Jammu & Kashmir High Court
M/S Iqbal Motors Transport Services vs Food Corporation Of India & Ors on 13 May, 2013
Author: Muzaffar Hussain Attar
Bench: Muzaffar Hussain Attar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. OWP No. 155 OF 2013 M/s Iqbal Motors Transport Services Petitioners Food Corporation of India & ors. Respondent !Mr. M. A. Goni, Sr. Advocate withMr. Ajay Singh Kotwal, Advocate ^Mr. Sunil Sethi, Sr. Advocate with Mr. A. H. Bhat, Advocate. Mr. K. S. Johal, Sr. Advocate withMr. Amit Gupta, Advocate. Mr. Pranav Kohli, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 13.05.2013 :J U D G M E N T :
(Oral) The following reliefs are sought in this writ petition:
It is, therefore, prayed that the Honble Court may kindly be pleased enough to allow this writ petition by issuing of (i) Certiorari quashing the proceedings of opening of technical bid by the tender committee and subsequent opening of Price bid acting on the decision taken by the tender committee on the technical bids and also for quashing appointment/fixation of the Road Transport Contracts for transportation of stocks by road from FSDs New Godown Jammu to Lethpora.
(ii) Mandamus commanding the official respondents no.
1 to 6 to appoint the petitioner as a Road Transport Contractor for the transportation of FCI stocks from FSD New Godown Jammu to Lethpora as advertised in tender notice no. Stg/32(3)/JKTender/2011-12 dated 09.11.2012 and with further directions commanding the official respondents to allow the petitioner to execute the work in question.
(iii) Prohibition prohibiting the official respondents not to allot the work in question in pursuance to any decision taken link favour of respondent no. 8 or the Honble Court may kindly pass any other appropriate writ direction or order deemed to be fit and proper in the circumstances of the case. In pursuance to notice, objections/reply affidavits have been filed.
Tender Notice dated 09.11.2012 was issued by the Food Corporation of India, J&K Region whereunder tenders were invited under Two Bid System from financially sound parties having business competency for appointment of Road Transport Contractors for movement of stocks by road from FSDs New Godown, Jammu to various centers for period mentioned in the said notice.
The eligibility criteria prescribed that the tenderer should have executed in the immediate preceding two years transport contracts the total values of which would not be less than 50% of the value of the contract to be awarded. OR The tenderer should have executed in the immediate preceding two years any single contract the value of which is not less than 25% of the value of the contract to be awarded.
It was also provided in the tender notice that all credentials/documents and copies of certificates/ information called for shall have to be furnished along with Technical Bid in one stroke as per tender terms and no additional documents shall be accepted after opening of the Technical Bid. It was also provided in the tender notice that necessary work experience certificates should be supported by relevant work orders/agreements with the department/agencies. Since the eligibility criteria in terms of the aforementioned tender notice was not in tune with the qualification conditions for bidding provided in Model Tender Form for Road Transport Contracts, the respondent-Corporation issued corrigendum dated 15.11.2012, whereunder it was provided that the tenderer should have experience of transportation with Manufacturer/PSU/Govt. Deptt/Public Ltd. company/Pvt Ltd. company dealing in field of Fertilizer, Food grains, Cement, Sugar, Coarse Grains or any other commodity. It was also provided in the Corrigendum the work should have been executed in any of the immediate preceding five years with work of value:-
(a) At least 25% of the estimated contract value in one single contract;
(b) 50% of the estimated contract value in different contracts;
It was also provided that experience certificates shall be produced from customers stating proof of satisfactory execution and completion of the contract(s) besides duly certifying nature, period of contract(s) and value of work handled.
The petitioner apprehending that his tender documents may not be accepted approached this Court in this writ petition and sought relief which are taken note of here-in-above.
Learned counsel for the petitioner submitted that petitioner satisfied the terms and conditions of the tender notice, but has been illegally and arbitrarily excluded from the tendering process. Learned counsel placed whole hog reliance on the clause (iii) of the Model Tender Form for Road Transport Contracts (MTF) as also the Corrigendum dated 15.11.2012 and submitted that the expression used viz in any of the immediate preceding five years would include all the five years and the value of the work executed by the petitioner in the preceding five years has to be given due weightage. Learned counsel further submitted that the respondent-Corporation has illegally taken into consideration only one year for assessment of value of work and inconsequence thereof has wrongly excluded the petitioner from tendering process.
Learned counsel further submitted that after notice was issued in this writ petition, contract work was allotted to the private respondents at enhanced rate. Learned counsel submitted that respondent-Corporation has not dealt with the specific pleadings projected in the writ petition in this behalf. Learned counsel further submitted that in the previous years, respondent- Corporation entertained the same work done certificates of the petitioner and allotted work for transportation of Food grains to him, though in the writ petition OWP no. 466/2012 connected with OWP no. 475/2012 allotment of contracts in favour of the petitioner was quashed by the Court and matter is now pending before the Letters Patent Bench of this Court. Learned counsel further submitted that even respondent-Corporation has challenged the said judgment and the Letters Patent Bench has stayed the operation of the judgment. Learned counsel further submitted that respondent-Corporation cannot be permitted to take different stand in present proceedings as was taken in the earlier round of litigation. Learned counsel, accordingly, prayed for allowing of the writ petition.
Mr. Sethi learned Senior counsel appearing for the Food Corporation of India while referring to the certificates placed on record of the writ petition submitted that from amongst these certificates, credit was given to the best one, but since estimated value of the contract work was 18 Crore as the petitioner had sought allotment of transportation work from FSDs New Godown Jammu to Lethpora, so in terms of MTF qualification conditions for bidding and qualification prescribed in the Corrigendum, he could not qualify to further participate in the tendering process as he could not touch 50% of estimated value of the contract of Rs.9 Crore. Learned counsel further submitted that an appeal against the judgment passed in OWP nos. 466 of 2012 and 475 of 2012 respectively was filed as the petitioner was transporting food grains and it would have not been in the interest of Corporation and the public at large to stop transportation process. Learned counsel submitted that expression in any of the immediate preceding five years would mean that value of workdone in any of the previous five years was to be considered. Learned counsel submitted that the respondent-Corporation considered the certificate of the highest workdone value, but still he could not qualify and was accordingly excluded from the tendering process. Learned counsel prayed for dismissal of the writ petition.
Learned counsel for the private respondents extensively referred to the documents placed on writ petition and the objections to show that the work done certificates placed on writ record do not conform with the terms and conditions of the MTF as also the tender notice and Corrigendum issued thereafter. Learned counsel further submitted that in the earlier round of litigation, this Court has ruled that petitioner was not eligible for allotment of work and staying of that judgment would not result in washing-off the effect of the judgment of the writ Court. Learned counsel prayed for dismissal of the writ petition.
In order to appreciate the issue raised in this writ petition, admitted and undisputed terms and conditions of the MTF clause
(iii), tender notice and Corrigendum are taken note of:
Eligibility Criteria Work Experience (Enclose experience certificate for rake handling and transportation duly obtained from Manufacturer/Handling agency/Govt Deptt./PSU/ Public Limited Co. dealing in fertilizers, foodgrains, cement or similar products).
The eligibility criteria provides that the tenderer should have executed in the immediately preceding two years transport contracts the total values of which would not be less than 50% of the value of the contract to be awarded.
All credentials/documents and copies of certificates/ information called for shall have to be furnished along with Technical Bid in one stroke as per tenders terms and no additional shall be accepted after opening of the Technical Bid. Special attention be given for submitting of information called under clause (iii) (1) under the heading Technical expertise/Work experience. Necessary work experience certificates should be supported by relevant work orders/agreements with the department/agencies served without fail.
Qualification conditions for Bidding:
Tenderer should have experience of Transportation duly obtained from Manufacturer /Handling agency/Govt Deptt./PSU/ Public Limited Co. dealing in fertilizers, foodgrains, cement sugar, Coarse grains or any other commodity. Tenderer should have executed in any of the immediate preceding five years work of value:
(a) At least 25% of the estimated contract value in one single contract;
OR
(b) 50% of the estimated contract value in different contracts; (II) Experience certificate shall be produced from customers stating proof of satisfactory execution and completion of the contract(s) besides duly certifying nature, period of contract and value of work handled.
(III) Where the estimated contract value of Transport Contract is less than Rupees Five Crores, Tenderer without the requisite experience as mentioned above may also participate subject to providing an undertaking that an additional performance Guarantee in the form of Bank Guarantee of 10% of the contract value from SBI & its Associate Banks/ the other Public Sector Banks will be given, if selected. The format of the Bank Guarantee to be provided in such cases is at Appendix-V. (IV) If the Tenderer is a partnership firm, there shall not be any re-
constitution of the partnership without the prior written consent of the Corporation till the satisfactory completion of the contract. Note: The year for the purpose of experience will be taken as Financial Year (Ist April to 31st March) excluding the financial year in which tender enquiry is floated.
Revised applicable Terms and Conditions are as under:
1. Tenderer should have experience of transportation duly obtained from Manufacturer/PSU/ Govt Deptt6./Public Ltd company/Pvt. Ltd. Company dealing in the field of fertilizers, foodgrains, cement sugar, coarse grains or any other commodity.
Tenderer should have executed in any of the immediate preceding five years work of value.
(a)At least 25% of the estimated contract value in one single contract;
OR
(b)50% of the estimated contract value in different contracts;
2. Experience certificate shall be produced from customers stating proof of satisfactory execution and completion of the contract(s) besides duly certifying nature, period of contract and value of work handled.
Please Note: The year for the purpose of experience will be taken as Financial Year (Ist April- 31st March) excluding the financial year in which tender enquiry is floated. The principal issue which has cropped up for consideration of the Court is as to how the expression, in any of the immediate preceding five years is to be understood and interpreted. On the plain language of the aforesaid expression, it become manifestly clear that workdone value of any one of the preceding five years would mean value of one single year. The language used in MTF and Corrigendum is lucid and clear in its tone and tenor. The expression in any would mean as already stated only one year. The expression would not mean that certificates for more than one year are to be considered. If intention of the respondent- Corporation would have to consider the certificates of the immediate preceding five years, then the expression in any of would have not been used.
Admittedly, petitioner falls short of 50% of the estimated value of the contract in one particular year, so was not eligible to participate in the tendering process. Since the petitioner is held to be in-eligible to participate in tendering process, he in such circumstances is precluded from raising all other issues.
The contention that in the earlier round of litigation, same certificates accepted by the Corporation cannot be ground for accepting the claim of the petitioner in this proceeding. The authorities of the respondent-Corporation, who have accepted the certificates in the previous tendering process, shall have to explain their conduct and position.
The staying of the judgment by the Honble Letters Patent Bench would not keep under eclipse findings recorded by writ Court. Staying of the judgment would relate to execution of the judgment in respect of continuation of the transportation of foodgrain. The findings recorded by the writ Court would efface only after case is finally heard and decided.
The grievance of the petitioner that the contract has been awarded at an exorbitant rate which in turn has adversely affected the public exchequer and which allegation has not been replied by the respondent-Food Corporation of India shall have to be looked into by the appropriate authority.
For the above stated reasons, this writ petition is held to be meritless and is accordingly dismissed. However,
(a) appropriate authority of the Food Corporation of India is directed to seek explanation from the authority/authorities who have accepted the certificates of the petitioner for allotting contract in last year;
(b) The authority is further directed to institute enquiry to find out as to whether contract has been allotted to the private respondents at exorbitant rate thus adversely affecting the public exchequer.
(c) The Chairman-cum-Mangement Director of the Food Corporation of India is directed to comply with the aforesaid direction and submit report to the Registry of this Court within eight weeks from the date copy of the order is served upon him.
Registry to serve the copy of this order to the Chairman-cum- Management Director, Food Corporation of India, New Delhi forthwith.
Registry to list index of writ petition and copy of judgment for seeking compliance of direction immediately after eight weeks before appropriate Bench.
(Muzaffar Hussain Attar) Judge Jammu, 13.05.2013 Vijay