IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 18360 of 2011(T) ---------------------------------- PETITIONER(S): ------------------- MANOJ R.NAIR, MANAGING PARTNER, M/S. R.G.ELECTRONICS, PADINJATTINKARA, KOTTARAKKARA P.O., KOLLAM DISTRICT. BY ADV. SRI.T.P.PRADEEP RESPONDENT(S): --------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004. 2. THE CHIEF ENGINEER (DISTRIBUTION CENTRAL), GANDHI SQUARE, D.H.ROAD, ERNAKULAM-16. 3. ADDITIONAL CHIEF SECRETARY, STORES PURCHASE (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. R1 & 2 BY SRI.P.SANTHALINGAM, SENIOR ADVOCATE ADVS. SRI.T.R.RAJAN,SC,K.S.E.B. SRI.P.P.THAJUDEEN, SC, K.S.E.B R3 BY SR. GOVT. PLEADER SMT.M.J. RAJASHREE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 18360/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE TENDER NOTICE DATED 04/06/2011 PUBLISHED BY THE SECOND RESPONDENT. P2: COPY OF THE CIRCULAR ISSUED BY THE STORES PURCHASE (A) DEPARTMENT DATED 27/08/2009. P3: COPY OF THE ORDER DATED 22/11/2004. P4: COPY OF THE CIRCULR ISSUED BY THE 3RD RESPONDENT DATED 29/01/2010. P5: COPY OF THE ENTERPRENEURS' MEMORANDUM DATED 14/01/2010. P6(a):COPY OF THE PURCHASE ORDERS DATED 25/03/2010 ISSUED FROM KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. P6(b):COPY OF THE PURCHASE ORDERS DATED 23/09/2010 ISSUED FROM KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. P6(c):COPY OF THE PURCHASE ORDER DATED 01/09/2011 ISSUED FROM KSIE. RESPONDENT'S EXHIBITS: R2(a):COPY OF THE ORDER NO.CE(DC)/EII/197/TLF/2007-08/9647 DATED 23/10/2007. R2(b):COPY OF THE PURCHASE ORDER NO.TS3/512/10-11/966 DATED 24/03/2011. R2(c): COPY OF THE ORDER NO.CE(DC)/EII/T4/FTF/10-11/527 DATED 24/05/2007. R2(d):COPY OF THE ORDER NO.CE(DC)/EII/T4/FTF/10-11 DATED 24/05/2007. /TRUE COPY/ P.A. TO JUDGE. svs ANTONY DOMINIC, J. ``````````````````````````````````````````````````````````` W.P.(C) No. 18360 of 2011 T ``````````````````````````````````````````````````````````` Dated this the 24th day of November, 2011 J U D G M E N T ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioner, the Managing Partner of a partnership firm, claims to be a Small Scale Industrial Unit, the registration certificate of which has been produced as Ext.P5. Going by Ext.P5, the Unit is engaged in the manufacture of Tubes, Sodium Vapour Fittings, Copper and Electronic Chokes, Inverters, CFL and T-5 Fittings. They approached this Court challenging Ext.P1, a tender notice issued by the Kerala State Electricity Board inviting competitive tenders from the manufacturers for the supply of 7000 sets of 2 x 40 w, 120 cm, Fluorescent Tube Street Light Fittings with Vacuum Impregnated Copper Chokes and without tubes. 2. Two contentions are raised. First is that Brand names have been specified in Ext.P1 tender notice and this is contended to be in violation of clause 24(b)(iv) of the W.P.(C) No.18360/2011 : 2 : Stores Purchase Manual. Second contention is that the product tendered is exclusively reserved for the Small Scale Sector in Kerala State, in terms of Note (i) to clause 38(a) of the Stores Purchase Manual. 3. In so far as the first contention that Brand names have been specified in Ext.P1 tender notice is concerned, the objectionable portion of Ext.P1 tender notice reads thus:- “Sealed, competitive tenders are invited from the manufacturers of reputed brands such as Bajaj, Crompton Greaves, Havells, Philips, Orison etc.” 4. A reading of provision in Ext.P1 shows that while inviting tenders, the KSEB has specified that tenderers should be manufacturers of reputed brands and brand names mentioned therein have been given as examples. This does not, according to me, mean that the tenders are invited exclusively from the manufacturers of the brands mentioned in the tender notice. Therefore, the first contention of the petitioner that brand names have been mentioned in Ext.P1 W.P.(C) No.18360/2011 : 3 : and, therefore, Ext.P1 is against the provisions of the Stores Purchase Manual cannot be accepted. 5. Further, paragraph 24(b)(iv) of the Stores Purchase Manual that is relied on also, in my view, is not relevant. Paragraph 24 deals with the procedural formalities to be complied with when tenders are invited by government departments and autonomous bodies like the KSEB. In sub para (iv), it is stated that the names of stores should be arranged in a clear, intelligible manner and that alphabetical arrangement is desirable. It is also provided that each item should be given correct and adequate specifications and that “mere reference to catalogue numbers and mention of patent/brand names should be avoided”. 6. This provision only means that in a tender notice, while describing the material tendered, the name of the particular item should be specifically given without merely giving the patent or brand names. This does not mean that brand names cannot be mentioned in the manner as done in W.P.(C) No.18360/2011 : 4 : Ext.P1. Therefore, the contention that Ext.P1 is opposed the provisions of the Stores Purchase Manual also cannot be accepted. As a necessary corollary, it should also be said that since the tender invited was not only from the manufacturers of the brands mentioned in Ext.P1, if the petitioner is a manufacturer of a reputed brand of the product specified therein, the conditions of Ext.P1 tender notice did not prevent the petitioner from submitting his tender. 7. Now, what remains is the second contention of the petitioner that the item tendered in Ext.P1 is exclusively reserved for procurement from Small Scale Sector in the State of Kerala. This contention is raised by the petitioner, relying on paragraph 38(a) of the Stores Purchase Manual. Note (i) to paragraph 38(a) provides that the items of stores mentioned in Appendix XXVIII of the Stores Purchase Manual are reserved for procurement exclusively from the Small Scale Sector in the State of Kerala and that, in case it is not so available, from the Small Scale Sector outside the State. W.P.(C) No.18360/2011 : 5 : Appendix XXVIIIA is the list of items mentioned in the Note referred to above and item 188 is “Street Light Fittings”. The contention raised on behalf of the respondents is that the item tendered in Ext.P1 is not merely Street Light Fittings and, therefore, item 188 relied on has no relevance. As already seen, Ext.P1 tender notice describes the material tendered as 2 x 40 w, 120 cm, Fluorescent Tube Street Light Fittings with Vacuum Impregnated Copper Chokes and without tubes. Going by the descriptions of the goods contained in Ext.P1 tender notice, it can be seen that it is not merely Street Light Fittings that are tendered but also Street Light Fittings with additional items such as Vacuum Impregnated Copper Chokes. Such a product cannot be equated to what is included in item 188 to claim that it is one which is entirely reserved for procurement from Small Scale Industrial Unit in the State. If that be so, this second submission made also does not have any merit. 8. It is also submitted on behalf of the respondents W.P.(C) No.18360/2011 : 6 : that Ext.P1 tender was necessitated as a part of Tsunami rehabilitation. According to them, they had initially placed purchase orders to few suppliers and that those orders had to be cancelled. It is therefore contended that to ensure quality of the product procured, it was necessary to make the specifications, which have been indicated in Ext.P1 and that the same has been done in public interest. In the light of my conclusions of the two contentions and also the justification offered by the counter affidavit, I do not find any substance in the writ petition. Writ petition fails and accordingly, it is dismissed. Sd/- (ANTONY DOMINIC, JUDGE) aks/26/11 // True Copy // P.A. To Judge