M/S.WHITE MILLER v. THE STATE OF KERALA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 WP(C) NO. 14754 OF 2022** ## **PETITIONER/S:** 1 M/S.WHITE MILLER, A PARTNERSHIP FIRM REPRESENTED BY ITS PARTNER, JIJU BHARGAVAN, S/O.BHARGAVAN KUNJ KUNJ, AGED 44 YEARS, BUILDING NO.XIII/521A, PATHIYOOR WEST, KAREELAKULANGARA P.O., ALAPPUZHA, PIN - 690572 2 MR.JIJU BHARGAVAN, AGED 44 YEARS S/O.BHARGAVAN KUNJ KUNJ, PARTNER, M/S.WHITE MILLER, BUILDING NO.XIII/521A, PATHIYOOR WEST, KAREELAKULANGARA P.O., ALAPPUZHA, PIN - 690572 BY ADVS. HARIKRISHNAN S. P.MARTIN JOSE P.PRIJITH THOMAS P.KURUVILLA R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA V.J S.SREEKUMAR (SR.) ## **RESPONDENT/S:** 1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FOOD AND CIVIL SUPPLIES, GOVERNMENT SECRETARIAT, TRIVANDRUM, PIN - 695001 2 KERALA STATE CIVIL SUPPLIES CORPORATION LTD. (IN SHORT 'SUPPLYCO') MAVELI BHAVAN, GANDHI NAGAR, KOCHI , REPRESENTED BY ITS MANAGING DIRECTOR. PIN - 682020 3 THE GENERAL MANAGER, KERALA STATE CIVIL SUPPLIES CORPORATION LTD. GANDHI NAGAR , ERNAKULAM, PIN - 682020 W.P.(C) No.14754 of 2022 **==> picture [16 x 8] intentionally omitted <==** - 4 DEPOT MANAGER, TALUK DEPOT, KARTHIKAPPALLY, HARIPAD, ALAPPUZHA DISTRICT, PIN - 690514 - 5 EVALUATION COMMITTEE CONSTITUTED FOR EVALUATION OF TENDER OF MAVELIKKARA TALUK /PDS DEPO, MAVELIKKARA, REPRESENTED BY DEPO MANAGER, SUPPLYCO, MAVELIKKARA, , PIN - 690101 - 6 DEPOT MANAGER, SUPPLYCO DEPOT, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT, PIN - 690101 - 7 EVALUATION COMMITTEE CONSTITUTED FOR EVALUATION OF TENDER OF CHERTHALA TALUK /PDS DEPO, CHERTHALA, REPRESENTED BY DEPO MANAGER, SUPPLYCO, CHERTHALA, PIN - 688524 - 8 DEPOT MANAGER, SUPPLYCO DEPOT, CHERTHALA TALUK, CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688524 BY ADVS. SMT.P.R.REENA, SC, KERALA STATE CIVIL SUPPLIES CORPORATION LTD, (SUPPLYCO), SC, SUPP R.LAKSHMI NARAYAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.06.2022, THE COURT ON 19.08.2022 DELIVERED THE FOLLOWING: W.P.(C) No.14754 of 2022 -3- ## **JUDGMENT** Dated this the 19[th] day of August, 2022 The first petitioner is a partnership firm and the second petitioner its managing partner. The first petitioner had participated in an online tender conducted by the second respondent Supplyco for lifting, transportation, handling and delivery of foodgrains from source godowns to destination godowns/FPS notified by the Supplyco as per Ext.P1 tender notice. In Annexure-I appended to Ext.P1, the second respondent had notified seriatum, names of the Taluks and corresponding Supplyco depots for which the tenders were to be submitted. The first petitioner submitted its bids for Serial No.14- Mavelikkara, Serial No.15-Haripad and Serial No.16-Cherthala Supplyco Depots. As per Clause 8B of Ext.P1, the tender process was to consist of the following stages; W.P.(C) No.14754 of 2022 -4- - (i) Downloading of tender document (ii)Bid submission (iii) opening of technical bid and tenderer short-listing (iv) Opening of commercial bids. The documents to be submitted at the technical bid stage was also specified. One of such document is the duly signed (manually) affidavit in the prescribed Annexure IV Format, in stamp paper worth Rs.200. The affidavit in original was to be submitted during evaluation of the technical bid. 2. Clause 12 of Ext.P1 dealing with acceptance of tenders also mandates the submission of an affidavit, failing which the tender was liable to be rejected. Clause 18 of Ext.P1 fixes responsibility for proper transportation and delivery of stocks, as per the delivery schedules fixed by the Supplyco, on the transportation contractor. For the purpose of W.P.(C) No.14754 of 2022 -5- ensuring proper and timely delivery of stocks, the eligibility criteria require the transporter/tenderer firm to possess a minimum fleet of 10 Goods Carrier Vehicles, including at least 5 Heavy Goods Vehicles registered in Kerala, out of which 4 Heavy Goods Vehicles should be owned by the tenderer. In proof of ownership and possession, the tenderer is bound to submit a list of vehicles in the prescribed format along with scanned copies of registration certificates. It is clarified that vehicles owned by the managing partner/partner will also be considered. 3. In terms of the tender condition, the first petitioner uploaded the affidavit and Ext.P7 list containing the registration particulars of 12 Goods Vehicles. Among those, registration certificates of 6 Goods Vehicles are in the name of one of the partners of the first petitioner and two Heavy Goods Vehicles is owned -6- ## W.P.(C) No.14754 of 2022 by the firm itself. 4. After the technical bids were opened, the Depot Manager, Haripad/ 4[th] respondent demanded the first petitioner to produce the original of the uploaded affidavit. Accordingly, the first petitioner produced the original affidavit before the 4th respondent. Thereafter, the evaluation committee for Mavelikkara and Cherthala Taluks/respondents 5 and 7 required the petitioner to produce the originals of the affidavits and details of substituted vehicles. The list of substituted vehicles was demanded since 4 vehicles in Ext.P7 list were Tipper Lorries. Thereafter the 6[th] respondent issued Ext.P11 communication, informing the petitioners that failure to produce the original affidavit and list of substituted vehicles had resulted in the first petitioner being disqualified by the tender evaluation committee. 5. The Depot Manager, Cherthala/8[th] W.P.(C) No.14754 of 2022 **==> picture [16 x 8] intentionally omitted <==** respondent issued Ext.P12 notice of hearing and required the petitioner to produce the original of the affidavit uploaded along with the e-tender for Cherthala and also to substitute the 6 Tipper Lorries with the other Heavy Goods Vehicles. 6. Responding to the notice, the petitioner produced a copy of Ext.P10 affidavit along with a letter issued by the 4[th] respondent, certifying that the original affidavit had been produced at the Haripad Depot. Later, by Ext.P14, the 8[th] respondent informed the first petitioner about its disqualification for reasons similar to those in Ext.P11. 7. Aggrieved by the disqualification, the petitioner filed W.P.(C)No.14419 of 2022. By Ext.P16 judgment, the writ petition was disposed of directing to take a decision on the representation filed by the petitioner. Accordingly, the petitioner was called for a hearing and later served with Ext.P19, W.P.(C) No.14754 of 2022 -8- disqualifying the first petitioner from the tender for Karthikappally, Mavelikkara and Cherthala depots. Thereafter, the petitioner received Ext.P21 order issued by the 4[th] respondent, rejecting the technical bid submitted by the first petitioner on the ground that instead of 4 HGVs, only 2 had been offered. This writ petition is filed seeking to quash Exts.P12, P14, P19 and P21 and for a writ of mandamus directing the respondents to treat the first petitioner as qualified in the technical bid for Mavelikkara, Haripad and Cherthala depots and to open the commercial bid of the petitioners. 8. Adv.S.Sreekumar, learned Senior Counsel appearing for the petitioners, contended that the reasons for rejecting the petitioners’ tenders are illegal, arbitrary and irrational. As regards the requirement of producing the original affidavit before three depots, it is contended that the original was produced at the Haripad ## W.P.(C) No.14754 of 2022 -9- depot which fact had been acknowledged by the 4[th] respondent depot manager in Ext.P13 letter. The contents of the affidavit to be submitted at the three depots being identical, rejection of the tenders for Mavelikkara and Cherthala depots on the hyper technical reason of non-production of original affidavit is a malafide exercise of power. 9. It is contended that the second ground of rejection is all the more illegal since the requirement under Clause 18 of Ext.P1 is that the tenderer firm should possess of minimum 10 Goods Vehicles, of which at least 5 should be Goods Vehicles registered in Kerala and 4 of the Heavy Goods Vehicles owned by the firm, the managing partner or the partners. This requirement was amply satisfied by the petitioners. Ext.P7 list contains the particulars of 12 Goods Vehicles of which 7 are HGV. From among the 7 HGV, 4 belongs to a partner and 2 are owned by the first ## W.P.(C) No.14754 of 2022 -10- petitioner firm itself. It is contended that, going by the definition of the ‘Heavy Goods Vehicle’ in Section 2(16) of the Motor Vehicles Act, 1989 and the registration particulars of the vehicles produced as Exts.P2 to P6, Tipper Lorries are also Heavy Goods Vehicles. As long as the notification does not exclude Tipper Lorries from the category of rejection of tender on that ground amounts to modification of the tender condition after commencement of tender process, which is legally impermissible. 10. It is pointed out that in an attempt to substantiate the disqualification, it is stated in Ext.P19 that the District Collector, Alappuzha has prohibited the movement of tipper lorries between 8.30 am and 10.00 a.m in the morning and 3.00 pm to 5.00 in the evening. This prohibition will adversely affect the transportation and delivery of ration articles using tipper lorries. Further, the platform of tipper lorries are at a -11- ## W.P.(C) No.14754 of 2022 higher level and hence, the headload workers at FCI depots will cause object to the loading and unloading of foodgrains from such vehicles. The said reasoning is contended to be absurd, based on the findings in Ext.P25 enquiry report of the Motor Vehicle Inspector Cherthala. In Ext.P25, it is categorically stated that there is no distinction in the Motor Vehicles Act between tipper lorries and other heavy goods vehicles. It is also reported that, since tipper lorries are having open body, any goods, including rice, can be loaded and unloaded without difficulty. Finally, it is contended that the reason for disqualification being factually incorrect and legally flawed, the impugned orders are liable to be set aside and the first petitioner considered for the tender for Haripad, Mavelikkara and cherthala depots. 11. Adv.R.Lakshmi Narayan, learned Standing Counsel for the Supplyco, submitted that all W.P.(C) No.14754 of 2022 -12- tenderers are required to submit the affidavit in Annexure IV format appended to Ext.P1. The notified source to the notified destination, for the transportation of which the tender is being submitted, should be stated in each affidavit. The affidavit also contains undertakings and affirmations by the tenderer. The petitioner cannot therefore insist that the Supplyco should accept photocopies of the original affidavit submitted at Haripad depot, in lieu of the original affidavits to be submitted at the Cherthala and Mavelikkara depots. As such, non production of the original affidavit amounts to violation of Clause Nos.8(C)(iv) and 12 of Ext.P1. 12. It is submitted that out of the vehicles offered by the petitioners, 6 were tipper lorries, which are not suitable for transportation of foodgrains. Tipper lorries have higher platform and closed body, making it ## W.P.(C) No.14754 of 2022 -13- difficult for the headload workers to load and unload foodgrains. Further, the district administration has restricted the movement of tipper lorries during peak hours. The working hours of the FCI godowns being from 9 am to 6p.m, the restriction will affect the smooth delivery of foodgrains. It is submitted that the petitioners were convinced about the reasons pointed out by the Supplyco and had therefore submitted a list of alternate vehicles. In the list so submitted, only two vehicles are owned by the petitioners, as against the requirement that 4 Heavy Goods Vehicles should be owned by the tenderer. The Standing Counsel placed reliance on the Division Bench decision in _**Pushkarraj Constructions Pvt.Ltd v. Silppi Constructions and Contractors [2019 (3) KLT 406]**_ and that of the Apex Court in _**M/s.N.G.Projects Limited v. Vinod Kumar Jain and others [AIR 2022 SC 1531]**_ to ## W.P.(C) No.14754 of 2022 -14- contend that Writ Courts are not expected to substitute its views with that of the employer/tender evaluation committee. 13. Insofar as the first reason for disqualification, with respect to Mavelikkara and Cherthala depots, for non-production of original affidavits, are concerned, I am of the opinion that insofar as Clause 8(C)(iv) of Ext.P1 mandates production of the original, petitioner was bound to do so. Clause 12 makes it further clear that, failure to produce the affidavit will result in the tender being rejected. I also find merit in the submission of the learned Standing Counsel, that the insistence on production of original affidavit in relation to the tender for each depot is with the objective of securing necessary undertaking/assurance and affirmation from the tenderers. That requirement will not be satisfied by the tenderer producing a photocopy of the original affidavit produced in some other ## W.P.(C) No.14754 of 2022 -15- depot. Hence, I find no reason to interfere with the disqualification for the Mavelikkara and Cherthala depots. 14. As regards the disqualification for Haripad depot, on the ground that 4 HGVs offered by the petitioners are tipper lorries, I find merit in the contention of the learned Senior Counsel that Ext.P1 does not exclude tipper lorries or distinguish between other HGVs and tipper lorries. In the absence of such a stipulation or exclusion, the question is whether the statute contains any distinction between Heavy Goods Vehicles and tipper lorries. As per Section 2(16), 'Heavy Goods Vehicles' means any goods carriage the gross vehicle weight of which, or a tractor or a road-roller the unladen weight of either of which, exceeds 12,000 kilograms. The Act does not contain a separate definition for tipper lorries nor do tipper lorries fall within the definition of 'goods carriages' in -16- ## W.P.(C) No.14754 of 2022 Section 2(14), which reads as under; _“(14) “goods carriage” means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.”_ Moreover, even in the registration certificates, tipper lorries are classified as Heavy Goods Vehicles. As such, rejection of the tender on the ground that 4 among the six heavy goods vehicles offered by the petitioner are tipper lorries cannot be sustained. For the reason that the petitioner submitted an alternative list of vehicles, in their attempt to avoid disqualification, they are not estopped from challenging the disqualification. The other reason stated is about the restriction on the movement of tipper lorries imposed by the District Collector. As rightly pointed out by the learned Senior Counsel, such a restriction is imposed for curbing the menace caused by tipper lorries carrying sand, red earth, granite, W.P.(C) No.14754 of 2022 -17- boulders and other construction materials. In the light of the findings in Ext.P25 report, the reason that tipper lorries have higher platform making loading and unloading difficult cannot also be accepted. Disqualification for reasons which are not mentioned in the tender document has the effect of modifying the tender conditions after commencement of tender process. The decisions cited by the Standing Counsel will not apply to the case at hand, since the issue herein is not regarding the interpretation of any tender condition, but about the disqualification of the petitioners based on a condition which is absent in the notice inviting tender. For the aforementioned reasons, the challenge against rejection of petitioners’ tender for Haripad depot is sustained. In the result, the writ petition is disposed of as under; The challenge against Exts.P12 and P14 is W.P.(C) No.14754 of 2022 -18- rejected. The challenge against Ext.P19, to the extent the order disqualifies the petitioners from the tender in Haripad Depot is sustained. Ext.P21 is quashed. Respondents 2 to 4 shall treat the petitioners as qualified in the technical bid for Haripad Supplyco Depot and accordingly continue the tender proceedings. **==> picture [59 x 12] intentionally omitted <==** **V.G.ARUN** JUDGE Scl/ W.P.(C) No.14754 of 2022 -19- ## **APPENDIX OF WP(C) 14754/2022** ## PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF TENDER NOTICE DATED 02-| |---|---| ||02-2022 ISSUED BY THE 2ND RESPONDENT| |Exhibit P2|TRUE COPY OF CERTIFICATE OF| ||REGISTRATION OF VEHICLE BEARING| ||REG.NO.KL-04/Z-14 - HGV TIPPER| |Exhibit P3|TRUE COPY OF CERTIFICATE OF| ||REGISTRATION OF VEHICLE BEARING| ||REG.NO. KL-04/Z 18 HGV TIPPER| |Exhibit P4|TRUE COPY OF THE CERTIFICATE OF| ||REGISTRATION OF VEHICLE BEARING| ||REG.NO.KL-04/AH 6575 HGV TIPPER| |Exhibit P5|TRUE COPY OF THE CERTIFICATE OF| ||REGISTRATION OF VEHICLE BEARING| ||REG.NO.KL-04/AJ 6575 HGV TIPPER| |Exhibit P6|TRUE COPY OF RELEVANT PORTION OF| ||CERTIFICATE OF REGISTRATION OF VEHICLE| ||BEARING REG.NO.KL-04/AD 3443 LGV| |Exhibit P7|TRUE COPY OF LIST OF VEHICLES WITH| ||REGISTRATION NUMBER SUBMITTED ALONG| ||WITH SCHEDULE -1| |Exhibit P8|TRUE COPY OF CERTIFICATE OF| ||REGISTRATION OF VEHICLE BEARING| ||REG.NO.KL-02 J 3328| |Exhibit P9|TRUE COPY OF CERTIFICATE OF| ||REGISTRATION OF VEHICLE BEARING| ||REG.NO.KL-07/L 3139| |Exhibit P10|TRUE COPY OF AFFIDAVIT PRODUCED ALONG| ||WITH THE E-TENDER IN THE 3 TENDERS| |Exhibit P11|TRUE COPY OF ORDER DATED 21-04-2022| ||ISSUED BY THE 6TH RESPONDENT,| ||COMMUNICATING THE DECISION OF THE 5TH| ||RESPONDENT EVALUATION COMMITTEE| ||INFORMING THAT 5 HEAVY GOODS VEHICLES| ||ARE TIPPER MODELS AND HAS NOT BEEN| ||SUBSTITUTED WITH OTHER HEAVY GOODS| ||VEHICLES AND THE ORIGINAL OF THE| ||AFFIDAVIT HAS NOT BEEN PRODUCED AND| ||DISQUALIFIED THE PETITIONER| |Exhibit P12|TRUE COPY OF NOTICE DATED 11-04-2022| -20- ## W.P.(C) No.14754 of 2022 - ISSUED BY THE 8TH RESPONDENT, CALLING UPON THE PETITIONER FOR A HEARING TO BE HELD ON 13-04-2022 TO SUBSTITUTE THE DETAILS OF 6 TIPPER LORRIES WITH OTHER HEAVY GOODS VEHICLES AND THE ORIGINAL OF THE AFFIDAVIT UPLOADED ALONG WITH THE E-TENDER, - Exhibit P13 TRUE COPY OF LETTER DATED 13-04-2022 ISSUED BY THE 4TH RESPONDENT - Exhibit P14 TRUE COPY OF PROCEEDINGS DATED 18-042022 ISSUED BY THE 8TH RESPONDENT, INTIMATING THE PETITIONER THE DECISION OF THE 7TH RESPONDENT EVALUATION COMMITTEE, DISQUALIFYING THE PETITIONER ON THE GROUND THAT THE PETITIONER HAS NOT SUBSTITUTED DETAILS OF 6 HGV TIPPER LORRIES AND HAS NOT PRODUCED THE ORIGINAL AFFIDAVIT - Exhibit P15 TRUE COPY OF REPRESENTATION DATED 1604-2022 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT - Exhibit P16 TRUE COPY OF JUDGMENT DATED 22-04-2022 IN W.P.(C).NO.14419 OF 2022 OF THIS HON'BLE COURT - Exhibit P17 TRUE COPY OF NOTICE DATED 25.04.2022 ISSUED BY THE MANAGER OF THE 2ND RESPONDENT - Exhibit P18 TRUE COPY OF SUBMISSIONS SUBMITTED BY THE 2ND PETITIONER ON 30.04.2020 BEFORE THE 2ND RESPONDENT - Exhibit P19 TRUE COPY OF ORDER OF THE 2ND RESPONDENT DATED 30.4.2022 - Exhibit P20 TRUE COPY OF TECHNICAL BID SUBMITTED BY THE PETITIONERS - Exhibit P21 TRUE COPY OF THE ORDER DATED 26.04.2022 PASSED BY THE 4TH RESPONDENT, REJECTING THE TECHNICAL BID SUBMITTED BY THE PETITIONERS.