Gauhati High Court
Plabans Trade And Agency vs Indian Oil Corporation Ltd. And 11 Ors on 4 December, 2018
Author: Ujjal Bhuyan
Bench: Ujjal Bhuyan
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GAHC010052312018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 1604/2018
PLABANS TRADE AND AGENCY
REP. BY ITS SOLE PROP. SRI PLABAN DAS, S/O- LATE NARAYAN DAS, ,
R/O- G N B ROAD, AMBARI, GUWAHATI, DIST- KAMRUP(M), ASSAM
VERSUS
1:INDIAN OIL CORPORATION LTD. AND 11 ORS.
ASSAM OIL DIVISION, ZONAL OFFICE, DIGBOI, DIST- TINSUKIA, ASSAM
2:THE GENERAL MANAGER
ZONAL SERVICES
INDIAN OIL CORPORATION LIMITED (ASSAM OIL DIVISION)
ZONAL OFFICE
DIGBOI
DIST- TINSUKIA
ASSAM
3:RIO ENTERPRISE
REP. BY ITS PROP. SRI BHASKAR GOGOI
H NO. 5
CHINAKI PATH
ZOO NARANGI ROAD
DIST- KAMRUP(M)
ASSAM
4:NRL ENERGY STATION
REP. BY ITS PROP MRS. SANGITA GOGOI
R/O- STATION ROAD
P.O- ANAMLARPARA
PIN- 786692
DULIAJAN
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5:PRADIP KR. AGARWALA
SPACE TOWER
TULANI RAM ROAD
DIST- TINSUKIA
PIN- 786125
6:NEW SUPER ROADWAYS
H NO.3
B N DAS LANE
OPP CORNER CAFE
LAMB ROAD
AMBARI
GUWAHATI-1
DIST- KAMRUP(M)
ASSAM
7:AMAN BULK CARRIER
RUKMINI NAGAR
P.O- SACHIVALAYA
DISPUR
GHY- 6
DIST- KAMRUP(M)
ASSAM
8:GIRISH AGARWALA
R/O- AOC ROAD
NEAR RLY GATE
PIN- 786125
DIST- TINSUKIA
ASSAM
9:MAA DURGA ENTERPRISE
KHEMA GIRI
NEAR L P SCHOOL
OPP EAGLE HOTEL
NOONMATI
GHY- 20
DIST- KAMRUP(M)
ASSAM
10:AVTAR LOGISTIC
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REP. BY ITS PROP. RAM NIWAS DAS
R/O- NEW COURT ROAD
NEAR HOLY CHILD SCHOOL
P.O- SIJUGURI
PIN- 786125
DIST- TINSUKIA
ASSAM
11:JAYANTA BARUAH
R/O- RANG PARIA
P.O- TINSUKIA
PIN- 786125
DIST- TINSUKIA
ASSAM
12:REULA BULK CARRIER
VILL- INDRAPURIA
P.O- ANANDAPARA
DULIAJAN- 78669
Advocate for the Petitioner : MR. B J TALUKDAR
Advocate for the Respondent : SC, I O C, M K CHOUDHURY
BEFORE
HONOURABLE MR. JUSTICE UJJAL BHUYAN
ORDER
Date : 04-12-2018 Heard Mr B J Talukdar, learned counsel for the petitioner; Mr S N Sarma, learned Senior Counsel for respondent Nos. 1 and 2; Mr S Choudhury, learned counsel for respondent Nos. 4, 6, 9 and 12; and Mr S Deka, learned counsel for respondent No. 11.
2. None has appeared for respondent Nos. 3, 5, 7, 8 and 10 though served.
3. Matter relates to award of contract relating to "Bulk Transportation of Naphtha (SRN) from Guwahati Refinery to Digboi Refinery and Reformate from Digboi Refinery to Guwahati Refinery"
under the Micro, Small and Medium Enterprises (MSME) category.
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4. Case of the petitioner is that Indian Oil Corporation Limited (Assam Oil Division), i.e., respondent No. 1 had issued a tender dated 30.05.2017 for "Bulk Transportation of Naphtha (SRN) from Guwahati Refinery to Digboi Refinery and Reformate from Digboi Refinery to Guwahati Refinery". By the said tender, offers were invited from tank truck owners for award of the aforesaid contract for a period of two years with provision of extension for a further period of one year. In the notice inviting tender (NIT), it was mentioned that the tender would be of two-bid system, Part-I being techno commercial bid and Part-II being the price bid. Total number of tank trucks required for the tender was 40 having capacity of 18 KL and above upto 24 KL. As per the NIT, scheduled date for submission of tender was 04.07.2017 upto 03:00 pm. 08.06.2017 was fixed for pre-bid meeting. 02:00 pm of 05.07.2017 was the time and date of opening tender. As per eligibility criteria, the tenderer was required to offer minimum three tank trucks out of which he had to own minimum of 1 (one) tank truck, the other two being attached. It was mentioned that the maximum number of tank trucks that could be offered to a successful tenderer was five.
5. It is stated that petitioner had responded to the said NIT and offered three tank trucks owned by him being brand new vehicles. When the technical bids were opened, it was found that altogether 56 tenderers had submitted tender, out of which, three were found to be technically deficient. Thus, 53 tenderers were found to be technically responsive including the petitioner. 50 of the technically responsive tenderers including the petitioner had submitted bids at 10% below the scheduled rate and all of them were placed as L-1.
6. As per Clause-10 of the tender conditions, in case for a particular ranking, tank trucks offered are more than the requirement, then the tenderers in that particular ranking shall be further ranked based on the order of priority mentioned therein and allocations shall be made only till such time the full requirement of tank trucks is met. Thereafter, the tenderers ranked lower in that particular ranking may not get any allocation. The factors to be considered for prioritization are as under:-
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1) Maximum number of owned tank trucks offered.
2) Average age of the fleet.
3) Maximum number of tank trucks offered by the tenderer.
4) Tenderer offering highest number of 18 KL and above upto
24 KL tank trucks
7. As per Clause 13 of the tender documents, technically qualified SC/ST/MSME tenderers shall be ranked separately. Tank trucks offered by these technically qualified SC/ST/MSME tenderers shall be allocated as per Government of India directives and shall have preference at each step of the evaluation process. Futher, Clause - 15 clarifies that reservation for SC/ST and Micro and Small Enterprises (MSEs) shall apply to the tender in question.
8. Percentage of reservation would be 15% for SC and 7 ½ % for ST. Reservation for MSME shall be as provided under the Micro, Small and Medium Enterprises Development Act, 2006 (2006 Act). 20 % of the total quantity shall be earmarked for procurement from MSEs with a sub target of 20%, i.e., 4 % out of 20% for SC and ST entrepreneurs. It was clarified that the above reservation would be subject to MSEs quoting price within price band (L-1 +15 %) and bringing down their price to L-1, where the L-1 price is from someone other than MSEs. In case of more than one such MSEs, the supply shall be shared proportionately from the MSEs.
9. It is stated that petitioner had applied under MSME General category for which six tank trucks were earmarked out of total 40. It may be mentioned that a total of eight tank trucks were earmarked under the MSME category; six for MSME General and two for MSME ST/SC.
10. Be that as it may, following price evaluation, petitioner was placed at Serial No. 11 under the L-1 category. However, under the MSME General category, petitioner was placed at Serial No. 5. The tenderers placed above the petitioner in that category were Rio Enterprise (respondent No. 3), NRL Energy Station (respondent No. 4), MLC Enterprise and Roshid Ahmed Choudhury in that order.
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11. However, when the allotments were made it was found that Rio Enterprise, i.e., respondent No. 3 was awarded five tank trucks and respondent No. 4, i.e., NRL Energy Station was allotted one tank truck; both under the MSME General category totaling six. Petitioner was placed at Serial No. 5 under the MSME General category. Thus, the six tank trucks earmarked for the MSME General category got exhausted. Consequently, no tank truck could be allotted to the petitioner.
12. Petitioner has asserted that tank trucks were required to be allotted proportionately amongst the tenderers, which was not done in the present case thereby causing prejudice to the petitioner. He had submitted representation before the authorities of respondent No. 1, but as there was no response, present writ petition came to be filed.
13. Respondent Nos. 1 and 2 have filed common affidavit. Stand taken in the affidavit is that a total of 56 tenders were received out of which 53 were found to be technically responsive. Out of 53, 50 were found to have quoted below 10% of the estimated value including the petitioner and accordingly all of them were placed as L-1, their bids being below 10 % of the scheduled rate. These 50 numbers of L-1 bidders had offered a total of 199 tank trucks out of which only 40 were required to be selected. Applying the ratio of reservation for SC/ST and MSME in line with the Government policy, it has been stated that the following five categories of bidders were made:-
1) General category Non-MSME.
2) SC Category Non-MSME.
3) ST Category Non-MSME.
4) MSME (General).
5) MSME (SC-ST)
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13.1. Based on the reservation formula, the broad share of the 40 tank trucks for MSME and non- MSME categories were earmarked as under:-
Sl. No. Total tank truck Non-MSME 80% MSME 20%
requirement
1. 40 32 8
13.2. Further sub-categorization was as under:-
Non-MSME Non-MSME Non-MSME MSME MSME Total
(General) SC, 15 % SC, 7.5% (General) SC/ST allotted
25 5 2 6 2 40
13.3. Thus, under the MSME General category only 6 numbers of tank trucks were to be allotted. Serial No. 1 of MSME General list, i.e., respondent No. 3 owned 5 tank trucks and Serial No. 2 of MSME General list, i.e., respondent No. 4 had 4 owned tank trucks with one attached tank truck. Therefore, Serial No. 1 (respondent No. 3) got letter of intent for 5 tank trucks and Serial No. 2 (respondent No. 4) got one tank truck. Thus total 6 numbers of tank trucks under MSME General category got allotted. Petitioner was placed at Serial No. 5 in the MSME General list. Since the number of allotable tank trucks got exhausted at the stage of Serial No. 2 there was no occasion for allotting tank trucks to the petitioner. It is stated that authorities of respondent No. 1 had explained this fact to the petitioner. Notwithstanding the same, petitioner filed the writ petition. It is thus contended that there is no merit in the writ petition, and therefore, the writ petition should be dismissed.
14. Respondent Nos. 4, 6, 9 and 12 have filed a common affidavit, wherein identical stand has been Page No.# 8/10 taken as that of respondent Nos. 1 and 2. Likewise, respondent No. 11 has also filed an indentical affidavit.
15. Submissions made by learned counsel for the parties are more or less on pleaded lines. Therefore, a detailed reference to the submissions made is considered not necessary. However submissions so made have been duly considered by the Court.
16. There is no dispute that petitioner belongs to MSME General category for which 6 tank trucks were allotted. It is also not disputed that petitioner was placed at Serial No. 5 in the list of MSME General category. The allotments have been made by considering the number of vehicles offered by the tenderers vis-à-vis the number of vehicles owned by the tenderers. Respondent No. 3 had offered 5 vehicles; all of them being owned. Respondent No. 4 offered 5 vehicles, out of which, four were owned and one attached. As per paragraph 6 (2) of the order dated 23.03.2012 of the Ministry of Micro, Small and Medium Enterprises, Government of India, in case there is more than one such Micro and Small Enterprise (MSE), the supply shall be shared proportionately (to tendered quantity). This is also indicated in Clause (B-2) of the Part-VII of the tender documents relating to reservation, which says that in case of more than one such Micro and Small Enterprise (MSE), supply shall be shared proportionately from the MSEs party.
17. Question for consideration in the context of the present case is the meaning of the expression proportionately? Whether it will mean equal distribution of the total number of tank trucks available under the category, i.e., 6 amongst the eligible bidders or giving the maximum allotment to the candidate at Serial No. 1, i.e., 5 numbers of tank trucks and the remaining one to next candidate?
18. In the course of hearing, Mr Sarma, learned Senior Counsel representing respondent Nos. 1 and 2 tried to explain the meaning of the word proportionately by referring to its dictionary meaning. As per Oxford English Dictionary, 'proportion' means a part, share or number considered in comparative Page No.# 9/10 relation to a whole; the relationship of one thing to another in terms of quantity, size or number. Chambers Dictionary explains the expression-'proportion' to mean the relation of one thing to another in magnitude; appropriate relationship of parts to each other as regards size, quantity etc. to each other. Black's Law Dictionary defines the expression 'proportionate' to mean adjusted to something else according to certain rate of comparative relation.
19. Reverting back to the tender conditions, what is seen is that as per eligibility criteria, to be eligible, a tenderer should have to offer minimum 3 tank trucks and out of which he has to own one. This is an eligibility and not allotment criteria. However, in the second part of eligibility criteria, it is provided that maximum number of tank trucks that can be offered to a tenderer is 5. 19.1 On a careful reading of the eligibility criteria it would reveal that while a tenderer has to offer a minimum of 3 tank trucks out of which he has to own one; however, on being selected a tenderer can be offered a maximum of 5 tank trucks. A conjoint reading of the eligibility criteria together with paragraph 6.2 of the Government of India order dated 23.03.2012 as well as clause (B-2) of Part VII of the tender documents would make it clear that it does not mean that a successful tenderer would have to be offered 5 tank trucks. Therefore, reading between the lines, what is discernible is that a successful bidder can be offered allotment of tank trucks from 1 to 5 but proportionately to the number of eligible bidders in the particular category.
20. In the instant case, what respondent Nos. 1 and 2 had done is that since respondent No. 3 was placed at Serial No. 1 under MSME General category and he having offered 5 tank trucks, they straight away allotted 5 tank trucks to respondent No. 3. 5 tank trucks offered by respondent 3 certainly made respondent No. 3 eligible and by virtue of offering a large number of vehicles, that too, owned, it was rightly placed at Serial No. 1. So also, respondent No. 4 was rightly placed at Serial No. 2. MSME Policy is to encourage micro, small and medium scale enterprises in the country and it is for this reason that the scheme of reservation talks about proportionate distribution of allotment.
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21. As noticed above, allotment had to be made to those tenderers who offered minimum of 3 tank trucks out of which a minimum of 1 truck should be owned by the tenderers, the other two being attached. Maximum number of tank trucks that could be offered/allotted to a tenderer was 5. The allotment of 6 tank trucks had to be proportionately made under the MSME General category. It is in this context that the expression proportionate would mean 1 tank truck each for the shortlisted bidders, since short-listed bidders were more than 6, which would be in tune with the objective of the 2006 Act. If this was done petitioner would have got allotment of one tank truck which would be in tune with the proportionate reservation policy. Allotting 5 tank trucks to Serial No. 1 (respondent No. 3) and the remaining 1 tank truck to Serial No. 2 (respondent No. 4) to the exclusion of other eligible bidders upto the maximum limit of 6 would not be in the true spirit of reservation for MSME General category. This was a fundamental mistake committed by respondent Nos. 1 and 2 by equating the qualifying eligibility with the allotment criteria.
22. Since the writ petition is being allowed on this point, it is considered not necessary to delve into the other issues raised by the petitioner.
23. That being the position, Court is of the view that stand taken by the petitioner has merit and it is required to be re-considered by respondent No. 2. Matter is remanded back to respondent Nos. 1 and 2 for re-allotment of 6 Nos. of tank trucks under MSME General category by proportionately allotting 1 tank truck to each of the bidders placed at Serial Nos. 1 to 6. This shall be done within a period of 4 (four) weeks from the date of receipt of a certified copy of this order.
24. Writ petition is accordingly allowed, but without any order as to cost(s).
JUDGE Comparing Assistant