ARINDAM MUKHERJEE,J. - (1.) Midnapore Municipality (Respondent No.1) published a Notice Inviting Tender (in short NIT) on 27th January, 2020 for Sinking of 2 nos of Deep Tube Well of 300mm X 200mm dia 180 meter deep with PVC Pipe and Fiber Glass Stainer within Midnapore Municipality, Location Ward No.22 at Kamarpara and Ward No.23 at Horijonpally (hereinafter referred to as the said work) for an aggregate value of Rs.18,94,185/- (hereinafter referred to as the said value) which is at page 15 of the writ petition. Clause 9 of the said NIT provides for the "Eligibility Criteria for participation in the tender". Clause 9 (i) which reads as follows:- i) Indenting tenderers should produce the minimum value 30% of the estimated amount put to tender during 5 (Five) years prior to the date of issue of this tender notice. OR, Indenting Tenderers should produce credential of 2(Two) similar nature of work, each of the minimum value of 30% of the estimated amount but to tender during 5 (Five) years prior to the date of issue of this tender notice. OR, Indenting Tenderers should produce credential of one single running work of similar nature which has been completed to the extent of 80% or more and value of which is not less than the desired value at (i) above; In case of running works, only those tenderers who will submit the certificate of satisfactory running work from the concerned Executive Engineer, or equivalent competent authority will be eligible for the tender. In the required certificate it should be clearly stated that the works in process satisfactorily and also that no penal action has been initiated against the executed agency, i.e., tenderer.
(2.) The Respondent No.1 accepted the Technical Evaluation of Bid of Gobinda Maiti (petitioner), S& P Enterprise and M/S Shine Construction (respondent No.3).
(3.) The petitioner says that the total value of credential submitted by Respondent No.3 in terms of Clause 9(i) is Rs.10,42,594/- but the same includes only Rs.3,19,017/- as similar nature of work and the rest of the value pertains to allied work and as such the said respondent No.3 does not fulfil the eligibility criteria. The petitioner relies upon the "nota bene" portion of Clause 9(i) to contend that the value of the allied works should not be treated as value of the credential under the said Clause and as such the respondent No.1 should be held to be ineligible. The petitioner in order to elaborate his stand relies upon a notice inviting tender dated 6th September, 2017 (at page 29 of the writ petition) and contends that the work of Sinking of a Deep Tube Well (100 mm X 200 mm) with PVC pipe including laying of water supplying pipes to different building at Training institute ARD, Nazargunge, Paschim Midnapore being the subject work in the said 2017 tender and cited by respondent No.3 in support of its eligibility criteria includes dismantling of RCC floors, beam along with concrete work which are not of similar nature and should not be treated as part of the estimate value of work in support of credential. It is also the case of the petitioner that the credential regarding previous work experience with a particular value provided in the NIT is an essential condition and the respondent No.1 in order to favour the respondent No.3 has relaxed such essential terms of the tender which is impermissible in law. The petitioner, therefore, invites interference by this Court into the matter in exercise of powers of judicial review. The petitioner cites the following judgments in support of this contention:- a) Ramana Dayaram Shetty VS. International Airport Authority of India and Ors., 1979 3 SCC 489 : (paragraphs 10 and 34) b) Poddar Steel Corpn. v. Ganesh Engineering Works, 1991 3 SCC 273 : (paragraph 6) c) Tata Cellular v. Union of India, 1994 6 SCC 651 : (paragraph 94) d) Assn. of Registration Plates v. Union of India, 2005 1 SCC 679 : (paragraphs 38 and 43) e) B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd., 2006 11 SCC 548 : (paragraphs 66 and 69) f) Jagdish Mandal v. State of Orissa, 2007 14 SCC 517 : (paragraph 22) g) Shobikaa Impex (P) Ltd. v. Central Medical Services Society, 2016 16 SCC 233 (paragraph 24) h) Judgement of the Hon'ble Supreme Court delivered on 18th March, 2020 in Civil Appeal No.2197 of 2020 (The Bharat Coking Coal Ltd. and Ors. Vs. AMR Dev Prabha and Ors.);