Case: Sahakar Global Limited & Another Vs. Barjora Alert Cooperative Labour Contract & Construction Society Limited & Others

1. Leave granted.2. The appellant was disqualified in the tender process initiated in respect of a contract for collection of toll for a period of two years. This was on the ground that though mandatorily required under the terms and conditions of the Notice Inviting Electronics Bids ("NIEB" for short) issued, the appellant had not submitted its registered power of attorney. Aggrieved, the appellant moved the High Court by instituting a writ proceeding. The learned single judge of the High court by order dated 28th April, 2017 took the view that though submission of a registered power of attorney by a bidder was mandatory, yet, having regard to the clause in the NIEB which enabled the tendering authority to seek clarifications/ information or additional supporting documents in respect of any matter concerning the tender, the tendering authority should have asked the appellant to submit a registered document in place of the notarized power of attorney which had been submitted along with the appellants bid. Consequently, the learned single judge of the High Court directed that such an opportunity be given to all concerned who had participated in the tender process.3. The aforesaid order of the learned single judge was challenged in appeal by the present respondent No.1 - Barjora Alert Co-operative Labour & Construction Society Limited, respondent No.4 - Ainul Hoque as well as by the State of West Bengal. The appellate Bench of the High Court set aside the order of the learned single judge and took the view that non-submission of the registered power of attorney was fatal to the bid submitted by a prospective bidder. Aggrieved, these appeals have been filed.4. The matter lies within a short compass and for a proper appreciation of the issue arising we may at the outset extract certain relevant parts of the NIEB which are as follows:"4. Eligibility criteria for participation in bid.a. WORK CREDENTIAL:-i. ............. ..............IV. Other terms and conditions of the credentials.i. ............. ..............e. The partnership firm shall have to submit the registered/ Notarized partnership deed and Registered Power of Attorney (Non Statutory Documents)f. A company shall have to submit Registered Article of Memorandum.***INSTRUCTIONS TO BIDDERSSECTION-A1. .............. ...........3. Digital Signature Certificate (DSC):-Each contractor is required to obtain a class-II or class-III Digital Signature Certificate (DSC) for submission of tender/Bids, from the approved service provider of the National Informations Centre (NIC) on payment of requisite amount details are available at the Web Site stated in clause 2 of Guideline to Bidder/tenderer DSC is given as a USB e-Token. Where an individual person holds a digital certificate in his own name duly issued to him against the company or the firm of which he happens to be a director (even Managing Director) or partner, such individual person shall, while uploading any bid for and on behalf of such company or firm invariably upload a copy of registered power of attorney showing clear authorization in his favour, by the rest of the directors of such company or the partners of such firm, to upload such bid. The power of attorney shall have to be registered in accordance with the provisions of the Registration Act, 1908. Vide Notification No.61/SPW/12 dated 08.06.2012 of Secretary, P.W. & P.W. (Roads) Department, Govt. of W.B.... ................ ..............6. Submission of Bids:-A-2 Non Statutory Cover containingSl.No.Category NameSub-Category DescriptionDetailsA..........B.Company DetailsCompany Details-11. Registration Certificate under Company Act. (if any)2. Registered or Notarized Deed of Partnership Firm/ Registered Article of Association & Memorandum.3. Registered Power of Attorney (For Partnership Firm/ Private Limited Company, if any) vide Clause-3 under Section-A of page-4, Instruction to Bidder. Registration certificate, Bye-Laws issued by the co-operation department, latest audit report audited by Co-operation department, resolution copy of Annual General Meeting/General meeting/Committee meeting empowered to use of D.S.C. to any member of the respective Society of are to be submitted by the Registered labour Co-op. Societies, EngineersCo.opt. Societies............B. Bid evaluation:-i. ................ ..............v. While evaluation the Notice Inviting Authority may summon of the bids and seek clarification/information or additional supporting documents or original hard copies against any of the documents only, which are already submitted/uploaded in the web portal and if these are not produced by the intending Bidders within the stipulated time frame (within only 48 hours), their proposals will be liable for rejection."5. From the above, it appears to us that though in different parts of the NIEB it has been specifically recited that partnership firms/private limited companies will have to submit their registered power of attorney, as to whether the same requirement would apply to a public limited company is conspicuously absent. In fact, in the clauses under the Heading other terms and conditions of the credentials [clauses (e) and (f)], extracted above, it is explicitly stated that while a partnership firm is required to submit a registered/notarized partnership deed and registered power of attorney, a company is required to submit a registered Article of Memorandum only. Similarly, under clause 6 of Section -A of the NIEB under the Heading Submission of Bids the requirement of submission of registered power of attorney is only with reference to partnership firms and private limited companies.6. The appellant is a public limited company. While clause 3 under the Heading "Instructions to Bidders" of the NIEB which deals with Digital Signature Certificate (DSC) suggests that every company may be required to submit a registered power of attorney, the said clause cannot be read in isolation and de hors the other provisions of the NIEB. That apart, in the present case, the notarized power of attorney submitted by the appellant clearly indicated that the person under whose digitized signature the bid was submitted on behalf of the appellant was authorized by the Company to so act. In these circumstances, no other conclusion save and except that submission of registered power of attorney was not a mandatory requirement under the NIEB can be reached. If that is so, the power of the tendering authority to seek clarifications/information or additional supporting documents or original hard copies was open to be exercised at its discretion which option was not availed of by the tendering authority. Instead, the tendering authority proceeding on the basis that the requirement of submission of registered power of attorney is a mandatory requirement had rejected the technical bid of the appellant.

Decision:
1[ds]5. From the above, it appears to us that though in different parts of the NIEB it has been specifically recited that partnership firms/private limited companies will have to submit their registered power of attorney, as to whether the same requirement would apply to a public limited company is conspicuously absent. In fact, in the clauses under the Heading other terms and conditions of the credentials [clauses (e) and (f)], extracted above, it is explicitly stated that while a partnership firm is required to submit a registered/notarized partnership deed and registered power of attorney, a company is required to submit a registered Article of Memorandum only. Similarly, under clause 6 of SectionA of the NIEB under the Heading Submission of Bids the requirement of submission of registered power of attorney is only with reference to partnership firms and private limited companies.6. The appellant is a public limited company. While clause 3 under the Heading "Instructions to Bidders" of the NIEB which deals with Digital Signature Certificate (DSC) suggests that every company may be required to submit a registered power of attorney, the said clause cannot be read in isolation and de hors the other provisions of the NIEB. That apart, in the present case, the notarized power of attorney submitted by the appellant clearly indicated that the person under whose digitized signature the bid was submitted on behalf of the appellant was authorized by the Company to so act. In these circumstances, no other conclusion save and except that submission of registered power of attorney was not a mandatory requirement under the NIEB can be reached. If that is so, the power of the tendering authority to seek clarifications/information or additional supporting documents or original hard copies was open to be exercised at its discretion which option was not availed of by the tendering authority. Instead, the tendering authority proceeding on the basis that the requirement of submission of registered power of attorney is a mandatory requirement had rejected the technical bid of the appellant.