High Court
Case Details
MC 3372/2013 PRESENT HON’BLE MR JUSTICE UJJAL BHUYAN O R D E R 19-12-2013 Heard Mr. P.N. Goswami, learned Counsel for the applicant and Mr . D. Das, learned Senior Counsel assisted by Mr. S.Borah, learned Counsel for th e opposite parties / writ petitioners.
Legal Reasoning
This application has been filed by the applicant for vacation / modification of the interim order dated 06-11-2013 passed by this Court in WP(C) No.6390/2013 filed by the opposite parties as the petitioners. ion Limited (ASIDC), a Government of Assam undertaking. The applicant is the Assam Small Industries Development Corporat By the order dated 06-11-2013, this Court directed maintenance o f status-quo regarding supply order pursuant to notice dated 21-09-2013 and corr igendum dated 04-10-2013. ASIDC received an indent from the office of Deputy Inspector General of Police (Administration), Assam dated 19-09-2013 for supply of 6000 numbers of st eel cot. ASIDC issued notice dated 21-09-2013 inviting expression of interest fr om small scale industrial (SSI) units having sound manufacturing and financial c apabilities to supply steel cot as per specifications given @ Rs.3,958.00 per co t. The intending SSI units were required to submit attested copies of the 5 (fi ve) documents mentioned therein. This was followed by a further notice issued by the ASIDC and which was published in the newspaper (cid:28)the Assam Tribune (cid:29) on 04-10 -2013. The last date for submission of expression of interest was extended upto 10-10-2013, the other terms and conditions remaining the same. It was clarified that those SSI units which had responded to the notice dated 21-09-2013 need not submit their expression of interest again.
Decision
Opposite parties as the writ petitioners have filed the related writ petition, being WP(C) No.6390/2013, contending that though they had submitt ed expression of interest, they were not informed anything about the supply orde r by the ASIDC authorities. However, on enquiry being made, they could gather th at supply orders dated 24-10-2013 were issued to respondent Nos. 8 and 9. They c ould also gather that similar supply orders were issued to other parties but ASI DC authorities did not make such apply orders available. Alleging that procurements were made without constitution of dep artmental purchase committee as per requirement of Assam Preferential Stores Pur chase Act, 1989 and the Government Office Memorandum dated 28-03-1988 which is a part of the said Act and that the supply orders were issued arbitrarily without following a fair and transparent procedure, the opposite parties have filed the related writ petition. This Court by order dated 06-11-2013 observed that in si milar matters involving failure of ASIDC in constituting departmental purc hase committee as required under the 1989 Act, notice was issued and interim ord er was granted. Accordingly, notice was also issued in the related writ petition and status-quo order has been passed. Mr. Goswami, learned Counsel for the applicant has referred to v arious provisions of the 1989 Act to contend that there is no statutory requirem ent on the part of ASIDC being the supplier or procuring agency to constitute de partmental purchase committee. It is the purchasing department which has to cons titute such committee. He submits that after the first notice dated 21-09-2013, the applicant in order to ensure wider participation issued another notice on 04 -10-2013 which was published in the news paper extending the time for submission of expression of interest. Thereafter, altogether 28 (twenty eight) SSI units, including the opposite parties, submitted expression of interest. A high powered distribution committee was constituted and in its meeting held on 21-10-2013 de cided to distribute the supply work amongst 6(six) parties including one M/s Bli tz Engineering and Fabrication, whose proprietor is Shri Jibamoni Kakoti, who is the brother of Shri Rohini Kakoti, proprietor of writ petitioner No.1. However, the said M/s Blitz Engineering and Fabrication has not been made a party to the writ petition. Both M/s Blitz Engineering and Fabrication and writ petitioner N o.1 had together filed WP(C) No.4089/2012 challenging similar supply order made earlier. This Court by order dated 29-08-2012 had directed maintenance of status -quo. Thereafter, following negotiation, supply orders were issued to the above 2(two) parties who thereafter withdrew the writ petition. Learned Counsel would therefore contend that this has been the modus-operandi of the petitioner and hi s brother’s firm to pressurize the authority by filing cases and thereafter to n egotiate order of supply in their favour. Alleging that intention of the writ pe titioners are not bonafide, learned Counsel for the applicant seeks vacation of the status-quo order. He also contends that there is no infirmity or procedural irregularity in the allotment of supply orders to warrant any interference by th e Court. He further submits that there is urgency in the matter and the supply o rders are required to be executed expediously in view of the on-set of the winte r season as the steel cots are meant to be used by the police personnel. Mr. Das, learned Senior Counsel for the opposite parties / writ petitioners on the other hand contends that ASIDC should have inspected the qual ity of the samples furnished by the respective parties. Without quality inspecti on and verification, it is not understood as to how the selection was made or wh at procedure was followed. In such circumstances, scope of arbitrariness cannot be ruled out. Referring to the decision of the Hon’ble Supreme Court in the case of Assam Small Industries Development Corporation Limited -Vs- M/S JD Pharmaceu ticals and another reported in 2006 (1) GLT (SC) 1, he contends that ASIDC is an agent of the SSI units. Therefore, it is required and is under an obligation to follow a transparent and evenhanded procedure to ensure that the competing SSI units get their due share of supply orders, leaving no scope for arbitrariness a nd discrimination. Submissions made have been considered. Question for consideration at this stage is whether having regar d to the facts and circumstances of the case, the status-quo order passed on 06- 11-2013 should be continued or would require vacation/modification. Prima-facie, from a reading of the provisions of the 1989 Act, m ore particularly sections 8, 10 and 11 thereof, there appears to be no requireme nt to constitute purchase committee by the ASIDC. Infact, purchase committee has to be constituted by the purchasing/ procuring department. Learned Counsel for the applicant has produced the minutes of the meeting of the distribution commit tee of ASIDC held on 21-10-2013. A perusal of the same would show that 7 (seven) SSI units were short listed from amongst 28 (twenty eight) who had submitted ex pression of interest. Out of the 7 (seven), 1(one) was not considered as it appe ared to be a non-functioning unit. The supply orders were distributed amongst th e 6 (six) SSI units as under :- (cid:28)(1) M/s Brahmaputra Automobile Pvt. Ltd. --- 3500 nos. (2) M/s Vikash Steel Fabrication (3) M/s Jogonier (4) M/s Puberun (5) M/s Mazbut Lauha Pratisthan (6) M/s Blitz Engineering and Fabrication --- 150 nos. (cid:29) --- 200 nos. --- 1500 nos. --- 350 nos. --- 300 nos. The above 6 (six) SSI units were selected as those were found to have fulfilled atleast 2(two) of the 5(five) requirements as per notices dated 21-09-2013 and 0 4-10-2013, which was treated as eligibility criteria. However, only M/s Brahmapu tra Automobile Pvt. Ltd. could submit capacity assessment certificate, which pos sibly explains higher allotment to it. While considering continuation or otherwise of the status-quo or der, this Court cannot overlook the fact that M/S Blitz Engineering and Fabricat ion has also been favoured with a supply order. This fact could not have escaped the notice of writ petitioner No.1 as it was a co-petitioner with M/S Blitz Eng ineering and Fabrication in an earlier litigation. But this fact has not been di sclosed in the writ petition. Prima-facie, this creates doubt in the mind of the Court about the bonafides of the petitioners. Moreover, the steel cots which is the subject matter of the contract, are meant for the police personnel. It woul d be in the public interest if the indented item reaches the targeted group at t he earliest. In view of the above, this Court finds no justification to conti nue with the status-quo order. Accordingly, the status-quo order passed on 06-11 -2013 stands vacated. Misc. case is disposed of.