M/S. Hindustan Food Industry vs. Kerala State Civil Supplies Corporation LTD - Kerala High Court, 06 February 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNE AY,THE 06TH DAY OF FEBRUARY 2019 / 17TH MAGHA, 1940 WP(C).No. 36334 of 2018 PETITIONER: M/S. HINDUSTAN FOOD INDUSTRY SHED NO 6, MINI INDUSTRIAL ESTATE, PERUMKULAM, VARKALA P O, THIRUVANANTHAPURAM-695141, REPRESENTED BY ITS PROPRIETOR, SUNIL R, AGED 41, S/O RAGHAVAN BY ADVS. SRI.P.A.AHAMMED SRI.THOUFEEK AHAMED RESPONDENTS: 1 KERALA STATE CIVIL SUPPLIES CORPORATION LTD PB NO. 2030, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, KOCHI-682020 REPRESENTED BY ITS MANAGING DIRECTOR 2 ASSISTANT MANAGER, KERALA STATE CIVIL CORPORATION LTD., TALUK DEPOT, NEYYATTINKARA-695 121 3 SHOUKATHALI, TC 19/993-6, POOJAPPURA, THIRUVANANTHAPURAM-695 012 4 AJI BAKER, KUDI, VADAKKUMBHAGAM, 77FG, KAZHAKUTTOM, THIRUVANANTHAPURAM-695 582 BY ADV. SMT.MOLLY JACOB,SC,SUPPLYCO THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No. 36334 of 2018 2 JUDGMENT The petitioner has approached this Court seeking the following reliefs :- i) To call for the records leading to Ext.P12 and to quash the same by issuing a writ of certiorari.

ii) To issue a writ of mandamus directing the respondents 1 and 2 to accept and process the bid submitted by the petitioner as per Exts.P3 to P8 or in the alternative to direct the respondents 1 and 2 to retender the work covered by Ext.P1. 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for respondents 1 and 2. 3. It is submitted by the learned counsel for the petitioner that the petitioner had submitted an E-tender for transportation of ration articles from FCI Godowns/CMR Mills to Supplyco PDS Depots/Godowns and loading and transportation of food grains from Supplyco PDS Depots/Godowns to the Authorised Retail

WP(C).No. 36334 of 2018 3 Depots located within the Taluk.

It is submitted that the petitioner had registered for the online tender and had also submitted his bid. However, the bid was rejected by Ext.P12 communication dated 11.10.2018 on the ground that the petitioner was not technically qualified. On a request being made by the petitioner, Ext.P15 communication was issued to him on 25.10.2018 showing the reasons for the rejection of his bid. It is stated in Ext.P15 that the E-tender uploaded by him was not duly signed as required in the notice inviting tender. It is further submitted that the affidavit uploaded/produced by him was not in the proper format. Ext.P16 check list of the Evaluation Committee is also produced by the petitioner to contend that the reason stated for rejection was that the affidavit submitted by

WP(C).No. 36334 of 2018 4 the petitioner was not in the format.

The learned counsel for the petitioner would submit that the reasons for rejection are not tenable, since the affidavit was essentially in the format and that the petitioner had rectified the defect of not signing of the E-tender by submitting a hard copy of the tender document which was duly signed.

A detailed counter affidavit has been filed on behalf of the first respondent. It is stated that Ext.P3 terms and conditions of the tender specifically provided that tender form duly signed and a duly signed affidavit in the format prescribed, are necessary for consideration of the E-tender submitted by the bidders. It is stated in the counter affidavit that petitioner had uploaded the tender form without any signature in the space provided

WP(C).No. 36334 of 2018 5 for the signature as is evident from Ext.P2. It is further stated that the affidavit was not in the prescribed form and that the precise location to which the transportation tender was being submitted was not contained in the affidavit submitted by the petitioner. It is stated that the tender was rejected as early as on 11.10.2018 and that Ext.P15 dated 25.10.2018 clearly mentioned the reasons for rejection. It is further contended that the transportation rates offered by bidders for transportation of ration articles from PDS depots to FPS depots was found to be far above the existing transportation rates and that Civil Supplies Corporation has therefore decided to go for a re-tender for the aforesaid category in six Taluks in Thiruvananthapuram District. It is stated that as far as transportation from FCI depots/CMR

WP(C).No. 36334 of 2018 6 Mills to PDS depots are concerned, the negotiated rates were found reasonable and the Regional Manager has been directed to finalise the contract on 27.11.2018. It is stated that further steps for executing the agreements and issuing work order are in progress as on the date of filing of the counter affidavit on 4.12.2018. 7. I have considered the contentions advanced on either side. It is the specific case of the petitioner that the tender can be rejected only if any of the documents as required therein are not submitted by the petitioner. The learned counsel for the petitioner submits that since the tender form had been submitted with all details and since a duly signed affidavit was also available, the rejection of the tender is untenable.

Having considered the provisions of

WP(C).No. 36334 of 2018 7 Ext.P3, it is clear that the E-tender contains two stages, i.e, pre-qualification of the technical bid and the commercial bid. Ext.P3 specifically states that the documents comprised in the bid which has to be submitted include the tender form duly signed and the duly singed affidavit in the format prescribed by the Supplyco. It is the specific contention of the respondents that the tender form submitted by the petitioner by the E- tender process was not duly signed. This aspect is not denied by the petitioner. Further, with respect to the affidavit as well, it is contended that the affidavit submitted by the petitioner was not in the format in as much as the details of the location to which transporting was sought, was not specifically mentioned in the affidavit submitted by the petitioner.

WP(C).No. 36334 of 2018 8

I am of the opinion that the compliance with the conditions in Ext.P3 are matters which the tender inviting authority to consider. Unless there are clear discrepancies or substantiated allegations of mala fide or clear arbitrariness which have resulted in rejection of the contract, this Court, exercising juri iction under Article 226 of the Constitution of India, would not be justified in interfering with the decision of the tender inviting authority to reject a technical bid on reasons, which are referable to the conditions in the notice inviting tender. In the instant case, no allegations of mala fide have been raised.

10.

I am of the opinion that, in view of the fact that no arbitrariness or mala fide had been brought out in the rejection of the tender, this Court would not be justified in

WP(C).No. 36334 of 2018 9 interfering in the rejection of the technical bid on grounds referable to the conditions as provided in Ext.P3. This writ petition therefore fails and is accordingly dismissed. ANU SIVARAMAN ACM / 07.02.2019 JUDGE

WP(C).No. 36334 of 2018 10 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1OF THE E-TENDER NOTICE NO.NFSA5-19408/18 DATED 5.9.18 EXHIBIT P2OF GST REGISTRATION CERTIFICATE DAT3D 17.07.2018 NO.32GRQPS313D1ZT EXHIBIT P3OF HE TENDER NO.NFSA5- 19408/18 DATED 31.8.2018 ISSUED BY THE 1ST RESPONDENT EXHIBIT P4OF TECHNICAL BID SUBMITTED BY THE PETITIONER EXHIBIT P5OF REGISTRATION CERTIFICATES OF PETITIONER'S VEHICLES EXHIBIT P6OF ID PROOF OF PETITIONER EXHIBIT P7OF THE AFFIDAVIT SUBMITTED BY THE PETITIONER DATED 17.9.18 DURING THE EVALUATION OF TECHNICAL BID EXHIBIT P8OF THE PRICE SCHEDULE SUBMITTED BY THE PETITIONER EXHIBIT P9OF THE BID SUBMISSION CONFIRMATION DATED 24.9.2018 OF THE 3RD RESPONDENT EXHIBIT P10OF THE BID SUBMISSION CONFIRMATION DATED 24.9.2018 OF THE 4TH RESPONDENT EXHIBIT P11OF THE SCHEDULE OF WORK AND DETAILS OF RATE QUOTED EXHIBIT P12OF E-MAIL FROM THE 1ST RESPONDENT TO PETITIONER EXHIBIT P13OF THE TENDER SUMMARY REPORT DATED 1.11.2018

WP(C).No. 36334 of 2018 11 EXHIBIT P14OF LETTER FROM THE PETITIONER TO THE 2ND RESPONDENT DATED 20/10/18 EXHIBIT P15OF THE REPLY LETTER NO A8- 954/18 DATED 25.10.18 FROM THE 2ND RESPONDENT EXHIBIT P16OF THE CHECKLIST OF THE EVALUATION COMMITTEE DATED 1.10.18