M/S B. K. ENTERPRISES versus THE STATE OF MANIPUR
[2021] 11 S.C.R. 91, Supreme Court of India, 2021
Outcome: Disposed off
Segment: Issues
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M/S B. K. ENTERPRISES
v.
THE STATE OF MANIPUR
(Civil Appeal No. 6532 of 2021)
NOVEMBER 12, 2021
[M. R. SHAH AND A. S. BOPANNA, JJ.]
Tender: Conduct fresh Notice Inviting Tender-NIT through
e-Tender for transportation of food grains and Micronutrients under
the Wheat Based Nutrition Programme-WBNP – Direction by High
Court of Manipur to the State Government and in particular, the
Social Welfare Department in November last year to take up
immediate steps and issue fresh NIT for transportation of food grains
and Micronutrients under the WBNP within a stipulated period and
that the whole tender process including the issuance of work order
to be completed within the stated time – However, no steps taken till
date and since 2017-18 the contract for transportation of the rice
and other Micronutrients had continued by way of an interim
arrangement only and at the rates prevailing in the year 2017-18 –
Held: Action on the part of the State Government and the Social
Welfare Department of the State of Manipur is highly deprecated –
Contracts cannot be continued without finalizing of the tender
process and/or without issuing fresh tenders and/or without
undertaking the fresh tender process and by way of an interim
arrangement only and that too at the rates prevailing in the year
2017-18 – It is causing huge loss to the State and the Public
Exchequer and shows lethargy and negligence on the part of the
State Government – Unconditional apology tendered by the State
for
the same cannot be accepted – Issuance of direction to State of
Manipur and the concerned Department including respondent
no. 2 to issue fresh NIT for appointment of transport contractor
under Supplementary Nutrition Programme (SNP), within the
stipulated period – Further direction that fresh NIT is conducted in
a fair and transparent manner through e-Tender – Judicial
deprecation.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6532
of 2021.
[2021] 11 S.C.R. 91
91
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SUPREME COURT REPORTS
[2021] 11 S.C.R.
From the Judgment and Order dated 04.11.2020 of the High Court
of Manipur at Imphal in W. A. No.28 of 2018.
Siddhartha Dave, Sr. Adv., L. K. Paonam, Ms. Tomthinnganbi
Koijam, Niraj Bobby Paonam, Ms. Aswathi M. K., Ms. Saumya Gupta,
Advs. for the Appellant.
Pukhrambam Ramesh Kumar, Anupama Ngangom, Karun
Sharma, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court of Manipur at Imphal dated 04.11.2020
in Writ Appeal No. 28/2018, by which the Division Bench of the High
Court has disposed of the said writ appeal with the following directions,
a) The State Government and in particular, the Social Welfare
Department shall take up immediate steps and issue fresh NIT
for transportation of food grains and Micronutrients under the
WBNP within a period of 10(ten) days from the date of receipt of
a copy of this judgment and order;
b) The whole tender process including the issuance of work order
should be completed within 20 (twenty) days from the date of
issue of fresh NIT; and
c) Till the completion of the tender process and issuance of the
work orders, the present arrangement for transportation of food
grains under the WBNP pursuant to the interim order of this Court
dated 19.2.2018 shall continue
M/s B.K. Enterprises has preferred the present appeal.
2. We have heard Shri Siddhartha Dave, learned
Senior Advocate
appearing on behalf of the appellant and Shri Pukhrambam Ramesh
Kumar, learned Advocate appearing for the respondents.
2.1 At the outset, it is required to be noted that this is a glaring
example of lethargy on the part of the State Government in not inviting
the fresh tenders for transporting Rice & other micronutrients under the
Wheat Based Nutrition Programme (WBNP), from Food Corporation
of India’s depots  in the State of Manipur, to the offices of Child
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Development Project Officers and to continue the contract without inviting
fresh tenders on the basis of the Notice Inviting Tender (NIT) issued on
22.06.2017 causing huge loss to the State and the Public Exchequer.
3. That the State of Manipur through the Director of Social
Welfare Department, Government of Manipur issued a NIT on 22.06.2017
for transporting Rice & other micronutrients under the Wheat Based
Nutrition Programme (WBNP), from Food Corporation of India’s depots
in the State of Manipur, to the offices of Child Development Project
Officers. That the State’s Higher Tender Committee in its meeting dated
16.12.2017, recommended that the acceptable band of rate was Rs.6.265
– Rs.11,635 per MT per KM and further recommended that Route No.
8 be awarded to one RK & Co. and that fresh tender should be conducted
for the other routes. That respondent no. 2 awarded contracts for all the
routes to one RK & Co. by way of interim arrangement till the finalization
of the re-tender process. That the appellant herein filed a writ petition
before the High Court being Writ Petition (Civil) No. 63/2018 seeking
award of tender with respect to route nos. 1, 3, 5 & 9 alleging inter alia
that being the lowest bidder as per Higher Tender Committee’s band
rate, it should be awarded the contract with respect to route nos. 1, 3, 5
& 9. During the pendency of the aforesaid writ petition, respondent no.
2 – Director, Social Welfare Department vide order dated 30.04.2018
cancelled the Higher Tender Committee’s proceedings and
recommendations dated 16.12.2017.
3.1 That the High Court vide order dated 20.06.2018 disposed of
the aforesaid writ petition with the directions to the respondents to
constitute a High Power Committee to proceed with the tender process
afresh from the stage where and after the technical and financial bids
opened by the State/Director, Social Welfare Department and it should
be completed on or before 21.07.2018.
3.2 The appellant herein filed Writ Appeal No. 28/2018 before the
Division Bench of the High Court.  Vide interim order dated 19.12.2018,
the Division Bench of the High Court directed for equal distribution of
the available WBNP rice amongst three contractors, namely, RK &
Co., BLL Enterprises and BLL Agency as a temporary arrangement of
all nine routes. The State entered into temporary distribution agreements
with the aforementioned bidders. By the impugned judgment and order,
the High Court has disposed of writ appeal no. 28/2018, with the following
directions:
M/S B. K. ENTERPRISES v. THE STATE OF MANIPUR
[M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2021] 11 S.C.R.
a) The State Government and in particular, the Social Welfare
Department shall take up immediate steps and issue fresh NIT
for transportation of food grains and Micronutrients under the
WBNP within a period of 10 (ten) days from the date of receipt
of a copy of this judgment and order;
b) The whole tender process including the issuance of work order
should be completed within 20 (twenty) days from the date of
issue of fresh NIT; and
c) Till the completion of the tender process and issuance of the
work orders, the present arrangement for transportation of food
grains under the WBNP pursuant to the interim order of this Court
dated 19.2.2018 shall continue
4. From the aforesaid, it can be seen that since 2017-18 the
contract for transportation of the rice and other micronutrients under the
WBNP to the offices of Child Development Project Officers has been
continued solely on the basis of the interim arrangement and without
inviting fresh tenders and without entering into any permanent contracts.
To continue with the contracts for transportation of rice and other
micronutrients within the State without any fresh tenders and by way of
an interim arrangement only and at the rates which were prevailing in
the year 2017-18 has caused tremendous/huge loss to the State and the
Public Exchequer. Even after the impugned order is passed by the High
Court, which has been passed on 04.11.2020, by which the Division
Bench of the
High Court has directed  to take immediate steps and issue
fresh NIT for transportation of food grains and micronutrients under the
WBNP within a period of 10 days from the date of receipt of the judgment
and order and  has further directed that the whole tender process including
issuance of work orders should be completed within 20 days from the
date of fresh NIT, no steps have been taken till date and the contract
has been continued which was by way of an interim arrangement only
pursuant to interim order dated 19.12.2018, causing further loss to the
State. The action on the part of the State Government and the Social
Welfare Department of the State of Manipur is highly deprecated.
Contracts cannot be continued without finalizing of the tender process
and/or without issuing fresh tenders and/or without undertaking the fresh
tender process and by way of an interim arrangement only and that too
at the rates prevailing in the year 2017-18. It appears prima facie that
everybody is happy, namely, the officers of the State Government, more
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particularly the officers of the Social Welfare Department and the
Contractors and it appears that the State is not interested in issuing fresh
NIT.
5. Learned counsel appearing on behalf of the State of Manipur
has stated at the Bar that now the State/concerned department has taken
a decision for appointment of Transport Contractor under the
Supplementary Nutrition Programme (SNP) and that the State/
Department is ready to float the tender within 10 days.  It is submitted
that the entire process is likely to take about two months as the opening
of the financial bids and the verification of the technical bids will take
some time. Therefore, it is prayed to grant some reasonable time to the
State/concerned Department for completing the tender process. It is
stated that the State/Department undertakes to conduct fresh NIT in a
fair and transparent manner through e-Tender. It is submitted on behalf
of the State that the State/Department has not been able to implement
the order passed by the Division Bench of the High Court dated 04.11.2020
in Writ Appeal No. 28/2018 because of the administrative difficulties
and the State/Department tenders its unconditional apology for the same.
The aforesaid is a vague explanation which is not accepted. It is very
unfortunate that the contract for supply/transportation of rice and other
micronutrients under the Development Scheme has been continued by
way of an interim arrangement only and without issuing any fresh tenders
and the contract has been continued at the old rates of 2017-18, which
must have caused tremendous/huge loss to the State and the Public
Exchequer. There is a total lethargic and negligence on the part of the
State and its departments in not issuing the fresh tender process and in
not issuing fresh NIT after 2018.
6. In view of the above, we dispose of the present appeal by
directing the respondents – State of Manipur and the concerned
Department including respondent no.2 to issue fresh NIT for appointment
of transport contractor under Supplementary Nutrition Programme (SNP),
within a period of 10 (ten) days from today and it is directed that the
fresh NIT is conducted in a fair and transparent manner through
e-Tender and invitation of the fresh NIT shall be nation-wide and it is
the duty of the State/concerned Department to see that there is no cartel
by the contractors and that the maximum price is received and there is
no loss to the Public Exchequer and the State. The entire tender process
be completed within a period of six weeks from the date of issuance of
M/S B. K. ENTERPRISES v. THE STATE OF MANIPUR
[M. R. SHAH, J.]
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SUPREME COURT REPORTS
[2021] 11 S.C.R.
the e-Tender. In the peculiar facts and circumstances of the case and
only with a view to see that there is no inconvenience caused to the
beneficiaries, the directions issued by the High Court relating to
transportation of goods under Supplementary Nutrition Programme (SNP)
in the impugned order/interim order dated 19.12.2018 is directed to be
continued till 31.12.2021. The State of Manipur is directed to submit a
compliance report before this Court. Any lapse on the part of the State
and/or its departments and non-compliance of the present order shall be
viewed very seriously.
7. With the aforesaid directions, the present appeal stands disposed
of.  Pending applications, if any, also stand disposed of.
Nidhi Jain
Appeal disposed of.