IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 WP(C).No. 11153 of 2011(T) -------------------------------------- PETITIONER(S): ---------------------- LUCKY TRANSPORT SERVICE, RAMEEZ ARCADE, CHEROOTY ROAD, KOZHIKODE, REPRESENTED BY THE MANAGING PARTNER P.K.ABDUL NAZAR. BY ADVS. SRI.K.V.GOPINATHAN NAIR SMT.G.CHITRA RESPONDENT(S): ------------------------- 1. KERALA FEEDS LIMITED,(A GOVERNMENT OF KERALA UNDERTAKING), KALLETTUMKARA, THRISSUR DISTRICT. PIN.680 683. 2. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, ANIMAL HUDBANDRY, SECRETARIAT, THIRUVANANTHAPURAM. PIN-695 001. 3. MADU.D., PROPRIETOR, M/S.PADMA CARGOS, RAMAN CENTRE, PATTANAKKADU, CHERTHALA. 688 524. R1 BY ADVS.SRI.JOSEPH KODIANTHARA, SENIOR ADVOCATE SRI.V.ABRAHAM MARKOS SRI.MATHEWS K.UTHUPPACHAN SRI.BINU MATHEW SRI.TERRY V.JAMES SRI.B.J.JOHN PRAKASH SRI.TOM THOMAS (KAKKUZHIYIL) R2 BY GOVT.PLEADER SMT.SANJEETHA R3 BY ADVS.SRI.VAKKOM N.VIJAYAN SMT.REEJA HARI SMT.V.RENJU SRI.P.ANIYAN SMT.P.M.NASEEM BEEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV WPC.NO.11153/2011 APPENDIX PETITIONER'S EXHIBITS : P1 : COPY OF THE CERTIFICATE ISSUED BY THE 1ST RESPONDENT DATED 17.03.2009. P2 : COPY OF THE INVITATION OF THE 1ST RESPONDENT DATED 02.02.2011 PUBLISHED IN THE MATHRUBHOOMI DAILY ON 12.02.2011. P3 : COPY OF THE LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT REQUESTING TO EXTEND THE TENDER PERIOD DATED 22.02.2011. P4 : COPY OF THE INVITATION TO BID RETENDER DATED 24.02.2011. P5 : COPY OF THE RELEVANT PAGE OF TENDER CONDITIONS ISSUED BY THE 1ST RESPONDENT. P6 : COPY OF THE INTIMATION NO.KFL/248/98/02686/11 DATED 28.03.2011 OF THE 1ST RESPONDENT. P7(A) : COPY OF THE REGISTRATION PARTICULARS IN RESPECT OF KL-11/AH 2952. P7(B) : COPY OF THE GOODS CARRIAGE PERMIT ISSUED TO KL-11/AH 2952 ON 04.03.2011 P8(A) : COPY OF THE REGISTRATION PARTICULARS IN RESPECT OF KL-11/AH 2968. P8(B) : COPY OF THE GOODS CARRIAGE PERMIT ISSUED TO KL-11/AH 2968 ON 04.03.2011. P9(A) : COPY OF THE REGISTRATION PARTICULARS IN RESPECT OF KL-11/AH 3545 P9(B) : COPY OF THE GOODS CARRIAGE PERMIT ISSUED TO KL-11/AH 3545 ON 28.02.2011. P10(A) : COPY OF THE REGISTRATION PARTICULARS IN RESPECT OF KL-11/AH 3573. P10(B) : COPY OF THE GOODS CARRIAGE PERMIT ISSUED TO KL-11/AH 3573 ON 28.02.2011. RESPONDENT'S EXHIBITS : NIL /TRUE COPY/ P.A. TO JUDGE AV ANTONY DOMINIC, J. ================ W.P.(C) NO. 11153 OF 2011 ===================== Dated this the 27th day of October, 2011 J U D G M E N T 1st respondent is a Government Company in terms of Section 617 of the Companies Act, 1956. Initially the 1st respondent Company issued Ext.P2 tender notice inviting tenders from transport contractors for daily transport of cattle feed from their factory premises to Northern Region comprising the Districts from Trissur to Kasargod and parts of Tamilnadu for a period of one year. 2. It appears that on publication of Ext.P2, mainly complaining of paucity of time for submitting tenders, contractors including the petitioner submitted representations. The Company therefore issued Ext.P4 retender notice on 24/2/2011. In the retender notice among other conditions, it was prescribed thus; “The bidder should own a minimum of Ten trucks (Backhoe loaders/Tippers/JCBs/Hydraulic excavators are not permitted) of at least 9 MT capacity manufactured on or after 1.1.2001, having valid goods carrier permit in his own name in Kerala s on 23.2.11 for operating local trips in Kerala. The trucks should be registered in Kerala.” 3. Ext.P5 contains the terms and conditions of the tender. Clause 21 provides that attested copies of the documents WPC No. 11153/11 :2 : mentioned therein should be submitted along with the technical bid. This condition provided inter alia that “technical bid shall include Pan no., service tax registration number as mandatory”. According to the petitioner, in response to Ext.P5, he submitted his tender with the technical bid and offering 3% in excess of the prevailing rate and the 3rd respondent submitted his offer with 18% above the prevailing rate. Technical bids were opened on 11.3.2011. 4. Subsequently, by Ext.P6 dated 28/3/11, the 1st respondent informed the petitioner that they were not technically qualified as per the tender conditions. It was therefore, this writ petition was filed. 5. A statement has been filed on behalf of the 1st respondent. In so far as the bids that were received in response to Ext.P4 and the rejection of the petitioner's bid are concerned, it is stated thus; “Unfortunately only one bid from the 3rd respondent was received. This respondent therefore issued a re-tender on 24/2/11 (Ext.P4). In Ext.P4 also, the condition that the bidder should own a minimum of 10 trucks with valid goods permit was reiterated and however the date on which the trucks should have valid goods carrier permit was mentioned as 23.2.11 (viz., the day WPC No. 11153/11 :3 : before the date of re-tender). This condition is similar to the condition which was there in the first tender viz., that valid goods carrier permit should be available on the date before the date of the invitation. This condition is to ensure that the bidder is already an established contractor having adequate trucks and not an inexperienced person who would try to get himself qualified after seeing the tender. In any event, it is pertinent to note that the tender condition remained the same in both the tenders. 4. The date for opening the technical bids as per the second invitation was on 11.3.11. There were three bidders, the petitioner, the 3rd respondent and one K.S.Sailesh. When the technical bids were opened, it was found that, K.S.Sailesh had not produced any documents and had only mentioned that, if he is considered, he will provide all the necessary documents and evidence to satisfy the tender conditions. Obviously this party did not have the trucks in hand and this respondent had no option but to hold that this party is not technically qualified. The 3rd respondent, who is the existing contractor had complied with all tender conditions and was therefore technically qualified. The petitioner did not satisfy the tender condition with respect to the date by which he had to take the goods carrier permit as four of his trucks did not have goods carrier permit as on 23/2/11, the date mentioned in the tender. This respondent was therefore constrained to hold that he is not technically qualified as relaxing the tender conditions for him alone would have been unfair as K.S.Sailesh had also requested that he will comply with the tender conditions and produce all the documents if his tender is considered. 6. In ground (d) of the writ petition, petitioner contended that the tender submitted by the 3rd respondent was defective in WPC No. 11153/11 :4 : as much as he did not produce copy of the income tax return and clearance and that he did not hold service tax registration. Therefore, according to the petitioner, the tender submitted by the 3rd respondent ought to have been rejected for that reason. 7. Answering the aforesaid contention, in para 9 of the statement filed on behalf of the 1st respondent, it is stated thus; “As regards the objection that the 3rd respondent did not produce income tax return or confirmation of service tax registration, it is submitted that income tax return was submitted by the 3rd respondent and with respect to service tax, since service tax on freight is payable by the person making the freight payment (in this case by this respondent) there is no necessity for the 3rd respondent to take out service tax registration and this is in accordance with the relevant law. The petitioner has taken service tax registration as it is engaged in clearing and forwarding business also. The 3rd respondent has therefore complied with all tender conditions. Hence it is submitted that the case does not call for interference of this Hon'ble Court in these proceedings.” 8. The 3rd respondent has also filed a counter affidavit supporting the 1st respondent. 9. As far as Ext.P6 by which the petitioner has been informed that they are not technically qualified is concerned, even according to the submissions made by the learned counsel for the petitioner, among 10 trucks which were offered, they took WPC No. 11153/11 :5 : delivery of 4 trucks only on 2/2/11, registered the trucks on 21/2/11 and obtained permits only on 4/3/11. If that be so, petitioner did not satisfy the tender condition which required that the tenderer should have a minimum of ten trucks having valid goods carriage permit as on 23/2/11. So long as this tender condition remains as such, which is also not under challenge in this writ petition, this Court will not be justified in taking the view that the decision of the 1st respondent in not prequalifying the petitioner, as contained in Ext.P6, is vitiated for any reason. 10. However, the award of tender to the 3rd respondent also cannot be said to be valid. When the awarder has set the tender conditions, which it is entitled to, it is also equally obliged to scrupulously comply with the same. In this case, among other tender conditions, one of the condition was that the tenderer should have a service tax registration. Having prescribed such a tender condition, unless in the tender notice itself, it has reserved any power to relax the tender conditions, the 1st respondent could not have given a go by to any of the tender conditions. A reading of para 9 of the statement filed on behalf of the 1st respondent would show that the 3rd respondent did not produce a service tax WPC No. 11153/11 :6 : registration and the justification appears to be that the 3rd respondent was not legally obliged to have obtained such registration. In my view, having set a tender condition requiring the tenderer to have service tax registration, it is not open to the 1st respondent to give a go by to the tender condition and now contend that it is not mandatory for the tenderer to have obtained such registration. In other words, the company has relaxed its own conditions without reserving any power in that behalf in the tender notice. Therefore, the acceptance of the tender submitted by the 3rd respondent is equally vitiated and in my view, that tender also ought to have been rejected at the stage of pre qualification itself. Further relaxing tender condition in favour of the 3rd respondent and rejecting the bid of the petitioner for not satisfying a tender condition is also discriminatory. 11. Although the learned counsel for the petitioner contended that the decision taken by the 1st respondent to award tender to the 3rd respondent is vitiated for malafides, pleadings in the writ petition are too vague nor has the petitioner impleaded any officer of the 1st respondent in his personal capacity with allegation of malafides against him. In such circumstances, this WPC No. 11153/11 :7 : Court will not be justified in acting upon the vague and unsubstantiated plea raised in this behalf. 12. Although I have found that the award of the tender to the 3rd respondent is vitiated, fact remains that tender has been awarded to him as early as on 14/4/11 and on that basis, he is operating. Therefore, though the award is made subject to the result of this writ petition vide order dated 19th of April, 2011, if this Court is to require sudden discontinuance of the transport, that will certainly cause administrative hardship to the 1st respondent. Therefore, though I set aside the award of the tender to the 3rd respondent, I direct that, it will be open to the 1st respondent to continue the existing arrangement for four weeks from today and in the meanwhile, 1st respondent will invite fresh tenders and award tender on that basis. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp