Ali Mohammed P v. Union Territory Of Lakshadweep
Original PDF →IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH TUE AY, THE 8TH DAY OF MARCH 2022 / 17TH PHALGUNA, 1943 WP(C) NO. 4280 OF 2022 PETITIONER: ALI MOHAMMED P AGED 49 YEARS S/O. MOHAMMED, PATHUMMATHODA HOUSE, KILTAN ISLAND, UNION TERRITORY OF LAKSHADWEEP-682558. BY ADVS. G.P.SHINOD GOVIND PADMANAABHAN AJIT G ANJARLEKAR ATUL MATHEWS RESPONDENTS: 1 UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY THE ADMINISTRATOR, KAVARATTI ISLAND, UNION TERRITORY OF LAKSHADWEEP-682555. 2 THE DIRECTOR (PORT, SHIPPING & AVIATION), DEPARTMENT OF PORT, SHIPPING AND AVIATION, LAKSHADWEEP ADMINISTRATION, KAVARATTI ISLAND, UNION TERRITORY OF LAKSHADWEEP-682555. 3 THE TENDER EVALUATION COMMITTEE (TEC), DEPARTMENT OF PORT, SHIPPING AND AVIATION, LAKSHADWEEP ADMINISTRATION, KAVARATTI ISLAND, UNION TERRITORY OF LAKSHADWEEP-682555, REPRESENTED BY THE DIRECTOR (PORT, SHIPPING & AVIATION). BY ADV SAJITH KUMAR V- R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 4280 OF 2022 2 JUDGMENT Dated this the 8th day of March, 2022 The petitioner, who has submitted his bid in respect of a contract for loading and unloading, is before this Court seeking to direct respondents 2 and 3 to accept three years GST returns documents of the petitioner and evaluate the bid submitted by the petitioner with regard to loading/unloading and stevedoring and other works of cargo ships/vessels in Kiltan Island, Lakshadweep, within a time frame stipulated by this Court. The petitioner also seeks to command the 2nd respondent to consider and pass orders on Ext.P4 representation on merits.
The petitioner states that the respondents published Ext.P1 Tender Enquiry Notice from experienced, resourceful and bona fide Contractors for loading/unloading and stevedoring and other works of ships owned or chartered by Union Territory of Lakshdweep Administration at Kavaratti, Agatti, Amini, Kadmat, Andrott, Kalpeni, Minicoy, Kiltan and
WP(C) NO. 4280 OF 2022 3 Chetlat for a period of two years. The petitioner submitted his bid in response to Ext.P1. According to the petitioner, the qualification prescribed under Clause 6.1 of Ext.P1 was that the bidders shall have a minimum three years' experience in loading/unloading and stevedoring activities. The petitioner satisfied the said condition. Ext.P1 also mandated that bidders shall have a valid GST Registration number. The petitioner has a valid GST Registration number.
The petitioner states that the preliminary bid of the petitioner was accepted and he was enlisted at Serial No.4 in Ext.P2 bid list details. However, later, the 2nd respondent issued Ext.P3 communication to the bidders requiring to produce certain documents, which were allegedly missing. The petitioner understood that he had submitted only Experience Certificate in respect of one year, whereas evidence as to experience of three years was necessary. The respondents subsequently cancelled the bid of the petitioner for non- submission of GST returns.
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The petitioner submits that Ext.P1 did not require submission of GST returns. The petitioner had submitted Experience Certificate evidencing three years experience pursuant to Ext.P3 communication. The action of the respondents in cancelling the bid of the petitioner is therefore highly illegal and cannot stand the scrutiny of law.
The learned counsel for the petitioner urged that as per Clause 27 of Ext.P1, all notices required to be given shall be deemed to have been properly served only when the notice was properly addressed and duly sent by registered post or speed post with acknowledgment slip. In case of emergency, parties can also resort to notice in PDF sent as an attachment by e-mail, in addition to the normal mode of service, which will also be treated as valid notice on proof of its delivery. The respondents have admittedly not sent any communication to the petitioner by registered post or speed post. Therefore, the e-mail communication cannot be treated as a valid communication.
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The petitioner satisfies all the eligibility condition prescribed by the respondents in Ext.P1. The petitioner has three years experience and Certificates evidencing the same have been submitted to the respondents. The cancellation of the petitioner’s bid is highly arbitrary, discriminatory and cannot stand the scrutiny of law. As the petitioner’s preliminary bid was accepted, the respondents are compellable to consider the bid submitted by the petitioner, argues the petitioner.
The learned Standing Counsel for the Union Territory of Lakshadweep contested the writ petition filing a Statement. The Standing Counsel pointed out that missing documents were intimated to all the bidders concerned through their e-mail address provided by them to the Administration. The defects in the tender documents submitted by the writ petitioner were communicated by e-mail to the e- mail address provided by the petitioner.
Annexure-R1(a) specifically required the petitioner to submit proof of GST filing for the past three years. The mail
WP(C) NO. 4280 OF 2022 6 also required to produce the mandatory Experience Certificate. Therefore, the petitioner cannot be heard to contend that he was not communicated the requirements. It was admittedly a condition of Ext.P1 that the authorities reserve all rights to ask the bidders to submit any missing document or ask clarification on the documents already submitted so as to avoid misqualifying any bidder due to negligence. Therefore, the respondents were within their competence to require the petitioner to produce proof of experience as well as GST returns. The writ petition is therefore without any merit, contended the learned Standing Counsel.
I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents.
Ext.P1 would show that the qualification prescribed for the bidders was that they shall have three years experience in loading/unloading and stevedoring activity. Proof of experience had to be produced by the bidder along with the
WP(C) NO. 4280 OF 2022 7 bid. It is an admitted position that the petitioner produced only Experience Certificate for one year, at the time of submission of the bid. Ext.P1 also indicated that the bidders shall have a valid GST Registration number. A communication was sent to the petitioner by e-mail as is evidenced by Ext.R1(a) e-mail.
Clause 27.2 of Ext.P1 provided that any communication to the bidder/successful bidder shall be made through post as well as e-mail and the date of successful sending of e-mail shall be reckoned as date of communication for the purpose of the tender. When Ext.P1 specifically provides that date of successful sending of e-mail shall be treated as date of communication for the purpose of the tender, the petitioner cannot insist that he should have been given a communication by registered post or speed post. The fact that the requirements were communicated through e-mail to the e-mail ID provided by the petitioner is not in dispute.
Furthermore, Clause 13.3 of Ext.P1 specifically provides that TEC reserves all rights to ask the bidders to
WP(C) NO. 4280 OF 2022 8 submit any missing documents or ask clarification on the documents already submitted by the bidders so as to avoid disqualifying any bidder due to negligence. Clause 6.5 of Ext.P1 mandated that bidder shall have a valid GST Registration number.
The respondents will be perfectly within their competence to require the bidders to produce GST returns of the past three years. The petitioner has evidently failed to produce the GST returns within the ten days period granted by the respondents. For all the above reasons, this Court finds that there is no merit in the writ petition. Consequently, the writ petition is dismissed. N.NAGARESH JUDGE hmh
WP(C) NO. 4280 OF 2022 9 APPENDIX OF WP(C) 4280/2022 PETITIONER EXHIBITS Exhibit P1 AOF THE RELEVANT PART OF THE TENDER ISSUED BY THE 2ND RESPONDENT. Exhibit P2 AOF THE BID LIST DATED 12.3.2021 ISSUED BY THE DEPARTMENT OF PORT, SHIPPING AND AVIATION, LAKSHADWEEP. Exhibit P3 AOF THE COMMUNICATION DATED 25.6.2021 ISSUED BY THE 2ND RESPONDENT. Exhibit P4 AOF THE REPRESENTATION DATED 11.9.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P5 AOF THE REPRESENTATION DATED 23.9.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. Exhibit P6 AOF THE REPRESENTATION DATED 24.12.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENT’S EXHIBITS ANNEXURE R1(A)
AOF THE EMAIL COMMUNICATION DATED 30.06.2021 FROM THE DEPARTMENT OF PORT SHIPPING TO THE WRIT PETITIONER
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.