State of Manipur & Anr v. IMA Manipur Enterprises

identical in both the writ petitions, they are being disposed of by this common order. 1 [3] The grievance of the petitioners in both the writ petitions is directed against the Notice Inviting Tender dated 15th November, 2021 issued by the Director (Social Welfare), Manipur inviting intending transport Contractors for transportation of WBN (rice) from FCI Depots (located at Imphal West, Imphal East, Thoubal, Senapati, Churachandpur, Ukhrul and Jiribam) to various Offices of the District Programme Offices, the Child Development Project Officers as well as for transportation of Micronutrient fortified food in the form of Take Home Ration (THR) from Department’s Godown at Takyelpat, Imphal West to the Offices of the District Programme Officers/ the Child Development Project Officers in Manipur on the ground that in the said NIT, irrelevant conditions in the eligibility criteria of the said tender process has been incorporated to oust many transport contractors to suit the interest of a selected group of contractors and the eligibility criteria is violative of the principle of level playing field. [4] This Court after hearing the parties had passed interim orders both dated 09-12-2021 in the writ petitions suspending the NIT dated 15-11-2021. Liberty was granted the State respondents to approach this Court for vacation/modification of the interim order. [5] Before entering into the merit of the present writ petitions, it is pertinent to note that the Director (Social Welfare), Government of Manipur issued a Notice Inviting Tender (NIT) dated 22-06-2017 inviting tenders for appointment of contractors for transportation of rice from FCI Depots (Imphal, Ukhrul, Jiribam and Senapati) to various offices of the Child Development Project Officers as well as for transportation of WBNP (rice) from various FCI Godown and Micronutrients from department godown at Takyelpat to the offices of the District Program Officer/ the Child 2 Development Project Officers in the State for a period of 1 (one) year with option for extension for further period of 1 (one) year at the sole discretion of the department without any escalation in rate. Pursuant to the NIT, a number of eligible contractors including M/S R.K & Co., M/S BLL Agencies, M/S BLL Enterprises, M/S B.K Enterprises submitted their bids. The State Higher Tender Committee in its meeting held on 16-12-2017 after re-examining the rates quoted was of the view that the lowest quoted rate among the existing contract in FCI which is Rs. 8.95 Per Metric Ton Per Kilometre can be considered as bench mark and 30% variation from the bench marked rate i.e., Rs. 6.265 Per MT Per KM to Rs. 11.635 Per MT Per KM could be an acceptable band of rate and that within this acceptable band of rate, only the L-1 quoted rate for route-VIII was found to be within the acceptable band of rate and accordingly, recommended the following: “(i) in respect of route VIII(Kangpokpi District), L1 firm M/S R.K. & Co (Rs. 7.00 Per MT Per KM) may be selected for transportation of WBNP(Rice) from FCI depot located in Imphal to various offices of the District Program Officers/Child Development Project Officers in Kangpokpi District as well as transportation of Micronutrients from department godown at Takyelpat to the offices of the District Program Officers/ CDPO in Kangpokpi District. (ii) in respect of other routes, administrative department may conduct new tender to discover a reasonable rates of transportation.” [6] The recommendation made by the HTC in its meeting held on 16-12-2017 was approved by the Government and on the 3 basis of such approval, the Director (Social Welfare), Manipur by letter dated 22-12-2017 informed M/S R.K & Co. to sign the MOU for transporting WBNP (Rice) and Micronutrients for Route No. VIII Thereafter, agreement between the Government of Manipur represented by the Director (Social Welfare), Manipur and M/S R.K & Co. was signed on 22-12-2017 for executing work transportation of WBNP (rice) and Micronutrients for Route No. VIII on the terms and conditions mentioned in the said agreement. On the date of signing the agreement, M/S R.K & Co. submitted a representation to the Director (Social Welfare), Manipur requesting for allowing them to transport WBNP (rice) and Micronutrients for all the remaining 8 (eight) routes at the rate of Rs. 7.00 as approved by the HTC. Accordingly, after obtaining approval of the Government, the Director (Social Welfare) Manipur by letter dated 23-12-2017 informed M/S R.K & Co. to sign MOU for transportation of WBNP (rice) and Micronutrients for Route No. I to VII and IX till the finalization of the retender for the said routes. This led to filing of several writ petitions before the Learned Single Bench of this Court. These writ petitions were disposed of by a common Judgment and Order dated 20-06-2018 with following directions: “In view of the above and for the reasons stated hereinabove, all the writ petitions are disposed of with the following directions:- “(a) The State Government and in particular, the Department of Social Welfare, Government of Manipur shall constitute a High Power Committee, within a week from today, consisting of persons who are well versed with the matter relating to tender; “(b) The High Power Committee, constituted as per direction (a) above and before it proceeds further with the tender 4 process, shall get itself familiar with the terms and conditions mentioned in the NIT and also the law laid down by the Hon’ble Supreme Court in its various decisions relating to award of contracts in consultation with the Law Department or the learned Advocate General, Manipur; “(c) The State Government and in particular, the Department of Social Welfare shall take a decision as to whether the condition as prescribed in para 3(D) is an essential condition of eligibility as regards furnishing of bank guarantee with reference to the purpose for which the said condition has been incorporated therein and the reasons thereof be assigned by it; “(d) The High Power Committee shall examine and consider minutely the relative merits of the rates quoted by all the qualified bidders, with their respective justification, taking into account all relevant factors as mentioned hereinabove and take a final decision thereafter on merits, for which cogent reasons shall be assigned by it; “(e) The High Power Committee is free to take any decision, on merits with cogent reasons, on issues arising out of the NIT without being influenced by any of the observations made by this Court; “(f) The High Power Committee must supply its mind and must sincerely endeavour, at its best level, to ensure that the tender process is completed in time as directed by this Court and to see that there is no room left for any of the parties to approach this Court again questioning the tender process; “(g) The whole exercise as per directions (a) to (f) above shall be completed within three weeks after the expiry of a week as aforesaid without fail and all formalities including signing of agreements shall be completed on or before 21-07-2018; “(h) The period of contract shall be for one year as stipulated in the terms and conditions of NIT with effect from the date of signing the agreements or 21-07-2018 whichever is earlier; “(i) On the expiry of six months from the date of signing the agreements or from 21-07-2018 whichever is earlier, the Department of Social Welfare shall take a decision as to 5 whether the contract be extended for another year and if yes, it shall start taking appropriate steps towards it and if not, it shall get ready for issuing NIT for the next year and on the expiry of nine months therefrom, NIT shall immediately be issued by the Department of Social Welfare, Government of Manipur so as to keep a continuity as regards the transportation of WBNP(rice) and Micronutrients.” [7] Being aggrieved with the Judgment and Order dated 20-06-2018, WA No. 26 of 2018, WA No. 27 of 2018, WA No. 44 of 2018 and WA No. 28 of 2018 were filed before the Division Bench of this Court. The Division Bench of this Court (where I was a member of the said Bench) disposed of the said Writ Appeals by Judgment and Order dated 04-11-2020 with following directions: “ (a) The State Government and in particular, the Social Welfare Department shall take up immediate steps and issue fresh NIT for transportation of food grains and Micronutrients under the WBNP within a period of 10(ten) days from the date of receipt of a copy of this judgment and order; (b) The whole tender process including the issuance of work order should be completed within 20(twenty) days from the date of issue of fresh NIT; (c) Till the completion of the tender process and issuance of the work orders, the present arrangement for transportation of food grains under the WBNP pursuant to the interim order of this Court dated 19.2.2018 shall continue. [8] Being aggrieved with the Judgment and Order dated 04-11-2020 passed by the Division Bench of this Court, M/S B.K Enterprises filed Civil Appeal No. 6532 of 2021 before the Hon’ble Supreme Court which was disposed of by Judgment dated 12-11- 2021 with the following observations and directions: 6 reasonable the State/Department undertakes “5. Learned counsel appearing on behalf of the State of Manipur has stated at the Bar that now the State/concerned department has taken a decision for appointment of Transport Contractor under Supplementary Nutrition Programme (SNP) and that the State/Department is ready to float the tender within 10 days. It is submitted that the entire process is likely to take about two months as the opening of the financial bids and the verification of the technical bids will take some time. Therefore, it is prayed to grant the State/concerned Department for completing the tender process. It is stated conduct fresh NIT in a fair and transparent manner through e-Tender. It is submitted on behalf of the State that the State/Department has not been able to implement the order passed by the Division Bench of the High Court dated 04.11.2020 in Writ Appeal No.28/2018 because of the administrative difficulties and the State/Department tenders its unconditional apology for the same. The aforesaid is a vague explanation which is very unfortunate that the contract for supply/transportation rice and other micronutrients under Development Scheme has been continued by way of an interim arrangement only and without issuing any fresh tenders and contract has been continued at the old rates of 2017-18, which must have cause tremendous/huge loss to the State and the Public Exchequer. There is a total lethargic and negligence on the part of the State and its departments in not issuing fresh tender process and in not issuing fresh NIT after 2018. is not accepted. It

6. In view of the above, we dispose of the present appeal by directing the respondents –State of Manipur and the concerned Department including respondent no.2 to issue fresh NIT for appointment of Transport contractor under Supplementary Nutrition Programme (SNP), within a period of 10 (ten) days from today and it is directed that the fresh NIT is conducted in a fair through e-Tender and invitation of the fresh IT shall be nation-wide and it is the duty of the State/concerned Department to see that transparent manner 7 is no inconvenience caused there is no cartel by the contractors and that the maximum price is received and there is no loss to the Public Exchequer and the State. The entire tender process be completed within a period of six weeks from the issuance of the e-Tender. In the peculiar facts and circumstances of the case and only with a view to see beneficiaries, the directions issued by the High Court relating Supplementary Nutrition Programme (SNP) in the impugned order/interim order dated 19.12.2018 is directed to be continued till 31.12.2021. The State of Manipur is directed to submit a compliance report before this Court. Any lapse on the part of the State and/or its departments and non-compliance of the present shall be viewed very seriously.” transportation [9] Consequently, the Director (Social Welfare), Manipur issued a Notice inviting tender on 15-11-2021. [10] WP(C) No. 902 of 2021 and WP(C) No. 904 of 2021 were both filed on 08-12-2021 and it was listed for motion on 09- 12-2021 before this Court. On that date, interim order suspending NIT dated 15-11-2021 was passed. The interim order was passed in the presence of Mr. S. Haokip, learned counsel junior to Mr. H. Lenin, learned Addl. AG, Manipur. While passing the interim order, this Court was unaware of the Judgment dated 12-11-2021 passed by the Hon’ble Supreme Court in CA No. 6532 of 2021 nor was it brought to the notice of this Court by the learned counsel appearing for the State respondents. The writ petitioners also did not disclose the existence of the Judgment dated 12-11-2021 passed by the Hon’ble Supreme Court in CA No. 6532 of 2021. [11] Counter affidavit in WP(C) No. 902 of 2021 was filed on 18th December, 2021 and counter affidavit in WP(C) No. 904 was filed on 20th December, 2021. In both the counter affidavits, there is 8 no whisper about the order dated 12-11-2021 passed by the Hon’ble Supreme Court in CA No. 6532 of 2021. [12] The order dated 07-03-2022 passed by the Hon’ble Supreme Court in Misc Application No. 428 of 2022 in CA No. 6532 of 2021 was received by the Registry of this Court on 10-03-2022 and the same was placed before this Court on 11-03-2022 in MC(WP(C)) No. 91 of 2022 and MC(WP(C)) No. 92 of 2022 which was filed by the State respondents for vacation of the interim order dated 09-12-2021. [13] When the matter was called up today, this Court had questioned Mr. H. Lenin, learned Addl. AG, Manipur as to how the order dated 12-11-2021 passed in CA No. 6532 of 2021 was not brought before the notice of this Court and as to why there was not even a mention or whisper about the Judgment of the Hon’ble Supreme Court in the counter affidavit. Learned Addl.AG, Manipur submits that none of the Government Advocates were aware of the Judgment dated 12-11-2021 passed in CA No. 6532 of 2021 by the Hob’ble Supreme Court and they came to know about it only after receiving the para-wise comments in WP(C) 902 of 2021 and WP(C) No. 904 of 2021 wherein a copy of the Judgment dated 12- 11-2021 passed in CA No. 6532 of 2021 by the Hon’ble Supreme Court was part of the document which was supplied by the State respondents. However, by in advertence, the said Judgment of the Hon’ble Supreme Court was not enclosed in the counter affidavit nor was it mentioned therein. Learned senior counsels in both the writ petitions also submits that they had no knowledge about the existence of the Judgment dated 12-11-2021 passed in CA No. 6532 of 2021 by the Hon’ble Supreme Court. 9 [14] Under the circumstances as narrated herein above, this Court had passed the interim order on 09-12-2021 in both the writ petitions suspending the NIT dated 15-11-2021 and further extension of the interim orders. [15] Coming to the merit of the case in WP(C) No. 902 of 2021 and WP(C) No. 904 of 2021, as the Hon’ble Supreme Court in its Judgment dated 12-11-2021 passed in CA No. 6532 of 2021 has given a specific direction to the State respondents for issuance of NIT for appointment of Transport Contractors under Supplementary Nutrition Programme (SNP) within a period of 10 (ten) days from the date of the Judgment, this Court is not inclined to go into the merits of the writ petitions but to direct the petitioners to approach the Hon’ble Supreme Court if they are aggrieved with the NIT dated 15-11-2021. [16] Accordingly, both the writ petitions are dismissed, however, with liberty to the petitioners to approach the Hon’ble Supreme Court for redressal of their grievances, if so advised. [17] Interim order dated 09-12-2021 passed in both the writ petitions stands vacated. Consequently, MC(WP(C)) No. 91 of 2022 and MC(WP(C)) No. 92 of 2022 are also disposed of. Registry is directed to transmit this order to the Registry of the Hon’ble Supreme Court for placing the same in Misc Application No. 428 of 2022 in CA No. 6532 of 2021. Furnish a copy of this order to the learned counsel for all the parties through their respective e-mails/whatsapp. RAJKUMAR PRIYOJIT SINGH RAJKUMAR PRIYOJIT SINGH 12:22:08 +05'30' JUDGE 10