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TMI Blog2016 (9) TMI 1667X X X X Extracts X X X X X X X X Extracts X X X X ..... site parameter as thought of by the Respondent No. 1. The tender was floated for purchase which is needed for the nation. The first Respondent along with Respondent Nos. 2 and 3 were taking immense precaution. In such a circumstance, needless to emphasize, public interest is involved. It cannot succumb to private interest. The action on the part of the Respondent Nos. 1 to 3 cannot be regarded as arbitrary or unreasonable. By no stretch of imagination it can be construed to be an act which is not bonafide or to have been done to favour the fourth Respondent. Nothing has been pleaded that the fourth Respondent is not eligible or qualified. The essential condition of tender being not met with, the tenderer, the Appellants herein, were ineligible and the tender was non-responsive. That apart, the amendment was applicable to all. Additionally, the High Court in the first round of litigation had not held that the registration certificate granted on 31.03.2015 would enure to the benefit of the writ Petitioners from the date of the decision of the registration authority, and it had rightly not said so. There are no substance in the grounds raised in this appeal - appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... short, "the Act"). The Registration Committee of (CIB) in its 354TH meeting dated 31.03.2015 approved LLIN, that is, DURANET(r) for provisional registration Under Section 9(3B) of the Act for Public Health Programmes. We shall refer to the said decision of the CIBRC at the relevant stage. 4. The first Respondent floated a tender, i.e., CMSS/PROC/NVBDCP/2015-16/006 for procurement of 1 crore LLIN under National Vector Borne Disease Control Project. Section 1 of CIB pertained to Instructions to Bidders. Para 4 dealt with eligibility. Paragraph 5 provided for listing of the documents establishing conformity of goods and services to bidding documents. Paragraph 6 specified qualifications of the bidder. Paragraph 6(A) dealt with manufacturer bidders. After the Instructions to Bidders were issued incorporating various clauses including ones which have been referred to hereinabove, Amendment No. 3 to the bid document was made on 28.09.2015. The Clause contained in 6.1(A)(d)6 in Section 1 of the Instructions to Bidders was amended. The initial paragraph 6.1(A)(d)6 read as follows: 6. The LLINs offered by the Bidders must be registered with Central Insecticide Board (CIB) of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten to the Director, CIB regarding the latest status of registration and the CIB had also been informed in the same communication regarding the case being renotified on 30.10.2015. 8. As the factual narration would reveal, on 27.10.2015 the Appellants had applied for renewal of license for manufacturing insecticides for product DURANET(r) under Rule 9 of the Rules framed under the Act. Certain communications took place between the Appellants and the Respondent No. 1 with regard to clarification of the bid conditions. The High Court directed the Appellant to implead CIBRC as a party and it also directed the said authority to file an affidavit. During the pendency of writ petition, CIBRC issued the registration certificate on 21.12.2015. The certificate was issued in favour of Shobikaa Impex, the Appellant No. 2 herein. The High Court vide order dated 20.01.2016 disposed of the Writ Petition (C) 9694/2015 recording as follows: An affidavit has been filed on behalf of Respondent No. 4 dated 23.12.2015 wherein it is categorically stated that as per the decision of the Registration Committee taken in its 354th meeting held on 31.03.2015, M/s. Shobikaa Impex, Karur is registered Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made for issue of a writ of mandamus to the Respondents to consider its bid without insistence on production of registration certificate and also quashing of the Amendment No. 3, but no such relief was granted. It further referred to the stand with regard to grant of certificate in favour of Appellant No. 2 therein but observed that it had no relevance. The Division Bench of the High Court, as we find, has been persuaded by the non-compliance of the condition as incorporated by amendment to FIB. The observations of the High Court read as follows: 13. The contention of the Respondent is that the bid of the Petitioners is non-responsive in view of the mandatory Clause 6.1(A)(d) 6 (as amended by Amendment No. 3) which stipulates that the certificate of registration issued by CIB is to be submitted along with the bid or latest be provided at the time of tender opening. The bids not accompanied with the CIB certificate at the time of tender opening are to be held as non-responsive. And again: 15. In the present case, the bid submission and opening date admittedly was 14.10.2015. Though the contention of the Petitioner is that as on the date they were registered, the certificate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant No. 1 had not submitted the requisite registration certificate at the time of submission of the bid and, in that backdrop, the opinion expressed of the High Court cannot be regarded as fallacious. It is also her submission that even the Appellant No. 1 could not have been a bidder as per Clause 5.4 of the tender conditions. That apart, it is urged that the 4th Respondent was not the only bidder but there were six bidders and the amendment was thought of to have clarity which was in public interest. 15. It is noteworthy that the Act has been brought into force to regulate the import, manufacture, sale, transport, distribution and use of insecticides with a view to prevent risk to human beings or animals, and for matters connected therewith. Section 3(e) defines "insecticide" which is as follows"- "Insecticides" means- (i) Any substance specified in the Schedule; or (ii) Such other substances (including fungicides and weedicides) as the Central Government may, after consultation with the Board, by notification in the Official Gazette, include in the Schedule from time to time; or (iii) Any preparation containing any one or more of such substances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accompanied by a fee of rupees fifty for every insecticide for which the license is applied, subject to a maximum of rupees five hundred. 2. If an insecticide is proposed to be manufactured at more than one place, separate applications shall be made and separate licenses shall be issued in respect of every such place. 3. A license to manufacture insecticides shall be issued in Form V and shall be subject to the following conditions namely; i. The license and any certificate of renewal shall be kept on the approved premises and shall be produced for inspection at the request of an Insecticide Inspector appointed under the Act or any other officer or authority authorized by the licensing officer. ii. Any change in the expert staff named in the license shall forthwith be reported to the licensing officer. iii. If the licensee wants to undertake during the currency of the license to manufacture for sale of additional insecticides, he shall apply to the licensing officer for the necessary endorsement in the license on payment of the prescribed fee for every category of insecticides. iv. An application for the renewal of a license shall be made as laid down in Rule 11. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al information about the requirements for registration can be obtained from the website: www.cibrc.nic.in. 20. On a reading of the said clauses, it is graphically clear that the goods to be supplied under the contract has to be registered with the authority for the supplier and purchasers' benefit. Mr. Singh has emphasized on Clause 5.4.1 to highlight that the purchaser is under obligation to co-operate with the successful bidder to facilitate the registration process within the purchaser's country to the extent possible. Ms. Pinky Anand would submit that the said Clause is meant for generally helping the potential bidders by providing them with name, address and contact persons of various agencies involved in the registration process but it not meant to create an impediment for the owner to put a definite date by which time the registration has to be submitted at the time of submission of the tender. 21. The thrust of the matter is whether the decision by the Registration Committee by itself can be regarded as grant of registration certificate. It is luminescent that its decision to grant registration certificate is subject to conditions. Apart from that, it had not gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction; (v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with; (vi) the contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority; (vii) where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint. 22. In Master Marine Services (P) Ltd. v. Metcalfe and Hodgkinson (P) Ltd. and Anr. (2005) 6 SCC 138, it has been held that the State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to consider whether the High Court has fallen into error by not interfering with the grant of contract in favour of the fourth Respondent. As the factual analysis would reveal, the Appellant No. 1 had not filed an application for grant of registration. It was Appellant No. 2 who had filed it. Be that as it may, the decision dated 31.03.2015 was taken by the Registration Committee of CIB to approve the registration subject to the condition DAC granting permission for commercialization. That apart, the decision taken by the concerned authority, even if it is put on the website, despite the astute submission of Mr. Singh, would not tantamount to grant of registration certificate. The amendment was made, as we perceive, to clarify the position. We have already stated, even if the amendment was not brought in, the first Respondent would have been in a position, by applying objective standards, to treat the Appellants' bid as non-responsive and non-compliant. The use of the word "must" adds a great degree of certainty to the same; it is a requisite parameter as thought of by the Respondent No. 1. The tender was floated for purchase which is needed for the nation. The fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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