IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 36060 of 2009(B) -------------------------- PETITIONER(S): --------------- 1. K.SIVARAMAN, IBP AUTO SERVICES CHITTUR ROAD, PALAKKAD, PALAKKAD DISTRICT. 2. LEENA FRANCIS, W/O. FRANCIS KATTUKARAN IBP AUTO SERVICES, NENMANIKKARA, THRISSUR DISTRICT 3. ANSAR SHAH, S/O. AKBAR SHAH IBP AUTO SERVICES, VAVVAKKAVU, KOLLAM DISTRICT RERPESENTED BY HIS POWER OF ATTORNEY HOLDER A.SUHARA BEEVI, W/O. AKBAR SHAH, RESIDING AT CHIPPY HOUSE, KADAPPAKKADA ,KOLLAM. 4. REJINI SAJI PALAL, W/O. P.I.SAJI PALAL IBP AUTO SERVICE, PERUMBAYIKKAD PO, KOTTAYAM DISTRICT. 5. K.PRADEEP, S/O.T.P.SETHUMADHAVAN IBP AUTO SERVICE, MANALI, PALAKKAD DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER K.PRASAD, RESMI, VINAYAKA NAGAR, PALAKKAD DISTRICT 6. RABIA K.K., IBP AUTO SERVICE PORI BAZAR, KODUNGALLOOR, THRISSUR DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): --------------- 1. THE INDIAN OIL CORPORATION LTD. G-9,ALL YAVARJUNG MARG, BAN DRA (EAST) MUMBAI 400051, REPRESENTED BY ITS CHAIRMAN. 2. CHIEF OPERATIONS MANAGER INDIAN OIL CORPORATION LTD ,MARKETING DIVISION KERALA STATE OFFICE, PANAMPILLY AVENUE, PANAMPILLY NAGAR, KOCHI 682 036. ADV. SRI.P.GOPAKUMARAN NAIR FOR R2 SRI.C.S.DIAS , SC, FOR R2 SRI.N.K.SUBRAMANIAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 36060 of 2009 A P P E N D I X PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE COMMON ORDER DATED 05/11/2008 OF THE DISTRICT COURT, ERNAKULAM. EXT.P2 TRUE COPY OF THE WORK ORDER NO.IOCL (IBP DIVN)/ OP/IPNM/07-10/01-06-2007. EXT.P3 TRUE COPY OF THE CERTIFICATE OF REGISTRATION. EXT.P4 TRUE COPY OF THE RELEVANT PORTION OF THE TENDER NOTIFICATION. 2ND RESPONDENT'S EXTS: EXT.R2(a) COPY OF THE ORDER IN PETITION FOR SPECIAL LEAVE TO APPEAL NO.4701/2008 OF THE HON'BLE SUPREME COURT OF INDIA. \\TRUE COPY// P.A TO JUDGE T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.36060/2009-B ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 8th day of April, 2010 J U D G M E N T The petitioners herein are M&H Contractors who are aggrieved by the conditions prescribed as per Ext.P4 notification inviting tenders. The case pleaded in the writ petition shows the following:- 2. The first petitioner is having one truck, purchased in the year 2003 for the purpose of transporting the petroleum products mainly for the purpose of bringing petroleum products from Erumpanam to Palakkad for his requirement. He is also having working arrangement with similar outlets for the transport of petroleum products. Similarly, the second petitioner is also having one truck which is being utilised for transportation of petroleum products to the second petitioner's retail outlet. The third petitioner is using an Ashok Leyland truck for transporting petroleum products to his retail outlet and it is being used for transportation of petroleum products to similar retail outlets also. The fourth petitioner's brother is a dealer who owns a tanker and the services of the said tanker is utilised for transportation of petroleum products to the retail outlet at Kottayam. The fifth petitioner is utilising the tanker owned by his brother who W.P.(C). No.36060/2009 -:2:- is a dealer of petroleum products. The sixth petitioner is having a working arrangement with another IBP dealer and the transportation and delivery is ensured by the said dealer. 3. The petitioners are mainly aggrieved by clause IV (4)(b) of Part-A of Ext.P4 tender notification. As per the said notice tenders for transporting petroleum products are invited from existing retail outlet dealers/direct customer having existing arrangement/agreement with IOC referred to RO dealer/direct customer. RO dealers are retail outlet dealers who are issued with the order for distribution of petroleum products as the authorised dealer of the company. Direct customers are customers like KSRTC and other companies having their own outlets for catering the requirements of their vehicles alone. According to the petitioners, going by the terms of Ext.P4, persons like the petitioners are kept outside from the process of tendering to participate with a status either as dealers or as M&H Contractors. Apart from that under clause IV(4)(a) of Part-A of Ext.P4, in order to participate in the tender, a tenderer has to offer minimum five tank trucks out of which the tenderer shall own minimum 40% i.e. two trucks. This clause intended for RO dealers is an embargo on such dealers in making use of the idle time for transportation W.P.(C). No.36060/2009 -:3:- who does not own tank trucks. According to the petitioners, these conditions are arbitrary and illegal. The second respondent has filed a counter affidavit in the matter disputing the averments in the writ petition. It is explained that the petitioners are Landowners and Maintenance and Handling Contractors and they were never appointed as dealers of IBP Company also. 4. While admitting the writ petition, this Court passed an interim order directing the respondents to receive the tenders, if any, submitted by the petitioners pursuant to Ext.P4 notice on a provisional basis, open them and process them. It was further directed that the respondents need not award the work to the petitioners unless otherwise ordered by this Court. 5. Heard the learned counsel for the petitioners and the learned counsel appearing for the respondents. What is involved is the challenge against the tender conditions. The prescription of such conditions are really within the power of the respondents. It is well settled by the various decisions of the Apex Court that in such matters, Judicial Review is very limited. It cannot be said that the conditions are so arbitrary which requires interference by this Court in these proceedings. W.P.(C). No.36060/2009 -:4:- 6. In the light of the above, it is clear that this Court will not be justified in sitting in appeal over the conditions prescribed in Ext.P4 which are under challenge in this writ petition. 7. The respondents have in various paragraphs of the counter affidavit explained that the conditions fixed are not detrimental to any persons and they have been provided in public interest in order to protect the interest of the Company and for creating efficaciousness, professionalism and uninterrupted service in the petroleum distribution transportation system. Therefore, I do not find any reason to interfere with the tender conditions. 8. It is pointed out that pursuant to the interim order passed by this Court, the petitioners have submitted their tenders. In the light of the above, there will be a direction to process the tenders and while finalising the tenders, the tenders submitted by the petitioners will also be considered. But, it is made clear that the same will not be treated as a precedent. The writ petition is disposed of as above. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms