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Judgment
Saugata Bhattacharyya, J
This intra court appeal is presented questioning the order and judgment dated 24th March, 2015, passed by the Ld. Single Judge whereby the propriety of the decision directing the appellants herein to pay 10 per cent of the contract value of the tender as damages has been challenged. The appellants were directed to pay to the writ petitioners/respondent Nos. 1 and 2 Rs. 61,92,514/- being 10 per cent of the contract value within 12 weeks of the communication of the order of the Ld. Single Judge.
The Kolkata Municipal Corporation (hereinafter KMC) floated a notice inviting tender being no. KMC/CICMP(S)/48/A 179/2014-2015 for supply of DI (ductile iron) pipes which was valued at Rs. 6,19,25,138 (six crores nineteen lacs twenty five thousand one hundred thirty eight only) whereunder bids were invited from the eligible tenderers for appraisal of their credentials for offering the work order. Clause 6 of the eligibility criteria under the notice inviting tender contains a clause which is quoted below-
"6. A declaration in the form of an affidavit on stamp paper of Rs.10 duly attested by a notary should be submitted as per format given in the proforma I stating that the appellant is not debarred/de-listed/blacklisted by in any Govt/Government undertaking/Municipal Corporation in respective pipe supply tender at the time of submission of bid.
Only such blacklisting, which has been ordered by an officer, not below the rank of an Executive Engineer will be relevant to this context.
In case the bidder suffers from any blacklisting/debarment by any Govt/undertaking (Govt)/ Municipal Corporation in respective pipe supply tender at the time of submission of bid, he will not be eligible to participate in the tender."
(Emphasis supplied)
Writ petitioner company pursuant to the said notice inviting tender submitted its bid claiming to be an eligible tenderer in terms of the necessary eligibility criteria including clause 6 as quoted above. As per requirement of said clause 6 an affidavit dated November 28, 2014 was sworn on behalf of the writ petitioners declaring as follows:
"We are not debarred/delisted/blacklisted by any Govt./Government undertaking/Municipal Corporation in respective pipe supply tender at the time of submission of this bid.
We have not made any misleading of false representation in the forms, statements and attachments in proof of the qualification requirements.
We have submitted all the supporting documents and furnished the relevant details as per NIT.
The information and documents submitted with the tender by us are correct and we are fully responsible for the correctness of the information and documents submitted by us.
We understand that in case any statement/information/document furnished by us is found to be incorrect or false, our EMD in full will be forfeited and Business dealings with us banned".
On scrutiny of the bid along with relevant document which were furnished by the writ petitioner company the appellants herein by issuing memo dated by 1stDecember, 2014 asked the writ petitioners to clarify whether Reshmi Metaliks Ltd., the writ petitioners herein, was not allowed to participate in DI pipe supply tender by the Hyderabad Metropolitan Water Supply and Sewerage Board (hereinafter referred to 'HMWS&SB') as well as by Public Health Engineering Department (hereinafter 'PHED') Rajasthan due to pendency of the criminal cases and blacklisting of the writ petitioners by the Bhatpara Municipality respectively. It was also informed to the writ petitioners that the financial bid was scheduled to be opened 4th December, 2014 therefore the writ petitioners were ask to the respond to the letter of the appellants dated December 1st, 2014 by December 2nd, 2014. The writ petitioner company submitted clarificatory letter dated December 1st, 2014 to the appellants which was not found to be satisfactory as a result thereof bid of respondent No. 4 was accepted upon cancelling the bid of the writ petitioners.
That such purported cancellation of the bid of the writ petitioners even after receipt of clarificatory letter dated December 1st, 2014 triggered 1st writ petition being W.P. No. 1193 of 2014. The said writ petition was disposed of by the Ld. Single Judge upon passing order dated December 17, 2014. Vide Order dated December 17, 2014 passed on the aforementioned writ petition the appellants herein were directed to consider the representation dated December 1st, 2014 of the writ petitioner company in accordance with law and tendering authority was directed to consider the tender to be in the same position as that of its request of clarification issued on December 1st, 2014. The previous steps taken by the tendering authority were set aside. Considering the element of public interest attached to the said tender the appellants were directed to consider and dispose of request of clarification dated December 1st, 2014 of the writ petitioners within 48 hours.
Pursuant to the order dated December 17, 2014 passed by the Ld. Single Judge the Joint Municipal Commissioner of the Kolkata Municipal Corporation, being the appellant no. 2 herein passed an order dated December 19, 2014 whereby the tender submitted by the writ petitioners stood disqualified on application of the clause 6 of the notice inviting tender. The said order dated December 19, 2014 was put under challenge in the connected writ petition. While examining representation of the writ petitioners dated December 1, 2014 the respondent no. 2 chiefly relied upon the fact that vide letter dated June 7, 2013 on behalf of HMWS&SB it was informed that said HMWS&SB rejected certain tenders of the writ petitioner company and also cancelled the work order upon forfeiture of earnest money deposited due to non-disclosure of criminal case pending against the writ petitioners and said HMWS&SB would not allow the writ petitioners to participate in DI pipe supply tender to be floated by the Board till the settlement of the criminal case.
It was stated in the said order dated December 17, 2014 by the appellant no. 2 that challenge was thrown to the said letter dated June 7, 2013 by filing a writ petition being W.P No. 30071 of 2014 before High Court at Andhra Pradesh by the writ petitioners herein which was subsequently withdrawn on 25th July, 2015 thereby the said letter dated June 7, 2013 of the HMWS&SB stood confirmed. Apart from said letter dated June 7, 2013 issued by HMWS&SB the appellant no. 2 took note of letter dated September 12, 2014 which was relied upon by the writ petitioners in their clarificatory letter dated 1st of December, 2014 by which Chief General Manager (Engg) Operation & Main Circle No. III and certified that the writ petitioner participated in recent tender notice dated August 4, 2014 on the e-procurement platform. In addition thereto it was noted in the order of the respondent no. 2 dated December 19, 2014 that in Rajasthan relating to participation in a tender initiated by PHED one stay order dated october 17, 2014 was granted to the writ petitioners which was subsequently vacated vide order dated November 18, 2014 in W.P No. 10872 of 2014. Upon recording the aforementioned facts the respondent no.2 inferred in his decision that the writ petitioners submitted false declaration in the affidavit in terms of clause 6 of the notice inviting tender and based on which the writ petitioners were found to be disqualified.
The appellants have contended that the Ld. Trial Judge overlooked the fact that there was no mention of the letter dated June 7, 2013 issued by the Director (operation) HMWS&SB either in the affidavit affirmed by writ petitioners pursuant to clause 6 or in the letter of clarification dated December 1, 2014 as submitted on behalf of the writ petitioner company and since the said letter revealed rejection of tender of the writ petitioner company and the cancellation of the work order by HMWS&SB and also the decision of HMWS&SB not to allow the writ petitioner company to participate in the DI pipes supply tender, the writ petitioners having not voluntarily disclosed such fact of debarment by HMWS&SB the appellants were justified in rejecting the tender of the writ petitioners. It was also submitted that on holistic consideration of the materials available with the appellants at the relevant time, it could not have been contended or held that the appellants have deliberately or arbitrarily acted in issuing work order in favour of the writ petitioner company albeit being the lowest bidder.
Another limb of submission of the appellants was that even it is assumed for the sake of argument that there had been any breach, the constitutional courts exercising power under Article 226 of the Constitution of India would not be the authority to decide on the quantum of damages as the appellants in such a situation would not able to adduce evidence to show and justify their conduct that the appellants did not act in breach of any terms or has acted unlawfully or illegally. Moreover, the basis of claim of the writ petitioners sounds in damages and ordinarily, the writ courts would not venture to compute damages as it would require appreciation of evidence. The basis of the computation of damages as awarded by the Ld. Single Judge, it is submitted, is without any evidence and based on certain assumptions. Assumptions cannot be a substitute of proof. It was further argued that the judgment on which the Ld. Single Judge placed reliance namely M/s. A.P. Brij Paul Sing and Others vs. State of Gujarat reported in AIR 1984 SC 1703 was only after trial in a suit relief in the form of damages was extended.
The contention of the writ petitioner company in support of the order of Ld. Single Judge was that fact should reveal the authority concerned had acted illegally and arbitrarily and there cannot be an absolute proposition of law that writ courts cannot grant compensation once it appears to the writ court that actions of the authorities are palpably discriminatory, arbitrary and patently illegal. The Ld. Counsel also contended that the Andhra Pradesh High Court had suspended the clause which said that pendency of a criminal proceeding against the tenderer would be a disqualification as a result thereof the writ petitioners had submitted its tender in Andhra Pradesh, pursuant to the tender notice dated August 4, 2014. The Bhatpara Municipality had blacklisted the writ petitioners which was subsequently stayed by the appellate court of the High Court at Calcutta. Since the PHED of Rajasthan had acted upon placing reliance the blacklisting made by the Bhatpara Municipality against the writ petitioners which was subsequently stayed by the appellate court the decision of PHED Rajasthan, according to the writ petitioners ought not have been relied upon by the appellants while taking decision as contained in the order dated December 19, 2014, impugned in the connected writ petition.
Further contention of the writ petitioner company was that in terms of the order dated December 17, 2014 passed by the Ld. Single Judge on the writ petition being W.P No. 1193 of 2014 the appellant no. 2 was to consider the letter dated December 1, 2014, it was incumbent upon the appellant no. 2 to apply his mind not with a motive to justify the disqualification but with a fair and open mind to visit all issues and if there be any mistake, to graciously accept such mistake and reverse the process.
Considering the factual matrix as enumerated above and in the context of submissions made on behalf of the appellants as well as the writ petitioner company, it appears that the learned Single Judge in allowing the writ petition proceeded on the basis that the writ petitioner company was the lowest tenderer and the KMC did not consider the bid of the writ petitioners company because similar tenders had not been considered by HMWS&SB as well as PHED, Rajasthan and the Bhatpara Municipality of the State of West Bengal. Though it was a fact that the writ petitioner company was the lowest tenderer pursuant to the notice inviting tender of 2014 issued by the appellants herein for supply of DI Pipes but we cannot be unmindful of the facts in consideration of clause - 6 as contained in the eligibility criteria in the said notice inviting tender accepting which the writ petitioners submitted the tender alongwith affidavit of declaration which is required to be weighed in order to find out whether there was misrepresentation on the part of the writ petitioners in procuring the work order.
The fact is that on 22nd December, 2012 HMWS&SB invited tenders for supply of DI pipes. The writ petitioners herein were successful in tender process. On 31st January, 2013, a work order was issued in their favour. However, on 19th March, 2013, this work order was cancelled on the ground of pendency of criminal proceedings against the writ petitioners. This fact was not disclosed before the Hyderabad Authorities at the time of submission of the tender. On 7th June, 2013, HMWS&SB had written to the appellants that they had rejected the tender of the writ petitioner company and forfeited their earnest money because of non-disclosure of criminal proceedings pending against the writ petitioners. On the issue of debarring the writ petitioner company from participating in the tender process initiated by the said HMWS&SB, two writ petitions were filed by the writ petitioners/respondents no.1 & 2 herein, namely, W.P. No. 24678 of 2014 and W.P. No. 30071 of 2014 before the High Court of Judicature at Hyderabad, Andhra Pradesh. On the writ petition being W.P. No. 24678 of 2014, an interim protection was obtained by the writ petitioner company herein by way of passing an interim order dated 26th August, 2014 directing the HMWS&SB firstly not to give effect to the clause requiring disclosure of pending criminal proceedings in an e-tender notice dated 4th August, 2014. But the fact remains the said writ petition being W.P. No. 24678 of 2014 was dismissed thereby the said clause requiring the disclosure of criminal case pending against the tenderer was upheld. On the other hand, on the writ petition being W.P. No. 30071 of 2014 whereby challenge was thrown by the writ petitioner company before the High Court of Andhra Pradesh to the letter dated 7th June, 2013 by which the Director of HMWS&SB informed the Chief Manager of Kolkata Metropolitan Development Authority that the petitioner company's tenders were cancelled due to non-disclosure of pendency of criminal proceedings against the said petitioners company and not to allow the said petitioner company to participate in similar tender in future, was withdrawn on 25th July, 2014 resulting in upholding of the said letter dated 7th June, 2013 which was the subject-matter of challenge in that petition.
Reliance was placed from the side of the writ petitioner company on one letter dated September 12, 2014 certifying that the petitioner company participated in tenders under e-procurement platform whereby inference was drawn that the firm was not debarred. On appreciation of the relevant facts including the context of the said letter dated September 12, 2014 it is not conclusive that the fact of mere participation of the writ petitioner company on e-procurement platform obliterates upholding of letter dated June 7, 2013 of HMWS&SB which stood confirmed after the writ petition being W.P. No. 30071 of 2014 being withdrawn. On e-procurement platform it is open to any desirous company to submit tender online but upon appreciation of the eligibility criteria whether a particular tenderer was found eligible or not depends upon the ultimate decision of the tendering authority.
The impugned order of the appellant no. 2 herein dated December 19, 2014 needs to be examined on the basis of the relevant facts as well as materials which the appellant no. 2 could have considered on the date of passing the said order. Under said clause 6 of the notice inviting tender floated by the appellant herein required declaration from the participants at the time of submitting tender to the extent that the participant was not debarred/de-listed/blacklisted by any Government /Government undertaking/ Municipal Corporation in respective pipe supply Tender. The writ petitioner company submitted the tender alongwith a notarised affidavit dated 28th November, 2014 inconsonance with the said clause 6 of the notice inviting tender stating that the petitioner company was not debarred/de-listed/blacklisted by any Government /Government undertaking/ Municipal Corporation in respective pipe supply Tender at the time of submission of bid. On appraisal of the facts discussed above it appears that the letter dated June 7, 2013 issued by HMWS&SB was subsisting on the date of submitting tender by the petitioner company before the appellants herein which goes to show the state of affairs relating to eligibility of the petitioner company in consideration of said clause 6 of the notice inviting tender; which was not disclosed in pursuit of being selected in the said tender process. We hasten to add here that the letter dated September 12, 2014 certifying participation of the petitioner company on the e-procurement platform pursuant to a particular tender notice does not improve the case of the petitioner company in view of substance of the letter dated June 7, 2013 issued by HMWS&SB after the writ petition being W.P. No. 30071 of 2014 stood withdrawn wherein the said letter dated June 7, 2013 was the subject matter of challenge.
In view of inclusion of clause 6 in the notice inviting tender requiring declaration from the tenderer that the tenderer was not debarred/de-listed/blacklisted by any Government /Government undertaking/ Municipal Corporation in respective pipe supply tender lead us to find out considering the connotations of 'debarred', 'de-listed' and 'blacklisted' whether these expressions are synonymous with the meaning of expression 'disallowed'. Dictionary meanings of 'debarred', 'de-listed' and 'blacklisted' are exclude from admission or from a right, prohibit from an action; to remove (something) from a list; list of persons under suspension, in disfavor; respectively. Whereas the word 'disallowed' as contained in letter dated June 7, 2013 of HMWS&SB carries the meaning - refuse to allow and accept as valid or prohibit. On combined analysis of the expressions as offered by the dictionary meanings of above four words namely 'debarred', 'de-listed', 'blacklisted' and 'disallowed' would indicate that these words may not carry exactly same meaning but all these four words bear similar meanings and these expressions possessing the potential to be termed as ejusdem generis. Considering Clause 6 of the notice inviting tender as quoted above due to subsistence of the letter dated June 7, 2013 after withdrawal of the writ petition being W.P. No. 30071 of 2014 the writ petitioner company ought to have disclosed the said letter to the appellants at the time of submission of its tender. Neither the affidavit sworn on behalf of the writ petitioner company on 28th November, 2014 nor from the letter dated 1st December, 2014 it appears that there was bona fide disclosure of the contents of the said letter dated June 7, 2013 to the appellants.
By letter dated October 15, 2014 of the PHED, Rajasthan the writ petitioner company was disqualified from participating in the tender. This was done on the basis that the writ petitioner company had been blacklisted by the Bhatpara Municipality, Kolkata. The fact that the Bhatpara Municipality blacklisted the writ petitioner company cannot be disputed. This blacklisting was challenged by the writ petitioners by filing a writ petition before this Court. However, on filing an appeal, the blacklisting order was stayed by the Appellate Court on 24th July, 2014 pending disposal of the writ petition. It was submitted on behalf of the writ petitioner company that the Learned Single Judge was directed to hear out the matter on merit and the interim order passed by the Appellate Court was in force. The order dated 24th July, 2014 passed by the Appellate Court in favour of the writ petitioner company was confined to the act of blacklisting by the Bhatpara Municipality till the disposal of the writ petition pending on the issue of blacklisting by the said Municipality, by the learned Single Judge. Notwithstanding, the order being passed by the Appellate Court on 24th July, 2014 on the issue of blacklisting by the Bhatpara Municipality the existence of letter dated June 7, 2013 issued by HMWS&SB remains unaffected at the time of submission of tender by the writ petitioner company as well as in the letter dated 1st of December, 2014 offering clarification on the points highlighted by the appellants herein.
In view of consideration of the facts as well as the orders passed by the several High Courts on the legal proceedings initiated by the writ petitioner company in pursuit of the its respective remedies, we are of the view that in terms of clause 6 of the notice inviting tender of the appellants, the writ petitioner company ought to have disclosed the contents of the letter dated June 7, 2013 issued by HMWS&SB which has remained on record and after the writ petition being W.P. No. 30071 of 2014 stood withdrawn. There has been no adjudication on the legality and validity of the letter dated June 7, 2013. The issue had remained undecided and it continued to have an effect on the future tender when similar clauses have been introduced. In a judicial review the court needs to assess the procedure adopted by the authority concerned in arriving at its decision. We feel that the view taken by the authority as to the relevance of the letter dated June 7, 2013 cannot be said to be arbitrary just because another view could be possible.
On appreciation of the ratio in the judgment reported in AIR 1984 SC 1703 (M/s. A.T. Brij Paul Singh & Ors. Vs. State of Gujarat) we are constrained to hold that the principle enunciated in the said judgment does not apply in the present case. In M/s. A. T. Brij Paul Singh (Supra) the Apex Court granted the relief in the form of damage in a suit after trial. In absence of opportunity being given to the appellant herein to adduce evidence in appropriate legal proceedings, decision to award damage to the writ petitioner company and quantification of damage based on alleged decision as contained in the order of December 19, 2014 of the appellant no. 2, is not tenable; extent of pecuniary loss caused to the writ petitioner company, may not be discernable. A lowest tenderer may or may not be selected ultimately by the tender committee. This discretion is always left to the tender committee. The order of the learned Single Judge proceeds on the basis that being the lowest tenderer the contract could have automatically given to the writ petitioner Company. However, going by the past records, normally lowest tenderer is awarded the contract. The writ petitioner Company may be the lowest tenderer, but it has to be seen whether in terms of clause 6 of the notice inviting tender and based on declaration furnished by the writ petitioner company in the form of notarised affidavit it was permissible to award contract considering the facts which were prevailing at the material point of time. There cannot be any doubt that if a contract is awarded and the work is successfully accepted, a tenderer may be entitled to certain percentage of profit, which depends upon the nature of contract. Therefore, the awarding of relief in the form of damages requires factual appreciation of the conduct of the parties to the said contract in an appropriate civil proceeding. The consideration for deciding the claim of the writ petitioner company for damages & other reliefs may overlap but adjudication of factual disputes are better suited to civil proceedings or arbitration and our decision shall not affect merits of such proceedings. In the event the civil proceeding is initiated within a period of 4 weeks from date the plaintiff shall get the benefit of Section 14(2) of the Limitation Act, 1963.
In view of above conspectus the judgment and order dated March 24th 2015 of the learned Single Judge is set-aside and accordingly, appeal is allowed.
Certified copies of the judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.