w w w . L a w y e r S e r v i c e s . i n



Biswanath Paul v/s The West Bengal Agro Industries Corporation Ltd. & Others


Company & Directors' Information:- WEST BENGAL AGRO-INDUSTRIES CORPN LTD [Active] CIN = U29211WB1968SGC027349

Company & Directors' Information:- BENGAL INDUSTRIES PRIVATE LIMITED [Active] CIN = U74899DL2001PTC110177

Company & Directors' Information:- PAUL INDUSTRIES INDIA PVT LTD [Strike Off] CIN = U29307WB1988PTC043909

Company & Directors' Information:- BISWANATH INDUSTRIES PRIVATE LIMITED [Active] CIN = U51909CT2020PTC010152

Company & Directors' Information:- INDUSTRIES CORPN OF BENGAL LTD [Strike Off] CIN = U17111WB1940PLC010029

    G.A. 831 of 2012 in W.P. 1 of 2011 (Original Side)

    Decided On, 28 June 2012

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DIPANKAR DATTA

    For the Petitioner: Amitava Ghosh, Navojit Mukherjee, Nirupam Sarkar Advocates. For the Respondents: R1 to R3, Joydeep Kar, Mrs. Sarmila Das, R4, Saktinath Mukherjee, Ayan Banerjee, Anirban Das, Advocates.



Judgment Text

1. West Bengal Agro Industries Corporation Ltd. (hereafter the Corporation) issued Tender Notice No. 23 of 2010-11 on September 9, 2010 for supply of various articles, viz. Set-I to Set-VI, Quadruped Sets, Tripod Sets, Column Pipes, Supporting Clamps, Bends, Flanged E.R.W. Pipes & Flanges (hereafter the said articles). The tenderers were called upon to submit various documents with the tender papers, failing which the tenders would stand rejected. Under clause 5(i) of the instructions forming part of

Annexure A to the notice inviting tender, it was provided as follows:

'In case of Manufacturer as Tenderer, past Performance of satisfactory supplying of any tender item/s should be at least Rs. 50.00(fifty) Lakhs in a single supply order during the last 5 years to W.B. Agro Industries Corpn. Ltd./Water Resources Investigation and Development Department or in other Govt.

Departments/Govt. Undertakings and proof of such past performance to be submitted with the Tender.

In case of a Tenderer other than Manufacturer, above mentioned satisfactory completion of supplying of any tender item/s is required both for the Tenderer and his Manufacturer to W.B. Agro Industries Corpn. Ltd/Water Resources Investigation and Development Department or in other Govt. Departments/Govt. undertaking & proof of such past performance to be submitted with the Tender. In case of failure in producing the above mentioned proof of such past performance, the Tender will not be considered.' (underlining in original)

2. The petitioner carries on business under the trade name 'B.N. Paul & Co.' It is claimed by him that he manufactures the said articles, supply whereof was sought for by the Corporation by issuing the said tender notice. Considering himself to be eligible to participate in the tender process since he fulfilled the criteria mentioned in the first part of the aforesaid extract of clause 5(i), he had responded to the said notice. The tender evaluation report prepared by the officials of the Corporation records that the tenderer B.N. Paul & Co. did not submit required credentials as per tender termsnd, therefore, was treated as informal tenderer.

3. The decision of the Corporation to exclude the petitioner from the zone of consideration of eligible tenderers is the subject matter of challenge in this writ petition.

4. Mr. Ghosh, learned advocate appearing for the petitioner contended that articles manufactured by him are being supplied by two other firms to the Corporation viz. Balaji Uddyog and Bikash Enterprise, and since they have been treated as eligible tenderers on evaluation of their tenders in terms of the second part of clause 5(i) of the instructions to tenderers, the decision of the Corporation to exclude the petitioner is absolutely illegal, arbitrary and unreasonable.

5. Attention of the Court has been drawn to work orders issued by the Corporation in the past in favour of Balaji and Bikash and the quality assurance certificates issued by the Directorate of Quality Assurance certifying that the articles for supply of which work orders had been placed on Bikash as well as Balaji were manufactured by the petitioner and were of appropriate quality and the petitioner having supplied articles, the total value of which exceeds the figure of 'Rs. 50 lakh in a single supply order during the last five years', he was entitled to participate in the process of tender.

6. Mr. Ghosh, accordingly, prayed for an order to quash the process of tender and for further order directing the Corporation to consider the petitioner eligible for participation in the tender process and to proceed according to law.

7. Answering the contentions of Mr. Ghosh, it was contended on behalf of the Corporation by Mr. Kar, learned advocate that the petitioner was never ntrusted with the work of supplying articles of the nature for which the tender notice had been issued and, therefore, was not eligible in terms of the first part of clause 5(i), extracted supra. He further submitted that Balaji and the petitioner and again Bikash and the petitioner were considered to comprise separate units, they having fulfilled the eligible criteria and, therefore, both Balaji and Bikash were considered eligible to participate in the tender process. According to him, there has been no illegality on the part of the Corporation to exclude the petitioner from the zone of consideration and the grievance expressed by him is misconceived.

8. Mr. Mukherjee, learned senior advocate representing the respondent no. 4, the tenderer selected for supplying majority of the said articles, supported the stand of the Corporation and submitted that no case for interference had been set up by the petitioner.

9. I have heard learned advocates for the parties and considered the tender terms and conditions, in particular clause 5(i) extracted supra.

10. The petitioner intended to participate in the tender as a manufacturer whereas Balaji and Bikash intended to participate in collaboration with the petitioner. The eligibility criteria mentioned in the second part of clause 5(i) were satisfied both by the supplier (Bikash/Balaji) and the manufacturer (petitioner). This led to the decision that both Bikash and Balaji had qualified to be treated as eligible tenderers. However, in order to be qualified in the capacity of a manufacturer, it was obligatory for the petitioner to produce documents to prove that single supply order had been placed upon him during the last five years for at least Rs.50 lakh in respect of supply of the articles for which the tender notice had been issued. There could not have been automatic qualification of the petitioner as manufacturer only because he was part of two separate units comprising Bikash and Balaji,

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who had qualified in terms of the second part of clause 5(i). Since the petitioner has not been able to prove that he had been independently entrusted with the work of supply of the said articles, he did not satisfy the eligibility criteria and was thus rightly excluded from the zone of consideration. 11. The writ petition is devoid of merit. It stands dismissed without costs. 12. In view of the above, nothing survives for decision in the application for interim order. The same also stands dismissed. Urgent photostat certified copy of this order, if applied for, shall be furnished to the applicant at an early date.
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