Irshad Muhammed v. Kerala State Civil Supplies Corporation Ltd. & Others

## **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. 21291 OF 2020** ## **PETITIONER:** IRSHAD MUHAMMED AGED 31 YEARS CHEPPALLIL PADINJATTATHIL, KUREEPUZHA, KAVANAD, KOLLAM 691 003. BY ADVS. K.I.MAYANKUTTY MATHER SRI.VINEETH KOMALACHANDRAN ## **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 MANAGER, 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, KARUNAGAPPALY P.O., KOLLAM 690 518. 6 THE TALUK SUPPLY OFFICER, KUNNATHUR TALUK, KUNNATHUR P.O. KOLLAM 690 540. 7 MRS ROADWAYS, REPRESENTED BY ITS PARTNER SHAHIDA, T.C. 31/123 (1), CHAKKAI P.O., THIRUVANANTHAPURAM 695 024. W.P.(C)No. 21291 of 2020 2 8 SHIHABUDDIN .A, PULLIYIL THEKKETHIL, EDAKKULANGARA, KARUNAGAPPALLY P.O. KOLLAM 690 523. BY ADVS. R1 TO R5 BY SMT.MOLLY JACOB,SC,SUPPLYCO R6 BY GOVT.PLEADER SMT.RASHMI K.M. R7 & R8 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. 21291 of 2020 3 ## **T.R. RAVI, J.** **-----------------------------------------------W.P.(C)No. 21291 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 Kunnathur Taluk, pursuant to Exhibit P1 tender notice and Exhibit P1(a) Corrigendum which had been issued. The contention of the petitioner is that the respondents 1 to 3 ought to have disqualified the respondents 7 and 8 in view of the remarks forwarded by respondents 6 and 7. W.P.(C)No. 21291 of 2020 4 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, Government Pleader appearing for the 6[th] respondent and Sri Premachandra Prabhu, appearing for the 7[th ] and 8[th] respondents. 3. The counsel for the petitioner submits that the tender submitted by the 7[th] respondent was defective for the reason 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. It is also contended that vehicles belonging to partners have been offered. As regards the 8[th] respondent, the contention is that the EMD was provided by a person other than the tenderer. Ext.P2 which is the tender submitted by the 8[th] respondent shows that the EMD is paid from the account of a cousin. 4. The 1[st] respondent has filed a counter affidavit denying the allegations in the writ petition. Referring to Exhibit R1(a) instructions regarding requirements and procedures to be followed in technical evaluation of the bid, issued to the Regional Managers, it is contended that clause 9 under paragraph II thereof clearly says that in case of W.P.(C)No. 21291 of 2020 5 partnership firms, vehicles owned by the partners can be considered as that of the firm. Regarding GPS details, 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. The counsel hence contends that there is no infirmity in the bid submitted by the 7[th] respondent. 5. Regarding the bid submitted by the 8[th] respondent, the 1[st] respondent contends that there is no stipulation in the tender conditions that the EMD cannot be remitted through the account of another person. 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 7 and 8, are very high and that there were other tenderers who had quoted lesser rates than the petitioner with regard to the same work. It is hence pointed out that even if the award of the W.P.(C)No. 21291 of 2020 6 work to the 7[th] and 8[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 much more than the rates quoted by the respondents 7 and 8. 6. The counsel for the 7[th] and 8[th] respondents 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 in the vehicles 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 bid and hence there was no infirmity in the bid submitted by them. 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.** W.P.(C)No. 21291 of 2020 7 **Ltd and others v. Silppi Constructions and Contractors and others** reported in **[2019(3) KLT 406]** . This Honourable Court considered the various decisions of the Hon'ble Supreme Court 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 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 W.P.(C)No. 21291 of 2020 8 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, 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, payment of EMD by a stranger 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 W.P.(C)No. 21291 of 2020 9 omission in this case has been corrected at the time of evaluation. As can be seen from the documents produced, there is no requirement that the vehicles should be owned by the partnership firm which is submitting the bid. So also, there is no requirement in the tender conditions that the EMD should be paid from the account of the tenderer. 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 7[th] and 8[th] respondents cannot be seen as malafide or against public interest, particularly since the rates quoted by the said respondents are much lower that 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. 21291 of 2020 10 ## **APPENDIX OF WP(C) 21291/2020** 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 7TH RESPONDENT FOR KARUNAGAPALLY TALUK. EXHIBIT P2 A TRUE COPY OF THE TECHNICAL EVALUATION REPROT FOR MAVELIKKARA TALUK. EXHIBIT P2 B TRUE COPY OF THE TECHNICAL EVALUATION REPORT FOR KARTHIKAPPALLY TALUK. EXHIBIT P3 TRUE COPY OF THE TECHNICAL EVALUATION SUMMARY FOR KODUNGALLUR TALUK DTD. 28.9.2020. EXHIBIT P4 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 16.9.2020. EXHIBIT P4 A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 16.9.2020. EXHIBIT P5 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 18.9.2020. EXHIBIT P5 A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT DATED 18.9.2020. EXHIBIT P6 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 1.10.2020. EXHIBIT P6 A TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 1.10.2020. **RESPONDENTS' EXTS** : EXHIBIT R1(A) PHOTOCOPY OF LETTER NO.NFSA5-17016/20 DT.27.8.2020 ISSUING INSTRUCTIONS TO ALL REGIONAL MANAGERS PRESCRIBING THE REQUIREMENTS AND PROCEDURES TO BE FOLLOWED IN THE TECHNICAL EVALUATION OF THE BID. W.P.(C)No. 21291 of 2020 11 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 VEHICLE LIST 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 THE 2ND RESPONDENT REGARDING KUNNATHUR TALUK. - EXHIBIT R7(D) TRUE COPY OF THE LETTER DATED 14.12.2020 ISSUED BY THE 5TH RESPONDENT TO 7TH RESPONDENT. EXHIBIT R7(E) TRUE COPY OF THE AGREEMENT FORMAT FOR THE EXECUTION OF THE AGREEMENT ISSUED BY THE 5TH RESPONDENT. EXT.R8(A): TRUE COPY OF SCHEDULE-I OF THE TECHNICAL BID DT.26.8.2020 SUBMITTED BY THE 8TH RESPONDENT. - EXT.R8(B): TRUE COPY OF STATEMENT OF ACCOUNT OF SRI MOHAMMED AFSAL OF STATE BANK OF INDIA, PUTHIYAKAVU BRNCH DT.26.8.2020. EXT.R8(C): TRUE COPY OF WORK EXPERIENCE CERTIFICATE DT.11.5.2020 ISSUED BY FOOD CORPORATION OF INDIA TO THE 8[TH] RESPONDENT. EXT.R8(D): TRUE COPY OF DETAILS OF THE PRICE BID PUBLISHED BY THE 2[ND] RESPONDENT IN THEIR WEBSITE.