Gauhati High Court
Page No.# 1/12 vs The Indian Oil Corporation Limited And 9 ... on 2 May, 2025
Page No.# 1/12
GAHC010067812023
2025:GAU-AS:5490
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1783/2023
CHANDRA PRASAD BORA
S/O DIMBESWAR BORA, R/O MOHMAIKI GAON (PART 1), P.O.-BOKAKHAT,
P.S.-BOKAKHAT, DIST-GOLAGHAT, ASSAM
VERSUS
THE INDIAN OIL CORPORATION LIMITED AND 9 ORS
REPRESENTED HEREIN BY THE CHAIRMAN, INDIAN OIL BHAWAN, G-9,
ALI YAVAR JUNG MARG, BANDRA (EAST), MUMBAI-400051
2:THE MANAGING DIRECTOR
INDIAN OIL CORPORATION LTD.
REGIONAL CONTRACT CELL
EASTERN REGION OFFICE
2
GARIAHAT ROAD (SOUTH)
KOLKTA-700068
3:CHIEF GENERAL MANAGER
INDIAN OIL CORPORATION LTD.
REGIONAL CONTRACT CELL
EASTERN REGION OFFICE
2
GARIAHAT ROAD (SOUTH)
KOLKATA-700068
4:M/S SHAWN LOGISTIQUE
C/O INDIAN OIL CORPORATION LTD.
INDIAN OIL BHAWAN
SECTOR-III
NOOMATI
GUWAHATI-781020 (ASSAM)
Page No.# 2/12
5:M.S ANJAY KUMAR JAIN
C/O INDIAN OIL CORPORATION LTD.
INDIAN OIL BHAWAN
SECTOR-III
NOOMATI
GUWAHATI-781020 (ASSAM)
6:M/S SATYAM ROAD CARRIERS LLP
C/O INDIAN OIL CORPORATION LTD.
INDIAN OIL BHAWAN
SECTOR-III
NOOMATI
GUWAHATI-781020 (ASSAM)
7:M.S PATHAK TRANSPORT
C/O INDIAN OIL CORPORATION LTD.
INDIAN OIL BHAWAN
SECTOR-III
NOOMATI
GUWAHATI-781020 (ASSAM)
8:M/S NANDITA ENTERPRISE
C/O INDIAN OIL CORPORATION LTD.
INDIAN OIL BHAWAN
SECTOR-III
NOOMATI
GUWAHATI-781020 (ASSAM)
9:AS PER HON'BLE ORDER DTD. 31.03.2023 RESPONDENT NO. 9
IS STRUCK OFF.
10:AS PER HON'BLE ORDER DTD. 31.03.2023 RESPONDENT NO. 10
IS STRUCK OFF
Advocate for the Petitioner : MR S BORTHAKUR, MR. P. SINGHA
Advocate for the Respondent : SC, I O C, MS. D SHARMA (r-4,5 and 6),MS. M BAISHYA (r-4,5
and 6),MS G DUGAR (r-4,5 and 6),MS. K HAZARIKA (r-4,6),MR A TEWARI (r-4,5 and 6)
Page No.# 3/12
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
Date of Hearing : 02.05.2025
Date of Judgment : 02.05.2025
JUDGMENT & ORDER (ORAL)
(N. Unni Krishnan Nair. J) Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr. M. K. Choudhury, learned Senior Counsel assisted by Mr. M. M. Kashyap, learned counsel appearing for the respondent nos. 1 to 3 and also Mr. A. Tiwari, learned counsel appearing for the respondent no. 4 to 6.
2. The petitioner, by way of instituting the present proceeding, has presented a challenge to the select list prepared by the respondent nos. 1 to 3 of bidders under the MSE (General) category for allotment of the work in question. The petitioner has also assailed the Letter of Acceptance (LoA) issued in favour of the successful bidders for the work in question. The petitioner also prays for a direction upon the respondent nos. 1 to 3 for proportionate distribution of the work in question amongst the qualifying MSE bidders, including him.
3. The brief facts requisite for adjudication of the issue, arising in the present proceeding is noticed as under: -
The Indian Oil Corporation Limited (In short the IOCL) i.e. the respondent nos. 1, 2 & 3 had issued a Notice Inviting Tender (NIT) bearing no. RCC/ERO/37/2022-23/PT-45, inviting application from intending bidders for road transportation of bulk Petroleum Aviation Turbine Fuel (ATF) products for a period of 3(three) years with the option for further extension for another 2(two) years. The said transportation, in terms of the said NIT was to be so carried out by top loading Tank Trucks.
In terms of the said tender, the total requirement of the Tank Trucks was Page No.# 4/12 specified as 169 nos. The NIT also made provisions for reservation of the Tank Trucks for MSEs. The petitioner herein, being qualified, applied in pursuance to the said NIT under the MSE (General) category. On opening of the bids so received, the petitioner was found to be qualified in the bidding process.
The respondent nos. 1 to 3, thereafter, on considering the qualifying bidders in terms of the provision of the NIT, proceeded to prepare a select list of the intending bidders by assessing the respective bidders in terms of the prescriptions made in Clause XI of the NIT. In the select list so prepared, the petitioner was placed at Serial No. 18. The petitioner being a MSME and he not being awarded any portion of the work involved and alleging that the respondent authorities in violation of the tender process had allotted Trucks only to certain tenderers placed in the select list without making the distribution proportionately amongst the qualifying MSE bidders, has instituted the present proceedings with the prayers as noticed herein above.
4. Mr. Borthakur, learned counsel for the petitioner has at the outset submitted that the petitioner has qualified under the MSME category and in terms of the NIT, for the MSME (General) category; there was a reservation of 32 Tank Trucks. Mr. Borthakur has submitted that upon preparation of the select list of the qualifying bidders, the respondent authorities proceeded to procure the Tank Trucks required for the execution of the work involved from the first 5(five) bidders placed in the select list, in clear violation of the tender conditions.
5. Mr. Borthakur, learned counsel for the petitioner, by referring to the stipulations made in the order dated 23.03.2012, issued by the Ministry of Micro, Small and Medium Enterprises, Government of India has submitted that in terms of the said policy, in the event the MSMEs qualified in the tender process and the rates quoted by them, come within the price band of L1 + 15%, such qualifying MSMEs shall also be allowed to supply a portion of requirement by bringing down their price to L1 level. He Page No.# 5/12 further submits that the said order also stipulates that in case of more than one MSME qualifying in the tender process, the supplies involved shall be shared proportionately among such qualifying MSMEs. Mr. Borthakur has submitted that although the stipulations as contained in the said order dated 23.03.2012, was also incorporated in the present NIT in the provisions of Sub-clause 3(i) and sub-clause 3(ii) of clause xi of the tender conditions, the IOCL, miserably failed to adhere to the said stipulations and failed to proportionately receive Tank Trucks required from all the MSMEs qualifying in the tender process, including the petitioner. Mr. Borthakur has further submitted that atleast two to three trucks were required to be so procured from each of the qualifying MSMEs including the petitioner, herein.
6. Mr. Borthakur, learned counsel for the petitioner submits that allotting 16 numbers of trucks to the respondent no. 6 and 5 numbers of trucks to the respondent no. 4 to the exclusion of the other eligible qualifying MSME bidders, was in clear violation of the tender conditions and accordingly, the same would mandate an interference from this Court. In support of his submissions, Mr. Borthakur has placed reliance on a decision of a Co-ordinate Bench of this Court in WP(C) No. 1604/2018 in the case of Plabans Trade and Agency Vs Indian Oil Corporation Limited and 11 Ors., which was disposed of vide order dated 04.12.2018. Mr. Borthakur has submitted that under similar conditions involved, the Co-ordinate Bench in the said case, had directed the Indian Oil Corporation to allocate the number of trucks involved required under the MSME (G) category by proportionately allotting them amongst the qualifying MSME bidders therein. Mr. Borthakur has submitted that the said decision would squarely cover the issue arising in the present proceeding and accordingly, the present writ petition would required to be allowed by directing the IOCL to proportionately allot Tank Trucks to each of the qualifying MSME (G) category bidders.
7. Per contra, Mr. M. K. Choudhury, learned Senior Counsel appearing for the IOCL has submitted that on comparison of the rates submitted by the bidders, it was found that the MSME bidders including the petitioner had quoted the lowest price and Page No.# 6/12 accordingly, were placed at L-1 level. All the bidders, including the MSME bidders having been placed at L-1 level, Mr. Choudhury has submitted that in terms of the provisions incorporated in Sub-clause B-2 of Clause XII of the NIT, the proportionate distribution amongst the bidders would not be mandated and the allotment of trucks would be now required to be so done in terms of the provisions incorporated in Clause XI of the tender conditions. Mr. Choudhury submits that the MSME bidders being L-1 in the tender process, select list were prepared and the bidders were so ranked by applying the criteria set out in Clause XI of the tender conditions and the petitioner herein, came to be placed at Serial No. 18. Mr. Choudhury has submitted that in addition to there being no challenge to the stipulations made in Sub-clause B-2 of Clause XII of the tender conditions, the petitioner had also not presented any challenge to his placement in the select list at Serial No. 18.
8. Mr. Choudhury, learned counsel representing the IOCL has by referring to the provisions of Sub-clause B-2 of Clause XII of the tender conditions, submitted that the qualifying MSME tenderers being ranked L-1, proportionate allotment not being permissible, the petitioner in the present proceeding having only prayed for a proportionate allotment of the Tank Trucks without presenting a challenge to the stipulations made in Sub-clause B-2 of Clause XII of the tender conditions, the claim made by the petitioner would not mandate an acceptance by this Court.
9. Mr. Choudhury, learned counsel has further submitted that the allotment of the Tank Trucks to the tenderers placed at Serial No. 1 to 5 of the said list, being in accordance with the provisions of the tender conditions, it would not be permissible for the petitioner to question the said allotment made without first demonstrating that there was a violation of the tender conditions in making such allotment.
10. By referring to the decision of the Co-ordinate Bench of this Court relied upon by the petitioner in the case of Plabans Trade and Agency (supra), Mr. Choudhury has submitted that the said decision was so passed basing on the tender conditions Page No.# 7/12 involved therein, the tender conditions involved in the present tender process being different from that involved in the said decision, the said decision would have no application in the facts involved in the present proceeding and accordingly, the reliance placed by the petitioner on the said decision would not advance his case.
11. I have heard the learned counsels appearing for the parties and also perused the materials available on record.
12. For an adjudication of the issue arising in the present proceeding, an interpretation of the provisions of sub-clause B-1 and B-2 of clause xii of the tender conditions is required to be so done. Accordingly, the provisions of Sub-clause B-1 and B-2 of clause xii of the tender conditions, being relevant, are extracted herein below: -
"(B-1) In line with "Public Procurement policy for Micro and Small Enterprises (MSEs) order 2012 and Amendment order 2018", 25% of the total quantity shall be earmarked for procurement from MSES, and out of the above 25 percent, a sub-target of 16 per cent (l.e. 16 percent out of 25 percent, which is 4%) is earmarked for Micro and Small Enterprises owned by the Scheduled Caste or the Scheduled Tribe entrepreneurs and a sub-target of 3% is earmarked for Micro and Small Enterprises owned by women. Provided that, In the event of failure of such Micro and Small Enterprises to participate in tender process or meet tender requirements and L-1 price, 4% sub-target for procurement earmarked for Micro and Small Enterprises owned by Scheduled Caste or Scheduled Tribe entrepreneurs and 3% sub-target for procurement earmarked for Micro and Small Enterprises owned by women shall be met from other Micro and Small Enterprises.
(B-2) The above provision will be subject to MSEs quoting price within price band (L- 1+15%); i.e. L-1 plus 15% and bringing down their price to L-1 In a situation where the L-1 price is from someone other than an MSEs. In case of more than one such MSEs, the supply shall be shared proportionately from the MSEs party. In case the L-1 tenderer is MSE party, then the ranking as detailed in tender shall prevail and NOT proportionately shared among tenderers within L1+15%."
14. A perusal of the provisions of sub-clause B-1 of clause xii of the tender conditions would go to reveal that 25% of the total quantity of trucks involved was earmarked for procurement from MSMEs. Within the 25% so earmarked to be so procured from the MSMEs, a sub-target of 16% thereof was earmark for MSMEs with Page No.# 8/12 Scheduled Caste and Schedule Tribe entrepreneurs. There was a further sub- classification of 3% earmarked for MSMEs owned by women. The provision of sub- clause B-1 of clause xii of the tender conditions is qualified by the stipulations made in sub-clause B-2 of clause xii of the tender conditions. In terms of sub-clause B-2, the reservation made in favour of the MSMEs is subject to the qualifying MSMEs quoting a price within the price band L1 + 15% i.e., the price quoted by the qualifying MSMEs is within 15% of the price quoted by the L-1 bidder in the tender process. It is further required that the MSME bidders to be eligible for being allotted the work has to bring down its price to the price of L-1 when the L-1 bidder is not a MSME. It is further stipulated that in case more than one such MSME qualifies in accordance with the first part of the sub-clause B-2 then the supply involved shall be shared proportionately amongst the MSME bidders.
15. Having made the said stipulations, the provisions of sub-clause B-2 of clause XII of the NIT, further proceeds to stipulate that in case the L-1 tenderer is an MSME party then the ranking as detailed in the tender shall prevail and the work involved shall not be proportionately shared among the qualifying MSME bidders within the price band range of L-1 + 15%. In the event, MSME bidders in terms of the price quoted by them in the tender process, is determined as the L-1 bidder, the proportionate sharing of the work involved amongst the MSME bidders shall not be followed and the work in question shall be allotted in terms of the stipulations contained in clause XI of the tender conditions.
16. Clause XI of the tender conditions stipulates that in case of more than one party quoting the same rate, their inter-se seniority shall be decided in the following sequence: -
"(1) Average age of the fleet
(ii) Total volume of all individual TTs.
(ill) The maximum number of TTs shall be 10% (including ready bulld TT and Purchase Invoice) of total requirement of TTs in this tender, i.e. 16 TTs.
Page No.# 9/12
(iv) First allocation will be done to ready built TTs till 100% requirement is met. In case 100% requirement is not met with ready built TTs, then only allocation will be done for Purchase/sale invoice of chassis Offers with Purchase/Sale Invoice of Chassis."
17. It is seen that in the case on hand, the MSME bidders, including the petitioner had quoted the same rate and they were all determined as L-1 bidder in the tender process. The said situation having evolved in the matter, the IOCL authorities proceeded to apply the provisions of clause XI and making the assessment in terms thereof, determined the seniority of the bidders and prepared a select list in the matter. In the select list prepared, the petitioner herein was placed at Serial No. 18 thereof, while the respondent nos. 4 to 8 were placed at Serial No. 1 to 5.
18. Applying the provisions of clause XI of the tender conditions, the Trucks so earmarked for the MSME (General) category came to be allotted to the private respondent nos. 4 to 8, who were placed at Serial No. 1 to 5 in the select list. The petitioner, in the present proceeding has assailed the said allotment of Tank Trucks to the respondent nos. 4 to 8 in terms of their placement in the select list only on the ground that such allotment in terms of the policy involved in the order dated 23.03.2012, as well as in the provisions of the tender conditions in sub-clause B-1 and B-2 of clause XII was to be so done proportionately amongst the MSME bidders.
19. As noticed herein above, the petitioner has not challenged the allotment of the Tank Trucks to the respondent nos. 4 to 8 on any other ground. Further, the petitioner has also not assailed his placement at Serial No. 18. Having noticed the stipulations made in sub-clause B-2 of clause xii of the tender conditions and appreciating that all the bidders in the present tender process were in terms of the price quoted by them ranked as L-1 bidders, the allotment of Tank Trucks involved in favour of the respondent no. 4 to 8 in terms of their placement in the select list, in the considered view of this Court would not mandate any interference.
20. Having drawn the above conclusions, this Court would now consider the decision Page No.# 10/12 of the Co-ordinate Bench of this Court in the case of Plabans Trade and Agency (supra), relied upon by the petitioner.
21. On a perusal of the said decision, it is revealed that the said decision was so passed basing on the tender conditions involved therein. The tender conditions involved in the said decision had mandated that in the event more than one MSME bidder qualifies, the supply involved is to be shared amongst the MSME bidders. The same having not being done, the Co-ordinate Bench of this Court had proceeded to direct the respondent authorities therein to proportionately allot atleast one Tank Truck to each of the bidders placed at Serial No. 1 to 6 in the select list so involved therein. What is to be noticed is that the provisions of sub-clause B-2 of clause xii involved in the said case, did not have the following stipulations: -
"In case the L-1 tenderer is MSE party, then the ranking as detailed in tender shall prevail and NOT proportionately shared among tenderers within L1+15%."
22. In view of the additional stipulations contained in the provisions of sub-clause B- 2 of clause xii involved in the present tender, this Court is of the considered view that the decision of the Co-ordinate Bench of this Court in the case of Plabans Trade and Agency (supra), relied upon by the petitioner would have no application in the present case.
23. This Court finds it relevant to refer to the judgment of the Supreme Court in the case of Regional Manager v. Pawan Kumar Dubey, reported in (1976) 3 SCC 334 wherein at paragraph No. 7, it was observed that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts. Paragraph No. 7 of the said judgment is quoted herein below:-
"7. We think that the principles involved in applying Article 311(2) having been sufficiently Page No.# 11/12 explained in Shamsher Singh's case shouldit should no longer be possible to urge that Sughar Singh's case could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared and applied so often have really changed. But, the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts."
24. In a recent judgment of the Supreme Court in the case of Kotak Mahindra Bank Limited v. A. Balakrishnan, reported in (2022) 9 SCC 186, the Supreme Court reiterating the principles as laid down in the case of Pawan Kumar Dubey (supra) observed at paragraph No. 64 that one additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.
25. In view of the above discussions, more particularly, the stipulations contained in the provisions of sub-clause B-2 of clause xii of the tender conditions, this Court finds that the respondent nos. 1 to 3 had not committed any error in allotting the Tank Trucks involved to the respondent nos. 4 to 8 herein, who were placed at Serial No. 1 to 5 of the select list so prepared in terms of the provisions of clause xi of the tender conditions. Further, this Court also finds no merit in the contention of the petitioner that the respondent no. 6 ought not to have been allotted 16 Tank Trucks, inasmuch as, such allotment is permissible in terms of the provisions of the NIT.
26. In view of the above discussions, this Court is of the considered view that the petitioner has failed to make out a prima-facie case for interference in the matter by this Court in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India and accordingly, the writ petition is held to be devoid of any Page No.# 12/12 merit and consequently, stands dismissed. However, there would be order as to costs.
JUDGE Comparing Assistant