D. Ravendran Nair v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY, THE 6TH DAY OF JULY 2017/15TH ASHADHA, 1939** ## **WP(C).No. 6963 of 2017 (U)** ## **---------------------------** ## **PETITIONER :** **---------------------** **D.RAVEENDRAN NAIR, T.C.31/779, MMRAD-7, PETTA POST, THIRUVANANTHAPURAM -695 024.** ## **BY ADV. SRI.B.KRISHNA MANI** ## **RESPONDENT(S): ---------------------------** ## **1. THE UNION OF INDIA,** - **REPRESENTED BY THE SECRETARY, CIVIL AVIATION MINISTRY, NEW DELHI-110 001.** ## **2. THE AIRPORT AUTHORITY OF INDIA,** - **REPRESENTED BY ITS CHAIRMAN, 1ST FLOOR, C ROCK, HEADQUARTERS, RAJIV GANDHI BHAVAN, SAFDERJUNG, AIRPORT, NEW DELHI-110 003.** **3. THE AIRPORT DIRECTOR, AIRPORT AUTHORITY OF INDIA, TRIVANDRUM INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM -695 008.** ## **4. THE PROPRIETOR,** - **M/S.KAVITHA ENTERPRISES, L-323A, NEAR IGI AIRPORT, NH-8, MAHIPALPUR EXTN, NEW DELHI-110 037.** ## **5. MS. SUSHILA,** - **PROPRIETOR, 9/220, MEHRAM NAGAR, NEW DELHI -110 037.** ## **6. MS. REVATHY,** - **T.C.NO.45/28(1), HOUSE NO.8A, SREEVARAHA NAGAR, SREEVARAHAM, THIRUVANANTHAPURAM -695 023.** **R1 BY SRI.P.L.VENUKUMAR, CGC** ## **SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 & R3 BY ADV. SRI.V.SANTHARAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-06-2017, THE COURT ON 06-07-2017 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).No. 6963 of 2017 (U)** ## **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **---------------------------------------** - **P1 TRUE COPY OF THE PROCEEDING DATED 4.12.2013** - **P2 TRUE COPY OF THE TENDERS INVITED FROM THE AIRPORT AUTHORITY OF INDIA, TRIVANDRUM AIRPORT** - **P3 TRUE COPY OF THE PROCEEDING DATED 14.12.2016** - **P4 TRUE COPY OF THE COMMUNICATION DATED 11.11.2016** - **P5 TRUE COPY OF THE COMMUNICATION DATED 11.11.2016** - **P6 TRUE COPY OF THE PROCEEDING DATED 13.12.2016** - **P7 TRUE COPY OF THE JUDGMENT DATED 27.12.2016 IN WPC NO.41300/2016 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM** - **P8 TRUE COPY OF THE PROCEEDING DATED 28.12.2016 ISSUED BY THE AIRPORT DIRECTOR** - **P9 TRUE COPY OF THE E-TENDER ISSUED BY THE AIRPORT AUTHORITY OF INDIA** - **P10 TRUE COPY OF THE RELEVANT PORTION OF WRIT PETITION, WPC NO.41300/2016 DATED 22.12.2016 BEFORE THE HON'BLE HIGH COURT OF KERALA, ERNAKULAM.** - **P11 TRUE COPY OF THE COMMUNICATION DATED 14/12/2016 ISSUED BY THE AIRPORT DIRECTOR TO THE REGIONAL EXECUTIVE DIRECTOR, AIRPORT AUTHORITY OF INDIA** - **P12 TRUE COPY OF THE COMMUNICATION DATED 11/11/2016 ISSUED BY THE AGM (F&A) COMMERCIAL FOR THE AIRPORT DIRECTOR TO THE PROPRIETOR OF M/S. KAVITHA ENTERPRISES.** - **P13 TRUE COPY OF THE LETTER DATED 11/11/2016 ISSUED BY THE AGM (F &A) COMMERCIAL FOR THE AIRPORT DIRECTOR TO MS. SUSHILA.** ## **RESPONDENT(S)' EXHIBITS** **----------------------------------------** - **R3(A) TRUE COPY OF THE LETTER DATED 18/11/2016 SUBMITTED BY M/S KAVITHA ENTERPRISES ALONG WITH THE CERTIFICATE ISSUED BY THEIR CHARTERED ACCOUNTANT.** - **R3(B) TRUE COPY OF THE LETTER DATED 25/11/2016 SUBMITTED BY M/S SUSHILA ALONG WITH THE CERTIFICATE ISSUED BY THEIR CHARTERED ACCOUNTANT.** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **P.B.SURESH KUMAR, J.** ## **= = = = = = = = = = = = = =** ## **W.P.(C).No.6963 of 2017-U.** **= = = = = = = = = = = = = =** Dated this the 6[th] day of July, 2017. ## **J U D G M E N T** The petitioner is the licensee for garbage/solid waste disposal at Trivandrum Airport since 01.01.2008. The term of licence granted to the petitioner was due to expire on 04.12.2016. The Airports Authority of India ('the Authority'), in the circumstances, issued Ext.P2 invitation during October, 2016 for tenders for grant of licence for garbage/solid waste disposal at the said Airport for another period of three years. The petitioner submitted tender in response to Ext.P2 invitation. Three others have also submitted tenders pursuant to Ext.P2 invitation. As per the terms of Ext.P2 invitation, technical bids and price bids were submitted by the tenderers separately. The technical bids submitted by two tenderers viz, Kavitha Enterprises and Sushila were rejected on the ground that they have not furnished their service tax registration particulars. Among the remaining two tenderers, the petitioner was the 2 ## **W.P.(C).No.6963/2017-U.** highest offerer. Nevertheless, instead of awarding the licence to the petitioner, the Authority decided to invite fresh tenders for the very same purpose. Ext.P9 invitation has been issued subsequently by the authority for fresh tenders. Ext.P9 invitation is under challenge in this writ petition. 2. A counter affidavit has been filed by the Authority. The stand taken by the Authority in the counter affidavit is that the tenders submitted by Kavitha Enterprises and Sushila pursuant to Ext.P2 invitation have been rejected on the ground that they have not furnished service tax registration particulars in terms of Ext.P2 invitation; that it is thereafter the tenders submitted by the remaining tenderers including the petitioner were opened; that in the meanwhile, the disqualified tenderers have preferred representations before the Authority stating that it was not necessary for them to furnish service tax registration particulars in terms of the tender invitation as they were not required to obtain service tax registration as per the provisions of the Finance Act, 1994; that it was revealed to the Authority on scrutiny of materials that those tenderers were also 3 ## **W.P.(C).No.6963/2017-U.** qualified in terms of the tender invitation to participate in the tender process and that since the tenders submitted by the petitioner and another were opened in the meanwhile, it was decided to issue fresh invitation for the purpose of avoiding litigations. According to the Authority, Ext.P9 invitation has been made in the said circumstances. 3. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the Authority. 4. The clause of Ext.P2 invitation dealing with service tax registration particulars reads thus: “3. xx xx xx xx xx xx e) Self attested copies of PAN card, Sales Tax Registration Certificate (VAT in States it has become applicable) Service Tax Registration. In case any or all the provisions mentioned above area not applicable, the party should give a declaration to that effect. Non submission will not be considered as exemption. AAI reserves the right to confirm the legal applicability as submitted by the party.” It is evident from the said clause that service tax registration particulars were required to be furnished in terms of Ext.P2 invitation only by the tenderers, if the same are applicable to 4 ## **W.P.(C).No.6963/2017-U.** them. The specific case of the tenderers who were disqualified in the earlier round was that they were not required in terms of the Finance Act, 1994 to obtain service tax registration particulars for the service provided by them and that therefore, it was not necessary for them to provide service tax registration particulars in terms of Ext.P2 invitation. The Authority found on scrutiny that they were also qualified to participate in the tender pursuant to Ext.P2 invitation and the decision to disqualify them was incorrect. It is seen that by that time, the price bids of the petitioner and another tenderer were opened and it was decided to award the licence to the petitioner. It is in the said circumstances, the Authority decided to invite fresh tenders. True, instead, the Authority could have reviewed the earlier decision to grant the licence to the petitioner and could have taken a fresh decision after opening the price bids of the two tenderers who were disqualified earlier. The petitioner has no case that had the said course been adopted, the petitioner would have been still the highest bidder. In the absence of any such case for the petitioner, according to me, there is absolutely no 5 ## **W.P.(C).No.6963/2017-U.** illegality or irregularity in the decision taken by the Authority in issuing Ext.P9 invitation. 5. The learned counsel for the petitioner vehemently contended that the fresh invitation has been made solely for the purpose of awarding the work to the tenderers who were disqualified in the earlier tender process. As noted above, the materials on record indicate beyond doubt that the decision taken by the authority to disqualify two tenderers in the earlier tender process was illegal. When they do not have any disqualification, the contention is without any basis. Relying on the decision of the High Court of Andhra Pradesh in **Sri, Sai Mani Lorry Suppliers** v. **State of Telangana and others** (2015 KHC 5126), the learned counsel for the petitioner also contended that when a tender process is not vitiated and tenders received pursuant to the same are found to be in order, the said process cannot be abandoned for the purpose of inviting fresh bids. The said judgment cannot be understood as laying down a proposition as pointed out by the learned counsel for the petitioner. A close reading of the judgment indicates that it was found on the facts 6 ## **W.P.(C).No.6963/2017-U.** in the said case that the fresh invitation was made to favour some of the tenderers. It is in the light of the said finding that the court interfered with the re-tender process. Relying on the decisions of the Orissa High Court in **Akhila Kumar Mohapatra v. State of Orissa and others** (2012 KHC 2456) and **Shree Ganesh Construction v. State of Orissa and others** (2016 KHC 4363), it was further contended by the learned counsel for the petitioner that the tender process once finalised cannot be cancelled. The said judgments may not be applicable to the present case as it was found that the finalisation of the tender process was contrary to the terms of the invitation. It is settled that power to cancel a tender process for cogent reasons is always available with the Authority who invites the tender and as long as the said decision is not arbitrary or vitiated by _mala fides_ , the court will not interfere with such decision. [See, **ABG Cements Ltd.** v. **Cochin Port Trust** [2013(4) KLT SN 7(case No.4)] and **Musthafa** v **Union of India** [2014(2) KLT SN 79 (Case No.102)]. In the said view of the matter, there is no merit in the 7 ## **W.P.(C).No.6963/2017-U.** writ petition and the same is, accordingly, dismissed. _**Sd/-**_ **P.B.SURESH KUMAR, JUDGE.** _**Kvs/-**_ // true copy //