M/S Pankaj Enterprises And ANR. v. Andaman And Nicobar Administration And ORS.

IN THE HIGH COURT AT CALCUTTA

CIRCUIT BENCH AT PORT BLAIR ...

WPA/63/2018 IA NO: CAN/1/2021 M/s Pankaj Enterprises and another ... Petitioners Vs.

Andaman and Nicobar Administration and others ... Respondents Mr. Rajinder Singh, Advocate ... for the petitioner Mr.M.P.Kamraj, Advocate ... for the Administration November 15, 2021 [GNC] Item No.7 Affidavits are complete. Hence the writ petition is taken up for final hearing.

The petitioners are aggrieved by order dated 1st April, 2018 passed by the Chief Port Administrator, Port Management Board, Andaman and Nicobar Administration, Port Blair. By a Notice Inviting Tender (NIT) dated 21st August, 2017 offers were invited for installation and supply of water ATMs for the Port Management Board at Port Blair at an estimated cost of Rs.15,00,000/. Bidders were required to be water ATM manufactures/fabricators/suppliers and proof thereof was required to be furnished.

The petitioner, Radhe Shyam Sharma is the sole proprietor carrying on business in the name and style of both M/s "Pankaj Enterprises" as well as M/s "Shri Balaji Enterprises". The said

two proprietorship firms are the authorized dealers of two separate water ATM manufacturing concerns namely, BM Enterprises, Howrah, West Bengal and Apex Technology, Siliguri, West Bengal, respectively.

Two separate tenders in the name of the two aforesaid firms namely, Pankaj Enterprises and Shri Balaji Enterprises were submitted by the said Radhe Shyam Sharka in response to the aforesaid NIT.

Admittedly, the said Radhe Shyam Sharma, the proprietor can have and has only one income tax PAN number. The said two firms Pankaj Enterprises and Shri Balaji Enterprises, however, have separate and independent GST numbers. The Chief Port Administrator having found that the Pankaj Enterprises and Shri Balaji Enterprises are in fact of the same person i.e. Radhe Shyam Sharma, came to the conclusion that the said latter engaged in unethical business practice inter alia to defeat the purpose of tendering. The two bids were interrupted and the security deposit of Rs.30,000/- each was forfeited. The said two firms and Radhe Shyam Sharma were also blacklisted for a period of three years starting from 1st February, 2018. As on date the period of blacklisting is over. The writ petition is rather academic on the aforesaid count. However, learned counsel for the petitioners submits that the impugned order is bad in law and hence his client is entitled to the refund of the EMD of Rs.30,000/- each.

Counsel for the writ petitioners would argue before this Court that the respondents committed error both in law and fact. It is submitted that the two firms namely, Pankaj Enterprises and Shri Balaji Enterprises were distributors of two separate water ATMs manufacturing companies and had separate GST numbers. The respondents acted inappropriately and contrary to law in treating the two firms as one person.

It is further submitted that in the facts, both Pankaj Enterprises and Shri Balaji Enterprises were entitled to independently and separately respond to the NIT. It is argued that the findings of the Chief Port Administrator that the Pankaj Enterprises could have supported Shri Balaji Enterprises and vice-versa in the tendering process and was fundamentally wrong. It is also submitted that the respondents could at the most have rejected any of the two tenders. It is therefore argued that the order of blacklisting and forfeiture of the EMD are contrary to the law, excessive, unfair and are liable to be quashed and/or set aside.

This Court has carefully considered the rival contentions of learned counsel for the petitioners and the respondents. It is now well settled that a proprietorship concern has no other independent identity in law except that of the proprietor himself.

The availability of a separate GST numbers for Pankaj Enterprises and Shri Balaji Enterprises may have been, if at all, permitted by the concerned authorities, for other considerations.

The same would not be material or confer any additional status on the two firms in the process for the purpose of participation in public tenders. The fact remains that the proprietor behind the two firms is one and same person i.e. Radhe Shyam Sharma. Admittedly, the said Radhe Shyam Sharma has only one PAN number.

The benefit of separate GST numbers, if at all lawful, to the two separate business entities of the same persons, cannot correspondently give any special right to the said Radhe Shyam Sharma to participate under the two separate heads, for distribution of State largess. The fundamental doctrine behind the public tendering and/or distribution of State largess is equal and fair opportunity to all participants. The said Radhe Shyam Sharma, by submitting two separate tenders was competing from two different routes thereby stealing an unfair march over other participants. The State is also thereby deprived of a wider choice in the procurement process.

Therefore the findings of the Chief Port Administrator, that the petitioner was engaged in unfair trade practice that may have the effect of defeating the object of the tendering process, cannot be brushed aside or deemed illegal.

Fairness and propriety would have demanded that the petitioners Pankaj Enterprises and Shri Balaji Enterprises ought to have in no uncertain terms indicated that the said Radhe Shyam Sharma was the same person behind the two firms. In the alternative, the said Radhe Shyam Sharma should have

chosen to participate in the tender either through Pankaj Enterprises or Shri Balaji Enterprises and not both. Counsel for the petitioners would point out that the factum of Radhe Shyam Sharma being the person in control of the two firms was notified to the respondents.

This Court is of the view that merely because of the said Radhe Shyam Sharma had indicated to the respondents that he was the person behind Pankaj Enterprises as well as Shri Balaji Enterprises would not absolve himself from the impropriety of submitting two separate tenders to the respondents. This Court has no doubt in its mind that the said Radhe Shyam Sharma may have directly or indirectly attempted to frustrate and/or undermine a fair and lawful tendering process. In that view of the matter, this Court is not inclined to entertain the petitioners' prayer for refund of EMD. The writ petition must fail and is dismissed. There shall be, however, no order as to costs.

In view of the above, CAN/1/2021 stands disposed of. ( Rajasekhar Mantha, J. )