HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 470 of 2010 (M/S) M/s Railway Handling Cooperative Labour Contractor Society Ltd. ……..Petitioner Versus nion of India and others. …….Respondents U Mrs. Neetu Singh, Advocate for the petitioner. Mr. M.C. Pandey, Advocate for respondent nos. 2 & 3. Dated: August 3, 2010 Hon’ble V.K. Bist, J. This writ petition has been filed by the petitioner for the following reliefs:- (a) “Issue an order, writ or direction in the nature of mandamus commanding the respondents to make negotiations with the petitioner/ Society for awarding the HTC Roorkee contract to the petitioner/Society. (b) Issue an order or directions or writ commanding the respondents to send offer of award of contract of HTC Roorkee work in favour of the petitioner/Society. (c) Declare that the decision to refund the earnest money to the petitioner/ Society of HTC Roorkee was arbitrary & illegal. (d) Issue any other order or any further direction which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case to mould the relief and render justice to the petitioner. (e) Award the cost of the present writ petition to the petitioner.” 2. It is asserted in the petition that petitioner is a registered Labour Cooperative Society. The person filing the petition is the Secretary of the Society. The Food Corporation of India, Dehradun (in brevity FCI) invited tender for various works including the work of HTC 2 Roorkee and the last date for submitting the tenders was fixed upto 24.11.2009. Date for opening the price bids was fixed as 01.12.2010 whereas date for acceptance of tenders was fixed as 08.01.2010. The petitioner Society submitted tender for HTC, Roorkee work with all formalities and was found qualified by FCI in technical bids opened on 24.11.2009 and therefore became eligible for opening their price bid. Tenders of all the parties were opened as per schedule on 01.12.2009 in the presence of bidders and a comparative table was prepared. The lowest percentage rate @ 162% ASOR was tendered by the petitioner Society and being the lowest rate bid offered by the petitioner Society, it became entitled for award of the work as per rule. It is further asserted that the FCI had a policy of awarding the work contracts to Labour Cooperative Societies on priority basis and also preference over private contractors. It is further stated in the petition that the petitioner Society submitted an application on 19.12.2009 before General Manager, FIC, Dehradun requesting to award the HTC Roorkee contract to the petitioner. The respondent no.3 had sent a telegram to petitioner Society on 07.01.2010 informing extension of time period for acceptance of tender by 30 days i.e. upto 08.02.2010. Petitioner/Society had submitted letter dated 08.01.2010 (annexure-10) before FCI authorities informing them to keep its counter offer open till 08.02.2010 and agreed to work on same tenders rates for HTC Roorkee work and requested for awarding the contract. Suddenly, the respondents had refunded the earnest money to the petitioner Society vide letter dated 15.02.2010 indicating the cancellation of tender without informing the petitioner Society. It is alleged that the respondents are interested to award the contract to some private 3 contractors for various malafide reasons. It is further submitted that due to cancellation of tender in an arbitrary manner and one-sided decision of respondents, the petitioner Society had suffered an irreparable loss and many workers had become unemployed for want of work. It is lastly asserted that the action of the respondents is against the policy and guidelines of Govt. of India as well as against of policy of FIC of promoting the registered Labour Cooperative Societies. Hence this petition. 3. Denying the averments made in the petition, the respondent nos. 2 & 3 have filed a counter affidavit in which interalia, they have stated that the Food Corporation of India through its regional office Dehradun invited tenders for appointment of handling transport contractor (HTC) point to point for transportation of foodgrains, sugar, fertilizer etc. as specified in the terms and conditions mentioned in the tender notice. The tender form, in addition to the general information and instructions, provided terms and conditions to be fulfilled by the parties in the contract. The petitioner as well as other bidders submitted their technical and financial bid separately sealed, in an envelope putting them in a third large envelope. It is further asserted in paragraph no.7 of the counter affidavit that the General Manager (Region) FIC constituted a committee consisting of Assistant General Manager (Contract), Assistant General Manager (Finance) and Assistant General Manager (Commercial) for opening the tenders and making recommendations thereon. The Committee so formed, after opening the technical and financial bids recommended the name of the petitioner to the General Manager (Region) who sent the same for Financial Soundness and Business 4 Competence (F.S.B.C.) to be assessed by the Area Manager of concerned district i.e. Srinagar (Garhwal). Thereafter the Area Manager constituted a committee consisting Manager (Depot) of the concerned depot i.e. Roorkee, Manager (Accounts) and Manager (Storage) for assessing the F.S.B.C. In paragraph-8 of the counter affidavit, the respondents have stated that the Committee constituted by the Area Manager, after making spot verification found following defects with the petitioner Society:- i. The area of the work of the petitioner Society was only within the Saharanpur Division as per the registration of the petitioner Society, ii. Bank balance certificate was not provided by the petitioner Society, iii. Latest up-to-date bank transactions were not provided by the petitioner Society, iv. Property papers of the petitioner Society were not provided nor any moveable or immovable property was found in the name of the Society. The property papers provided were of one Sri Asif Ali Khan who owns property in his own capacity, v. The Society has not undertaken any handling and transport work in the year 2007-08 and 2008-09 neither petitioner Society owned any vehicle in its name nor Haisiyat Certificate (Solvency Certificate) was provided by the Society. 4. It is further asserted in the counter affidavit that the petitioner Society was not found fulfilling the conditions as stipulated in the tender notice as well as tender form. In paragraph no.9 of the counter affidavit, the respondents have come up with the case that after receiving report of the Committee constituted by the Area Manager, Srinagar, the General Manager (Region) 5 Dehradun formed another committee consisting of senior officers viz. Assistant General Manager (Commercial), Assistant General Manager (Finance), Assistant General Manager (Contract) to examine the F.S.B.C. report submitted through the Area Manager, Srinagar (Garhwal). It is also stated in the counter affidavit that the Committee, after scrutinizing and examining the report, recommended that contract for Handling Transport Contractor be cancelled and fresh tender be invited. (annexure no.CA-3) 5. Heard Mrs. Neetu Singh, the learned counsel for the petitioner and Mr. M.C. Pandey, the learned counsel for the respondent nos. 2 & 3 and perused the record. 6. Argument of learned counsel for the petitioner is that once the petitioner Society was found eligible in the technical bid, the petitioner was permitted to participate in the price bid. She further submitted that petitioner was found eligible in the technical bid as well as price bid, but the respondents vide letter dated 07.01.2010 extended the validity period for 30 days. She further submitted that petitioner/Society had submitted letter dated 08.01.2010 (annexure-10) before FCI authorities informing them to keep its counter offer open till 08.02.2010 are agreed to work on same tenders rates for HTC Roorkee work and requested for awarding the contract. She submitted that in view of these facts as well as in view of the reasons that the tender of the petitioner Society was lowest one, the petitioner Society was entitled for grant of tender for the work of contract. 6 7. On the other hand, Mr. M.C. Pandey, the learned counsel appearing on behalf of respondent nos. 2 & 3 has submitted that the petitioner Committee, after making spot verification found some defects and tender of the petitioner Society was rejected for non complying with the terms and conditions of the tender. Learned counsel for the respondent nos. 2 & 3 invited attention towards annexure no. 3 to the counter affidavit and submitted that the Committee, after scrutinizing and examining the report, recommended that contract for Handling Transport Contractor be cancelled and fresh tender be invited. 8. Having heard the learned counsel for the parties it is obvious that contract for Handling Transport Contractor has already been cancelled and the respondents have invited fresh tender. In view of the averments made in paragraph nos. 7, 8 & 9 of the counter affidavit of respondent nos. 2 & 3 (description of which has been mentioned in the body of judgment), this Court is not inclined to interfere in the matter. 9. The writ petition is dismissed. However, it is open for the petitioner Society to participate in the new tender process, which is likely to be opened. 10. Learned counsel for the petitioner Society states that since the petitioner Society has come before this Court, the respondent authorities are biased against the petitioner Society and they will blacklist the Society and will not permit the petitioner to participate in the future tenders. At this, the learned counsel for the respondent nos. 2 & 3 states that apprehension of the 7 petitioner is baseless and the petitioner Society has yet not been black listed. He assured that the respondents are not biased and they will not discriminate the petitioner in any manner in future tenders. (V.K. Bist, J.) 03.08.2010 NCM: