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HIGH COURT OF TRIPURA
AGARTALA
WP(C)104 of 2020
1. M/s Maa Kali Bricks Kiln Industries, to be
represented by Sanatan Paul, one of the
partners of M/s Maa Kali Bricks Kiln
Industries, Chittamara, MBC Nagar,
Belonia, South Tripura
2. Sri Sanatan Paul, s/o late Sunil Paul,
resident of Arjya Colony, P.O. & P.S.
Belonia, South Tripura
3. Sri Babul Majumder, son of late Subal
Majumder, resident of Arjya Colony, P.O. &
P.S. Belonia, South Tripura
........Petitioner(s)
VERSUS
1. The State of Tripura (to be represented
by the Principal Secretary, Rural
Development Department, Government of
Tripura), New Secretariat Building, New
Capital Complex, Kunjaban, P.S. New
Capital Complex, Agartala, West Tripura,
PIN:799010
2. The Chief Engineer, Rural Development
Department, Government of Tripura, PN
Complex, Gurkhabasti, Kunjaban, P.S. New
Capital Complex, Agartala, West Tripura,
PIN:799006
3. The Executive Engineer, Rural
Development Department, Government of
Tripura, office of the Executive Engineer,
RD Santirbazar Division, Santirbazar, South
Tripura
Page 2 of 32
4. The Sub Divisional Magistrate, Belonia,
South Tripura, Government of Tripura,
office of the SDM, Belonia, South Tripura
5. The Block Development Officers,
Government of Tripura, Bokafa/
Rajnagar/BC Nagar/ Hrishyamukh/
Jolaibari, South Tripura
6. Tripura State Pollution Control Board, to
be represented by its Member Secretary,
Tripura State Pollution Control Board,
Paribesh Bhavan, PN Complex,
Gorkhabasti, Agartala, West Tripura, PIN-
799006
7. The Member Secretary, Tripura State
Pollution Control Board, Paribesh Bhavan,
PN Complex, Gorkhabasti, Agartala, West
Tripura, PIN-799006
8. The Assistant Environmental Engineer,
Tripura State Pollution Control Board,
Paribesh Bhavan, PN Complex,
Gorkhabasti, Agartala, West Tripura, PIN-
799006
9. M/s Santoshi Bricks Industries,
represented by Sri Sujit Kumar Saha, son
of late Subal Chandra Saha, sole-
proprietor, 84, Chittaranjan Road (opposite
Gedu Miah Masjid) Shibnagar, Agartala,
P.S. East Agartala, P.O. College, District:
West Tripura
.........Respondents(s)
For Petitioner(s) : Mr. Samarjit Bhattacharjee, Advocate For Respondent(s) : Mr. D bhattacharjee, GA Mr. Ratan Datta, Adv.
Mr. A Bhowmik, Adv.
Date of hearing : 08.06.2020
Date of pronouncement : 09.09.2020
Whether fit for reporting : YES
Page 3 of 32
HON'BLE MR. JUSTICE S. TALAPATRA
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
Judgment & Order
Heard Mr. Samarjit Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. D Bhattacharjee, learned GA appearing for the respondents No. 1 to 5, Mr. Ratan Datta, learned counsel appearing for the respondents No. 6,7 & 8 and Mr. A Bhowmik, learned counsel appearing for the respondent No.9.
2. By means of this writ petition, the petitioner has challenged the cancellation order dated 22.01.2020 (Annexure-19 to the writ petition) and the NIe-T dated 22.01.2020 (Annexure-20 to the writ petition). By the said cancellation order dated 22.01.2020, the Executive Engineer, RD Santirbazar Division has informed all concerned that consequent upon the verification of tenders for supply of bricks, as all the tenders were found informal, hence invalid, the tendering process initiated vide PNIT No. e-PT- IV/EE/RD/STB/2019-20 dated 14.06.2019 has been cancelled for inviting fresh tenders.
3. As sequel to the said cancellation, on the very day of cancellation, i.e. 22.01.2020 by the notice inviting e-tender No. e- PT/XXI/EE/R/STB/2019-20 dated 22.01.2020, the Executive Engineer, RD, Santirbazar Division, Government of Tripura for and on behalf of the Government of Tripura has invited item wise Page 4 of 32 separate tenders (single Bid) from the eligible bidders in PWD Form No.9. The last date for dropping the tender was 3 p.m. on 04.02.2020 for procurement of the items for various construction sites of Santirbazar Municipal Council and Belonia Municipal Council and 5 (five) RD Blocks under the jurisdiction of RD Santirbazar Division, South Tripura District as per the terms and conditions as provided in the said DNIT. The items, earnest money, cost of tender form and eligibility of the bidder are shown below in the form of table which is exact extract from the NIe-T dated 22.01.2020.
CLASS OF TENDERER LAST DATE & TIME DOWNLOADING & ESTIMATED COST EARNEST MONEY COST OF TENDER OPENING OF BID TIME & DATE OF FOR e-BIDDING SI APPLICATION DOCUMENT Name of Item & DNIT NO FORM (RS) No BIDDING (RS) (RS) 1 Procurement of 1st class brick & 1st class straight picket for various worksites under Santrirbazar Municipal Council & Bokafa RD Block under South Tripura District (2nd Call) DNITNO:-e-DNIT 88/BRICKS (BKF)/EE/RD/STB/ 2019-20 dt-22/01/2020 Brick klin owner/Firm having manufacturing unit of brick 2 Procurement of 1st class brick & 1st class straight picket for various worksites under Jolaibari RD Block under South Tripura District (2nd Call) DNITNO:-e-DNIT 89/BRICKS (JLB)/EE/RD/STB/ Upto 2.00 PM of 04/02/2020 https://tripuratenders.gov.in At 3.00 PM on 04/02/2020 2019-20 dt-22/01/2020 3 Procurement of 1st class brick & 1st class straight picket for various worksites under 50.00 Lakh 50,000.00 1,000.00 Hrishyamukh RD Block under South Tripura District (2nd Call) DNITNO:-e-DNIT 90/BRICKS (HRM)/EE/RD/ STB/ 2019-20 dt-22/01/2020 4 Procurement of 1st class brick & 1st class straight picket for various worksites under Rajnagar RD Block under South Tripura District (2nd Call) DNITNO:-e-DNIT 91/BRICKS (RJN)/EE/RD/STB /2019-20 dt-22/01/2020 5 Procurement of 1st class brick & 1st class straight picket for various worksites under Belonia Municipal Council area & BC Nagar RD Block under South Tripura District (2nd Call) DNITNO:-e-DNIT 92/BRICKS (BCN)/EE/RD/ STB/2019-20 dt-22/01/2020 Page 5 of 32 The further instructions for participating in the said e- bidding have been provided in the NIe-T dated 22.01.2020.
4. The petitioner, is a manufacturer of bricks under the name and style of Maa Kali Bricks Kiln Industries (the petitioner No.1), represented by the petitioners No.2&3. There is no dispute or in other words, nobody has disputed in respect of the ownership of the Brick Kiln Industry (the petitioner No.1). The said brick kiln industry had obtained the certificate for consent to operate dated 23.06.2016 (Annexure-3 to the writ petition) under Section 25/26 of Water (Prevention and Control of Pollution) Act, 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981. The said certificate was valid up to 18.06.2017. At the time of procuring the said consent to operate the petitioner No.1 paid fees up to 18.06.2026. It has been claimed that the said Brick Kiln Industry has capacity of producing 16 lakhs bricks per month.
5. On 17.06.2019, the Executive Engineer, Rural Development Department, Santirbazar Division, the respondent No.3 floated four notice inviting e-tenders separately (Annexures- 4A,4B, 5A and 5B) inviting item wise e-tender (single bid) for procurement of the items shown in the tables below: Page 6 of 32 TABLE-A 1 PNIT NO. e-PT-IV/EE/RD/STB/2019-20dt-17/06/2019 2 DNIT NO. e-DNIT-11/BRICKS(BCN)/EE/RD/STB/2019-20 dt.17/06/2019 3 Name of item Procurement of 1st class brick & 1st class straight picket and Well burnt brick aggregate of different sizes for various worksites under Belonia Municipal Council area & BC Nagar RD Block under South Tripura District 4 Eligibility of bidder Brick klin owner/Firm having valid manufacturing unit of brick 5 Earnest money Rs.40,000/- (Rupees forty thousand) only 6 Estimated cost Rs.40,00,000 (Rupees forty Lakh) 7 Tender fee Rs.1000.00 (Non refundable) in the form of D/D 8 Inspection Departmental inspection 9 Date of floating Tender 17/06/2019 10 Last date of e-bidding 08/07/2019 (upto 3.00 PM) 11 e-bidding website https://tripuratenders.gov.in 12 Date of opening of Bid 08/07/2019 (at 3.30 PM) (probable) 13 Declaration of Formal/Informal In the time of opening, formal/informal declaration Bidders is not possible. It will be declared after detailed scrutiny is over 14 Period of Contract 01 (One) year from the date of approval 15 No of written pages incl. this 19 (Nineteen) pages page TABLE-B TIME & DATE OF DOWNLOADING TENDER FORM TENDERER APPLICATION CLASS OF SI LAST DATE & OPENING OF TIME FOR e-
DOCUMENT ESTIMATED Name of Item & DNIT NO & BIDDING No EARNEST COST OF BIDDING MONEY COST (RS) (RS) (RS) BID 1 Procurement of 1st class Brick klin brick & 1st class straight owner/Firm https://tripuratenders.gov.in Upto 3.00PM of 08/07/2019 picket and Well burnt having At 3.30 PM on 08/07/2019 brick aggregate of manufacturing different sizes for various unit of brick 1,00,000.00 40.00 Lakh worksites undue Belonia 1,000.00 Municipal Council area & BC Nagar RD Block undue South Tripura District. DNIT NO:-e-
DNIT 11/BRICKS
(BCN)/EE/RD/ TB/2019-
20 dt-17/06/2019
Page 7 of 32
TABLE-C
1 PNIT NO. e-PT-IV/EE/RD/STB/2019-20dt-
17/06/2019
2 DNIT NO. e-DNIT-
11/BRICKS(RJN)/EE/RD/STB/2019-20
3 Name of item Procurement of 1st class brick & 1st class
straight pieket and Well burnt brick
aggregate of different sizes for various worksites under Rajnagar RD Block under South Tripura District 4 Eligibility of bidder Brick klin owner/Firm having valid manufacturing unit of brick 5 Earnest money Rs.40,000/- (Rupees forty thousand) only 6 Estimated cost Rs.40,00,000 (Rupees forty Lakh) 7 Tender fee Rs.1000.00 (Non refundable) in the form of D/D 8 Inspection Departmental inspection 9 Date of floating Tender 17/06/2019 10 Last date of e-bidding 08/07/2019 (upto 3.00 PM) 11 e-bidding website https://tripuratenders.gov.in 12 Date of opening of Bid (probable) 08/07/2019 (at 3.30 PM) 13 Declaration of Formal/Informal In the time of opening, formal/informal Bidders declaration is not possible. It will be declared after detailed scrutiny is over 14 Period of Contract 01 (One) year from the date of approval 15 No of written pages incl. this page 19 (Nineteen) pages TABLE-D SI Name of Item & DNIT NO DOWNLOADIN APPLICATION LAST DATE & No TIME & DATE OF OPENING G & BIDDING MONEY (RS) TIME FOR e-
DOCUMENT ESTIMATED TENDERER FORM (RS) COST (RS) CLASS OF EARNEST COST OF BIDDING TENDER OF BID 1 Procurement of 1st Brick klin class brick & 1st class owner/Firm straight picket and having https://tripuratenders.gov.in Upto 3.00PM of 08/07/2019 Well burnt brick manufacturing At 3.30 PM on 08/07/2019 aggregate of different unit of brick sizes for various 1,00,000.00 40.00 Lakh worksites undue 1,000.00 Rajnagar RD Block undue South Tripura District DNITNO;-e-DNIT 10/BRICKS (RJN)/EE/RD/STB/201 9-20 dt-17/06/2019 Page 8 of 32
6. While floating the above tenders the respondent No.3 has categorically stipulated about the documents to be uploaded. Those are common for each of 4 NIe-Ts (Annexure-4A,4B,5A & 5B to the writ petition). The tenderer were required to upload the following documents: (i) Document/certificate from appropriate department in support of having brick kiln; (ii) factory license issued from the Factory and Boilers Department; (iii) pollution clearance certificate from Tripura State Pollution Control Board, (TSPCB), Gurkhabasti, Agartala, West Tripura; (iv) Labour License. That apart, it had been instructed that the downloaded DNIe-T be uploaded with digital signature (not attested). The tendering authority has also asked for uploading the documents viz, (i) Professional Tax Clearance Certificate; (ii) PAN Card; (iii) GST Registration Certificate; (iv)Copy of the last GST return.
7. The petitioner had uploaded all the material documents and the declaration as required, but along with other bids/tenders the petitioner's tender was also declared informal. But initially his tender was not declared informal, rather was determined valid. By the memorandum No. F.7(1)-BRICKS/EE/RD/STB/2019-2020/615 dated 05.12.2019 (Anenxure-7 to the writ petition) it was apprised that out of total four bidders only one bidder [the petitioner] was found formal after the detailed scrutiny. The rates were taken up Page 9 of 32 for consideration by the High Purchase Committee (HPC) on 15.12.2019 at 3.00 p.m. in the chamber of the District Magistrate and Collector, South Tripura, Belonia.
8. From the said memorandum it is evident that the HPC considered the rates submitted by the single formal bidder and had a detailed discussion with respect to the reasonableness of the rates of first class brick and first class straight picket only considering the fact that e-tender and NIT was widely published. Item Sl. No. 3,4 and 5 were not considered for recommendation as it was revealed that the items are non scheduled and the rates of which were not available in the SoP and thus, the quoted rate could not be compared with any reference rate. The reasonableness of the quoted rate could not be assessed.
9. From the table as provided below the recommendation made by the HPC in respect of the two items as accepted by the HPC, the rates, etc. as approved will be available:
Recommended Rate per unit incl. all taxes & charges forest royalty,
carrying, loading, Unloading, Cost
SI Tentative Name of
Particulars of item Unit stacking, counting, charges etc Involvement
No quantity Bidder
whichever is/are applicable to in rupees
deliver in any work site of the area
(in Rs)
1 1st Class Bricks at Belonia Maa Kali Bricks
Municipal Council area & BC Industries ,
Nagar RD Block Gopi Deb Roy,
No 1,00,000 11.90 11,90,000.00
Bankar,
Belonia, South
Tripura
2 1st Class Straight Pickets at
Belonia Municipal Council No 1,00,00 11.90 11,90,000.00 -DO-
area & BC Nagar RD Block
Total= Rs.23,80,000.
Page 10 of 32
It has been also noted below the said table that item No.3,4&5 (see the NIe-T) were not considered for recommendation with the rate as quoted, inasmuch as those rates could not be analyzed for being the non-scheduled items and no reference for comparable rates was available. Similar memorandum had been issued for other four sites vide the memorandum dated 05.12.2019 (Annexure-7A), the memorandum dated 05.12.2019 (Annexure-
7B), the memorandum dated 05.12.2019 (Annexure-7C) and the memorandum dated 05.12.2019 (Annexure-7D).
10. In terms of the said recommendations, the supply orders for the bricks for different sites were issued on 01.01.2020 (Annexure-8A and 8B) and on 03.01.2020 (Annexure-9A, 9B and 9C to the writ petition). When the petitioner was preparing for causing the supply according to the said orders, he had suddenly received a show cause notice from the respondent No.3 (the Executive Engineer, RD Santirbazar Division) on 10.01.2020 (Annexure-15 to the writ petition) by which it was observed that the rate of the bricks for financial year 2019-2020 was recommended by the HPC, South Tripura District for procurement in respect of various development infrastructure to be implemented departmentally with MGNREG and Panchayats and under other development schemes in Hrishyamukh, Rajnagar and BC Nagar block through e-tenders. Reference of those ordersare provided in Page 11 of 32 the said show cause notice dated 10.01.2020. It has been further observed in the said show cause notice, the petitioner was found only formal bidder. After scrutiny, further action, as noted was taken.
11. It has been observed that when the validity of the certificate for consent to operate was, on having reliable information, verified by the tendering scrutiny committee, it had been found that the said certificate was invalid for the relevant period. In view of invalidity of the environmental certificate, submitted along with the tender documents and the confirmation received in this regard from the TSPCB under their letter dated 06.01.2020, the tendering authority has observed that it is clear that the petitioner had suppressed the fact of invalidity of the certificate for consent to operate. It has also been observed in that show cause notice dated 10.01.2020 that the said certificate for consent to operate was issued on 23.06.2016 with validity up to 18.06.2026 by the letter dated 23.06.2016. However, the said certificate was subsequently reviewed by the TSPCB and the said Board considered its validity for one year and accordingly the said certificate dated 23.06.2016 was valid up to 18.06.2017. In this context, the Pollution Control Board had issued a letter dated 05.02.2016. The petitioner has never challenged that reduction. On Page 12 of 32 the contrary, he had complied all directions in terms of the new categorization.
12. It had been brought to the notice of the tendering authority that the petitioner was running a manufacturing unit of bricks without a valid certificate for consent to operate since 19.06.2017. Hence, the TSPCB issued the closure notice dated 08.07.2019 and the said notice was published in the various newspapers including the Dainik Sambad and Syandan Patrika on 16.06.2019 and 17.06.2019 respectively. Subsequently, the SDM, Belonia had also issued a show cause notice on 30.07.2019. Subsequently, the TSPCB had reissued the certificate for consent to operate dated 22.11.2019 valid till 21.11.2029 in favour of the petitioner, M/S Maa Kali Bricks Industry, NBC Nagar, Belonia, South Tripura.
13. According to the tendering authority, the petitioner had suppressed that it did not have the valid certificate for consent to operate during the relevant period with mala fide intention. Thus, the petitioner had violated the essence of the contract by suppressing the relevant fact required by the General Terms and Conditions of the DNIe-T. The petitioner was asked to explain why the punitive action shall not be taken against him by barring his participation in future tenders for next two years invoking the condition under clause 29 of the tender. By the show cause notice, Page 13 of 32 the petitioner was asked to explain why its tender will not be declared informal.
14. The petitioner submitted the reply on 10.01.2020 (Anenxure-16 to the writ petition) and stated inter alia, that the 'pollution clearance certificate' from the TSPCB, Gurkhabasti, Agartala was required to be submitted with the tender. The petitioner had submitted the respective certificate with the tender which was on scrutiny found fit. Moreover, there is no provision for submitting any environmental clearance certificate in the respective DNIT, but in this regard, the petitioner has contended that the valid documents of environmental clearance from the concerned authority were submitted. There had been no suppression of material facts according to the petitioner as it had submitted in the reply that no such clause that the environmental clearance certificate was to be uploaded in the tender form, it has been urged for directing the respondents not to rescind the tender or declare its tender as informal or to bar him from participating in the future tenders for two years.
15. By the communication dated 21.01.2020 (Anenxure-
17) the tendering authority has clearly stated they were not satisfied with the reply filed by the petitioner for the reasons that validity of the certificate for consent to operate, synonymous of pollution clearance certificate issued by the TSPCB by their letter Page 14 of 32 dated 23.06.2016 had expired and there had been no valid certificate during the relevant period. Suppressing the fact relating to validity of the certificate for consent to operate the petitioner had breached the conditions and clause 29 of the General Terms and Conditions of the DNIT. Hence, it was stated that the punitive action would be initiated against the petitioner in accordance with the DNIe-T.
16. The petitioner through one of its partners has further stated that as per the norms of the DNIT it had obtained the consent to operate from the respective authority w.e.f. 23.06.2016 to 18.03.2026, a copy of the said certificate was also sent to the District Magistrate, South Tripura, the Director of Industries and Commerce, Tripura, Labour Commissioner, Labour Department, Tripura, SDM, Belonia, Block Development Officer, BC Nagar, South Tripura, District Scientific Officer, DSTE, South Tripura, but, from the publication in the daily newspapers the petitioner came to know that the validity of the said certificate was cancelled without having any basis. Even the petitioner was not informed by the respective authority by any means. Moreover, the fees that was paid for long ten years was not been refunded. Being aware of the development, the petitioner had approached the TSPCB for issuing the corrigendum deleting the name of the petitioner by the letter dated Page 15 of 32 11.07.2019, but nothing had been communicated by them. As such, there was no suppression of any material fact.
17. The said communication dated 24.01.2020 (Annexure- 18 to the writ petition), as it appears, did not evoke any positive response from the tendering authority and the tendering authority issued the cancellation order dated 22.01.2020 (Anenxure-19 to the writ petition). Along with that, they had issued a fresh NIeT (Annexure-20 to the writ petition) on the same date with elaborate instructions for the tenderers.
18. The petitioner has enclosed the order dated 27.08.2019 as passed by this Court in a Public Interest Litigation being WP(C)(PIL) No. 17 of 2019, but the relevance of the said order is far-fetched.
19. By the order dated 24.09.2019, subsequent to the earlier order in the said PIL, the High Court had directed the brick kiln owners to apply for obtaining necessary sanctions/permissions. It was observed further that it shall be open for the authority(s) concerned, including the regulator, i.e. State Pollution Control Board, to issue necessary sanctions and permissions, be it in the nature of provisional or otherwise, in accordance with law. It has been categorically observed that such approvals can be afforded only on receipt of the applications from 'the establishments' for establishing fresh unit or running the existing units on payment of Page 16 of 32 costs, if not already deposited. Payment of costs means, the cost that was imposed by this Court in the said Public Interest Litigation.
20. By the other subsequent order dated 30.09.2019 the earlier order was clarified that if the applications are made in proper form, complete in all respects, the authority may consider the same by relaxing the rules. By another order dated 03.10.2019 passed in the said PIL the consequential action as taken by the authority has been noted. By the said order, the TSPCB was also directed to take appropriate and expeditious action so that these brick kilns can be made functional on compliance of the requirement of law. The other part of the order has no relation and relevance with the present case.
21. Mr. Samarjit Bhattacharjee, learned counsel appearing for the petitioner has submitted that the said order of cancellation and issuance of the fresh NIe-T are grossly illegal and cannot be sustained in law. According to him, the certificate for consent to operate dated 23.06.2016 was valid up to 18.06.2026. But the TSPCB compelled the petitioner to make a fresh application for issuing consent to operate certificate. Having no other alternative, the petitioner made such application and on 21.11.2019 the TSPCB issued the consent to operate certificate valid till 21.11.2029 (See Annexure-14 to the writ petition).
Page 17 of 32
22. Mr. S Bhattacharjee, learned counsel for the petitioner has further submitted that no question of suppression of facts can arise in the context of the facts. Therefore, the punitive action as proposed under Clause 29 of the General Terms and Conditions of the DNIT is not sustainable and hence, is liable to be interfered with as arbitrary, unreasonable and coercive in nature on depriving the petitioner from complying the supply orders for making some marginal benefits out of those. Mr. Bhattacharjee, learned counsel has submitted that in the context, this Court will be inclined to interfere with such action of the respondents.
23. In support of his contention, Mr. Bhattacharjee, learned cousenl has referred a decision of the Apex Court, Mansukhlal Vithaldas Chauhan Vs. State of Gujarat reported in (1997) 7 SCC 622. Fundamentally, that was a case of sanction for prosecution but Mr. Bhattacharjee, learned counsel has referred the said decision in respect of the obligation of the authorities of the state to act fairly. Unless that is done it has been observed by the Apex Court, it would cause miscarriage of justice. It has been held in Mansukhlal Vithaldas Chauhan (supra) that the obligation to act fairly on the part of the administrative authorities was evolved to ensure the rule of law and to prevent failure of justice. The doctrine is complimentary to the principle of natural justice which the quasi judicial authorities are bound to observe. It is true that Page 18 of 32 the distinction between a quasi judicial and administrative action has become thin as pointed out by the Apex Court as far back as in 1970 in A.K. Kraipak Vs. Union of India reported in (1969) 2 SCC 262.
24. It has been further observed that even the extent of judicial scrutiny/judicial review in the case of administrative action cannot be larger than in the case of quasi-judicial action. If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities it follows equally that it cannot do so in the case of administrative authorities. In the matter of administrative action, it is well known, more than one choice is available to the administrative authorities, they have a certain amount of discretion available to them. They have 'a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred'. This observation has been made in A.K. Kraipak (supra) having referred to the speech of Lord Diplock in Secretary of State for Education and Science Vs. Tameside Metropolitan Borough Council, (1976) 3 All ER 665. The court cannot substitute its judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or unreasonable that no Page 19 of 32 reasonable person would have taken that action, can the court intervene.
25. Mr. Bhattacharjee, learned counsel has referred to another decision of the Apex Court in Consortium of Titagarh Firema Adler S.P.A.-Titagarh Wagons Ltd. Vs. Nagpur Metro Rail Corporation Ltd., reported in (2017) 7 SCC 486 where the Apex Court has observed, having referred to Consortium of Titagarh Firema Adler S.P.A. Vs. Nagpur Metro Rail Corporation Ltd. reported in 2016 SCC Online Bom 14834 that the decision making process of the Technical Evaluation Committee has been guided by the relevant factors and it cannot be said that they have not taken into consideration any of the relevant factors. Hence, the decision of the Technical Evaluation Committee would fall within the ambit of rationality.
26. In reply to the contention raised by Mr. Bhattacharjee, learned counsel representing the petitioner, Mr. D Bhattacharjee, learned GA has straightway submitted that the petitioner had practiced fraud by presenting and uploading the certificate for consent to operate dated 23.06.2016 (Annexure-3 to the writ petition) which was amended much before the tendering period. True it is that, initially the said certificate was made valid up to 18.06.2016. Even when the TSPCB had issued the closure notice, as stated before, the petitioner was running the manufacturing unit Page 20 of 32 of bricks without any valid certificate for consent to operate as the earlier certificate dated 23.06.2016 was made valid till 18.06.2017 by the letter issued by the TSPCB on 20.12.2016. Therefore, it was known to the petitioner that its certificate for consent to operate was valid till 18.06.2017. The tender was floated on 17.06.2019 and closed on 08.07.2019. Thus, the certificate that was produced and uploaded in the tender process was no more valid. In its place, a new certificate was issued on 20.12.2016, but the petitioner has deliberately suppressed that change of the tenure of the validity of the certificate for consent to operate brought by the communication dated 20.12.2016 from the tendering authority. The tendering authority, on bona fide belief, cleared the tender of the petitioner for two supplies but when the said fraud came to the notice of the tendering authority, after giving due show cause notice, the petitioner's tender was declared informal and the entire tendering process was cancelled. Simultaneously, a new process was floated.
27. The respondents No. 6, 7 & 8 has filed an elaborate affidavit. The respondent No.6, the Tripura State Pollution Control Board is the authority to issue the certificate for consent to operate for running a brick kiln. That certificate was issued on observing the environmental clearance measures. In their affidavit, the respondents No. 6, 7 & 8 have stated that the certificate for consent to operate was issued on 23.06.2016 initially with validity Page 21 of 32 of 10 years but that was reviewed and the validity was granted for one year meaning till 18.06.2017. It is evident that the unit was operating during the period from 19.06.2017 to 21.11.2019 without obtaining the certificate for consent to operate from the TSPCB. Only on 07.11.2019, the petitioner's unit had applied for renewal of the consent to operate certificate. While issuing the consent to establish and operate certificate in favour of the brick kilns in Tripura, certain terms and conditions are imposed on the manufacturers. One of which is submission of Environmental Clearance (EC) Certificate. It has been so done as per the direction of the National Green Tribunal (NGT) contained in the order dated 02.11.2016 delivered in OA No. 74/2015/EZ titled as Joydeep Mukherjee Vs. Pollution Control Board and Anr.
28. The respondents No. 6, 7 & 8 have also admitted that the certificate for consent to operate as issued on 22.11.2019 is made valid till 21.11.2029. Since the petitioner was running the brick kiln without the valid certificate for consent to operate, the closure order was issued. They have stated in para 10 of their reply that the State Level Environment Impact Assessment Authority (SEIAA) notified by the Government of India is responsible for issuance of the Environmental Clearance (EC) certificate. The unit has obtained EC certificate from the Member Secretary, SEIAA. Page 22 of 32
29. Mr. Ratan Datta, learned council appearing for the respondents No. 6, 7 & 8 has referred to the notification dated 28.05.2016 (Annexure-2 to their reply) where, in terms of the modified direction under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1982 harmonization of classification of industrial sector in red/orange/green/white categories has been made. In order to bring uniformity in the classification across the country, the Central Pollution Control Board issued direction regarding harmonization of classification of industrial sector under red/orange/green and white categories [See para 3 of the notification dated 28.05.2016]. As stated, the four categories of the industries, operations, process and activities have been dealt with by the said notification.
30. Annexure-1 of the said notification has provided the list of industries and their categories such as red, orange, green and white. It appears that the brick fields (excluding the fly ash brick manufacturing using lime process) fall under the orange category. The orange categories of industries, process and operation of activities would get renewal for consent to operate after every 10 years. Accordingly, when the certificate for consent to operate was issued, it was issued for 10 years. Mr. Dutta, learned counsel has stated that the fresh application was filed by the petitioner to have the renewal certificate for consent to operate under the new Page 23 of 32 categories on 14.01.2016 to the Member Secretary, Tripura State Pollution Control Board and accordingly the earlier certificate dated 23.06.2016 was modified in terms of the new notification. In terms of the said application the consent to operate was extended till 18.06.2017.
31. For this purpose, when the new notification came into operation, the TSPCB by their letter dated 05.12.2016 informed the petitioner that the Board will review all the certificates. It has also been informed to the petitioner that the TSPCB had decided to reconsider the validity of the consent certificate issued earlier for one year (See the letter dated 05.12.2016 Annexure-5 to the reply filed by the respondents No. 6,7 & 8). But after the expiry of the validity, which occurred on 18.06.2017, the petitioner did not apply for the renewal but such application for renewal was made only on 07.11.2019 [see Annexure-6 to the reply filed by the respondents No. 6, 7 & 8] to the Member Secretary, TSPCB but the said unit of the petitioner carried out operation illegally without any valid certificate for consent to operate. That illegal operation invited the closure in strict compliance of the order of the National Green Tribunal which has been perused by this Court in a Public Interest Litigation.
32. The respondent No.9, represented by Mr. A Bhowmik, learned counsel, has also filed a separate reply which is completely Page 24 of 32 in tune with the reply filed by the other respondents. There is no fresh material to take note of.
33. Mr. D Bhattacharjee, learned GA has placed his reliance on Consortium of Titagarh Firema Adler S.P.A.-Titagarh Wagons Ltd.(supra) to contend that the respondents have acted fairly. In Consortium of Titagarh Firema Adler S.P.A.-Titagarh Wagons Ltd. (supra), the Apex court has not only relied on Monte Carlo Ltd. V. NTPC Ltd. reported in (2016) 15 SCC 272 but has approvingly reproduced the following passage:
30. ........ The two-Judge Bench took note of the fact that in Jagdish Mandal (supra) it has been held that, if the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The decisions in Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. and another, (2005) 6 SCC 138, B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. and others (2006 11 SCC 548 and Michigan Rubber (India) Ltd. (supra) have been referred to. The Court quoted a passage from Afcons Infrastructure Ltd. (supra) wherein the principle that interpretation placed to appreciate the tender requirements and to interpret the documents by owner or employer unless mala fide or perverse in understanding or appreciation is reflected, the constitutional Courts should not interfere. It has also been observed in the said case that it is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. After referring to the said authority, it has been ruled thus:
"26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial Page 25 of 32 field that technical bids pursuant to the notice inviting tenders are scrutinized by the technical experts and sometimes third party assistance from those unconnected with the owner's organization is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or malafide or procedure adopted is meant to favour one. The decision making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints."
31. In Tamil Nadu Generation and Distribution Corporation Ltd. v. CSEPDI-Trishe Consortium, (2017) 4 SCC 318, the Court, after referring to Jagdish Mandal (supra) and taking note of the complex fiscal evaluation and other aspects, held:
"36. ... At this juncture we are obliged to say that in a complex fiscal evaluation the Court has to apply the doctrine of restraint. Several aspects, clauses, contingencies, etc. have to be factored. These calculations are best left to experts and those who have knowledge and skills in the field. The financial computation involved, the capacity and efficiency of the bidder and the perception of feasibility of completion of the project have to be left to the wisdom of the financial experts and consultants. The courts cannot really enter into the said realm in exercise of Page 26 of 32 power of judicial review. We cannot sit in appeal over the financial consultant's assessment. Suffice it to say, it is neither ex facie erroneous nor can we perceive as flawed for being perverse or absurd."
32. In Reliance Telecom Ltd. and another v. Union of India and another, (2017) 4 SCC 269 the Court referred to the authority in Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd. and others (1997) 1 SCC 738 wherein it has been observed that:
"58. ......though the principle of judicial review cannot be denied so far as exercise of contractual powers of Government bodies are concerned, but it is intended to prevent arbitrariness or favouritism and it is exercised in the larger public interest or if it is brought to the notice of the court that in the matter of award of a contract power has been exercised for any collateral purpose."
Thereafter, the Court in Reliance Telecom Ltd. (supra) proceeded to state thus:
"58. ... In the instant case, we are unable to perceive any arbitrariness or favouritism or exercise of power for any collateral purpose in the NIA. In the absence of the same, to exercise the power of judicial review is not warranted. In the case at hand, we think, it is a prudent decision once there is increase of revenue and expansion of the range of service."
And again:
"59. It needs to be stressed that in the matters relating to complex auction procedure having enormous financial ramification, interference by the Courts based upon any perception which is thought to be wise or assumed to be fair can lead to a situation which is not warrantable and may have unforeseen adverse impact. It may have the effect potentiality of creating a situation of fiscal imbalance. In our view, interference in such auction should be on the ground of stricter scrutiny when the decision making process commencing from NIA till the end smacks of obnoxious arbitrariness or any extraneous consideration which is perceivable."
33. The learned counsel for the appellants invited our attention to the authority in W.B. State Electricity Board v. Patel Engineering Co. Ltd. (2001) 2 SCC 451 wherein it has been ruled:
"24. ... The appellant, Respondents 1 to 4 and Respondents 10 and 11 are all bound by the ITB which should be complied with scrupulously. In a work of Page 27 of 32 this nature and magnitude where bidders who fulfil prequalification alone are invited to bid, adherence to the instructions cannot be given a go-by by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty. Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the appellant) in favour of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided. Where power to relax or waive a rule or a condition exists under the rules, it has to be done strictly in compliance with the rules. We have, therefore, no hesitation in concluding that adherence to the ITB or rules is the best principle to be followed, which is also in the best public interest. xxxxx
31. ... The Project undertaken by the appellant is undoubtedly for the benefit of the public. The mode of execution of the work of the Project should also ensure that the public interest is best served. Tenders are invited on the basis of competitive bidding for execution of the work of the Project as it serves dual purposes. On the one hand it offers a fair opportunity to all those who are interested in competing for the contract relating to execution of the work and, on the other hand it affords the appellant a choice to select the best of the competitors on a competitive price without prejudice to the quality of the work. Above all, it eliminates favouritism and discrimination in awarding public works to contractors. ... Merely because a bid is the lowest the requirements of compliance with the rules and conditions. ..."
Emphasis added]
34. Mr. Bhattacharjee, learned GA has submitted that as per the Delegation of Financial Powers Rules, Tripura, 2017 the Head of Department shall be competent to accept the tender recommended by the Lower Purchase Committee and the Secretary of the Department shall be competent to accept the tenders Page 28 of 32 recommended by the Higher Purchase Committee while the Minster In-charge of the Department shall be competent to accept the tenders recommended by the Departmental Purchase Committee. (See rule 9). In the present exercise, no such acceptance is available in the records. Therefore, in the legal terms, the supply orders were informal in nature. Even the petitioner has not supplied a single brick to any project for which the supply orders were contemplated.
35. Mr. A Bhowmik, learned counsel for the respondent No.9 has relied on Ramana Dayaram Shetty Vs. International Airport Authority of India and Ors, reported in (1979) 3 SCC 489 to contend that the standard of eligibility held out in the notice inviting tender cannot be departed arbitrarily. The tendering authority is under obligation to act according to the adverted conditions of the tenders.
36. In Ramana Dayaram Shetty (supra) the Apex Court has further observed that it has been clearly stated that the constitutional mandate of Article 14 as well as the judicially evolved rule of administrative law herald that the authority is not entitled to act arbitrarily in accepting the tender but the authority is bound to conform to the standard or norm laid down in the notice inviting tender. According to Mr. Bhowmik, since the petitioner was lacking in one of the conditions as aforesaid, the tendering authority did Page 29 of 32 not have any power to accept such tender. On revelation of the 'fraud' as exercised by the petitioner, the tendering authority has rightly declared the tender informal and consequentially cancelled the entire process as there was no other formal tenderer.
37. On a similar point, he has referred Ram Gajadhar Nishad Vs. State of UP & Ors, reported in (1998) 2 SCC 486.
38. Mr. Bhowmik has quite emphatically submitted that suppression is a vice. It not only creates fraud, but it as well pollutes the clear stream of justice. In this regard, he has referred Kishore Samrite Vs. State of Uttar Pradesh & Ors., reported in (2013) 2 SCC 398 where the Apex Court had observed that whoever approached the constitutional courts with unclean hands, without disclosing complete facts and misusing the judicial process, exemplary action shall be taken against him. In Kishore Samrite (supra) the Apex Court has not only dismissed the writ petition but imposed the exemplary cost of Rs.5,00,000/- for abuse of process of the court.
39. Having appreciated the rival contentions of the learned counsel for the parties, this Court finds that the petitioner has deliberately suppressed the decision of the TSPCB as reflected in their communication dated 05.12.2016 (Annexure 5 to the reply filed by the respondents No.6, 7 & 8) that on reconsideration, the validity of the consent certificate has been reduced to one year. Page 30 of 32 Despite knowledge of such development, the petitioner had produced the certificate dated 23.06.2016 which showed that the certificate of consent to operate was valid till 18.06.2026 whereas by the decision as reflected in the communication dated 05.12.2016 the period of validity was reduced to 18.06.2017.
40. The petitioner was well aware that he had no valid certificate of consent to operate, to produce the same as the Pollution Clearance Certificate. It may be noted that the said certificate was accepted as the Pollution Clearance Certificate. Even now, the respondents have shown any exception to such acceptance. However, the first pollution clearance certificate was issued on 17.10.2019 (Annexure-10 to the reply filed by the respondents No. 6, 7 & 8). Despite that he placed the said certificate for consent to operate dated 23.06.2016 (Anenxure-4 to the writ petition) for consideration. This is a deliberate act of suppression of material facts and not less than exercising fraud. The tendering authority (the respondent No. 3) having exposed to the said fraud had taken immediate action by issuing show cause notice dated 10.01.2020 (Annexure-15 to the writ petition) and having considered the reply of the show cause, the decision of the tendering authority was communicated to the petitioner by the letter dated 21.01.2020 (Annexure 17 to the writ petition). The further explanation of the petitioner dated 24.01.2020 was of no Page 31 of 32 utility for any purpose. In this regard, the court may take notice that by DNIe-T dated 17.06.2019 valid and attested 'pollution clearance certificate from Tripura State Pollution Control Board, Gurkhabasti, Agartala, West Tripura' was directed to be uploaded. Hence, the contention of Mr. Bhattacharjee, learned counsel should be discarded and is discarded.
41. Accordingly, this Court does not find any infirmity in the action taken by the respondent No.3. But this Court is unable to accept the submission of Mr. Bhattacharjee, learned GA that there was no acceptance by the competent authority as per rule 9 of Delegation of Financial Powers Rules, Tripura, 2017 inasmuch as the supply orders issued the respondent No.3 are annexed with the writ petition. If it is such that the supply orders were issued without compliance of Rule 9 the department may necessary inquiry.
42. The petitioner has again indulged to abuse the process of the court on the basis of the said certificate dated 23.06.2016 (Annexure-3 to the writ petition) by filing this writ petition without any reference to the reduction of tenure of validity. Having regard to the principle of Kishore Samrite (supra) this court shall impose a cost of Rs.10,000/- on the writ petitioners and the said cost shall be paid to the Special Home constituted under the Juvenile Justice (Care and Protection of Children) Act, 2015 at Narsingarh, Agartala and the said amount shall be utilized for purchasing the materials Page 32 of 32 for the inmates of that home. Such amount shall be paid within 30 days from today to the Director, Social Welfare and Social Education, Government of Tripura, Agartala by Cheque and the Director, Social Welfare and Social Education shall place the said fund to the Principal Judge, Juvenile Justice Board, West Tripura, Agartala who is hereunder authorized to make all necessary expenditures at his or her discretion.
43. Having observed thus, the writ petition stands dismissed. Pending applications, if any, also stand disposed of.
44. By the order dated 07.02.2020 this court had stayed the operation of the order dated 22.01.2020. As the writ petition stands squarely dismissed, the said order dated 22.01.2020 stands vacated.
JUDGE JUDGE lodh