THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.25391 of 2007 Date : 17-1-2008 Between : M/s. Padmanandi Travels .. Petitioner Represented by its Proprietor N.Ramadevi And Electronics Corporation of India Ltd. Represented by its Managing Director ECIL Post Office, Hyderabad And another .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA Writ Petition No.25391 of 2007 ORDER:- This Court ordered notice before admission on 29- 11-2007 and granted interim order for a limited period and subsequent thereto, rule nisi was issued on 14-12-2007. On 17-12-2007 the matter was directed to appear in the list on 19-12-2007 and the interim order granted earlier was extended till then. 2. M/s.Padmanandi Travels represented by N.Ramadevi filed the present Writ Petition for a Writ of Mandamust declaring the action of the respondents in not considering the Techno Commercial bid as well as price bid submitted by the petitioner’s firm to the respondents Corporation though the petitioner’s firm has got past experience in supplying the taxies to the respondents Corporation is illegal, arbitrary, unreasonable and contrary to the terms and conditions of the Tender Notice No.ECIL:CP:HTT:PT-84-07-08, dated 24-8-2007 issued by the 2nd respondent and also violation of the Article 14 of the Constitution of India and consequently direct the respondents to consider the Techno Commercial Bid as well as Price Bid submitted by the petitioner’s firm and pass such other suitable orders. 3. W.V.M.P.No.3179/2007 is filed by the respondents in the Writ Petition to vacate the interim order and in the counter affidavit filed, several of the averments made in the affidavit filed in support of the Writ Petition had been denied. A reply affidavit also was filed. Several material papers also had been placed before this Court. 4. Sri Lakshminarayana Reddy, the learned Counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the Writ Petition, the terms and conditions and also had taken this Court through the contents of the counter affidavit and reply affidavit as well and would maintain that the other parties who had submitted their tenders are totally disqualified even as per the terms and conditions and for certain reasons which had been well-explained, the petitioner is being excluded from the purview of consideration and the same is bad in law. The learned Counsel also would explain that the condition of having Service Tax Registration is not a condition precedent or it is not a mandatory though as such since it would fall under the terms and conditions. Even otherwise, the petitioner is entitled for consideration of the past experience and the averments made in relation to the complaints have been invented only to favour certain of those parties since they are having certain close relatives working in the 1st respondent – Corporation. The learned Counsel would maintain that in the light of the facts and circumstances, the tender of the writ petitioner also to be considered in accordance with law. The learned Counsel also commented in elaboration relating to what had been expressed by the Committee. 5. Per contra, Sri Dantu Srinivas, the learned Counsel representing respondents had taken this Court through the contents of the counter affidavit and also pointed out that the very commencement of the Tender Notice would go to show that once must possess the Service Tax Registration. There is serious controversy relating to the fact that the petitioner is not having Service Tax Registration as on today. Apart from this aspect of the matter, unfortunately, the Corporation received several complaints as against the petitioner and the sister concern of the petitioner and the Inspection Report on Tourist Taxi Agencies conducted on 10-10-2007 by the members of the Committee would clearly go to show that the decision taken is in accordance with law. Even otherwise, the Counsel would submit that on verification it is now found that the proprietor of M/s.Gayatri Travels had incurred disqualification and hence the same is not being considered. However, the learned Counsel would submit that as far as the allegations made as against M/s.Navyateja Travels is concerned, the same appears to be unsustainable contention. At any rate, the learned Counsel would contend that the 1st respondent – Corporation would look into the disqualifications of the other tenderers in accordance with the terms and conditions and the petitioner is not much concerned with those aspects. The petitioner is not entitled to any of the reliefs especially in the light of the correspondence and also the complaints placed before this Court. 6. Heard the Counsel and perused the material available on record. 7. It is stated that in the affidavit filed in support of the Writ Petition that the petitioner is the sister concern of firm M/s.Nandi Travels which has been supplying taxies to the respondents Corporation since 2002 onwards on higher basis till today. While so, the 2nd respondent had issued a Tender Notice No.ECIL:CP:HTT:PT-84-07-08, dated 24- 8-2007 for supply of Ambassador/Tata Indica/non-A/c diesel cars on daily/monthly hire basis and that the Tender Notice further indicated that the sealed tenders are invited from the registered, repeated and experienced tourist tax suppliers who were having tax registration and also stated in the Tender Notice that the tenderers are requested to submit their tenders in two parts i.e., Techno Commercial and Price bid in separate sheet covers addressing the sealed cover to the Deputy General Manager, Corporate Purchase i.e., 2nd respondent herein and further stating in the Tender Notice that the Techno Commercial bids will be opened first i.e., on 18-9-2007 in the presence of the tenderers and thereafter the Price bids will be considered basing on the Techno Commercial Bid those who qualified in the Techno bids and the price bid will be considered by a duly constituted Committee appointed by the Managing Director of respondents Corporation for further negotiation and process. Further it is stated that the Tender Notice has further indicated that the tenderers should also send Demand Draft of the schedule Bank for Rs.25,000/- in favour of AM ECIL towards earnest money deposit and also stated that Sl.No.30 of the terms and conditions of the Tender Notice has further indicated that Evaluation will be done by the Committee based on the fleet ownership, sub-lease taxies, communiation facilities, for experience of contract would Government/PSUs, companies affairs, survey of firms/agencies, after opening Techno Commercial bids. It is further stated that as per the Tender Notice issued by the respondents-Corporation, the petitioner had sent two sealed tenderers as Annexure-A for Techno Commercial bids and Annexure-B for price bids within the stipulated time i.e., before 18-9-2007 along with list of vehicles and also stated that along with his tender the other travel agencies i.e., M/s.Vinayaka Travels, M/s.Gayathri Travels and M/s.Navya Teja Travels have also sent their tenders to the respondents-Corporation and that among those three travels, Gayathri Travels and Navyateja Travels are new agencies to the respondents-Corporation who have participated for first time in the bid. Further it is averred by the petitioner that it is categorically stated in his tender form that the petitioner’s firm has got past experience since 8 years in providing taxi cars on hire basis to the respondents Corporation and has been supplying taxis till today under the name of M/s.Nandi Travels which has been extended till 31-11-2007 whereunder the respondents Corporation had issued a letter dt.20-9-2007 to that effect. The petitioner further stated that though he had quoted reasonable price bid in his tender form, the technical Committee of the respondents-Corporation without considering his technical bid ignoring his firm’s past experience and existing supply of cars to the respondents-Corporation has not opened his price bid. It is also stated that the petitioner came to know that the Technical Committee of the respondents-Corporation have opened the price bid of other tenderers who have participated first time in the tender without considering his Techno Commercial bid as well as price bid ignoring the terms and conditions of the Tender Notice issued by the 2nd respondent whereunder it is clearly stated that past experience of the agencies should be considered. It is also averred that the Technical Committee of the respondents-Corporation had intentionally kept pending the petitioner’s Techno Commercial bid as well as price bid submitted by the petitioner firm and proceeding to finalise the tenderers submitted by new tenderers by entrusting the contract excluding the petitioner firm though the petitioner firm is existing supplier of taxies to the respondents-Corporation without there being any reason and as such the action on the part of the technical Committee of the respondents-Corporation in not considering the petitioner’s firm Techno Commercial bid and price bid is including, arbitrary, unreasonable and contrary to the terms and conditions of the Tender Notice dated 24-8-2007 issued by the 2nd respondent. Further it is stated that though it was brought to the notice of the 2nd respondent, the 2nd respondent had not taken any action. Hence, the writ petitioner approached this Court praying for appropriate reliefs. 8. In the counter affidavit filed on behalf of the respondents, sworn to by the Deputy General Manager (Corporate Purchase) of the 1st respondent Corporation, who is the 2nd respondent, it is averred that it is true that the respondent company had issued a Tender Notice No.ECIL:CP:HTT:PT-84-07 dated 24-8-2007 for supply of Ambassador/Tata Indica/Non-AC and AC Diesel cars on daily/monthly hire basis and invited tenders from the eligible tourist taxis suppliers having valid registration. In the Tender Notice the parties are to submit their tenders in two parties i.e., Techno Commercial bid and price bid separately. In the Tender Notice in clause 1.1(a) it was clearly brought out that “the quotations of the parties will be evaluated and short listed, based on the Techno Commercial bid”. Further in Clause 1.1(b) it was clearly brought out that “parties who are short listed in the Techno Commercial bid as certified by a duly constituted Committee, will be opened and considered for further negotiation and process”. It is also averred that a Committee was duly constituted to verify the authenticity and background of the parties in order to consider their eligibility in respect of the technical bid and the said Committee visited the offices of all the tenders on 10-10- 2007 and conducted the inspection and submitted its Report. It is also stated that the Committee submitted its recommendations taking rating on 5 scale of 30 marks and that the Committee considered minimum marks for qualification as 15/30. However, the petitioner secured only 7 marks out of 30 and therefore was considered ineligible for further negotiation and process. It is further averred that under the Service Tax Act, every provider of Taxi service shall get itself registered under the said Act and shall pay Service Tax. But the petitioner failed to substantiate the Service Tax registration of the firm. Even as per the directives issued by the Ministry of Finance, Government of India to all the Public Sector Undertakings this is compulsory. Besides this, the Committee has pointed out several other shortcomings of the petitioner, based on which the petitioner’s techno bid was not considered. Further it is stated that in the affidavit the petitioner had stated that previously the petitioner had supplied cars to the respondents company through its sister concern M/s.Nandi Travels, but the Committee has reported that the services provided by M/s. Nandi Travels is poor and getting lot of complaints daily from the user Department. It is also further stated that the petitioner had not satisfied several other requirements mentioned in the Tender Notice and hence, the petitioner is not eligible to be considered, when others satisfy those conditions and also stated that a perusal of the Report submitted by the Committee clearly show that other three Tenderers are more efficient than the petitioner and are more suited for this business, besides this they have more number of cars at their disposal. It is also averred that the allegation of the petitioner that the other participants in the tender are not having considerable experience etc., and the petitioner has got experience of 8 years in providing taxi cars to the respondent company etc., is hereby denied. It is stated that even if the petitioner is a sister concern of M/s.Nandi Travels, the petitioner cannot claim any preferential treatment over others and also further averred that the respondent Corporation is not satisfied with the services provided by the said M/s.Nandi Travels. It is further stated that the respondents have evaluated the comparative merits and demerits of each of the parties in a scientific manner and based on the report of the Committee, further action was taken in this matter and that the respondents did not act against the provisions of the Constitution and the action of the respondents is neither arbitrary, nor violative of Art.14 of the Constitution of India nor against the conditions mentioned in Tender Notice. The method evolved by the respondent is transparent and just. 9. A reply affidavit was filed by the petitioner. The past-experience as specified in condition No.30 had been referred to and several particulars and details also had been specified. Further it is averred that even for the year 2006 contract also the respondent Corporation had invited the petitioner Travels and Vinayaka Travels and awarded contract from 1-10-2007 as M/s.Rishi Travels who got contract for the year 2006 has concluded its contract by 30-9-2007 and since then the petitioner’s firm has been supplying cars to the respondent Corporation till today and hence, the allegation that the respondent Corporation is not satisfied with the services provided by M/s.Nandi Travels is false and without any basis. It is further averred that it is relevant to state that the report dt.10-10-2007 prepared by the Committee of the respondent Corporation has been filed along with their counter is wholly arbitrary and it is contrary to their own terms and conditions of Tender Notice dt.24-8-2007 issued by the respondent Corporation because as per the Committee report dated 10-10-2007 they have considered for further negotiation of M/s.Gayatri Travels though the said M/s.Gayatri Travels is not eligible as one Mr.Siva Ramaiah working in Computer Division of respondent Corporation who is close relative i.e., brother-in-law of Sri Subrahmany, who is proprietor of M/s.Gayatri Travels who cannot participate in the tender issued by the respondent Corporation as he is not permissible as per condition No.26 of Tender Notice dated 24-8-2007 and the Committee of the respondent Corporation ought not to have considered M/s.Gayatri Travels for awarding contract. For the it is stated that the Committee of the respondent Corporation has further violated condition No.24 of Tender Notice dt.24-8-2007 while considering the same of M/s.Gayatri Travels as the proprietor of M/s.Gayatri Travels Sri Subrahmanyam has been declared as involvent in IP.No.4/2005 on the file of Court of the II-Additional District Judge, Ranga Reddy and admittedly as per condition No.24, the contract is liable for termination in the event of contractor becoming insolvent, but the proprietor of M/s.Gayatri Travels has already adjudged as insolvent and as such the Committee has considered M/s.Gayatri Travels in their report for awarding contract, though it is not eligible for awarding contract. It is also stated that the Committee has recommended M/s.Gayatri Travels ignoring condition No.24 and condition No.26 of Tender Notice dated 24-8-2007 has recommended for further action and that itself shows that the Committee of the respondent Corporation has acted arbitrarily in considering technical tenders submitted by the petitioner firm along with other tenderers and as such the alleged report dated 10-10-2007 prepared by the Committee of the respondent Corporation cannot be considered and the same is liable to be set aside. Further it is stated that coming to M/s.Navyateja Travels which has also been considered by the Committee of the respondent Corporation for awarding contract is also ineligible to participate in the tenderer itself as one Mr.D.P.Hanumantha Rao designated as Director of Personnel working in the respondent Corporation who is paternal uncle of Proprietor of M/s.Navyateja Travels and as such the Committee of the respondent Corporation as considered M/s.Navyateja Travels though it is not eligible to participate in tenderer under condition No.26 and as such the Committee prepared a report and recommended the ineligible firms i.e., M/s.Gayatri Travels as well as M/s.Navyateja Travels for considering them for awarding contract which is contrary to condition Nos.24 and 26 and it is not permissible as per their own terms and conditions as specified in the Tender Notice dt.24-8-2007. 10. The relevant portions of the Tender Notice are as hereunder:- ELECTRONICS CORPORATION OF INDIA LIMITED (CORPORATE PURCHASE) Tender Notice No.ECIL:CP:HTT:PT-84;07-08 Date:248- 2007 Due Date:18-9-2007 At 1400 hours TENDER FOR SUPPLY OF AMBASSADOR/TATA INDICA/NON-A/C & A/C DIESEL CARS ON DAILY/MONTHLY HIRE BASIS Sealed Tenders, superscribing Tender Notice Number and Due Date are invited from the registered, reputed and experienced Tourist Taxi Suppliers who are having Service Tax Registration. Condition No.24 reads as hereunder:- “The contract is liable for termination, in the event of the contractor becoming insolvent or the agency going into liquidation or winding up of the business or making arrangement with his creditors. In case of such termination, the contractor is not entitled to any compensation.” Condition No.26 reads as hereunder:- “The bidder should give a certificate that none of his/her “near relative” is working in ECIL, the definition of which is given below, while submitting the tender. In case of proprietorship firm, certificate will be given by the proprietor. For partnership firm certificate will be given by all the partners jointly NOTE: By the term “near relative” is meant wife, husband, parents, Grand parents, children, grant children, brothers, sisters, brothers/sister-in-law, Son/Daughter-in-law, uncle and aunts, first cousin and father/mother-in-law. The Format of the certificate to be given is “I, ……….. s/o………. r/o……………. do hereby certify that none of my “near relative(s)” as defined in the tender document is/are employed in ECIL as per details given in tender document. In case at any stage, it is found that the information given by me is false/incorrect, ECIL shall have the absolute right to take any action as deemed fit/without any prior Intimation to me.” Condition No.30 dealing with Evaluation Criteria reads as hereunder:- “Evaluation will be done by the committee based on the fleet ownership, sub-lease taxies, communication facilities, past experience of contracts with Govt./PSUs, company profile, survey of firms/agencies, after opening of techno- commercial bids. The price bids of technically qualified bidders will be opened. The rate quoted for Indica vehicle will be considered for deciding on L1, L2, L3 bidders. The lowest rate quoted for each category will be taken as L1 rate and the same will be offered to L1, L2 and L3 for finalization of contract. The monthly booked Taxies will be allotted in 60% and 40% ratio if it is decided on two service providers and 50%, 30% and 20% in case decided to engage three service providers.” 11. It may be appropriate to have a look at the relevant portion of the Inspection Report on Tourist Taxi Agencies, conducted on 10-10-2007 by the Committee and in para 4 it had been specified as hereunder:- M/s.Padma Nandi Travels :- Firm’s Office is situated at D-5, Officers Colony, near A.S.Rao Nagar. It is a residence cum office having one table, a Telephone, Phone is not working for the last 5 days. No Office set up is available and only 2 vehicles are available in front of the gate which are out of order. Agency has mentioned that they are having Thirty Vehicles all are other than Agency name. Proprietor of the firm informed to the Committee that their vehicles are booked and went away. The Committee asked about their Turnover, PF, ESI, Rental agreement copies, Service Tax. They have informed that Turnover for 2005-2006 is approximately 16.85 lakhs, for 2006-2007 is approximately 4.20 lakhs. In 2005-08 upto August 2007 it is approximately 7.00 lakhs. Service Tax Regn.No. is not allotted by the Service Tax Authorities. 12. The Insolvency Petition filed by A.Subramaniam had been placed before this Court and further the letters addressed by Padmanandi Travels and some correspondence between the petitioner and the 1st respondent also had been placed before this Court. Certain of the complaints and reports also had been placed before this Court. On 10-10-2007 Padma Nandi Travels addressed a letter to the 1st respondent – Corporation which reads as hereunder:- PADMA NANDI TRAVELS Door No.16-2-836/42, Madhava Nagar, Saidabad, Hyderabad. Ref: Date: 10-10-2007 Sir, Sub: Supply of Taxies – Techno Commercial Bid – Service Tax – Reg. With reference to the above, we submit hereunder in connection with Service Tax. We have approached concerned Authorities for the same. They advised us to produce some required papers. We are once again approaching Authorities to submit the same. As soon as we receive Registration Certificate, we submit to the Corporate Purchase, ECIL. Thanking you, Yours faithfully, Sd/- 13. As can be seen from the material available on record, it is no doubt true that the petitioner is having past experience. It is also no doubt true that the petitioner has been transacting this work but however it appears certain complaints had been received. Be that as it may, as per violation of conditions No.24 and 26, these aspects are concerned, the said parties who are said to be otherwise disqualified are not made parties in this Writ Petition. However, despite the same, this Court does hope that in the light of the specific stand taken in the reply affidavit and also in the light of the specific terms and conditions specified under clause 24 and 26, the 1st respondent – Corporation would look into the same and take appropriate action in this regard if the 1st respondent – Corporation is satisfied relating to the said disqualifications of the other tenderers. Inasmuch as, those are not parties before this Court, no positive directions as such can be given in this regard. Suffice to state that since the petitioner is not qualified, as can be seen even from Tender Notice, since even as per the stand taken by the writ petitioner, the writ petitioner is not having Service Tax Registration as on today, the commencing portion of the Tender Notice itself clarifies the situation. Apart from this aspect of the matter, in the light of the reasons recorded by the Committee aforesaid at para 4, this Court is of the considered opinion that the petitioner is not entitled to any of the reliefs as prayed for in the present Writ Petition. Hence, subject to the observations specified above, the Writ Petition is dismissed. No order as to costs. ________________ Justice P.S.Narayana January, 2008 smr