- (1.) Moot question involved in this appeal would relate to two clauses incorporated in the tender condition being Clause 3(h) and (i) which are extracted as under: "h) A declaration in the form of an affidavit on a non-judicial stamp paper of Rs.10/-, duly affirmed before a Notary public/1st Class Magistrate should be submitted as per format given in the proforma I, stating clearly that on the date of submission of the tender, the applicant is not disallowed/debarred/delisted/blacklisted for participation in any DI Pipe supply tender by any Government Department/GovernmentUndertaking/StatutoryBody/Municipality/M unicipal Corporation in India. If any such incident is otherwise discovered, the applicant's tender/order shall be cancelled summarily without assigning any reason whatsoever. i) A declaration in the form of an affidavit should be submitted on a non-judicial stamp paper of Rs.10/-, duly affirmed before a Notary public/1st class Magistrate should be submitted stating clearly that on the date of submission of the tender, there is no pending FIR/Charge Sheet against the tenderer in respect of an offence under the Prevention of Corruption Act. If any such case is declared in the affidavit or otherwise discovered, the applicant's tender shall be cancelled summarily without assigning any reason whatsoever." FACTS:
(2.) The respondent No.1 is involved in manufacture of D.I. Pipes used for water transmission, mostly used by municipalities or the Government Agencies through Public Health Engineering Department, State of West Bengal. The respondent no.1 approached the learned Single Judge for quashing of those two conditions interalia on the ground, incorporation of those two clauses was done for oblique purpose only to exclude the said respondent from participating in any tender process. The respondent no.1 alleged, it was done at the behest of their competitors in the field. The learned Single Judge allowed the writ petition vide judgment and order dated August 5, 2014 appearing at pages 99-109 of the paper book, subsequently filed in Court in course of hearing. The respondent no.1 also alleged, it was litigating with the State authorities over a considerable period of time as on the one pretext or the other, they were being disqualified from participating in the tender process. About twenty proceedings were initiated at the behest of the respondent no.1 just to fight with such mala fide conduct on the part of the State authorities. The respondent no.1 would also claim, they were successful in most of the litigations that came to be disposed of, yet, the State was bent upon to disqualify them from participating in the tender process and the litigations are pending on that score. The present appeal would arise out of one of such writ petitions that the learned Single Judge allowed. JUDGMENT AND ORDER IMPUGNED:
(3.) The learned Judge observed, State could not consider a person to be guilty unless such guilt was established and he was found guilty of the offence that he was charged with hence, merely because an FIR was lodged or a charge sheet was issued he could not be disqualified. The learned Judge observed, the clause that would debar someone from participating in the tender process merely on the ground of pendency of FIR/charge sheet, was unreasonable. His Lordship quashed the Clause 3(i) quoted supra. With regard to Clause (h) the State made a clarification, the same should be read in the context of three eventualities namely "debarred/delisted/blacklisted". His Lordship clarified, "disallowed" should not be construed to mean that a tenderer who was unsuccessful in any previous tender can be considered to be disallowed within the meaning of Clause 3(h) and the word "disallowed" should not be construed to mean that a tenderer who were not allowed to participate in any previous tender for any reason to be disallowed in participating such tender. It should be read ejusdem generis with the words "debarred/delisted/blacklisted".;