Kerala High Court
Unknown vs By Advs.Sri.Blaze K.Jose on 1 January, 2013
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
TUESDAY, THE 1ST DAY OF JANUARY 2013/11TH POUSHA 1934
WP(C).No. 29778 of 2012 (V)
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PETITIONER
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PROMCO ENERGY PVT LTD
815,8TH FLOOR, INTERNATIONAL TRADE TOWER
NEHRU PALACE, NEW DELHI-110019,REP.BY ITS DIRECTOR
RAHUL GUPTA
BY ADVS.SRI.BLAZE K.JOSE
SMT.N.DEEPA
RESPONDENT:
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1. STATE OF KERALA
REP.BY PRINCIPAL SECRETARY
LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT
THIRUVANTHAPURAM-695001
2. SUCHITWA MISSION
LOCAL SELF GOVERNMENT DEPARTMENT
GOVERNMENT OF KERALA, T C 24/2054,LEXMI NIVAS
PANAVILA JUNCTION, THYCAUD P.O.
THIRUVANANTHAPURAM-695014
REP.BY ITS EXECUTIVE DIRECTOR
BY SPL.GOVERNMENT PLEADER ADV.MR.TOM. K. THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
01-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 29778 of 2012 (V)
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1:- A TRUE COPY OF THE REQUEST FOR PROPOSAL INVITED AS PER
TENDER NOTICE DTD 22/9/2012
EXT.P2:- A TRUE COPY OF THE REPRESENTATION DTD 19/11/2012 SUBMITTED
TO THE 2ND RESPONDENT,
/TRUE COPY/
P.S. TO JUDGE.
P.R. RAMACHANDRA MENON, J.
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W.P. ) No.29778 OF 2012
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Dated this the 1st January, 2013
J U D G M E N T
The petitioner claims to be a proven entity in respect of 'Waste Management Service', developing modern technology in various spheres, who sought to participate in the tender notified vide Ext.P1, in connection with the Integrated Modern Municipal Solid Waste Treatment Project at Brahmapuram, Kochi. The last date for submitting the tender was 19.11.2012 at '2.00 p.m' as scheduled under Head 'A. Schedule of Bidding Process' forming part of Ext.P1. The petitioner reached the spot and submitted the Bid, but it was 'late by 15 minutes' because of unforeseen and heavy traffic jam. The 'Financial Bids' were to be opened on a later date, with due intimation to the parties concerned, who satisfied the Technical Bid. The grievance of the petitioner is with regard to non-consideration of the claim and credentials of the petitioner, who is offering the most modern technology, to solve the situation.
2. Mr. G.Sreekumar, the learned Sr. Counsel for the petitioner submits that Ext.P1 itself contains an enabling W.P. ) No.29778 OF 2012 2 provision, whereby the second respondent, vide 'Note 2' of the 'Schedule of Bidding Process', has reserved the right to make changes to the 'Schedule of Bidding Process' and as such, the Bid documents submitted by the petitioner at '2.15 p.m.' was not liable to be rejected; more so when the opening of the 'Technical Bid' was only by 4'O clock in the evening on the same date and when the opening of the 'Financial Bid' was to be on a date still to be notified.
3. The learned Sr. Counsel for the petitioner submits that, by virtue of the enabling clause, the petitioner submitted Ext.P2 representation before the second respondent which ought to have been considered with proper application of mind, particularly in view of the better credentials, expertise, technology and infrastructure possessed by the petitioner, as revealed from the minutes of the 'BOT Cell meeting' held in the Chambers of the Principal Secretary, Local Self Government Department on 04.12.2012, a copy of which has been produced as Ext.P3, (procured by the petitioner by resorting to the provision under the 'RTI Act'), along with I.A.No.15 of 2013. W.P. ) No.29778 OF 2012 3
4. Heard the learned Government Pleader as well, who submits that, by virtue of 'Clause 12.2' of Ext.P1, the second respondent has reserved the right to reject any proposal not submitted on time and which does not contain the information/documents as set out in the RFP (Request For Proposal) document and as such, the petitioner cannot have any vested right to have the B id considered by the second respondent.
5. True, if the petitioner wants to participate in the Bid, the tender submitted has to be in tune with the specific stipulation, as given in the tender notification and if it is belated, it may be liable to be rejected as well; unless there is a provision for relaxation of the terms, enabling the concerned authority to deal with the situation, in the best interest of the Institution. At the same time, with regard to the 'Schedule of Bidding Process', under the Head 'A' of Ext.P1, 'Note 2', right has been reserved to the second respondent to make changes to the 'Schedule of the Bidding Process'. Coming to the Bidding Process, (which has been given in a separate table under Head W.P. ) No.29778 OF 2012 4 'A'), the second respondent thought it fit and proper to provide necessary power of relaxation, which is with a particular intent and pursuant to a 'conscious decision' to meet the organisational requirement and to meet the situation. Whether the tender submitted by the petitioner should be accepted, though late by '15' minutes, is, of course a matter which could have been considered by the second respondent; more so in view of the power of relaxation provided under 'Note 2'. It also becomes relevant in view of the proceedings of the meeting (produced as Ext.P3) whereby the technical competence of the agency has been considered by the concerned Committee, who has virtually certified as relatively better. This made the Committee to take a decision to refer the matter to the Law Department and Store Purchase Department for getting opinion regarding acceptance of the Request For Proposal (RFP) referring to the better technology possessed by the petitioner.
6. In the above circumstances, this Court finds that the matter requires to be considered by the second respondent in the better public interest as well. 'Waste Management' is always W.P. ) No.29778 OF 2012 5 a menace, whether it be the case of Corporations, Municipalities or Panchayats . It has come to the notice of this Court, that the present Plant set up at Brahmapuram was the result of earnest efforts taken at different levels, pursuant to different rounds of Public Interest Litigations and it was accordingly that a relatively safer place was identified for proper Waste Management, deploying modern technology. If the technology offered by the bidder is better, it has necessarily to be analysed with reference to the 'cost' aspect as well, while considering the feasibility for implementation. If it is beneficial to the second respondent, there is no point in shutting the door for ever; more so in view of the existence of the provision for relaxation of the 'Schedule of Bidding Process' as provided in Ext.P1. The only requirement is that, a uniform attitude and approach has to be displayed.
7. In the said circumstances, the second respondent is directed to consider Ext. P2 and pass appropriate orders, by virtue of the enabling/relaxation provision under 'Note 2' of 'A- Schedule of Bidding Process' in Ext. P1, in the light of Ext.P3 and such other relevant materials. Appropriate decision in this W.P. ) No.29778 OF 2012 6 regard shall be taken at the earliest and the outcome shall be let known to the petitioner before proceeding with further steps for opening of the Financial Bids and if clearance is given, the petitioner's Financial Bid shall also be considered accordingly.
The writ petition is disposed of.
P.R. RAMACHANDRA MENON, JUDGE.
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