Sahakar Global Limited & Anr. vs Barjora Alert Cooperative Labour Contract and Construction Society Limited

Leave granted. 2. The appellant was disqualified in the tender process initiated in respect of a contract for collection of toll for a period of two years. This was on the ground that though mandatorily required under the terms and conditions of the ''Notice Inviting Electronics Bids'' ("NIEB" for short) issued, the appellant had not submitted its registered power of attorney. Aggrieved, the appellant moved the High Court by instituting a writ proceeding. The learned single judge of the High court by order dated 28th April, 2017 took the view that though submission of a registered power of attorney by a bidder was mandatory, yet, having regard to the clause in the NIEB which enabled the tendering authority to seek clarifications/ information or additional supporting documents in respect of any matter concerning the tender, the tendering authority should have asked the appellant to submit a registered document in place of the notarized power of attorney which had been submitted along with the appellant''s bid. Consequently, the learned single judge of the High Court directed that such an opportunity be given to all concerned who had participated in the tender process. 3. The aforesaid order of the learned single judge was challenged in appeal by the present respondent No.1 - Barjora Alert Co-operative Labour & Construction Society Limited, respondent No.4 - Ainul Hoque as well as by the State of West Bengal. The appellate Bench of the High Court set aside the order of the learned single judge and took the view that non-submission of the registered power of attorney was fatal to the bid submitted by a prospective bidder. Aggrieved, these appeals have been filed. 4. The matter lies within a short compass and for a proper appreciation of the issue arising we may at the outset extract certain relevant parts of the NIEB which are as follows: "4. Eligibility criteria for participation in bid. a. WORK CREDENTIAL:- i. ........... .. .............. IV. Other terms and conditions of the credentials. i. ........... .. .............. e. The partnership firm shall have to submit the registered/ Notarized partnership deed and Registered Power of Attorney (Non Statutory Documents) f. A company shall have to submit Registered Article of Memorandum. *** INSTRUCTIONS TO BIDDERS SECTION-A 1. ........... ... ........... 3. Digital Signature Certificate (DSC):- Each contractor is required to obtain a class-II or class-III Digital Signature Certificate (DSC) for submission of tender/Bids, from the approved service provider of the National Information''s Centre (NIC) on payment of requisite amount details are available at the Web Site stated in clause 2 of Guideline to Bidder/tenderer DSC is given as a USB e-Token. Where an individual person holds a digital certificate in his own name duly issued to him against the company or the firm of which he happens to be a director (even Managing Director) or partner, such individual person shall, while uploading any bid for and on behalf of such company or firm invariably upload a copy of registered power of attorney showing clear authorization in his favour, by the rest of the directors of such company or the partners of such firm, to upload such bid. The power of attorney shall have to be registered in accordance with the provisions of the Registration Act, 1908. Vide Notification No.61/SPW/12 dated 08.06.2012 of Secretary, P.W. & P.W. (Roads) Department, Govt. of W.B. ... ............ .... .............. 6. Submission of Bids:- A-2 Non Statutory Cover containing

Sl.No. Category Name Sub-Category Description Details

A. ... ... ...

B. Company Details Company Details-1 1. Registration Certificate under Company Act. (if any) 2. Registered or Notarized Deed of Partnership Firm/ Registered Article of Association & Memorandum. 3. Registered Power of Attorney (For Partnership Firm/ Private Limited Company, if any) vide Clause-3 under Section-A of page-4, Instruction to Bidder. Registration certificate, Bye-Laws issued by the co-operation department, latest audit report audited by Co-operation department, resolution copy of Annual General Meeting/General meeting/Committee meeting empowered to use of D.S.C. to any member of the respective Society of are to be submitted by the Registered labour Co-op. Societies, Engineers''Co.opt. Societies.

.. ... ... ...

B. Bid evaluation:- i. .............. .. .............. v. While evaluation the Notice Inviting Authority may summon of the bids and seek clarification/information or additional supporting documents or original hard copies against any of the documents only, which are already submitted/uploaded in the web portal and if these are not produced by the intending Bidders within the stipulated time frame (within only 48 hours), their proposals will be liable for rejection." 5. From the above, it appears to us that though in different parts of the NIEB it has been specifically recited that partnership firms/private limited companies will have to submit their registered power of attorney, as to whether the same requirement would apply to a public limited company is conspicuously absent. In fact, in the clauses under the Heading ''other terms and conditions of the credentials'' [clauses (e) and (f)], extracted above, it is explicitly stated that while a partnership firm is required to submit a registered/notarized partnership deed and registered power of attorney, a company is required to submit a registered Article of Memorandum only. Similarly, under clause 6 of Section -A of the NIEB under the Heading ''Submission of Bids'' the requirement of submission of registered power of attorney is only with reference to partnership firms and private limited companies. 6. The appellant is a public limited company. While clause 3 under the Heading "Instructions to Bidders" of the NIEB which deals with ''Digital Signature Certificate (DSC)'' suggests that every company may be required to submit a registered power of attorney, the said clause cannot be read in isolation and de hors the other provisions of the NIEB. That apart, in the present case, the notarized power of attorney submitted by the appellant clearly indicated that the person under whose digitized signature the bid was submitted on behalf of the appellant was authorized by the Company to so act. In these circumstances, no other conclusion save and except that submission of registered power of attorney was not a mandatory requirement under the NIEB can be reached. If that is so, the power of the tendering authority to seek clarifications/information or additional supporting documents or original hard copies was open to be exercised at its discretion which option was not availed of by the tendering authority. Instead, the tendering authority proceeding on the basis that the requirement of submission of registered power of attorney is a mandatory requirement had rejected the technical bid of the appellant. 7. In view of what has been held by us above, namely, that the requirement of submission of registered power of attorney does not logically appear to be a mandatory requirement under the terms and conditions of the NIEB we deem it proper to set aside the order of the High Court impugned in the present appeals and allow the same. We order accordingly. 8. The next question that has to engage the attention of the Court is the relief that should follow. In the application for permission to file additional documents filed before this Court on 29th August, 2017, in paragraph 4 the appellant has stated that in the financial bid submitted by it, it had offered an amount of Rs. 5,13,000/- per day which works out to Rs. 37,44,90,000/- for the total contractual term of 730 days. The said figure (Rs.37,44,90,000/-) that is worked out on the basis of the financial bid offered by the appellant would be Rs. 7.08 crore (approximately) over and above the financial bid of the fourth respondent - Ainul Hoque to whom the contract has been awarded. The financial bid of the appellant has not been opened as it was disqualified on the technical parameters. The learned counsel for the State of West Bengal has submitted that the financial bid offered by the appellant needs to be verified to ensure that the amount mentioned in paragraph 4 of the application (for permission to file additional documents) is in conformity with the bid offered. We see no difficulty in permitting the State of West Bengal to have access to the financial bid offered by the appellant which is stated to be in the web-portal of the service provider. The service provider is directed accordingly. Once the State of West Bengal completes the aforesaid verification and if it finds the figures mentioned in paragraph 4 of the application to be true and correct, we direct that the contract awarded to the fourth respondent - Ainul Hoque be cancelled and work be allotted to the appellant. 9. We also wish to put on record that before passing the aforesaid order we had asked the learned counsel representing the fourth respondent - Ainul Hoque as to whether the fourth respondent would be willing to match the offer made by the appellant. As no positive response has been forthcoming from the fourth respondent we have deemed it proper to pass the direction as above. 10. Though no prayer has been made on behalf of the fourth respondent - Ainul Hoque, we are of the view that fourth respondent - Ainul Hoque should be given time until 30th November, 2017 to wind up the business pursuant to the award made in his favour which has been cancelled by the present order. We order accordingly. 11. Accordingly, the appeals are disposed of in the above terms.