Kerala High Court
Joya Transport vs Indian Oil Corporation Ltd on 13 August, 2021
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
WP(C) NO. 7342 OF 2021
PETITIONERS:
1 JOYA TRANSPORT
REPRESENTED BY THE MANAGING PARTNER,
KOTHAKULANGARA, VIKN 127, ANGAMALY,
ERNAKULAM-683 572
2 BINDU JOY,
MANAGING PARTNER, JOYA TRANSPORT,
KOTHAKULANGARA, VIKN 127, ANGAMALY,
ERNAKULAM-683 572
BY ADVS.
KALEESWARAM RAJ
SRI.VARUN C.VIJAY
SMT.MAITREYI SACHIDANANDA HEGDE
RESPONDENTS:
1 INDIAN OIL CORPORATION LTD,
REPRESENTED BY MANAGING DIRECTOR, INDIAN OIL
BHAVAN, G-9, ALI YAVAR JUNG MARG,
BANDRA (EAST), MUMBAI-400 501
2 INDIAN OIL CORPORATION LIMITED,
REPRESENTED BY THE GENERAL MANAGER, REGIONAL
CONTRACT CELL, 8TH LEVEL, 139, UTHAM GANDHI
SALAI, NUNGAMBAKKAM, CHENNIA-600034
3 INDIAN OIL CORPORATION LIMITED,
REPRESENTED BY ITS MANAGER, KOCHI STATE OFFICE,
PANAMPILLI AVENUE, PANAMPILLY NAGAR,
KOCHI-682 036.
4 ADDL.R4.E.N.GOPAKUMAR,
V/511, EDATHIPARAMBIL HOUSE, ANNAMANADA P.O.,
PALISSERY, THRISSUR- 680741.
5 ADDL. R5. KANNAMPUZHA TRANSPORTING COMPANY
W.P.(C) No.7342 of 2021 2
DOOR NO.XIV/525, KANNAMPUZHA PARIYARAM P.O.,
-680721.
6 ADDL. R6. M/S. GRIGORIOUS TRANSPORT,
BUILDING NO.57/4, NEAR PANCHAYATH OFFICE,
PATTIKKAD P.O., THRISSUR-680652.
7 ADDL. R7. UNIVERSAL ROAD LINES,
ROOM NO.68, 2ND FLOOR, TOWN HALL BUILDING, MAIN
ROAD, CHALAKUDY, PIN- 680307.
8 ADDL. R8. POONJOLAL TRANSPORT,
NO.207-A, S.P.PUDUR, PARAMATHI ROAD, NAMAKKAL-
673001.
9 ADDL.R9. ALLIED SURFACE LOGISTICS,
VI-138/1, MUKKADACKAL COMPLEX, CHITRAPUZHA,
IRIMPANAM, ERNAKULAM-682309.
10 ADDL R10. ST.PETER TRANSPORT
BUILDING NO.VIII/57, NORTH AVENUE, NORTH
CHALAKUDY, THRISSUR-680307.
11 ADDL. R11. NIMESH M.K.
MANAKKALKAROT(H), AMBALAMEDU P.O., AMBALAMUGHAL,
ERNAKULAM-682303.
12 ADDL.R12.SURESH P.K.,
GROUND FLOOR, 319C/WARD III, TRIPUNITHURA
MUNICIPALITY REFINERY ROAD, PUTHIYA ROAD
JUNCTION, IRUMPANAM, ERNAKULAM-682309.
13 ADDL.R13. M.S.ENTERPRISES,
ST.NO.3, FLAT NO.1-24 KARMANGHAT
DURGANAGR COLONY,
HYDERABAD-50079.
14 ADDL.R14. VELAYUDHAN,
ERUKKUMPURATH HOUSE, MATTOOR, KALADY - 683574.
15 ADDL.R15. NISHA M.K.
THALIPPARAMBU HOUSE, DR.AMBEDKAR ROAD, VENNALA
P.O., VENNALA, ERNAKULAM-682028.
16 ADDL.R16. ANEESH NARAYANAN
PUNCHAVAYAL HOUSE, MALANKARA, NENMANI P.O.
-673592, WAYANAD DISTIRCT.
17 ADDL.R17. GOOD SHEPHERD TRANSPORT,
BUILDING NO. 14/242, KAIRALI JUNCTION, KAT
W.P.(C) No.7342 of 2021 3
ENGINEERING, VADAKUMPURAM P.O. ,
ERNAKULAM-683521.
18 ADDL.R18. ANISH A.A.,
ATHILAN(H), WEST COLONY, MALAYATTOOR P.O.,
ERNAKULAM-683587.
19 ADDL. R19. VINOD V.M.
KAVANAKUZHI KAROTE, KOLLAPPADY,
VADAVUCODE P.O.,
ERNAKULAM-682310.
20 ADDL. R20. SUDHEESH K.K.,
KAKKADAM HOUSE, KARATTY EAST P.O., CHIRANGARA-
680308.
21 ADDL. R21. SUKUMARAN A.K.
AKKARA (H), WEST COLONY, MALAYATTOOR P.O.,
ERNAKULAM -683587.
RESPONDENTS 4 TO 21 ARE IMPLEADED AS ADDL
RESPONDENTS AS PER ORDER DATED 13.04.2021 IN
I.A. 05/2021 IN WP(C) 7342/2021.
BY ADVS.
SRI.E.K.NANDAKUMAR
SRI.M.GOPIKRISHNAN NAMBIAR
O.D.SIVADAS
SHIBU JOSEPH
T.A.UNNIKRISHNAN
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
SRI.PAULOSE C. ABRAHAM
K.K.AKHIL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.7342 of 2021 4
P.B.SURESH KUMAR, J.
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W.P.(C) No.7342 of 2021
----------------------------------------
Dated this the 13th day of August, 2021.
JUDGMENT
The first respondent, hereinafter referred to as 'the Company' for short, issued Ext.P3 notice inviting e-tenders for road transportation of bulk petroleum products from its Cochin Terminal for a period of three years from 01.11.2020. The total tank trucks required by the Company for the said purpose were 291, of which 15% was reserved for Scheduled Castes, 7.5% for Scheduled Tribes and 25% for Micro and Small Enterprises. Out of the reservation made for Micro and Small Enterprises, 16% was again reserved for Micro and Small Enterprises owned by Scheduled Caste or Scheduled Tribe entrepreneurs and 3% was reserved for Micro and Small Enterprises owned by women entrepreneurs.
W.P.(C) No.7342 of 2021 5
2. In terms of the said tender notice, the tenderers were required to offer tank trucks. It is specified in the tender notice that the lowest tenderer (L1) will be preferred over others and if there are more tenderers offering the same lowest rate, tenderers among them, who have offered more number of tank trucks will be preferred over others. Similarly, it is specified in the notice that if there are more number of tenderers offering the lowest rate and equal number of tank trucks, allotments will be made having regard to the average age of the tank trucks offered, preferring those who have offered new tank trucks over others.
3. The first petitioner is a partnership firm and the second petitioner is the managing partner of the first petitioner firm. It is stated by the petitioners that the first petitioner is a Micro Enterprise and 53% of its shares are held by one Usha Unnikrishnan, a Scheduled Caste. The first petitioner has submitted tender pursuant to Ext.P3 notice, offering 8 tank trucks against the quota earmarked for Micro and W.P.(C) No.7342 of 2021 6 Small Enterprises owned by Scheduled Caste Entrepreneurs. The tender submitted by the first petitioner firm was not considered by the Company under the said category. Instead, the first petitioner was considered under the General Category and since the quota tank trucks earmarked for the General Category was exhausted by tenderers who were placed above the petitioner in the rank list, the first petitioner was not awarded any contract. The petitioners do not claim that they were entitled to any contract under the General Category. But, they claim that they should have been awarded contract under the category, Micro and Small Enterprises owned by Scheduled Caste Entrepreneurs. It is stated by the petitioners that the first petitioner was not considered for award of contract under the said category as they have not produced their certificate of registration as a Micro Enterprise and as all the partners of the first petitioner firm do not belong to Scheduled Castes. According to the petitioners, though they have not produced the certificate of registration as a Micro Enterprise, they have W.P.(C) No.7342 of 2021 7 produced along with the tender a copy of the Registration Certificate issued by the Ministry of Micro, Small and Medium Enterprises, Government of India, and the same should have been accepted by the Company in the place of the certificate of registration of the first petitioner as a Micro Enterprise. It is also the case of the petitioners that in so far as 53% of the shares of the first petitioner firm are held by a Scheduled Caste, the first petitioner should have been considered in the category, Micro and Small Enterprises owned by a Scheduled Caste Entrepreneurs. The petitioners, therefore seek, among others, a declaration that they are entitled to be awarded contracts in respect of the tank trucks offered by them under the category, Micro and Small Enterprises owned by Scheduled Caste Entrepreneurs.
4. A statement has been filed by the Company.
The stand taken by the Company in the statement is that the tenderers participating in the tender process under the category, Micro and Small Enterprises owned by Scheduled W.P.(C) No.7342 of 2021 8 Caste Entrepreneurs should have produced a certificate from the competent authority to show that the tenderer is registered as a Micro or Small Enterprise rendering transport services, along with the tender in terms of the conditions stipulated in the tender notice and that the first petitioner has not produced the said Certificate along with their tender. It was also the stand of the Company in the statement that a partnership firm participating in the tender process under the category, Micro and Small Enterprises owned by Scheduled Caste Entrepreneurs should be one consisting of partners belonging to Scheduled Caste and that the first petitioner is not such a partnership firm. It was stated by the Company in the statement that though Micro and Small Enterprises participating in the tender process were not liable to furnish earnest money deposit, the first petitioner firm has in fact furnished earnest money deposit and they were therefore considered under the General Category and they were not awarded contract in respect of tank trucks offered by them as W.P.(C) No.7342 of 2021 9 the entire quota earmarked for General Category was exhausted by tenderers who have been placed above the first petitioner in the rank list on the basis of their merit.
5. Heard the learned counsel for the petitioners as also the learned Senior Counsel for the Company.
6. The learned counsel for the petitioners submitted that Ext.P2 would show that the first petitioner is a registered Micro Enterprise and there was therefore no justification for the Company to refrain from considering the first petitioner as a Micro Enterprise. The learned counsel conceded that there is a stipulation in the tender notice that only firms in which all the partners are Scheduled Castes are entitled to be considered for contract against the quota earmarked for Scheduled Castes. But, according to the learned counsel, the said stipulation cannot be applied to firms claiming reservation under the category, Micro and Small Enterprises owned by Scheduled Caste Entrepreneurs, for it is not specifically provided in the notice that the said stipulation W.P.(C) No.7342 of 2021 10 would apply to the firms claiming reservation under the category, Micro and Small Enterprises owned by Scheduled Caste Entrepreneurs. In Ext.P16 clarification issued by the Ministry of Micro, Small and Medium Enterprises, Government of India, it was clarified that a partnership wherein at least 51% of shares are held by Scheduled Castes is liable to be treated as an enterprise owned by Scheduled Castes. Placing reliance on the said clarification, the learned counsel for the petitioners argued alternatively that at any rate, in the light of the said clarification, the Company was not justified in not treating the first petitioner as a Micro Enterprise owned by a Scheduled Caste Entrepreneur.
7. Per contra, the learned Senior Counsel for the Company submitted that the tender notice categorically provided that those tenderers claiming contracts under the category, Micro and Small Enterprises shall produce a certificate from the competent authority to show that the tenderer is registered as a Micro or Small Enterprise rendering W.P.(C) No.7342 of 2021 11 transport service. It was pointed out by the learned Senior Counsel that the petitioners have admittedly not produced the said certificate. It was argued by the learned Senior Counsel that when the tender notice provides categorically that tenderers claiming contracts under a particular category shall produce a Certificate, the Company cannot be blamed for having not accepted the tender without the Certificate insisted. It was also pointed out by the learned Senior Counsel that if the Company had accepted and considered the tender of the first petitioner under the said category, it would have invited litigation from other tenderers on the premise that the first petitioner has not complied with the requirement in the tender notice. It was also contended by the learned Senior Counsel that as in the earlier case, it was specifically provided in the tender notice that partnerships claiming contracts would be considered for contracts against the quota earmarked for Scheduled Castes and Scheduled Tribes only if all its partners belong to Scheduled Castes or Scheduled Tribes, as the case W.P.(C) No.7342 of 2021 12 may be. According to the learned Senior Counsel, the Company cannot, therefore, be blamed for having not considered the first petitioner for contracts against the quota earmarked for Scheduled Castes. The learned Senior Counsel has also contended that insofar as the first petitioner was not entitled to be considered for contracts under the category Micro and Small Enterprises, it is unnecessary to examine the question whether they are entitled to be treated as a Micro Enterprise owned by Scheduled Caste Entrepreneurs.
8. I have examined the contentions advanced by the learned counsel for the parties on either side.
9. As rightly pointed out by the learned Senior Counsel for the Company, the tender notice provides categorically that a tenderer submitting tender under Micro and Small Enterprises category shall produce a Certificate from the competent authority to show that the tenderer is registered as a Micro and Small Enterprises rendering transport service. The relevant portion of the tender notice reads thus :
Necessary certificate issued by the Authorized body under W.P.(C) No.7342 of 2021 13 the Ministry of Micro, Small & Medium Enterprises shall be valid as on the date of closing of the tender. All the technical specifications/techno commercial terms and conditions and the pre qualification criteria are also to be fulfilled by the MSEs. Tenderer submitting the tender under MSE category shall produce a certificate from the competent authority to show that the tenderer is registered as MSE tendering transport services. The tenderer submitting the tender under MSE shall satisfy that they have valid certificate from the competent authority before claiming the benefit under MSME Act. The first petitioner has no case that they have produced the certificate issued by the competent authority to show that they are registered as a Micro Enterprise rendering transport services. Instead, what they have produced is Ext.P2 Registration Certificate downloaded from the Udyam Registration Portal of the Ministry of Micro, Small and Medium Enterprises, Government of India. They have also produced along with the tender, the particulars downloaded from the Udyam Registration Portal of the Ministry stating that their Udyam Registration Certificate will be issued shortly. Ext.R3(b) is the said particulars produced by the first petitioner along W.P.(C) No.7342 of 2021 14 with the tender. It is seen from the materials on record that the last day fixed for submission of tenders pursuant to Ext.P3 notice was 23.09.2020 and the said time limit was later enlarged upto 26.09.2020. Ext.P2 registration is seen made by the first petitioner on 24.09.2020. Obviously, it is on account of the said reason that the first petitioner was unable to produce the Certificate of Registration. The question is as to whether the Company was justified in not treating the first petitioner as a Micro Enterprise. According to me, when the tender notice specifically provides that the tenderers claiming contracts against quota earmarked for Micro and Small Enterprises shall produce the Certificate of Registration issued by the competent authority, the Company cannot be blamed for having not considered a tender under that category which does not conform to the said requirement. It is all the more so since the stipulation aforesaid cannot be regarded as an unessential stipulation of the tender. The case of the petitioners in essence is that Ext.P2 is as good as the Registration Certificate and the W.P.(C) No.7342 of 2021 15 Company in the circumstances ought to have accepted the same in the place of the Registration Certificate. If the Company had accepted the said stand and considered the petitioners under the category of Micro and Small Enterprises, this Court would not have interfered with such a decision in the event of a challenge, but that does not mean that the petitioners would be entitled to relief in a matter of this nature on the aforesaid ground. I take this view also for the reason that it is provided categorically in the tender notice that if the tenderers do not produce the documents pertaining to their qualifications along with their tenders, the tenders are liable to be rejected summarily. In other words, the contention of the petitioners that the first petitioner ought to have been considered as a Micro Enterprise on the basis of Ext.P2 certificate is only to be rejected and I do so.
10. Coming to the contention as regards reservation under the category of Scheduled Caste, the stipulation in the tender notice reads thus :
The SC/ST tenderer/s desirous of operating under W.P.(C) No.7342 of 2021 16 partnership firm, or Private Ltd. Co., or Public Ltd. Co. or a Cooperative Society, or any other, should have all the partners or members of private / Public / Cooperative firms belonging to the same category without exception, i.e., either SC or ST as the case may be. The partnership firm should be registered and copy of Registration certificate from the Registrar of firms to be enclosed. Offer from unregistered partnership firm is liable to be rejected. In the light of the stipulation aforesaid that the Scheduled Castes/Scheduled Tribes tenderers desirous of operating under partnership firm should have all the partners belonging to the same category without exception, i.e. either Scheduled Castes or Scheduled Tribes, as the case may be, the Company cannot be blamed for having not considered the first petitioner for awarding contracts under the category of Scheduled Castes. The decision of the Company to treat the first petitioner as a tenderer falling under the General Category is, therefore, in order.
11. Insofar as it is found that the first petitioner was not entitled to be considered for contract under the category, Micro and Small Enterprises, it is unnecessary to W.P.(C) No.7342 of 2021 17 consider the contention raised by the petitioners that the first petitioner should have been considered for contract as a Micro and Small Enterprise owned by Scheduled Castes.
The writ petition, in the circumstances, is without merits and the same is accordingly dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
PV W.P.(C) No.7342 of 2021 18 APPENDIX OF WP(C) 7342/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE EXTRACT OF THE PARTNERSHIP FIRM REGISTRATION DEED ISSUED BY THE OFFICE OF THE REGISTRAR OF FIRM ISSUED ON 16.12.2020 EXHIBIT P2 TRUE COPY OF THE UDAYAM REGISTRATION CERTIFICATE DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE MINISTRY OF MICRO SMALL AND MEDIUM ENTERPRISES EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE TENDER NOTIFICATION EXHIBIT P4 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 20.09.2020 ALONG WITH PARTICULARS OF TTS OFFERED EXHIBIT P5 TRUE COPY OF THE ATTACHMENT NO.1 OF THE APPLICATION EXHIBIT P6 TRUE COPY OF THE COMMUNITY CERTIFICATE ISSUED BY CHALAKUDY TALUK OFFICE TO SMT.USHA UNNIKRISHNAN EXHIBIT P7 TRUE COPY OF THE PROFORMA FOR CONFIRMATION ON APPLICABILITY OF MICRO, SMALL AND MEDIUM ENTERPRISES DEVELOPMENT ACT, 2006 SUBMITTED AS ATTACHMENT NO.2 TO THE APPLICATION EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 11.12.2020 EXHIBIT P9 TRUE COPY OF THE LETTER DATED 16.12.2020 SUBMITTED BY THE 2ND PETITIONER TO THE 1ST RESPONDENT EXHIBIT P10 TRUE COPY OF THE LETTER DATED 10.03.2021 SUBMITTED BY THE 2ND PETITIONER EXHIBIT P11 TRUE COPY OF THE LETTER DATED 10.03.2021 SUBMITTED BY THE 1ST PETITIONER W.P.(C) No.7342 of 2021 19 EXHIBIT P12 TRUE COPY OF THE LETTER SUBMITTED BY THE 2ND PETITIONER 0N 10.03.2021 EXHIBIT P13 TRUE COPY OF THE RESPONSE DATED 10.03.2021 ISSUED BY THE REPRESENTATION OF THE 1ST RESPONDENT EXHIBIT P14 TRUE COPY OF TENDER SUMMARY REPORTS DATED 11.03.2021 EXHIBIT P15 TRUE COPY OF THE EMAIL COMMUNICATION DATED 11.03.2021 ISSUED BY THE RESPONDENTS EXHIBIT P16 TRUE COPY OF THE CLARIFICATION OF DEFINITION OF MSE OWNED BY SC/ST ENTREPRENEURS ON 25.06.2013 ISSUED BY THE MINISTRY OF MICRO, SMALL AND MEDIUM ENTERPRISES EXHIBIT P17 TRUE COPY OF PARTNERSHIP DEED OF JOYA TRANSPORT DATED 04.09.2020 EXHIBIT P18 A COPY OF THE PARTNERSHIP DEED OF PARACKA TRANSPORT DATED 08.02.2019 EXHIBIT P19 TRUE COPY OF WORK ORDER ISSUED TO PARACKA TRANSPORT CO RESPONDENTS EXHIBITS ANNEXURE-R3(A) TRUE COPY OF THE LETTER SUBMITTED BY THE 1ST PETITIONER ANNEXURE-R3(B) TRUE COPY OF THE PRINT-OUT TAKEN ON 24.09.2020 FROM THE UDYAM REGISTRATION PORTAL AND SUBMITTED BY THE PETITIONER.