TaxTMI 
TaxTMI 
2015 (12) TMI 1710
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....n in respect of tender for the aforesaid year within a stipulated time. Cross appeal being MAT No. 133 of 2015 has also been preferred against the said order by the writ petitioner/respondent no. 1. Facts giving rise to the aforesaid appeals are as follows : On 29^th April, 2013 the Council published a notice inviting tender from reputed and bona fide publishers for printing, binding, publishing and distribution of 8 text books against annual royalty on sale proceeds for the years 2013 -2014, 2014-2015 and 2015-2016. The salient terms of the said tender are as follows :- (a) The publisher must be a member of any recognized publishers' association of West Bengal as well as of Federation of Indian Publishers (FIP) and the Federation of Publishers' and Booksellers' Associations in India (FPBA) for the last three consecutive years; (b) The publisher must have a proven record of publishing Test Books on different subjects for other Boards like CBSE, ICSE and ISCE for the last three consecutive years; (c) The publisher must have a long history of credibility in the market and transparency both in financial and business dealings." Subsequently by a c....
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.... every year. Moreover, till March, 2013 the Council has been receiving royalty at the rate of 20% and maximum 25% against Text Books. Therefore, the Council will be happy to receive royalty either at previous rate or a marginal enhanced rate as the Council has no financial involvement in printing, binding and distributing the books." In the selfsame document writ petitioner/respondent no. 1, though he had offered the maximum rate of royalty, was held to be disqualified on the following grounds :- "Tenderer No. 14. Punascha- No previous experience of publishing text books except some minor books for WBBME. In 2012 Mr. Shankari Bhusan Nayak, (father of Mr. Sandip Nayak, Proprietor of Punascha), the owner of GranthaTirtha, a College Street Book Shop with its godown at 11 B Nabin Kundu Lane, Kolkata - 700 009, P.S. Amherst Street was caught red handed for publishing and selling guide-books. On Gulliver's Travels with passages taken from the original book published by Orient Blackswan on behalf of WBCHSE without taking any permission from the publisher. FIR and Charge Sheet were framed u/s IPC 120B/420 and 63/65 Copyright Act. Later Mr. S.D. Nayak, was released on bail on 26....
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.... be allotted to the appellant while minor portion of the work order was proposed to be allotted to the writ petitioner, Books Syndicate and others. Titles which were not part of the Notice inviting Tender were also allotted to various parties. Rate of royalty was fixed at 26% uniformly. Work orders were accordingly issued to the appellant, writ petitioner and Book Syndicate. The writ petitioner did not accept such work order and approached this Court in W.P. No. 20068 (W) of 2013, inter alia, praying for quashing of the entire process of allotment and for allotment of the tender exclusively to him as he had offered the highest bid. Initially, an order of stay was passed but the said stay order was vacated upon production of original records which contained the aforesaid points of consideration, inter alia, indicating that the petitioner was ineligible due to lack of experience and his alleged involvement in plagiarizing books of the Council. Copies of the documents were handed over to the petitioner and the petitioner instituted the instant writ petition after withdrawing the earlier writ petition. After hearing the parties, learned Single Judge partly allowed the writ ....
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....blished a guide Book whose foreword was penned by none other than the President of the Council. Even prior to the initiation of the tendering process, the President had executed written agreements with the appellant for printing, publishing and distribution of three books of the Council for the years 2013, 2014 and 2015. Due to public outcry, such agreements were not given effect to and tender process was initiated. In the initial NIT, unamended clause (a) was incorporated to exclude all competitors apart from the appellant. The said tender condition was however watered down pursuant to another bout of public outcry. On 16.05.2013 the writ petitioner was illegally disqualified although he had sufficient experience of successfully publishing books on behalf of the West Bengal Board of Madrasha Education and had not criminal case registered against him. The father of the petitioner carried on separate business and his implication in a criminal case cannot by any stretch of imagination be a ground to disqualify the petitioner. The tender conditions were illegally varied after the tendering process had commenced and in a blatant show of favouritism appellant was given seven out of e....
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....to favour the appellant who is presently the holder of copy right of the said books. Ordinarily, the Court would not entertain a writ petition at the behest of an unsuccessful party who had knowingly participated in the tendering process but was dissatisfied with the quantum of allotment in its favour. However, the course of events in the instant case smack of an unusual procedure of dealing with state largesse namely, bartering away the work between the participating bidders through open tender and negotiations instead of following the well establishment norms of fairness and transparency by resorting to fresh tender for allotment of work after alteration of tender conditions by the Council. In the aforesaid factual backdrop, in order to test the locus standi of the writ petitioner to assail the tendering process, it is incumbent to examine the justifiability of the reasons for his initial disqualification from the said process. If such initial disqualification was not in terms of the NIT, the reconsideration of such decision at the behest of Government cannot be faulted and would give the writ petitioner sufficient locus to assail the subsequent steps in the tendering pr....
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....resently pending. In the said case, writ petitioner was not named as an accused in the FIR. There was a reference to him in the statement of a co-accused. However, in conclusion of investigation his name did not feature in the charge sheet submitted before the Court. Merely, because of the father of the petitioner is an accused in a pending criminal case, the credibility of the petitioner cannot be said to be tarnished and he cannot be visited with civil consequences on that score. No reasonable man of ordinary prudence would read clause (c) of NIT so as to impute bad character to the writ petitioner under such circumstances. It is therefore evident that the initial disqualification of the writ petitioner, who was highest bidder, from the tendering process was unjustified and not in consonance with the terms of the NIT. It is also strange as to how the tendering committee could have changed the terms of the tender after offers had been received and stipulate that the rate of royalty would not be a determining criteria. Such rate is ordinarily of vital importance in any tendering process and if rate of royalty was not to be given priority it ought to have been reflected in the....
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....n on 16.05.2013 by the tendering sub-committee to alter the terms of tender and hold the quantum of royalty offered by the bidder is irrelevant and to award seven out of eight titles of the bid to the appellant who was the 3^rd highest tenderer is contrary to all conceivable parameters of fair procedure contemplated in the matter of tender of state largesse. Further the grounds of disqualification of the writ petitioner as recorded in the said meeting were also not in consonance to the tender conditions. It is accordingly held that the decision of the tender sub-committee on 16.05.2013 was contrary to law in the facts of the case and was rightly reversed by the Government observers. It has been argued on behalf of the appellant that tendering process ought not to have been interfered with by the State Government. Reliance has also been placed on 63 CWN 1. The State Government under section 35 of the Act is entitled to supervise the activities of the Council and even suspend the resolutions and/or decisions taken by it. As it appears that the tendering process was carried on by the Council in the instant case in an unfair and illegal manner, as aforesaid, interference by the supe....