Karnataka High Court
Sri. Lakshmikanth Raju vs Union Of India on 29 August, 2016
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF AUGUST 2016
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
W.P.No.33724/2016 (GM-TEN)
c/w
W.P.Nos.56013-034/2015, W.P.Nos.32956-960/2016
& 32961/2016 AND W.P.Nos.33204-207/2016
(GM-TEN)
W.P. No.33724/2016
BETWEEN:
1. SRI. LAKSHMIKANTH RAJU
AGED ABOUT 62 YEARS,
S/O. LATE P. NARAYANAPPA,
C. PUTTAIAH & SONS,
I.O.C. DEALERS,
NO.33, SIRUR PARK ROAD,
MALLESHWARAM,
BENGALURU-560 003.
2. SRI. V. PURUSHOTHAM
AGED ABOUT 44 YEARS,
S/O. T. VENKATESH,
PROPRIETOR,
SREE SHAKTHI FILLING STATION,
NO.67, DODDAKALLASANDRA,
KANAKAPURA ROAD,
BENGALURU-560 062.
3. SRI. ANIL KUMAR S
AGED ABOUT 40 YEARS,
S/O. B. SHIVANANDA,
PROPRIETOR,
PUSHPA SERVICE STATION,
DODDABELAVENGALA,
2
DODDABALLAPURA TALUK,
BENGALURU DISTRICT-561 204.
... PETITIONERS
(BY SRI SRINIVASA RAGHAVAN, ADV. FOR
M/S INDUS LAW)
AND:
1. UNION OF INDIA
MINISTRY OF PETROLEUM & NATURAL GAS,
SHASTRI BHAVAN,
NEW DELHI-110 001,
REP. BY ITS SECRETARY.
2. THE INDIAN OIL CORPORATION LIMITED
HAVING ITS REGISTERED OFFICE
AT NO.G-9, ALI YAVAR JUNG MARG,
BANDRA (E), MUMBAI-400 051,
REP. BY ITS CHAIRMAN AND DIRECTOR.
3. THE INDIAN OIL CORPORATION LIMITED
KARNATAKA STATE OFFICE,
NO.29, P. KALINGA RAO ROAD,
BENGALURU-560 027,
SENIOR GENERAL MANAGER.
4. THE INDIAN OIL CORPORATION LIMITED
REGIONAL CONTRACT CELL,
11, VIII INDIAN OIL BHAVAN,
NO.139, UTTAMAR GANDHI SALAI,
(NUNGAMBAKKAM HIGH ROAD),
CHENNAI-600 034,
REP. BY ITS DEPUTY GENERAL MANAGER-
(CONTRACT CELL)
... RESPONDENTS
(BY SRI. VENKATA SATYANARAYA, CGC FOR R1
SRI JAYAKUMAR S. PATIL, SR. COUNSEL FOR
SRI R. GOPALAKRISHNA, ADV. FOR R2 - 4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO
QUASH THE TENDER VIDE ANNX-B ISSUED BY THE R-4 DUE
DATE 17.06.2016 AND DIRECT THE RESPONDENTS TO
RE-WORK THE TERMS AND CONDITIONS OF THE TENDER IN A
SCIENTIFIC MANNER AND IN ACCORDANCE WITH LAW AND
ETC.
3
W.P.Nos.56013-56034/2015
BETWEEN:
M/S KARNATAKA STATE FEDERATION
OF PETROLEUM DEALERES (R)
REPRESENTED BY ITS SECRETARY
SRI G H KOTTAMBARI
AGED ABOUT 36 YEARS
NO.1,ULASI NIWAS,
COLLEGE ROAD, HOSPET-01
... PETITIONER
(BY SRI VIVEK REDDY S., SENIOR COUNSEL FOR
SRI K.N. SUBBA REDDY, ADV.)
AND:
1. UNION OF INDIA
MINISTRY OF PETROLEUM &
NATURAL GAS,
GOVERNMENT OF INDIA,
SHASTRY BHAVAN,
NEW DELHI-110 001
REPRESENTED BY ITS SECRETARY
2. INDIAN OIL CORPORATION LIMITED
KARNATAKA STATE OFFICE,
INDIAN OIL BHAVAN,
NO.29, P.KALINGARAO ROAD,
(MISSION ROAD)
BANGALORE-560 027
REP. BY ITS GENERAL MANAGER
3. THE DEPUTY GENERAL MANAGER
(CONTRACTS)/SRO
INDIAN OIL CORPORATION LIMITED,
HASSAN DEPOT
KARNATAKA STATE
4. THE CHIEF MANAGER (AGREEMENTS)
INDIAN OIL CORPORATION LIMITED,
SOUTHERN REGIONAL OFFICE,
REGIONAL CONTRACT CELL,
LEVEL-8, INDIAN OIL BHAVAN,
NO.139, NUNGAMBAKKAM
4
HIGH ROAD, CHENNAI-600 034
TAMIL NADU
... RESPONDENTS
(BY SRI. Y HARIPRASAD, CGSC FOR R1
SRI A.K. LAKSHMANAN, ADV. FOR R2 TO 4)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO
QUASH THE IMPUGNED PRICE BID AT PAGE NO.60, SL.NO.2 OF
E-TENDER NOTIFICATION VIDE ANENX-B AND/OR IN THE
ALTERNATIVE, DIRECT THE RESPONDENT AUTHORITIES TO
CONSIDER THE REPRESENTATION DTD.23.11.2015 VIDE
ANNEX-D AND ONLY AFTER CONSIDERATION OF THE SAID
REPRESENTATION. THE PRESENT E-TENDER PROCEEDINGS
VIDE ANNEX-A MAY BE ALLOWED TO CONTINUE.
W.P.Nos.32956-32960/2016 & 32961/2016
BETWEEN:
1. SRI RAHAMAN KHAN
AGED ABOUT 41 YEARS
S/O ISMAIL KHAN, PROPRIETOR
A.R.K.FUEL STATION,
INDUSTRIAL AREA, BANNIMANTAP,
ABDUL KALAMAZAD CIRCLE,
MYSORE-570 015
2. SRI N S MANJUNATHA
AGED ABOUT 43 YEARS
S/O SHIVAMALLAPPA,
R/AT MATADA BEEDI,
NANJEDEVANAPURA VILLAGE,
HARAVE HOBLI,
CHAMARAJANAGARA TALUK,
CHAMARAJANAGARA DISTRICT-571 342
3. SRI MANJUNATHA A R
AGED ABOUT 43 YEARS
S/O RAJASHEKARAPPA,
PROPRIETOR NANDI TRANSPORT
NO.440 E2, HEBBAL INDUSTRIAL AREA,
HEBBAL, MYSORE-570 016
4. SRI M S MAHADEVAPPA
AGED ABOUT 61 YEARS
S/O LATE M Y SIDDALINGAPPA,
5
PROPRIETOR M.S MAHADEVAPPA
NO.9, "BILWADALA", 1ST CROSS,
BASAVESHWARANAGAR,
HEBBAL MAIN ROAD,
HEBBAL, MYSORE-570 016
5. SRI M S MIR AZEEZUDDIN
AGED ABOUT 66 YEARS
S/O LATE MIR SADUDDIN,
PROPRIETOR R.F.TRANSPORT,
NO.280, NEW BANNIMANTAP EXTENSION,
"C" LAYOUT, 6TH MAIN,
HANUMANTHA NAGAR,
MYSORE-570 015
6. SMT B GAYATHRI
AGED ABOUT 58 YEARS
W/O LATE K.S.S.MURTHY,
PROPRIETOR KUDERU
S SHIVABASAPPA SONS,
INDIAN OIL CORPOATION LIMITED,
NANJANAGUD ROAD,
CHAMARAJANAGAR-571 313
... PETITIONERS
(BY SRI ABHINAV RAMANAND A, ADV.)
AND:
1. THE INDIAN OIL CORPORATION LIMITED
HAVING ITS REGISTERED OFFICE AT
NO.G-9, ALI YAVAR JUNG MARG,
BANDRA(E), MUMBAI-400 051
REPRESENTED BY ITS
CHAIRMAN AND DIRECTOR
2. THE INDIAN OIL CORPORATION LIMITED
KARNATAKA STATE OFFICE
NO.29, P.KALINGA RAO ROAD,
BENGALURU-560 027
3. THE INDIAN OIL CORPORATION LIMITED
REGIONAL CONTRACT CELL,
11, VIII INDIAN OIL BHAVAN,
NO.139, UTTAMAR GANDHI SALAI,
(NUNGAMBAKKAM HIGH ROAD)
CHENNAI-600 034
REP. BY ITS DEPUTY GENERAL MANAGER-
(CONTRACT CELL)
6
4. UNION OF INDIA
MINISTRY OF PETROLEUM &
NATURAL GAS, SHASTRI BHAVAN,
NEW DELHI-110 001
REP BY ITS SECRETARY
... RESPONDENTS
(BY SRI JAYAKUMAR S. PATIL, SR. COUNSEL FOR
SRI R GOPALA KRISHNA, ADV. FOR R1 & 2
SMT. MANJULADEVI R. KAMADOLLI, ADV. FOR R4)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO
QUASH THE TENDER DATED 15.06.2016 AT ANNEX-B ISSUED
BY R-3 AND DIRECT THE RESPONDENTS TO RE-WORK THE
TERMS AND CONDTIONS OF THE TENDER IN A SCIENTIFIC
MANNER AND ETC.
W.P.Nos.33204-33207/2016
BETWEEN:
1. DR A BALAJI RAO
AGED ABOUT 42 YEARS,
S/O SRI A KRISHNAIAH,
M/S LAKSHMI RAMANNA PETRO SERVICES,
NO.135/2, THANNISANDRA MAIN ROAD,
NAGAVARA,
BENGALURU-560 045
2. SMT N SUSHEELA
AGED ABOUT 62 YEARS,
W/O DR. T ASHWATHNARAYAN,
SRI BANASHANKARI OILS,
NO.8, SHAMPURA MAIN ROAD,
K.G. HALLI,
BENGALURU-560 045
3. SRI MAHESH K
AGED ABOUT 42 YEARS,
S/O KRISHNAPPA,
VARADARAJA SERVICE STATION,
NO.596, DR RAJKUMAR ROAD,
RAJAJINAGAR,
BENGALURU-560 010
4. M/S BANGALORE PETROLEUM
TRANSPORT & LORRY OWNERS
ASSOCIATION (BPTLOA)
7
HAVING ITS OFFICE AT MALUR CROSS,
HOSKOTE TALUK
BANGALURU RURAL DISTRICT,
BENGALURU-562114
REP. BY GENERAL SECRETARY,
SRI M NAGESH,
AGED ABOUT 59 YEARS,
S/O MUNIGOWDA
... PETITIONERS
(BY SRI ABHINAV RAMANAND A, ADV.)
AND:
1. THE INDIAN OIL CORPORATION LIMITED
HAVING ITS REGISTERED OFFICE AT
NO.G-9, ALI YAVAR JUNG MARG,
BANDRA (E), MUMBAI-400 051
REPRESETNED BY ITS
CHAIRMAN AND DIRECTOR
2. THE INDIAN OIL CORPORATION LIMITED
KARNATAKA STATE OFFICE,
NO.29, P KALINGA RAO ROAD,
BENGALURU-560027
REP. BY ITS GENERAL MANAGER
3. THE INDIAN OIL CORPORATION LIMITED
REGIONAL CONTRACT CELL,
11, VIII INDIAN OIL BHAVAN,
NO.139, UTTAMAR GANDHI SALAI,
(NUNGAMBAKKAM HIGH ROAD),
CHENNAI-600 034,
REP. BY ITS DEPUTY
GENERAL MANAGER-
(CONTRACT CELL)
4. UNION OF INDIA
MINISTRY OF PETROLEUM
& NATURAL GAS,
SHASTRI BHAVAN,
NEW DELHI-110001
REP BY ITS SECRETARY
... RESPONDENTS
(BY SRI JAYAKUMAR S. PATIL, SR. COUNSEL FOR
SRI R GOPALAKRISHNA FOR R1-3
SRI KRISHNA S. DIXIT, ASG FOR R-4)
8
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO
QUASH THE TENDER AT ANNEX-B WITH DUE DTD:17.06.2016
ISSUED BY R-3 AND DIRECT THE RESPONDENTS TO RE-WORK
THE TERMS AND CONDITIONS OF THE TENDER IN A
SCIENTIFIC MANNER AND ETC.
THESE WRIT PETITIONS HAVING BEEN RESERVED FOR
ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING :
ORDER
The petitioners in all these petitions are assailing the Estimated Transportation Rate fixed by the respondent Oil Corporation Ltd. The petitioners in all these petitions are either transporters of bulk petroleum products or are retail outlet dealers cum transporters and such transportation is by road through Transport Tanker ('TT' for short). The road transportation work of bulk petroleum is awarded by inviting tenders. The petitioners herein had responded to the tenders invited in the year 2012 and have been awarded the contracts which are being performed by them. The petitioners contend that in respect of the said contract itself, they have found the Estimated Transportation Rate fixed is on the lower side which has lead to malpractice being indulged by certain transporters so as to recover the 9 cost. In that light, when the Oil Corporation was in the process of inviting the tender, the Federation representing the transporters submitted representation requesting that a scientific method be adopted for fixing the Estimated Transportation Rate, as otherwise it would not be viable. The grievance is that such request of the transporters was not acceded to by the Oil Corporation and the Rate presently fixed is not to their satisfaction.
2. In that regard, the subject matter is the Tender for the Transportation of Bulk Petroleum Products for Bengaluru Terminal as well as Hassan and Mangaluru. The price bid is to be offered for four different items of categories which are as follows;
Rate in ` per KL (for 12 KL TTs ) Rate in ` per KL per KM (for 12 KL TTs) Rate in ` per KL (for 18-24 KL TTs) Rate in ` per KL per KM (for 18-24 KL TTs)
3. The estimated POL Transportation Rate was provided as the bench mark and the tenderers were to quote within the range as provided therein. The 10 tenderers quoting +/- 10% thereof were indicated to be disqualified. The Estimated Transportation Rate fixed is Rs.120.605 per KL for 12 KL TT ; Rs.2.491 per KL TT per KM ; Rs.101.810 per KL for 18-24 KL TT and Rs.2.271 per KL for 18-24 KL TT per KM.
4. The petitioners thus claiming to be dissatisfied at the Estimated Transportation Rate indicated as the bench mark by the respondents are contending that the fixation is unscientific and unrealistic. The petitioners have therefore worked out the same through a registered Cost Accountant to contend that the difference is significant. Hence, on that basis it is contended that if the difference is calculated over a stretch of 75 Kms, for a 12 KL TT it will be Rs.79,353/- and for a 20 KL TT (18 to 24 KL category), it will be Rs.81,769/- per month. On the said basis the calculation is made for multiple TTs and have projected the loss per year. It is therefore contended that if it is not viable, it will lead to promoting theft, pilferage, adulteration etc. of petroleum products and will also 11 have an environmental impact. It is also contended that the Government of India has proposed the phasing out of trucks exceeding 10 years old and if that aspect is taken into consideration the depreciation would also differ and the cost of transportation will increase as stated in the petition.
5. The respondent Oil Corporation has filed detailed objection statement. It is contended that the Estimated Transportation Rates to be fixed for the subject tender as per the guidelines and circulars were discussed with the Dealers Association who were also convinced of the method adopted and it is in that background the Rate was worked out after taking into consideration all aspects. The policy and guidelines of the Oil Corporation has applicability to the entire country, based on which the tender is invited. The policy is reviewed and relevant changes are made from time to time after taking into consideration all aspects of the matter. The manner in which the guideline is adhered to and the steps taken, as also the factors 12 taken to arrive the average cost by working out on the new; five year old and ten year old vehicles and the application of the average to all is referred in detail. The other components considered to arrive at the Rate is also detailed and in that view it is contended that when a detailed procedure is followed and all aspects are taken into consideration merely because the petitioners rely on certain calculations said to have been done by them the same cannot be accepted. Hence it is contended that these aspects being contractual in nature in any event cannot be considered by this Court in a writ petition and the petition is liable to be dismissed.
6. The petitioners have filed their rejoinder to join issue with the contentions and on relying on the documents produced, it is contended that all aspects have not been appropriately considered by the respondents before arriving at the Estimated Transportation Rate.
13
7. Heard Sri S. Vivek Reddy learned senior counsel, Sri Srinivasa Raghavan and Sri Abhinav Ramanand, learned counsel who have appeared on behalf of the respective petitioners, Sri Jayakumar S.Patil, learned senior counsel appearing for Sri R.Gopalakrishna, Sri A.K.Lakshmanan, learned counsel for Indian Oil Corporation, Sri Y.Hariprasad, learned Central Government Counsel appearing for Union of India and perused the petition papers.
8. The very nature of the rival contentions would indicate that in respect of the tender process initiated for transportation of oil products either by the transporters or by the retail outlet dealers, the Oil Corporations are seeking to utilize the services through the Transport Tankers (TT) owned by the petitioners/members of the petitioner-Association. Considering the nature of the work involved, in addition to the other terms and conditions contained in the tender documents, insofar as the price bids, the Oil Corporation itself has indicated a basic Estimated 14 Transport Rate as the bench mark and the quotation of the rate permissible is in the range of + or - as indicated in the tender document. While arriving at such Estimated Transportation Cost, the respondents have taken into consideration several inputs and have arrived at the figure in respect of the two types of TTs viz., upto 12KL and 18 - 24KL, which further on KL basis and KL per KM basis.
9. The petitioners on the other hand would contend that the inputs towards the expenses have not been properly taken into consideration and as such the Estimated Transportation Rate fixed is on the lower side and accordingly is not a viable proposition. In the nature of the contention, when it is seen to be revolving around the price fixation for a proposed contract, the scope of consideration of such aspect in a writ proceeding of the present nature is to be taken note of before adverting to the other contentions, more particularly when the tender process is at the pre-qualification stage.
15
10. Learned senior counsel for the respondent Oil Corporation has relied on the decision in the case of Machigan Rubber (India) Ltd vs. State of Karnataka and others [(2012)8 SCC 216] wherein a contention with regard to the pre-qualification criteria arose for consideration as it was contended therein that such conditions were unreasonable, arbitrary, discriminatory and opposed to public interest in general. While examining such contentions, the Hon'ble Supreme Court referred to the series of decisions rendered by it in earlier cases and the scope of consideration open in the event of judicial review is summarized as hereunder:
"23. From the above decisions, the following principles emerge:
(a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;16
(b) Fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited;
(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted;
(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim fundamental right to carry on business with the Government.
24. Therefore, a Court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions:
17
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"? and
(ii) Whether the public interest is affected?
If the answers to the above questions are in negative, then there should be no interference under Article 226."
11. The learned counsel on behalf of the petitioner on the other hand relied on the decision of the Hon'ble Supreme Court in the case of Union of India and others vs. Dinesh Engineering Corporation and another (Manu/SC/0575/2001) wherein the Hon'ble Supreme Court has held that there is no doubt that where the decision of the authority is in regard to a policy matter, the Court is not normally equipped to question the correctness of the policy decision, but that also does not mean the Courts have to abdicate their right to scrutinize whether the policy in question is formulated keeping in mind all the relevant facts and 18 whether such policy can be held to be beyond the pale of discrimination or unreasonableness.
12. Keeping in view the nature of consideration that is permissible in a judicial review of the present nature, in the background of the contention that the Estimated Transportation Rate fixed in the tender document as a bench mark towards price bid is on the lower side and such fixation has not been made in a scientific and fair manner will have to be noticed in the background of the contention put forth on behalf of the respondent Oil Corporation relating to the procedure that was followed before arriving at the rate that is fixed as a justification to sustain their action.
13. The tender document at Annexure-B will disclose that the tender documents were published on 20.05.2016. Prior to the said date, a meeting of the Officers of the company and the representatives of the dealers Association had been held as contended by the respondents wherein the proposed transportation rates as per the latest guidelines/circulars were explained 19 and discussed. The documents at Annexures-R.1 and R.2 indicate the participation of the members in the meeting held on 21.01.2016 and 11.05.2016. With regard to the method to be followed by way of modification, an inter-office memo dated 10.03.2008 as at Annexure-R.3 was issued wherein the guidelines were given to take into consideration the aspects stated for the purpose of calling tenders. The circular dated 27.08.2015 and the clarification dated 14.09.2015 as also the communication dated 07.09.2015 as at Annexures-R.4 to 6 provide for the criteria to be taken for finalizing the tender conditions, which includes the criteria to be taken into consideration while arriving at the Estimated Transportation Rate. The different components of the input costs, statutory expenses and the wear and tear is indicated as the criteria to be taken into consideration in working out the rate. In order to consider those aspects and arrive at a conclusion, the bench mark Price Fixation Committee was nominated giving the different locations. Such committee had considered these aspects of the matter, which was 20 thereafter examined by a Cost Accountant and the certificate dated 06.04.2016 issued in that regard is at Annexure-R.8. The Estimated Transportation Rate thus arrived at was made as the bench mark for the price bid.
14. The learned senior counsel for the respondent Oil Corporation with reference to the said documents and the averments put forth in the objection statement would refer to the elaborate procedure followed and in order to point out the nature of consideration made with regard to the different inputs taken note of would point out the different aspects as contained in para 3(c)(1 to
15) in the objection statement and also the exercise conducted by the committee in collecting information from the vendors in the market. It is further pointed out that a similar procedure had been followed in the entire country and reference is made to the rate fixed in the different parts of the southern region. It is further pointed out that in respect of Sankari Terminal in Tamil Nadu, the tender has been finalized on adopting a 21 similar procedure wherein the transporters have no grievance.
15. The learned senior counsel and the other learned counsel for the petitioners would however refer to the rejoinder statement, the additional statement and the documents produced along with the same to contend that the procedure though enumerated has not been followed. It is their case that the fixation should be location specific as otherwise the RTKM would not be the same in all regions as it would depend on the traffic and road conditions. Hence the assumed RTKM of 4000 kms is contrary to the requirement is the contention. Further contentions are also raised with regard to the manner in which a consideration has been made with regard to the age of the vehicles, the salary of the driver, the calculation of depreciation, the margin of profit and the terrain of operation for working out the costs and it is contended that it is not realistic. The petitioners have in that regard secured the working to be done by their Cost Accountant and in that light, they contend that the 22 rate presently fixed would not be workable and it is their further contention that the actual working as done by the respondents has not been placed before this Court and as such an adverse inference is to be drawn.
16. Keeping in perspective the extent to which this Court can advert in such matters by way of judicial review as indicated by the Hon'ble Supreme Court in the decision referred to by the learned senior counsel for the respondents, an analysis of the contentions in the background of the documents produced would indicate that the respondents have followed a definite procedure which is codified as the guideline, appointed a committee and the decision taken therein insofar as the rate fixation has been examined by a Cost Accountant. The petitioners no doubt are raising issues with regard to some of the components which was part of the consideration made and it is contended that they should have been differently considered and a different value should have been the basis for calculation. Even with regard to such specific contentions the 23 respondents have relied on the inter-office memo dated 08.02.2016 wherein the officers of the respondent Oil Corporation had in fact sought for clarification regarding the RTKM keeping in view its feasibility. In response to the said query, the officers in the hierarchy have taken note of the same and a conscious decision to confirm the RTKM of 4000 kms is indicated as the same is based on the average taken from the year 2012-13 to December 2015 and 10% increase in RTKM being considered on the average RTKM arrived at.
17. Insofar as the profit margin of 15% provided to Hassan and Mangaluru region, while it is at 10% to the Bengaluru region, the consideration in that regard is that the product insurance was not being included earlier which accordingly was not included in Hassan and Mangaluru region as the process was over earlier due to which 15% profit margin is available. With regard to the consumption, details have been obtained from the manufacturers of the different brand of vehicle for arriving at the running costs and in fixing the band 24 limit, such decision is taken keeping in view the past experience with regard to the conduct of the tenderers during the earlier process. Despite such explanation being provided by the respondent Oil Corporation and also the details of the procedure followed being brought on record, the petitioners no doubt still have grievance with regard to the manner in which certain components have been taken into consideration such as depreciation, salary of the driver etc as noticed above but, when it is seen that a uniform procedure has been adopted by the respondents in relation to similar tenders in different regions of the country and an overall consideration is made by taking note of all components and the rate fixation is arrived at, this Court in a certiorari proceedings is required to be more concerned with the process adopted rather than the decision itself.
18. If the said parameter is kept in view, it is seen that an elaborate procedure has been followed and thereafter a conclusion has been reached though it may not be to the satisfaction of the petitioners. With regard 25 to the price that is fixed even though the petitioners contend that the same is not viable, when the experts in the field have considered these aspects, this Court cannot substitute its opinion merely because the petitioners rely upon certain calculations made by them when this Court does not have the expertise to determine the same. In that circumstance when this Court has taken note of the procedure followed and when it is seen to be elaborate and fair, this Court need not look into the calculation sheet containing the figures and that by itself cannot lead to any adverse conclusion or inference. Above all, the rate fixed is the bench mark indicated in the price bid column of the tender documents and the tenderers responding to the same who find it viable would quote their offer and a decision in any event will be taken depending on the tenders received. If that be the position, the completion of the tender process will only give the answer as to whether it is viable or not when there would be transporters who would respond as per the requirement and qualify. In so far as the contention that the vehicles which are 26 more than 10 years old are likely to be phased out, the same is only an apprehension at this stage, which cannot be taken into consideration and if at all such policy is implemented, it would be open for consideration only in that background and if any request is made to the respondents at that stage, it will be looked into by them.
19. Therefore, if all the above noted aspects are kept in perspective, the process adopted by the respondent Oil Corporation cannot be considered as arbitrary or irrational nor is it discriminatory or unreasonable so as to call for interference in a writ proceeding.
The writ petitions being devoid of merit, are accordingly dismissed with no order as to costs.
Sd/-
JUDGE akc/bms