1. This writ application under Article 226 of the Constitution of India has been filed to challenge selection of the respondent No. 3 for their participation in 'price bid' for settlement of 'packaged tea sales shop in the security hold area at LGBI Airport', Guwahati.
2. Heard Sri S K Kejriwal, learned counsel for the petitioner. Also heard Sri R Dubey, learned counsel for Airport Authority of India (respondent Nos. 1 and 2) as well as Sri I Choudhury, learned counsel for the respondent No.3.
3. Sri Kejriwal, learned counsel for the petitioner submitted that though the respondent No. 3 did not fulfill the requisite qualifications for their participation in the NIT the said respondent has been cleared of technical bid and they have been allowed to participate in 'financial bid'. It may be mentioned here that in the meanwhile, the respondent No. 1 has already issued a letter of acceptance of the tender of the respondent No. 3, vide letter dated 29.03.2012, since the offer of respondent No. 3 was found to be highest.
4. The writ petition virtually revolves around the eligibility criteria prescribed in Clause-3 of the NIT. The saidcriteria are reproduced below:
'3.0. The parties fulfilling the following criteria are eligible to participate in the tenders:
a. The party should have minimum of 03 years’ experience in operating such/similar shops facility in a Airport, city mall, railway stations/terminus, ferry/ship terminus, bus terminus in mall –cum- parking roads of railway stations or us terminus etc.'
5. Referring to the documents submitted by respondent No. 3, along with its tender, Sri Kejriwal, learned counsel submitted that the said respondent did not have any shop in any airport or city mall etc. for any period of time and, as such, the respondent No. 3 was not eligible to participate in the bid at all. According to the learned counsel, the respondent No. 3, at best, was doing in the trading of packaged tea in the open market. However, this will not fulfill the stipulation laid down in the NIT. The learned counsel also submitted that as per the general guidelines a bidder was required to have service tax registration since opening of packaged tea shop in the airport is a kind of service to the airport authority and under Clause -4 of the License Agreement the licensee shall be bound to pay service tax etc., as may be leviable by the authority. According to the learned counsel for the petitioner, since the respondent no 3 did not have sales tax registration its tender should have been rejected outrightly.
6. Mr. Kejriwal, learned counsel also referred to the judgment of the Apex Court rendered in the case of W.B. State Electricity Board –Vs- Patel Engineering Co. Ltd and Others; (2001) 2 SCC 451 to urge that the purpose of incorporating instructions in the NIT is to ensure their strict enforcement in order to uphold the rule of transparency and fairness and rule out the possibility of twisting the instructions or Clauses of the NIT to favour a particular party. On the basis of the aforesaid authority the learned counsel for the petitioner also submitted that there is no obligation to award contract to the lowest bidder (in the present case highest bidder). To buttress his argument about rigorous interpretation of the stipulations laid down in the NIT the learned counsel also cited a judgment of the Gauhati High Court, given in the case of Bimal Das –vs- AFDC; 2011 (2) GLT 389.
7. Per contra, Sri Choudhury, learned counsel for the respondent No. 3, submitted that the private respondent is engaged in selling packaged tea for about 34 years in the open market and it was not mandatory for the bidders to have sold packaged tea in an airport, railway station and mall etc. According to the learned counsel, the word ‘etc’ mentioned in the Clause 3 (a) of the NIT should be interpreted liberally to open the bidding to wider group of shopkeepers. According to the learned counsel the word ‘etc’ has been used in the NIT for healthy competition and to rule out monopoly of a few shopkeepers. The learned counsel for respondent No. 3 also contended that the High Court should be slow and circumspect in interfering with the settlement process so long it is fair, transparent and does not suffer from any kind of favouritism or biasness.
8. Mr. I. Choudhury, learned counsel for the respondent No.3 also submitted that the courts have limited power to interpret the Clauses of the NIT. Referring to the judgment in the case of GJ Fernandez –Vs- State of Karnataka; (1990) 2 SCC 488 the learned counsel submitted that if the settling authority has interpreted Clause 3(a) in a broader sense the court cannot give a narrow meaning to the said Clause to hold that the traders, engaged in the sale of packaged tea, should have been excluded from participating in the NIT.The relevant observations of their Lordships are reproduced below:
'Secondly, whatever may be the interpretation that a court may place on the N.I.T, the way in which the tender documents issued by it has been understood and implemented by the K.P.C. is explained in its "note", which sets out the general procedure which the K.P.C. was following in regard to N.I.T.s issued by it from time to time. Para 2.00 of the "note" makes it clear that the K.P.C. took the view that para I alone incorporated the "minimum prequalifying/eligibility conditions" and the data called for under para V was in the nature "general requirements". It further clarifies that while tenders will be issued only to those who comply with the prequalifying conditions, any deficiency in the general requirements will not disqualify the applicant from receiving tender documents and that data regarding these requirements could be supplied later. Right or wrong, this was the way they had understood the standard stipulations and on the basis of which it had processed the applications for contracts all along. The minutes show that they did not deviate or want to deviate from this established procedure in regard to this contract, but, on the contrary, decided to adhere to it even in regard to this contract. They only decided, in view of the contentions raised by the appellant that para V should also be treated as part of the prequalifying conditions, that they would make it specific and clear in their future N.I.T.s that only the fulfillment of prequalifying conditions would be mandatory. If a party has been consistently and bona fide interpreting the standards prescribed by it in a particular manner, we do not think this Court should interfere though it may be inclined to read or construe the conditions differently. We are, therefore, of opinion that the High Court was right in declining to interfere.'
'……………… Assuming for purposes of argument that there has been a slight deviation from the terms of the NIT, it has not deprived the appellant of its right to be considered for the contract; on the other hand, its tender has received due and full consideration. If, save for the delay in filing one of the relevant documents, M.C.C. is also found to be qualified to tender for the contract, no injustice can be said to have been done to the appellant bythe consideration of its tender side by side with that of the M.C.C. and in the K.P.C. going in for a choice of the better on the merits. The appellant had no doubt also urged that the M.C.C. had no experience in this line of work and that the appellant was much better qualified for the contract. The comparative merits of the appellant vis-a-vis M.C.C. are, however, a matter for the K.P.C.(counselled by the T.C.E.) to decide and not for the Courts. We were, therefore, rightly not called upon to go into this question.'
9. I fully endorse the submissions of the learned counsel for the petitioners that the terms and conditions of the NIT should be interpreted in such a manner that there is no deviation from the stipulations. However, all would depend upon the language of the stipulations. If the language of terms and conditions of the NIT is ambiguous the theory of ‘liberal interpretation’, and not the theory of ‘inflexible rule’, would be applicable. However, if there is no ambiguity, the tendering authority cannot be allowed to dilute the conditions of the NIT to any extent.
10. In the Case of Indian Railway Catering Tourism Corporation Ltd. –Vs M/s. Doshion Veolia Water Solutions (P)Limited & Ors., reported in (2010) 13 SCC 364, the tender of a party (M/s Ion Exchange India Ltd) was accepted taking into consideration 1% discount offered in the bid although there was no such scope to submit a conditional tender. The award of the contract of M/s Ion Exchange was upheld by the Apex Court on the ground that there was no clear stipulation in the instructions for bidding or in the special terms and conditions that no tenderer shall offer any discount on the prices quoted by them in the tender and if any such discount is offered the tender will be rejected. In this way, the terms and conditions of the NIT were readdown liberally in favour of the lowest bidder.
11. The judgment of the Patel Engineering (supra) stands on different footing. In that case, the respondents No.1 to 4 wrote to the Electricity Board that there was a repetitive systematic computer typographical transformation failure on account of which there were errors in their bid and requested the Electricity Board to correct the errors. When this request was turned down, the writ petition was filed in the High Court and the Electricity Board was directed to consider the representation of the respondents and to communicate a reasoned order to them. The Board was further directed to take a decision objectively and rationally. On these facts, the High Court’s direction to the Electricity Board to consider the representation of the respondents to correct the bid prices was set aside observing that the instructions of the NIT should be scrupulously adhered to and the instructions cannot be given a total go-bye.
12. Coming to the case at hand, I find that the wordings of Clause 3 (a) in the NIT have been loosely drafted. There is no negative stipulation that the tender of the traders, who are dealing with in packaged tea in the open market, shall be out of consideration.
13. As per the Concise Oxford English Dictionary the word 'etcetera' means other similar things; and so on and unspecified extra items. In my considered opinion while inserting the word 'etcetera' in Clause 3(a) of th
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e NIT the airport authority must have in its mind that the tenders/bids should not be limited only to those persons who are operating/running similar shops in an airport, railway station, city mall, bus terminus etc. 14. There is no dispute by the writ petitioner that the respondent No.3 is engaged in selling and packaging tea. On the other hand, respondent No.3 has submitted relevant documents to show that they are engaged in selling of packaged tea since a long period although the NIT requires only three years experience in the business. Besides this, the offer of the respondent No.3 was found to be highest. Under such circumstances, it cannot be held that the acceptance of the technical bid of the respondent No.3 was clearly against the terms and conditions of the NIT. I would like to add here that, in the meanwhile, the offer of the respondent No.3 has already been accepted vide letter dated 29.3.2012 and the said order has not been challenged by the petitioner. 15. For the forgoing reasons, I hold that it is not a fit case to interfere in the tender process. Consequently it is dismissed. However, both the parties shall bear their own cost of this case.