior counsel assisted by Mr. D. Gogoi, learned counsel for the petitioner and Mr. D. Saikia, learned Advocate General Assam assisted by Mr. S. Bora, learned Standing counsel, BTC for the respondent Nos. 1 & 2. Also heard Mr. B.D.Das, learned Senior counsel assisted by Mr. H.K. Sarma, learned counsel for the respondent Nos. 4 & 5. 2) The Director of Health Services, BTC, Kokrajhar vide No. DHS/BTC/M&MS/ 158/374 dated 15.02.2022 floated Invitation For Bids (IFB) inviting online bids from eligible Suppliers/Dealers/Distributors of BTR (Bodoland Territorial Region) for supply of several items under SOPD Fund (State-Owned Priority Development Fund) including furniture, machinery & equipment, surgical items, linen and mosquito nets to be supplied to different institutions across the BTR under Grant No. 78 under 11 (eleven) different packages. In terms of the said IFB dated 15.02.2022, the last date for submission of bids was 28.02.2022. 3) The Bid Tender Committee headed by the Director of Health Services, BTC, Kokrajhar on 07.03.2022 opened the Technical Bids where the bids of the petitioner for the package Nos. 4 and 5, respectively were rejected on the ground that the Trade License submitted by him did not match with the additional Office Address mentioned in the GST Registration Certificate. 4) On 08.03.2022, the Financial Bids of the bidders participated in terms of the said IFB dated 15.02.2022 were opened and in respect of the packages in which the petitioner had participated, the respondent No. 5 was selected as the L-1 Bidder for the package No. 4, whereas the respondent No. 4 was selected as the L-1 Bidder for the package No.
Petitioner stated that as per the status shown on the e-Tendering portal of the Government of Assam (www.assamtenders.gov.in) as on 09.03.2022 though the Financial Bids were opened but they were yet to be evaluated and contracts were yet to Page No.# 3/8 be awarded. 5) The petitioner being aggrieved with such action of the respondents in the Directorate of Health Services, BTC, Kokrajhar, praying amongst others (i) to set aside and quash the impugned minutes of the meeting dated 07.03.2022 of the Bid Tender Committee to the extent that relates to the rejection of the Technical Bids of the petitioner in respect of package Nos. 4 & 5 of the IFB dated 15.02.2022, (ii) to recall/rescind/forebear from giving effect to the impugned minutes of the meeting dated 07.03.2022 of the Bid Tender Committee to the extent that relates to the rejection of the Technical Bids of the petitioner in respect of package Nos. 4 & 5 as well as subsequent and consequential actions thereto and (iii) to issue directions to the respondent authorities to reconsider the Technical Bids of the petitioner and thereafter, finalize the tender process initiated vide IFB No. DHS/BTC/M&MS/158/374 dated 15.02.2022 in favour of the petitioner for package Nos. 4 & 5, respectively, with an interim prayer directing the respondent authorities not to finalize the tender process initiated by the Director of Health Services BTC, Kokrajhar vide IFB dated 15.02.2022. 6) The contention of the petitioner is that as per the said IFB dated 15.02.2022, there was no such requirement in the tender documents that the address reflected in the Trade License must also be reflected in the GST Registration Certificate. All that the tender document mandated was that a tenderer must have a GST Registration Certificate as well as a Trade License in BTC and since the Trade License of the petitioner was issued on 23.02.2022, therefore, the said address was not reflected in the GST Registration Certificate. The petitioner stated that purely on flimsy ground with the intent to ensure that the bids of the petitioner were rejected at the technical stage itself so that the tender process can be finalized in favour of the blue eyed boys of the respondent authorities. 7) The petitioner also stated that had its bids were accepted by the respondent authorities it would have emerged as the lowest bidder in respect of those two packages and that as per his information several bidders in terms of the said IFB dated 15.02.2022 who had been held to be technically qualified did not even meet the minimum eligibility criteria of having an annual turnover of not less than 100 (one hundred) Lakhs as per their audited balance sheet for the last three years of 2018-19, 2019-20 & 2020-21. 8) The petitioner submitted that only to give undue advantage to the private respondents, the respondent authorities deliberately rejected the technical bids of the petitioner in respect of package Nos. 4 & 5, respectively, with regard to the IFB dated 15.02.2022 merely on the ground of discrepancy in the address in the Trade License and the GST Registration Certificate submitted by him.
Page No.# 4/8 In that regard, the petitioner annexed the copy of the Trade License as well as the GST Registration Certificate of the respondent No.3 that indicated different addresses in the Trade License as well as the GST Registration Certificate; Annual turnovers of the respondent Nos. 4 & 5 for the years 2018- 19, 2019-20 & 2020-21 which are less than 100 Lakhs per year. 9) The petitioner also submitted that Clause 22 of the Instruction for Bidders relating to said IFB dated 15.02.2022 relates to “Preliminary Examination” and Clause 22 (3) of the said Instruction for Bidders clearly provides that – The purchaser may waive any minor information or non-conformity or irregularity in a bid which does not constitute a materials deviation, provided such a waiver does not prejudice or affect the relative ranking of any Bidder. The petitioner stated that though the respondent authorities waived certain deviations or irregularities in the bid documents of the respondent Nos. 3 to 5, where Annual turnover of those two bidders/firms were less than 100 Lakhs during the last three Financial Years of 2018-19, 2019-20 & 2020-21; but rejected the technical bids of the petitioner for such minor and irregular defects in his Trade License and the GST Registration Certificate. The petitioner stated that Annual turnover of 100 Lakhs during the last three years means annually 100 Lakhs during the last three years. 10) The Court on 10.03.2022, while directing the respondent authorities to submit their affidavit in the matter and fixed the matter on 14.03.2022, in the interim, observed that till then, i.e., 14.03.2022, parties to the proceeding shall maintain status-quo as on said date, i.e., 10.03.2022 with regard to the supply of package Nos. 4 & 5, respectively, pertaining to the said IFB dated 15.02.2022 and the said interim order dated 10.03.2022 is still in force. 11) The respondent BTC authorities filed an affidavit in the matter on 13.05.2022 clarifying its stand that as per Clause 14 (3) of the Instruction for Bidders under the heading of ‘Terms and Conditions’ issued by the office of the Director of Health Services, BTC, Kokrajhar to the said IFB dated 15.02.2022, provides for the Annual turnover of the firm should not be less than 100 Lakhs during the last three years as per the Audited Balance Sheet of the years 2018-19, 2019-20 & 2020-21. 12) In the said affidavit, the respondent BTC authorities also clarified that Clause 14 (18) of the Instruction for Bidders under the heading of ‘Terms and Conditions’ issued by the office of the Director of Health Services, BTC, Kokrajhar to the said IFB dated 15.02.2022, provided that the technical bid should be supported by certain [17 (seventeen)] documents mentioned therein including GST Certificate (at No. 4) and Trade License in BTC (at No. 5).
Page No.# 5/8 13) The respondent BTC authorities stated that in terms of the said IFB dated 15.02.2022, the petitioner was required to submit its principal of business. Though the petitioner submitted its Trade License and GST Registration Certificate but it was rejected that the address on the Trade License does not match with the GST Registration Certificate and with his additional place of business. The respondent authorities stated that in view of not matching the address of the petitioner with his Trade License and additional place of business, his tender was rejected by the committee during the technical evaluation and he was considered as disqualified. The respondent authorities in the BTC clarified that the respondent No. 3 did not participate in the bidding process for package Nos. 4 & 5. The respondent BTC authorities stated that it has acted most reasonably and fairly in rejecting the bids of the petitioner that were accompanied by defective documents relating to his Trade License as well as GST Registration Certificate that are vital and essential documents for consideration of bids that contained different addresses in both the documents, which lead to disqualification of his bids for such discrepancies, noted above. The respondent BTC authorities stated that it acted justifiably in rejecting the defective bids (technical) of the petitioner as disqualified in respect of package Nos. 4 & 5 of the IFB dated 15.02.2022. 14) The respondent BTC authorities also stated that the Director of Health Services, BTC, Kokrajhar issued Work Order to the respondent No. 4, i.e., M/s J.S. Enterprise, Kokrajhar (i) vide Memo No. DHS/BTC/M&Ms/158/867 dated 09.03.2022, for procurement of Materials & Surgical Items and Linen etc. for use in different health institutions of Kokrajhar district in BTR and (ii) vide Memo No. DHS/BTC/M&Ms/158/860 dated 09.03.2022 issued Work Order to the respondent No. 5, i.e., M/s M.M. Enterprise, Kokrajhar, for procurement of Materials & Surgical Items and Linen etc. for use in different health institutions of Chirang district in BTR relating to the packages 4 & 5, respectively, pertaining to the IFB dated 15.02.2022, noted above. 15) The respondent Nos. 4 & 5 have filed the connected Interlocutory Application being I.A.(C) No. 1002/2022 in the present proceeding praying to vacate the interim order dated 10.03.2022 passed earlier in this proceeding praying further before the Court to allow those respondents to supply the hospital items as per the work orders dated 09.03.2022 in respect of package Nos. 4 & 5, respectively, pertaining to the IFB dated 15.02.2022, noted above. Mr. B.D.Das, learned Senior counsel appearing for the respondent Nos. 4 & 5 contended assuming but not admitting that even if an incorrect relaxation was granted to the respondent Nos. 4 & 5 by the respondent authorities, the petitioner cannot claim negative equality as the petitioner himself furnished certain supportive documents along with his bids that were found not satisfactory by the respondent authorities.
Page No.# 6/8 16) The petitioner in the writ petition itself has given the Tender Schedule along with the IFB dated 15.02.2022 issued by the Director of Health Services, BTC, Kokrajhar which reflects the date of publication of tender along with its time; the start date and the start time regarding the downloading of tender with the end date and the end time; the start time and date for seeking clarification as well as the end date and time in that regard; the start time and the date of submission of bids with the end time and the end date for that purpose and the start time and date of technical bids opening that was fixed at 03:30 pm on 28.02.2022. 17) The petitioner has also annexed the minutes of the Bid Tender Committee dated 07.03.2022 headed by the Director of Health Services, BTC, Kokrajhar as the Chairman of the said committee with four other members in the said committee specifying the reasons for rejection of the technical bids of the petitioner with regard to his tender for the package Nos. 4 & 5, respectively, pertaining to the IFB dated 15.02.2022 after evaluating the tenders in that regard. 18) The Hon’ble Apex Court in catena of decisions relating to tenders/bids have settled the law that the limited question with regard to tenders/bids, the High Court in exercise of its power of judicial review is required to examine as to whether the decision or the decision-making process of the committee relating to rejection of tender/bid of a tenderer/bidder was irrational, unreasonable, arbitrary, malafide and bias. If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, the interference by the Court is very restrictive since no person can claim fundamental rights to carry on business with the Government. 19) The Hon’ble Supreme Court in the case of Michigan Rubber (India) Ltd. Vs- State of Karnataka and Others reported in (2012) 8 SCC 216 while dealing with the scope of interference by the High Court in exercise of the powers under Article 226 of the Constitution of India held that – the basic requirement of Article 14 is fairness in action by the State and non-arbitrariness is essence and substance, being exercised within the purview of judicial review only to the extent that the State must act variedly for a discernible reason, not whimsically for any ulterior purpose. If the State acts within the bounds and reasonableness, it would be legitimate to take into consideration the national priorities. For fixation of a value of the tender is entirely within the purview of the Executive and Courts hardly have any role to play in the process except for striking down such action of the Executive as it proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding contracts by inviting tenders, the scope of interference by the Courts is very limited.
Page No.# 7/8 20) It is settled that equality is a concept of positivity and if an illegality has been committed, the same cannot be perpetuated or permitted to be repeated on the touchstone of Article 14 of the Constitution of India. It is well settled that there is no concept of negative equality under Article 14 of the Constitution of India and in case a person has right, he/she has to be treated in equality, but where right is not available to a person he/she cannot claim rights to be treated equality. 21) In the case in hand, it is the petitioner who had furnished his GST Certificate and Trade License as the supporting documents to his bids relating to the packages 4 & 5, respectively, and from the annexures annexed by the petitioner itself in his writ petition, it can be seen that the address in his Trade License is Ward No. Nil, Athgaon, P.S.- Bharalumukh, Sub-Division-Kamrup (Metro) and the address of his premise was simply Ward No. 7, Holding No. 128 that was issued by the Kokrajhar Municipal Board on 23.02.2022 whereas his GST Registration Certificate reflects the address of Principal of Place of Business (PPB) as- Ground Floor, Shop No. 2, M. B. Market, A.T.Road, Bharalumukh, Kamrup, Assam 781109 that was issued on 23.09.2017 with two additional places of business in the State at Ward No. 6 near ISBT bus stand, N.H. 37 Kotabari, Kamrup and at Central Point Building, G.S.Road, Bora Service, Guwahati. 22) When there was two different addresses in his GST Registration Certificate and Trade License in BTC, that were submitted by the petitioner himself along with his bids as supporting documents in terms of the IFB dated 15.02.2022 and the committee concerned while opening the technical bids of the petitioner found those discrepancies, and accordingly, rejected his technical bids, the said action of the respondent authorities in the BTC cannot be termed as arbitrary. It is also not the case of the petitioner that in his GST Registration Certificate and Trade License in BTC did not contain different addresses, which he had submitted as the supporting documents with his bids and it is well settled that the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer/bidder. 23) Though the petitioner stated that his tenders were rejected only to give benefit to the blue eyed boys of the respondent authorities but it is found that the petitioner/tenderer himself did not fulfill the eligibility condition by submitting two different addresses reflected in the Trade License and in the GST Registration Certificate as the supporting document of his bids and therefore, such claim of the petitioner is found to be baseless. 24) For the reasons above and considering the entire aspect of the matter, this Court found no merit in this petition preferred by the petitioner and accordingly, stands dismissed.
Page No.# 8/8 25) Consequently, the interim order of status-quo as on that date relating to supply of package Nos. 4 & 5, respectively, pertaining to IFB dated 15.02.2022 issued by the Director of Health Services, BTC, Kokrajhar, noted above, passed earlier on 10.03.2022 in the present proceeding, stands vacated/hereby recalled.
JUDGE Comparing Assistant
Reproduced from the public record of the Gauhati High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.