Faisal B.E. v. Kerala State Civil Supplies Corporation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943** **WP(C) NO. 21172 OF 2020** ## **PETITIONER:** FAISAL B.E AGED 45 YEARS MEHRIN MANZIL, KUTHIYATHODE CHERTHALA, ALAPPUZHA 688 533. BY ADVS. K.I.MAYANKUTTY MATHER KUM.NARAYANI HARIKRISHNAN ## **RESPONDENTS:** 1 KERALA STATE CIVIL SUPPLIES CORPORATION LTD. REP. BY ITS MANAGING DIRECTOR, MAVELI BHAVAN GANDHI NAGAR, P.B. NO. 2030, KADAVANTHRA P.O. ERNAKULAM 682 020. 2 THE GENERAL MANAGER, KERALA STATE CIVIL SUPPLIES CORPORATION LTD, MAVELI BHAVAN, GANDHI NAGAR, P.B. NO. 2030, KADAVANTHRA P.O. ERNAKULAM 682 020. 3 THE MANAGER (NATIONAL FOOD SAFETY ACT), KERALA STATE CIVIL SUPPLIES CORPORATION LTD, MAVELI BHAVAN, GANDHI NAGAR, P.B. NO. 2030, KADAVANTHRA P.O. ERNAKULAM 682 020. 4 THE REGIONAL MANGER, KERALA STATE CIVIL SUPPLIES CORPORATION LTD, (SUPPLYCO), OPP. YATHRI NIVAS, NEAR GOVERNMENT GUEST HOUSE, PRS ROAD, THAIKKAD P.O. THIRUVANANTHAPURAM 695 014. 5 ASSISTANT MANAGER, KERALA STATE CIVIL SUPPLIES CORPORATION LTD, SUPPLYCO, KARUNAGAPALLY P.O. KOLLAM 691 001. W.P.(C)No. 21172 of 2020 -2- 6 WHITE MILLER, REPRESENTED BY ITS PARTNER VIPIN MANAGALATHU MOHAN, XIII/521A, METTUTHRAYIL, PATHIYOOR WEST, KAREELAKULANGARA P.O. ALAPPUZHA 690 572. 7 MRS ROADWAYS, REPRESENTED BY ITS PARTNER SHAHIDA T.C. 31/123 (1) CHAKKAI P.O. THIRUVANANTHAPURAM 695 024. BY ADVS. R1 TO R5 BY SMT.MOLLY JACOB, SC, SUPPLYCO R6 BY SMT.I.S.LAILA R7 BY SRI.S.B.PREMACHANDRA PRABHU SRI.K.B.RAJESH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.06.2021, THE COURT ON 07.07.2021 DELIVERED THE FOLLOWING: W.P.(C)No. 21172 of 2020 -3- ## **T.R. RAVI, J.** **-----------------------------------------------W.P.(C)No. 21172 of 2020 -------------------------------------------------Dated this the 7[th] day of July, 2021** ## **JUDGMENT** The Kerala State Civil Supplies Corporation(hereinafter referred to as Supplyco), issued Exhibit P1 tender notice on 15.7.2020 inviting E-tenders from individuals/firms for lifting of food grains from source godowns (FCI depots/CMR godowns), transport and deliver at the doorsteps of destination godown [Supplyco taluk NFSA depot/FPS (formerly known as ARDs)] notified by Supplyco. It can be seen from Annexures 1 and 2 attached to Exhibit P1 that there are 24 FCI godowns spread over the 14 districts of the State and 75 supplyco depots situated in various Taluks. The petitioner had participated in the tender process for various taluks in Kollam district, specifically Karunagappally Taluk, pursuant to Exhibit P1 tender notice and Exhibit P1(a) Corrigendum which had been issued. The grievance of the petitioner is that the respondents 1 to 5 have disregarded the tender W.P.(C)No. 21172 of 2020 -4- conditions, and allowed respondents 6 and 7 who are disqualified as per the terms of the tender notice, to participate and succeed in the tender process. 2. Heard Ms.Narayani Harikrishnan appearing on behalf of the petitioner, Smt.Molly Jacob, Standing counsel for the 1[st] respondent, appearing on behalf of respondents 1 to 5, Sri Premachandra Prabhu, appearing for the 7[th] respondent and counsel for the 6[th] respondent. 3. The counsel for the petitioner submits that the tender submitted by the 6[th] respondent was defective for the reason that it did not comply with the requirements regarding ownership of vehicles as contemplated in Clause 19 of the Terms of Conditions stipulated in Exhibit P1 and there was failure on the part of the tenderer to divulge the details of their Bank account. Referring to Clause 19 of the Terms of Conditions the counsel contends that, the tenderer which is a partnership firm, was bound to submit the list of vehicles that are owned or processed by them, and that, they should have a minimum fleet of 10 goods carriage vehicles, including at least 5 heavy goods vehicles registered in Kerala, out of which 4 vehicles should be owned by him. The petitioner submits that the 6[th] respondent has given W.P.(C)No. 21172 of 2020 -5- details of vehicles which are registered in the individual name of one of the partners of the firm and not in the name of the firm. It is also contended that the bank account details furnished are also not that of the firm, but that of one of the partners of the firm and that the partnership deed had not been uploaded along with the bid. Regarding the 7[th] respondent, the contention of the petitioner is that, Clause 19 of the Terms of Conditions requires that the details of the numbers of the GPS fixed in the vehicles that are to be used for transportation should be provided, and that the 7[th] respondent has not complied with the said requirement. The counsel refers to Exhibit P2(a), which is the technical bid submitted by the 7[th] respondent, in support of her arguments. 4. The 1[st] respondent has filed a counter affidavit denying the allegations in the Writ petition. Referring to Exhibit P9 instructions regarding requirements and procedures to be followed in technical evaluation of the bid, issued to the Regional Managers, it is contended that clauses 6 and 9 under paragraph II thereof, respectively state that in case of partnership firms, companies, etc., Income tax return of the Managing partner/Managing Director may be considered and W.P.(C)No. 21172 of 2020 -6- that in case of partnership firms, vehicles owned by the partners can be considered as that of the firm. The counsel hence contends that there is no infirmity in the bid submitted by the 6[th] respondent. Regarding the bid submitted by the 7[th] respondent, it is pointed out by the Standing Counsel that, Note (b) under clause 9 of Paragraph II of Ext.P9 provides that the Evaluation Committee can call for any additional document from the tenderer to their satisfaction to ensure the eligibility of the technical qualifications of the tenderer. The counsel points out that the 7[th] respondent had furnished the GPS details at the time of technical evaluation and that the petitioner did not raise any objection at the time of evaluation of the technical bid and that the petitioner has no case that the details/documents stated in items 1 to 9 in Exhibit P9 have not been produced by respondents 6 and 7. Apart from the above, the counsel for the 1[st] respondent also relies on the details contained in paragraphs 12 and 13 of the counter affidavit, to establish that the rate quoted by the petitioner for the transportation work, compared to the rates quoted by the respondents 6 and 7, are very high and that there were other tenderers who had quoted lesser rate than the petitioner with regard W.P.(C)No. 21172 of 2020 -7- to the same work. It is hence pointed out that even if the award of the work to the 6[th] and 7[th] respondents are to be treated as bad in law, the petitioner does not stand any chance of succeeding in the bid. It is hence contended that no interference by this Court under Article 226 is called for in the above fact situation. I find from the details submitted that regarding many of the items, the rate quoted by the petitioner is more than double the rate quoted by the respondents 6 and 7. 5. The counsel for the 7[th] respondent adopts the contentions advanced by the 1[st] respondent. He further states that there was confusion regarding the fixing of GPS in goods vehicles in view of Exhibit R7(a) letter issued by the Principal Secretary to the Transport Commissioner. According to the said letter, the goods vehicles were exempted from fixing GPS till 31.12.2020. The bids in these cases were prior to the said date. It is also pointed out from Exhibit R7(b) that as regards the vehicles owned by the 7[th] respondent, the GPS had been fixed during the years 2015 to 2018 itself and it was not a case where the vehicles did not have GPS. It is further submitted that the details had been given at the time of evaluation of the technical W.P.(C)No. 21172 of 2020 -8- bid and hence there was no infirmity in the bid submitted by them. 6. The counsel appearing for the 6[th] respondent supported the arguments of the counsel for the 1[st] respondent and the counsel for the 7[th] respondent and also referred to the decision of the Hon'ble Supreme Court in **Raunaq International Ltd. v. I.V.R.Construction Ltd.,** reported in **AIR 1999 SC 393** to submit that the writ petition itself was not maintainable. 7. The counsel for the 1[st] respondent relies on the decision of a Division Bench of this Court in **M/s Pushkarraj Constructions Pvt. Ltd and others v. Silppi Constructions and Contractors and** **others** reported in **[2019(3) KLT 406]** . This Hon'ble Court considered the various decisions of the Hon'ble Supreme Court including **Raunaq (supra)** and laid down the broad principles of judicial review in contractual matters in paragraph 20 of the judgment, which is extracted below: "20. The broad principles of judicial review in contractual matters, that can be culled out from the judgments of the Supreme Court referred above are as follows: i. A writ petition challenging the decision of a tendering authority ought not to be entertained unless all the eligible tenderers in the tender proceedings are made W.P.(C)No. 21172 of 2020 -9- parties to the writ petition. ii. Interference with the decisions taken by a tendering authority must be only in exceptional cases where it is found that the decision taken is (a) pursuant to an unfair procedure adopted by the tendering authority or (b) where the decision is unreasonable in that it is one that no responsible authority acting reasonably and in accordance with relevant law could have reached or (c) where the decision is irrational, mala fide or intended to favour someone. iii. While examining the rationality of a decision taken by the tendering authority, the Court must look at the matter from the point of view of the tendering authority and must take care not to substitute its views for that of the said authority. It has to bear in mind that the author of the tender documents is the best person to understand and appreciate its requirements and interpret its documents. iv. Even in cases where it is found that there is a procedural lacuna, if the decision taken by the tendering authority is seen to be bona fide and in public interest, the Court should refrain from interfering by recognizing that the principles of equity and natural justice do not operate in the field of commercial transactions." 8. I have considered the contentions of the petitioner and the respondents. Applying the legal principles enumerated by the Hon'ble Supreme Court and the Division Bench of this Court to the facts of this case, it can be seen that no case is made out by the petitioner, W.P.(C)No. 21172 of 2020 -10- warranting an interference by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. The case on hand cannot be considered as an exceptional one since there is no unfairness in the procedure adopted by the tendering authority and there is no unreasonableness, irrationality, malafides or intended favour to any person. This fact is evident since admittedly, the petitioner has also been awarded the work in some areas. There is no hostile discrimination against the petitioner. The only discrepancies pointed out are regarding the ownership of vehicles, details of Bank account and fixing of GPS in the vehicles. It is clear from the facts that the vehicles owned by the 7[th] respondent are fixed with GPS, the details of which have been provided at the time of technical evaluation. Giving the GPS numbers at the time of submission of tender cannot be treated as a mandatory requirement and the omission in this case has been corrected by the 7[th] respondent at the time of evaluation. As can be seen from the documents produced, there is no requirement that the vehicles should be owned by partnership firm which is submitting the bid. So also, details of the Income Tax return and the Bank account also need not be that of the W.P.(C)No. 21172 of 2020 -11- firm, as per the instructions. As such none of the discrepancies pointed out factually exist in the case. Even if all the above alleged discrepancies are to be treated as a procedural lacuna, the decision taken by the tendering authority to award the works in question to the 6[th] and 7[th] respondents cannot be seen as malafide or against public interest, particularly since the rates quoted by the said respondents are much lower than the rates quoted by the petitioner. In the above circumstances, the writ petition fails and is dismissed. The parties shall bear their respective costs. Sd/-- **T.R. RAVI JUDGE** dsn W.P.(C)No. 21172 of 2020 -12- ## **APPENDIX OF WP(C) 21172/2020** PETITIONER ANNEXURE EXHIBIT P1 TRUE COPY OF THE NOTICE INVITING TENDER DATED 15.7.2020. - EXHIBIT P1 A TRUE COPY OF THE CORRIGENDUM NOTIFICATION DATED 30.7.2020. - EXHIBIT P2 TRUE COPY OF THE TECHNICAL BID SUBMITTED BY THE 6TH RESPONDENT FOR KARUNAGAPALLY TALUK DATED 26.8.2020. - EXHIBIT P2 A TRUE COPY OF THE TECHNICAL BID SUBMITTED BY THE 7TH RESPONDENT FOR KARUNAGAPALLY TALUK DATED 27.8.2020. - EXHIBIT P3 TRUE COPY OF THE IT RETURN FOR THE YEAR 2017-18 IN THE NAME OF VIPIN MANGALATHU MOHAN. DATED 17.2.2018. - EXHIBIT P3 A TRUE COPY OF THE IT RETURN FOR THE YEAR 2018-19 IN THE NAME OF VIPIN MANGALATHU MOHAN DATED 9.11.2018. - EXHIBIT P3 B TRUE COPY OF THE IT RETURN FOR THE YEAR 2019-20 IN THE NAME OF VIPIN MANGALATHU MOHAN DATED 30.7.2020. - EXHIBIT P4 TRUE COPY OF THE BANK ACCOUNT DETAILS IN THE NAME OF VIPIN MANGALATHU MOHAN DT.NIL. - EXHIBIT P5 TRUE COPY OF THE CIRCULAR/INSTRUCTIONS ISSUED BY THE 1ST RESPONDENT DATED 27.8.2020. - EXHIBIT P6 TRUE COPY OF THE TECHNICAL EVALUATION SUMMARY AVAILABLE IN THE WEBSITE OF THE SUPPLYCO . - EXHIBIT P6 A TRUE COPY OF THE TECHNICAL EVALUATION SUMMARY MAVELIKKARA TALUK. - EXHIBIT P6 B TRUE COPY OF THE TECHNICAL EVALUATION SUMMARY OF KARTHIKAPALLY TALUK. - EXHIBIT P6 C TRUE COPY OF THE COMMUNICATION ISSUED BY W.P.(C)No. 21172 of 2020 -13- SUPPLYCO, DISTRICT OFFICE, ALAPPUZHA DT.4.2.2020. EXHIBIT P7 TRUE COPY OF THE COMPLAINANT PUT IN BY THE PETITIONER BEFORE 3RD RESPONDENT DATED 21.9.2020. EXHIBIT P8 TRUE COPY OF THE PRICE BID RESULT IN THE SUPPLYCO WEBSITE OF KARUNAGAPALLY TALUK . EXHIBIT P9 TRUE COPY OF THE CIRCULAR / INSTRUCTIONS ISSUED BY THE 1ST RESPONDENT. EXHIBIT R7(a): TRUE COPY OF THE NOTIFICATION DATED 18/10/2020 ISSUED BY THE MOTOR VEHICLES DEPARTMENT. EXHIBIT R7(b): TRUE COPY OF THE LIST OF VEHICLES OFFERED BY THE 7TH RESPONDENT WITH GPS NUMBERS AND DATE OF INSTALLATION. EXHIBIT R7(c): TRUE COPY OF THE DETAILS OF THE PRICE BIDS PUBLISHED BY 2ND RESPONDENT REGARDING KANJIRAPPILLY TALUK. EXHIBIT R7(d): TRUE COPY OF THE LETTER DATED 14/12/2020 ISSUED BY THE 5TH RESPONDENT TO THE 7TH RESPONDENT. EXHIBIT R7(e): TRUE COPY OF THE AGREEMENT FORMAT ISSUED BY THE 5TH RESPONDENT.