IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 WP(C).No. 4166 of 2010(U) ------------------------------------ PETITIONER(S): ---------------------- JAGADISH.G., LAHOTI, AGED 43 YEARS, S/O. GHANASHYAMALAN, PROPRIETOR, JAGADISH TRADERS, GENERAL MERCHANT AND COMMISSION AGENT, APMC YARD, RAMDURG, BELGAM DISTRICT, KARNATAKA. BY ADVS. SRI.P.VIJAYA BHANU SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENT(S): -------------------------- 1. CHAIRMAN & MANAGING DIRECTOR, KERALA STATE CIVIL SUPPLIES CORPORATION LTD., HEAD OFFICE, MAVELIBHAVAN, MAVELI ROAD,GANDHI NAGAR, KOCHI-682020. 2. MANAGER (PURCHASE), KERALA STATE CIVIL SUPPLIES CORPORATION LTD., HEAD OFFICE, MAVELIBHAVAN, MAVELI ROAD,GANDHI NAGAR, KOCHI-682020. 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, FOOD & CIVIL SUPPLIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.MILLU DANDAPANI R3 BY GOVT. PLEADER SMT.N.SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.4166/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE TENDER NO. P-10 4720/2009 (11) DTD. 1.1.2010 PUBLISHED BY THE RESPONDENT. P2:- COPY OF THE INDICATIVE REQUIREMENTS OF PULSES SPICES, RICE AND SUGAR IS PUBLISHED IN WEBSITE OF KSCSC. P3:- COPY OF THE CHART SHOWING SUPPLIERS WHO BID FOR COMMODITY TOOR DHAL , QUANTITY AND PRICE OF IT IN DIFFERENT STATION. P4:- COPY OF THE LETTER FROM VARUN AGENCIES DTD. 30.1.2010. P5:- COPY OF THE REVISED QUOTATION FOR TOOR DHAL DTD. 18.1.2010 BY THE PETITIONER. P6:- COPY OF THE REVISED QUOTATION FOR TOOR DHAL DT. 20.1.2010 BY PETITIONER. P6(a):- COPY OF THE MESSAGES CONFIRMATION REPORT BY FAX DTD. 20.1.2010 BY IST RESPONDENT. P6(b):- COPY OF THE MESSAGES CONFIRMATION REPORT BY FAX DT. 20.1.2010 BY 2ND RESPONDENT. P7:- COPY OF THE TABULAR COLUMN SHOWING THE STATION, AWARDED RATE ON 21.1.2010. P8:- COPY OF THE REPRESENTATION DTD. 22.1.2010 GIVEN TO THE IST RESPONDENT. P9:- COPY OF THE CIRCULAR NO.4/3/07 DTD. 30.3.2007 AND ENGLISH TRANSLATOR. RESPONDENT'S EXHIBITS R1(b):- COPY OF THE LETTER DTD. 20.1.2010 SENT BY THE PETITIONER TO THE AGM (PURCHAE) OF KERALA STATE CIVIL SUPPLIES CORPORATION LTD. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.4166/2010-U ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 29th day of September, 2010 J U D G M E N T The petitioner responded to a tender notification produced as Ext.P1 herein issued by the first respondent for supply of Toor Dhal. It is the case of the petitioner that the petitioner had submitted tender for split Red Gram (Toor Dhal) (Arhar Dhal) by e-filing and complied with Ext.P1 tender conditions. According to him, he was the lowest tenderer in respect of 27 depots which fact is evident from Ext.P3. The case appears to be that inspite of the fact that the petitioner was lowest in such different centres, the first respondent entered into negotiation. The petitioner had also participated in the negotiation and had considerably reduced the price also. Ultimately, ignoring the fact that he was the lowest tenderer, orders were placed with other tenderers, which is the complaint raised in this writ petition. 2. The petitioner is relying upon Ext.P4 which is a communication from M/s.Varun Agencies mentioning about purchase order placed by the petitioner. It is submitted W.P.(C). No.4166/2010 -:2:- that this was placed by the petitioner on expectation that the tender will be finalised in his favour. 3. The first respondent has filed a counter affidavit. It is pointed out in paragraph (6) that the second respondent makes purchases from most competitive indigenous sources at the least available terms and rates keeping in view of the requirements as to quantity and delivery period. Clause 3.1.16 of SUPPLYCO Purchase Manual empowers the Head Office Management Committee to make negotiation where the bid itself appears to be unreasonable and the rate is above newspaper quoted wholesale price/open market price as stated in daily newspaper. Negotiation was conducted for Toor Dhal on 18/01/2010 at 3 P.M. as per the decision of the Head Office Management Committee after informing the concerned. The petitioner also participated in the negotiation by offering revised rates for Toor Dhal. On the basis of revised rates offered by various tenderers, least cost analysis was made by the computer software on 19/01/2010. Thus the least cost report purchase orders were awarded. Whenever negotiation is conducted, the policy consistently followed by the Corporation is to conduct negotiation with all the parties who are L1 in any of the depots. There were 11 parties who were L1 including W.P.(C). No.4166/2010 -:3:- the petitioner and negotiation was conducted with all these parties. Unfortunately, for the petitioner, other parties reduced their rate substantially whereas the petitioner reduced his rate nominally. Hence, the petitioner did not get the purchase order. Therefore, it is contended that there is nothing arbitrary, illegal and discriminatory in the negotiation process. 4. The learned counsel for the petitioner submitted that in the light of the express clauses contained in Ext.P1, the tender should have been finalised based on the lowest rate quoted in the tender. The learned counsel further submitted that there is no clause providing for negotiation. It is further pointed out referring to Ext.P10 heading of the tender notification that it shows the column as 'No Negotiation'. 5. With regard to the contention that the negotiation ought not have been conducted, evidently, the same cannot be accepted in the light of the fact that the petitioner willingly participated in the negotiation. The complaint now raised after participating in the negotiation and on finding out that the petitioner could not succeed cannot therefore survive. Apart from that the SUPPLYCO Purchase Manual, as per Clause 3.1.16, empowers the Head Office Management Committee to make negotiation where the bid W.P.(C). No.4166/2010 -:4:- itself appears to be unreasonable and the rate is above newspaper quoted wholesale price/open market price as stated in daily newspaper. Therefore, it is open to the first and second respondents to enter into negotiation. Normally, it is termed as a commercial practice to safe guard the interest of the institution also as otherwise the tenderers could join together and defeat the rights of the institution, herein the Civil Supplies Corporation. Therefore, I do not find anything wrong in the Corporation entering into negotiation even though it is not mentioned in Ext.P1. Evidently, as the petitioner has also participated in the negotiation, he cannot turn round and challenge the proceedings after finding that he did not get the purchase order. The learned Senior Counsel appearing for respondent Nos.1 and 2 submitted that the successful tenderers have not been made parties in the writ petition and that the purchase orders have been complied with already. In that view of the matter also, the writ petition fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) ms