Rajasthan High Court - Jaipur
R K S Jodha And Comp vs Indian Oil Corp Ltd And Anr on 18 July, 2013
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B. CIVIL WRIT PETITION NO.9439/2013 (R.K.S. Jodha & Company Vs. Indian Oil Corporation Ltd. & Anr.) Date of Order : 18.07.2013 HON'BLE MR. JUSTICE ALOK SHARMA Mr. Sunil Kumar Singh, for the petitioner-Firm. Ms. Suruchi Kasliwal, for respondent-IOCL. BY THE COURT
1) This petition has been filed impugning the NIT No.RSO/LPG/PT/TPT/AJM/2012-14/05 issued by the respondent-IOC in the State of Rajasthan on the ground that condition No.1.21 in the aforesaid NIT requiring that the trucks offered by the bidders must have an Anti-lock Braking system (ABS) is arbitrary and discriminatory inasmuch as such condition has not been included in the tenders floated for transportation of packed LPG cylinder by the respondent-IOC in the State of Orissa.
2) Condition No.1.21 in the impugned tender documents mandates that the trucks offered for transportation of packed LPG cylinder Ex IOC's Bottling Plant at Ajmer must have an Anti-lock Braking system (ABS) as per IS 11852:2003 (part 9) in respect of all trucks manufactured on or after 01.10.2006. Conversely trucks offered without the said ABS as per specifications detailed could not be inducted by the IOC in the transportation of packed LPG cylinders from its Ajmer bottling plant. It has been submitted that the tender documents for the transportation of the same goods by IOC in the State of Orissa do not include any provision for Anti-lock Braking system (ABS) as mentioned in tender documents of Rajasthan. According to the petitioner-Firm, the aforesaid fact constitutes discrimination vis a vis the owners of the trucks in the State of Rajasthan as against the owners of the trucks in the State of Orissa violative of Article 14 of the Constitution of India. It has been submitted that the trucks of the petitioner-Firm are installed with speed limit governors which restrict the speed of the trucks to 40 Km. per hour consequent to which the trucks are carefully driven with bleak chances of accident on account of over-speeding. The case of the petitioner-Firm is that its 6 wheel trucks are otherwise capable of transporting LPG cylinders at competitive rates in a safe manner even though they are without Anti-lock Braking system (ABS). It is submitted that in the event the petitioner-Firm were to install the said ABS, it will loose warranty in respect of newly purchased 6 wheels trucks from Ashoka Leyland. It has been submitted that in the obtaining situation of discrimination against the trucks' owners with trucks without ABS, representations by the petitioner-Firm along with eight other transporters were submitted to the Dy. General Manager, IOC, Jaipur requiring modification of condition No.1.21 in the tender documents in issue and exclusion of the requirement of ABS purportedly as in IOC's NIT for the same purpose in the State of Orissa as a mandatory condition for the induction of trucks by IOC for transportation of packed LPG cylinders from its Ajmer bottling plant. But to no avail. In the aforesaid facts, it has been prayed that the writ petition be allowed and condition No.1.21 of NIT No.RSO/LPG/PT/TPT/AJM/2012-14/05 effectively qualifying only trucks' owners with ABS in their trucks as eligible for transportation of packed LPG cylinders be declared to be arbitrary and discriminatory and the respondent-IOC be directed to consider the trucks without ABS, offered by the petitioner-Firm for transportation of packed LPG cylinder from its Ajmer Bottling Plant.
3) Reply to the petition has been filed by the respondent-IOC. Ms. Suruchi Kasliwal, appearing for the respondent-IOC, has submitted that the trucks required by the respondent-IOC in the State of Orissa for transportation of packed LPG cylinders are also mandatorily required to have Anti-lock Braking system (ABS). It has been submitted that in respect of engagement of similar trucks for transportation of packed LPG cylinder in Orissa, general guidelines have been issued which form an integral part of the tender floated in Orissa by the respondent-IOC. She submits that the General Guidelines reveal that the transporter will ensure that specified INDIAN OIL LOGO, Safety Instructions and colour Scheme etc. are pained/pasted/installed on the body of the truck(s) as prescribed by the Corporation and also comply with all the Instruction as directed by the corporation from time to time including Notices regarding classification of Cargo in accordance with the Central Motor Vehicle Act, 1988 and all amendment thereto. It has been submitted that under the said guidelines requiring mandatory compliance with the Rules of 1989, trucks with ABS are alone eligible for transportation of packed LPG cylinders even in Orissa. It has been submitted that aside of the aforesaid, condition No.1.21 of the NIT No.RSO/LPG/PT/TPT/AJM/2012-14/05 is based on Rule 96(9) of the Central Motor Vehicle Rules, 1989 (hereinafter 'the Rules of 1989'). Rule 96(9) aforesaid reads as under :
96(9) The following category of vehicles shall be fitted with Anti-Lock Braking System conforming to IS:11852:2003 (Part 9):
(i) N2 and N3 category of vehicles other than tractor-trailer combination manufactured on and after the 1st day of October, 2006 meant for carrying hazardous goods and liquid petroleum gas;
4) It has been submitted that in view of the Central Motor Vehicles Rules, 1989, quoted above, the Central Government has made it mandatory for every hazardous goods and / or LPG carrying vehicle to have Anti-lock Braking system (ABS). It has been further submitted that Rule 96(9) of the Rules of 1989 incorporated as condition No.1.21 of the impugned NIT is not in any manner whatsoever related to the order of this Court passed in May, 2012 laying down the speed limit restricting the speed of vehicle to 40 Km. per hour and the same is a statutory imperative clearly independent of the direction of this Court. It has been submitted that the respondent-IOC is not under an obligation to induct 6 wheels truck manufactured by Ashoka Leyland inasmuch as there are several manufactures of 6 wheels trucks that provide facility of Anti-lock Braking system along with the truck. Further the petitioner-Firm is free to install ABS in its trucks. In the context of the reply, it has been prayed that the writ petition is without force and therefore liable to be dismissed.
5) Heard the counsel for the petitioner-Firm and the respondent-IOC.
6) It is trite that the conditions in a tender operating in the realm of contract are not open to challenge before this Court unless they are palpably arbitrary and mala fide. Condition No.1.21 of the NIT No. RSO/LPG/PT/TPT/AJM/2012-14/05 provides that as per Central Motor Vehicle Act, 1988, and Central Motor Vehicles Rules 1989 as amended from time to time, tenderers are required to mandatorily fit Anti lock braking system (ABS) as per IS 11852:2003 (part 9) in all the trucks manufactured on or after 01.10.2006 and that without such ABS the trucks offered would not be inducted. The question before this Court is as to whether the said condition is arbitrary and discriminatory. On the issue of arbitrariness, a bare reference to Rule 96(9) of the Rules of 1989 would indicate that certain category of vehicles detailed in the said Rule are mandatorily required to be fitted with Anti-lock Braking system (ABS) conforming to IS: 11852: 2003 (part 9). Clause (i) of Rule 96(9) of the Rules of 1989 provides that N2 and N3 category of vehicles other than tractor-trailer combination manufactured on and after the 1st day of October, 2006 meant for carrying hazardous goods and liquid petroleum gas shall be fitted with Anti-lock Braking system (ABS). Rule 2(q) of the Rules of 1989 defines Category N2 to mean a motor vehicle used for carriage of goods and having a Gross Vehicle Weight (GVW) exceeding 3.5 tonnes but not exceeding 12 tonnes. Rule 2(r) of the Rules of 1989 defines Category N3 to means a motor vehicle used for carriage of goods and having a GVW exceeding 12 tonnes. The vehicle which the petitioner-Firm owns and seeks induction with the IOC in response to its NIT in issue for transportation of packed LPG cylinder is model 1616il manufactured by Ashoka Leyland and the GVW of the vehicle is 16200 kg = 16.2 metric ton. This truck admittedly does not have ABS nor such ABS are stated to have been installed by the petitioner-firm. The said truck is thus obviously a vehicle covered under Category N3. For the NIT No. RSO/LPG/PT/TPT/AJM/2012-14/05 to require as per the imperative mandate of statutory Rules of 1989 that 6 wheels trucks offered for transportation of packed LPG cylinders should necessarily have Anti-lock Braking system (ABS) is a statutory compliance. It is also not in dispute that LPG is a flammable gas and in terms of table 3 of Rule 137 of the Rules of 1989 has been categorized as hazardous. The condition No.1.21 of the NIT in issue cannot therefore be held to be arbitrary in the sense of being unreasonable.
7) The next question for consideration of this Court is as to whether the condition No.1.21 of the NIT impugned is vitiated by another aspect of arbitrariness i.e. discrimination. Discrimination has to be between those similarly situate. In the instant case, the respondent-IOC requires all bidders offering their trucks for induction for transportation of packed LPG cylinder from its Ajmer Bottling Plant to have Anti-lock Braking system (ABS). The requirement under condition No.1.21 of the NIT aforesaid is universal and applies to all bidders and cannot consequently be held to be discriminatory.
8) As far as the contention of the counsel for the petitioner pertaining to the NIT by the respondent-IOC for transportation of packed LPG cylinder from its Bottling Plant in Orissa is concerned, I am of the considered view that the said argument is of little relevance and substance in the present case. For one, it has been categorically stated by the respondent-IOC in its reply and reiterated in the course of arguments that condition No.1.21 of the NIT impugned with regard to Anti-lock Braking system in N2 and N3 category vehicles carrying hazardous goods and LPG will apply in all rigor to the induction of trucks by the respondent-IOC in the State of Orissa for the transportation of packed LPG cylinders. It has been submitted that general guidelines in this regard have been issued in Orissa State which will apply to all contracts for transportation of packed LPG cylinders in Orissa. Vehicles inducted by respondent-IOC in Orissa for similar purpose will have ABS.
9) Aside of the above, in my considered opinion, the terms and conditions of a NIT in State of Orissa cannot be relevant for the evaluation of the allegation of discrimination in the terms and conditions of the NIT in the State of Rajasthan. If the petitioner-Firm seeks to offer its trucks in the State of Orissa where according to it Anti-lock Braking system (ABS) is not required for the trucks, it is for the petitioner-Firm to take a call on that count. However, it does not lie in mouth of the petitioner-Firm to set up a case before this Court that there should be universality in the terms and conditions of all NITs in violating the mandate of the Rules of 1989 even assuming that the Rules of 1989 have been or are being violated in the State of Orrisa. The aforesaid issue however is academic to my mind. The compliance with the Central Motor Vehicle Rules, 1989 more particularly Rule 96(9) read with Rule 137, cannot even remotely be subject to a challenge in a writ petition. That would be turning the writ jurisdiction of this Court on its head as the power of judicial review is to ensure and enforce compliance with law and not to fasten its breach. Compliance with law cannot provide a ground to lay a writ petition.
10 I therefore find no force in the writ petition and the same is dismissed. Stay application needs no address in view of the petition being dismissed.
(ALOK SHARMA), J MS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.- Manoj Solanki, Jr. P.A