M/S Secure Wrap [India] Pvt. Ltd. v. Cochin International Airport Limited and Sanilkumar Bhaskaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY,THE 09TH DAY OF JANUARY 2019 / 19TH POUSHA, 1940 WP(C).No. 23664 of 2018** ## **PETITIONER/S:** **M/S. SECURE WRAP [INDIA] PVT. LTD PRAKASH NAGAR, BEGUMPET,HYDERABAD - 500 016, REPRESENTED BY ITS KERALA MANAGER, MR. SAJO G. DANIEL** **BY ADVS. SRI.V.SANTHARAM SRI. I. JAYASINGH MANOHARAN SRI.LAKSHMEESH.S.KAMATH** ## **RESPONDENT/S:** **1 COCHIN INTERNATIONAL AIRPORT LIMITED AIRPORT ROAD, NEDUMBASSERY, ERNAKULAM, KERALA - 683 111,REPRESENTED BY ITS MANAGING DIRECTOR. 2 MR. SANILKUMAR BHASKARAN NO.61, KALPAKA NAGAR, CHACKAI,PETTAH, TRIVANDRUM, KERALA - 695 024.** **BY ADVS. SRI.P.BENNY THOMAS SRI.SAJU J PANICKER SRI.K.JAYAKUMAR (SR.) SRI.D.PREM KAMATH SRI.S.S.VISWAJITH ANAND** ## **OTHER PRESENT:** **SC BENNY P. THOMAS, K.JAYAKUMAR (SR)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 23664 of 2018** **2** ## **JUDGMENT** ## **The petitioner has approached this Court** ## **seeking the following reliefs:** **a) Issue a writ of certiorari or any other writ or order or direction calling for records leading to issuance of award of licence for operating baggage wrapping service to the Respondent No.2 and consequential agreement pursuant to Exhibit-P1 NIT and quash the same;** **b) direct the Respondent Nos.1 to award the contract to the next highest/eligible/qualified bidder or float the tender afresh;** **c) direct the Respondent No.1 to re-tender for award of contract for baggage wrapping service in the departure terminal areas of the Cochin International Airport.** **2. Heard the learned counsel for the** **petitioner and the learned counsel appearing for the first respondent as well as the learned senior counsel appearing for the 2[nd] respondent.** **3. The petitioner, who was a bidder in a tender invited for baggage wrapping, floated by the first respondent challenges the award of the contract to the 2[nd] respondent, on the ground that the 2[nd] respondent was not qualified in** **WP(C).No. 23664 of 2018 3** **terms of Ext.P1 tender conditions. Relying on clause 4.2 of the notice inviting tender, it is contended that the 2[nd] respondent did not have the required qualification of having a turnover of not less than Rs.50 Lakhs in any one of the last three years in the area of baggage wrapping. It is stated that the bonafide business experience of not less than two years in operating wrapping machine at any of the Airports/Seaports/Railway stations or in the field of Mechanical Wrapping in any industry is also not possessed by the 2[nd] respondent and therefore the award of work to the 2[nd] respondent was arbitrary and unsustainable.** **4. The learned counsel for the petitioner would contend that the opening of the bids was carried out and the time taken for the opening of the technical and financial bids of the four qualified bidders was only about 20 minutes and the representatives of the bidders had no** **WP(C).No. 23664 of 2018 4** **opportunity to peruse the documents submitted by the other bidders. It is stated that the petitioner had made due research and analysis and came to know that the 2[nd] respondent did not fulfill the eligibility criteria. Though there was a contention raised by the learned counsel for the petitioner in the writ petition to the effect that baggage wrapping machines are not being operated by the 2[nd] respondent and the invoices are not being maintained properly, such allegations had been given up by the petitioner and were not seriously urged before me.** **5. A detailed counter affidavit has been placed on record by the first respondent. It is submitted in the counter affidavit filed by the first respondent that the tender committee of the first respondent considered the technical bids submitted by all the qualified bidders and no complaints whatsoever had been preferred from any quarters as regards the technical** **WP(C).No. 23664 of 2018 5** **qualification of the 2[nd] respondent. It is stated that the entire process of opening of bids, both technical and financial were done by the tender committee in the presence of the bidders, as mentioned in the notice inviting tender. It is stated that there were no objections raised with regard to the acceptance of the technical bid of the 2[nd] respondent by any person. It is further stated that on objections raised by the petitioner, the bid submitted by existing operator had been rejected on the ground that they had been subjected to blacklisting.** **6. With regard to the contentions of the petitioner, it is submitted in the counter affidavit that the 2[nd] respondent had quoted an amount of Rs.40.11 lakhs per month. It is stated that the petitioner was not even the 2[nd] highest bidder and that he had quoted only Rs.23.30 lakhs per month and was the 3[rd] highest** **WP(C).No. 23664 of 2018 6** **bidder. It is further submitted in the counter affidavit filed on behalf of the first respondent that the averment that the 2[nd] respondent does not have the eligibility criteria as provided in clause 4.2 of the notice inviting tender is incorrect. It is stated that the 2[nd] respondent had produced documents before** **the first respondent at the time of evaluation of the technical bid to show that the 2[nd] respondent was eligible in terms of clause 4.2 to participate in the tender. It is stated that after the tender was opened on 30.01.2018 without any objection as to the eligibility of the 2[nd] respondent, the contract was awarded on 8.2.2018 and the baggage wrapping operations were started by the 2[nd] respondent on 13.3.2018. It is stated that the 2[nd] respondent has been** **generating income much in excess of Rs.40,11,111/- quoted by him for which also revenue sharing is prescribed in the contract** **WP(C).No. 23664 of 2018 7** **between the parties. It is stated that the petitioner had quoted only an amount of Rs.23,30,000/- per month and that the award of the contract to the 2[nd] respondent is therefore perfectly legal and valid and cannot be subjected to challenge at the instance of the petitioner.** **7. The 2[nd] respondent has also filed a counter affidavit, wherein it is contended that the clause 4.2 in the notice inviting tender had only provided that the bidders, to be eligible, should have a turnover of not less than Rs.50 Lakhs, in any one of the last three years in the area of baggage wrapping. It is submitted that the 2[nd] respondent had produced income tax returns for the period 2017-18 to show that, it has more than Rs.50 lakhs of income from baggage wrapping services alone. Further documents are produced to show that the 2[nd] respondent was engaged in the contract for delivery of** **WP(C).No. 23664 of 2018 8** **misplaced passenger baggage with several Airlines which also involved wrapping services. It is further contended that in view of the fact that the writ petition is filed after the award of the contract and the expiry of more than four months thereafter and since the petitioner had not raised any objections to the qualifications of the 2[nd] respondent at the time of opening of the bid or at any point in time immediately thereafter, the writ petition itself is not maintainable at this distance of time.** **8. The learned counsel for the petitioner would place reliance on the decision of the Apex Court in** _**Air India Ltd v. Cochin International Airport Ltd. and Others [(2000) 2 SCC 617]**_ **to contend that the grant of relaxation from mandatory qualifications would be possible only if the tender conditions permit such a relaxation. Relying on the observations of the Apex Court, it is contended that the State, its** **WP(C).No. 23664 of 2018 9** **corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. It is contended that where the decision making process is found to be vitiated by malafides, unreasonableness and arbitrariness, this Court would be well within its powers to interfere with such a decision in** **exercise of its powers of judicial review. Relying on the decision of the Apex Court in** _**B.S.N.Joshi & Sons Ltd. V. Nair Coal Services Ltd. and Others**_ **[(2006) 11 SCC 548], it is contended that strict compliance with mandatory requirements is the norm and when a decision is taken which is completely unreasonable and arbitrary, this Court should not decline jurisdiction.** **Relying on the decisions of the Apex Court in** _**Central Coalfields Limited and Another v. SLL-SML (Joint Venture Consortium) and Others**_ **WP(C).No. 23664 of 2018 10** _**[(2016) 8 SCC 622], Bakshi Security and Personnel Services Private Limited v. Devkishan Computed Private Limited and Others [(2016) 8 SCC 446], Tejas Constructions and Infrastructure Private Limited v. Municipal Council, Sendhwa and Another [(2012) 6 SCC 464], Nagesh v. State of Karnataka [(2012) 6 SCC 477] and**_ **Jagdish Mandal v. State of Orissa and Others [(2007) 14 SCC 517], the learned counsel for the petitioner would contend that the departure from the essential conditions as stipulated in the notice inviting tender was absolutely unwarranted and where such decision making process is vitiated by complete unreasonableness, the decision itself would be arbitrary and liable to be interfered with.** **9. The learned Senior Counsel appearing for the 2[nd] respondent would submit that the 2[nd] respondent has succeeded in satisfying the first respondent as to due compliance with clause 4.2** ## **WP(C).No. 23664 of 2018** ## **11** **of the notice inviting tender. It is stated that the stipulation with regard to turnover of not less than Rs.50 lakhs in any one of the last three years in the area of baggage wrapping is clearly satisfied by the 2[nd] respondent as is evident from the income tax returns produced by the 2[nd] respondent. It is stated that the business experience of not less than two years in operating wrapping machine has also been duly satisfied by the 2[nd] respondent since the 2[nd] respondent was engaged in a contract for the recovery and delivery of lost baggage, which specifically involved the wrapping of the said baggages also before such delivery could be effected. Reliance is placed on the agreements entered into by the 2[nd] respondent with Airlines to contend that the contract specifically involved baggage wrapping as well and that the 2[nd] respondent had been carrying out such operations. It is further contended by the** **WP(C).No. 23664 of 2018 12** **learned Senior Counsel appearing for the 2[nd] respondent that the technical as well as the financial bids had been opened in the presence of the representatives of all the bidders and that the petitioner had all the opportunity to raise any allegations with regard to the eligibility of the 2[nd] respondent at the time of opening of the bids. It is stated that the petitioner or the other bidders who participated in the tender had raised no complaint whatsoever, regarding the eligibility of the 2[nd] respondent. It is further stated that certificates issued by the Airlines Operators Committee as well as the individual Airlines to the 2[nd] respondent would show the 2[nd] respondent had all the requisite experience in baggage wrapping using wrapping machines as well. It is further contended that the writ petitioner has created a monopoly in baggage wrapping contracts in Airports and that the writ petition is filed** **WP(C).No. 23664 of 2018 13** **only to frustrate the entry of the 2[nd] respondent who is a new entrant in to the baggage wrapping business. It is therefore contended that the writ petition is an abuse of process of law and compensatory costs are liable to be awarded to the 2[nd] respondent.** **10. I have considered the contentions advanced in detail. It is not in dispute that the power of this Court to interfere in matters of award of contracts is circumscribed by the principles laid down by binding precedents as to the exercise of the power of judicial review. Unless it is found that the decision making process of the first respondent is vitiated by arbitrariness, unreasonableness or malafides,** **this Court may not be justified an interfering with the matter of award of a commercial contract. This is more so in view of the fact that the facts of this case discloses that the contract is awarded to the 2[nd] respondent at an** ## **WP(C).No. 23664 of 2018** ## **14** **amount of Rs.40.11 Lakhs which is much higher than the rate quoted by the petitioner herein. The petitioner is not even the 2[nd] highest bidder.** **11. The financial bid was opened on 30.1.2018 in the presence of the all the bidders. It appears that the petitioner had raised complaints with regard to the eligibility of one of the bidders who had been found to be technically qualified by the first respondent. Pursuant to the petitioner's complaint that the existing operator was blacklisted, the said operator was disqualified for participating the tender process. It is thereafter that the bid was finalized and the 2[nd] respondent was awarded the contract. It is pertinent to note that the contract was entered into on 8.2.2018. This writ petition is filed on 3.7.2018. The reason stated by the petitioner is that there was some delay in collecting the details with regard to** **WP(C).No. 23664 of 2018** **15** **the eligibility of the 2[nd] respondent.** **12. It is not in dispute before me that the** **amount quoted by the petitioner was Rs.23,30,000/- per month. The contract has been awarded to the 2[nd] respondent at the rate of Rs.40,11,111/- per month. What is being considered in this writ petition is the award of contract, which is purely a commercial transaction. Clause 4.2 of the notice inviting tender provides for the criteria, which has to be mandatorily satisfied by the bidder. It appears that the first respondent had considered the certification produced by the 2[nd] respondent and had satisfied itself that the 2[nd] respondent was, as a matter of fact, eligible to participate in the tender. The 2[nd] respondent is a person, who had qualification in baggage handling and delivery of lost baggage in respect of several Airlines. It is contended that the operations of the 2[nd] respondent mandatorily** ## **WP(C).No. 23664 of 2018** ## **16** **involved baggage wrapping also. The first respondent had considered all such relevant material and had come to the conclusion that the 2[nd] respondent was eligible to participate in the tender. No complaint appears to have been raised from any quarters at the time of award of the contract or thereafter till this writ petition has been filed. It is also not in dispute that the award of the contract to the 2[nd] respondent had resulted in enhanced revenue being made available to the first respondent.** **I am of the opinion that this writ petition filed by the petitioner which had quoted a much lower amount is not liable to be considered by this Court in exercise of its powers of judicial review, especially in view of the fact that this writ petition is filed 5 months after the award of the contract to the 2[nd] respondent, without having raised any complaints at any point before such award. However, taking note of the fact** **WP(C).No. 23664 of 2018 17** **that no interruption had been caused to the award of contract or carrying out of the work by the 2[nd] respondent, I do not feel that compensatory costs are liable to be allowed to the 2[nd] respondent.** **The writ petition fails and is accordingly** **dismissed.** ## **Sd/-** ## **ANU SIVARAMAN** sab **JUDGE** **WP(C).No. 23664 of 2018** **18** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1.** **TRUE COPY OF NIT (CIAL/COML/LIC 43/2018) DATED 15.01.2018** **EXHIBIT P2. TRUE COPY OF BID WITH ALL CONNECTED DOCUMENTS SUBMITTED BY THE PETITIONER 26.1.2018** **EXHIBIT P3. TRUE COPY OF THE LETTER DATED 28.03.2018 SENT BY THE PETITIONER EXHIBIT P4. TRUE COPY OF THE LETTER DATED 30.04.2018** **TRUE COPY OF THE LETTER DATED 30.04.2018 SENT BY RESPONDENT NO.1 TO THE PETITIONER**