Gujarat High Court
Elektronik Lab vs Department Of Animal Husbandry, ... on 9 March, 2018
Author: Rajesh H. Shukla
Bench: Rajesh H.Shukla
C/SCA/15393/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15393 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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ELEKTRONIK LAB
Versus
DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING AND FISHERIES
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Appearance:
MR PERCY KAVINA, Sr. Advocate with MS GARIMA MALHOTRA
with MR BHASH H MANKAD for the PETITIONER(s) No. 1,2
MS ASMITA PATEL AGP for the RESPONDENT(s) No. 1,2
MR SP MAJMUDAR for the RESPONDENT(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 09/03/2018
ORAL JUDGMENT
1. The present petition is filed by the petitioner under Articles 14 and 226 of the Constitution of India for the prayers inter alia that appropriate Page 1 of 21 C/SCA/15393/2017 JUDGMENT writ, order or direction may be issued declaring that the selection or the qualification and empanelment of the respondent no.3, M/s. Nidhi Corporation as authorized distribution of Garmin GPS set under EOI Bearing No.Fish/Marine/ EOI/2016 as void and illegal, vitiated by fraud and, therefore, may be quashed and set aside. It has been further prayed to restrain the respondent no.3 to act in pursuance to the said empanelment and further directions have been sought for on the grounds stated in the memo of petition.
2. The facts of the case briefly summarized are as follows: 2.1 The petitioner is a registered partnership firm and the petitioner no.2, partner of the firm, is citizen of India.
2.2 The petitioner no.1firm is engaged in the business of sales and service of Marine Communication and Navigation Equipment since 1976. One M/s. Garmin Ltd., an American Multinational Technology Company is known for its specialization in GPS and, therefore, had appointed the petitioner as their authorized distributor in India for the said Maritime Page 2 of 21 C/SCA/15393/2017 JUDGMENT Products in the year 2005. As stated in detail, the respondent no.1 floated an invitation of Expression of Interest (EOI) in October, 2016 for the empanelment of authorized distributors/ dealers of the equipments. Therefore, the petitioner and the respondent no.3 have submitted their EOI and after scrutiny of the papers by the Committee of the respondents, the bid of the respondent no.3 has been accepted, which has led to filing of the present petition as stated above.
3. Heard learned Senior Counsel, Shri Percy Kavina appearing with learned advocate, Ms.Garima Malhotra with learned advocate, Shri Bhash Mankat for the petitioner, learned AGP Ms. Asmita Patel for the respondent nos.1 and 2 and learned advocate, Shri Majmudar for the respondent no.3.
4. Learned Senior Counsel, Shri Percy Kavina referred to EOI produced at AnnexureA and pointedly referred to the selection criteria, which provides, "3.0 Selection Criteria i. The dealers/distributers should have valid authorization certificate issued by Page 3 of 21 C/SCA/15393/2017 JUDGMENT manufacturer of Global Positioning System (GPS) ii. The dealers/supplier should have minimum annual domestic turnover are as under.
Sr Items Annual Performance
no. Turnover Security
(in lakhs) Deposit
(in lakhs)
1 Global Positioning System (GPS) Rs.400.00 Rs.8.00
2 Flack Ice slurry Machine Rs.10.00 Rs.0.25
3 Solar dryer Rs.50.00 Rs.2.50
iii. The agency must have their sales network in the State of Gujarat."
5. Learned Senior Counsel, Shri Percy Kavina submitted that the respondent no.3 is not having valid certificate of authorization from the manufacturer i.e. M/s. Garmin Ltd. and, therefore, bid could not have been accepted. Learned Senior Counsel, Shri Percy Kavina submitted that the certificate, which is sought to be relied upon or considered, is given by the distributor of M/s. Garmin Ltd. and not by the M/s. Garmin Ltd. itself. For that, he referred to the papers produced at Page No.71. He also referred to the affidavitinreply along with AnnexureR1, which Page 4 of 21 C/SCA/15393/2017 JUDGMENT is authorized letter by Japan Marina Co. Ltd. dated 18.08.2015. Learned Senior Counsel, Shri Percy Kavina submitted that the letter dated 13.12.2017 from M/s. Garmin Ltd. addressing the Commissioner of Fisheries is not on the record and, therefore, it could not have been considered. He, therefore, submitted that as there is no authorization from M/s. Garmin Ltd., the bid of the respondent no.3 could not have been accepted and was not eligible and qualified. Learned Senior Counsel, Shri Percy Kavina submitted that what is required is the certificate or the authorization from the concerned manufacturer and it may not do from any manufacturer of GPS. He, therefore, strenuously submitted that the letter produced at Page No.47 from the GPS India Networks Pvt. Ltd. cannot be considered as valid. He strenuously submitted that GPS India Networks Pvt. Ltd. is the authorized distributor of M/s. Garmin Ltd. and, therefore, any such authorization in favour of the respondent no.3, M/s. Nidhi Corporation would not be valid. Learned Senior Counsel, Shri Percy Kavina submitted that it has to be by manufacturer and not by the dealer. Learned Senior Counsel, Page 5 of 21 C/SCA/15393/2017 JUDGMENT Shri Percy Kavina referred to the papers and submitted that letter of M/s. Garmin Ltd. dated 01.04.2017 addressed to the Commissioner of Fisheries is not by M/s. Garmin Ltd. but by the distributor of M/s. Garmin Ltd. and, therefore, it cannot be said to be a certificate by M/s. Garmin Ltd.. Learned Senior Counsel, Shri Percy Kavina submitted that the dates would suggest that for the purpose of supply under the EOI, there is nothing to suggest that the respondent no.3 is eligible. He emphasized that the eligibility in such case of tender must be on the date on which it is to be included and also on the date of filling up the tender. He, therefore, submitted that the last date of submission was 11.11.2016 and the period of work has to be considered, which is March to March. Learned Senior Counsel, Shri Percy Kavina submitted that the respondent no.3 should have eligibility from March, 2016 to March, 2018. Therefore again he referred to Page No.30 with regard to the selection criteria to support his contention about the authorization and the qualification of the respondent no.3.
6. Learned advocate, Shri Majmudar referred to the Page 6 of 21 C/SCA/15393/2017 JUDGMENT papers and submitted that first aspect with regard to the delay may be considered as this empanelment is for a period of one year, which is from March, 2017 to March, 2018, meaning thereby, hardly one month is left and the respondent no.3 has been already carrying out work as per the work order for the supply of such GPS system. He further submitted that therefore though it was intimated and it was to the knowledge of the petitioner that the bid of the respondent no.3 has been accepted, the petitioner has not moved the petition and had waited upto five months and, thereafter, the petition has been filed in August, 2017. Learned advocate, Shri Majmudar submitted that therefore the petition therefore may be dismissed on the ground of delay as year is almost about to be over and it has already been executed and implemented and, therefore, this Court may not exercise the discretionary jurisdiction under Article 226 of the Constitution of India.
7. Learned advocate, Shri Majmudar referred to Page No.31, which provides for the selection criteria. He emphasized that as stated in this criteria, what is required is the certificate from any Page 7 of 21 C/SCA/15393/2017 JUDGMENT manufacturer or GPS or such devise. Learned advocate, Shri Majmudar submitted that as per AnnexureR1 and as stated in the affidavitin reply, authorization letter from Japan Marina Co. Ltd. dated 18.08.2015 is already produced on record and, therefore, it cannot be said that there is no certification from any manufacturer. Learned advocate, Shri Majmudar submitted that the certification is required from the manufacturer of such devise viz., GPS system and it is not that it has to be from particular brand or particular company like M/s. Garmin Ltd. Learned advocate, Shri Majmudar submitted that in any case, as could be seen from the letter produced on record from M/s. Garmin Ltd. dated 01.04.2017 addressed to the Commissioner of Fisheries, it is clearly stated that the respondent no.3 is authorized dealer to promote, sell and service of Marine equipments and products manufactured by GARMIN. He emphasized that this letter is from M/s. Garmin Ltd. and merely because it has been signed by the General Manager, AMIT India, who is also master distributor of Garmine Outdoor, Marine, PND & Handheld products, cannot be said that this letter Page 8 of 21 C/SCA/15393/2017 JUDGMENT is not by the Company. Learned advocate, Shri Majmudar submitted that as stated, in any case the respondent no.3 has been authorized for the supply of such GPS to the fisheries of Gujarat and after considering the comparative bid, the bid of the respondent no.3 has been accepted. Learned advocate, Shri Majmudar referred to the bid and the price and submitted that the competitive price of the respondent no.3 for the same product is less than what is quoted by the petitioner. He therefore submitted that on proper evaluation, if the bid of the respondent no.3 has been accepted and when there is no allegation of any malafide, the present petition may not be entertained. Learned advocate, Shri Majmudar at the cost of repetition submitted that the tenure of the contract or the duration of one year is about to be over and, therefore, in absence of any malafide or irregularity, the present petition may not be entertained. Learned advocate, Shri Majmudar submitted that as the empanelment is for one year and only one month has remained, the Court may not exercise the discretionary jurisdiction under the judicial review. He submitted that if there is Page 9 of 21 C/SCA/15393/2017 JUDGMENT substantial compliance involving public interest then, the scope of judicial review would be limited. In support of submission, he referred to and relied upon the judgment of the Hon'ble Apex Court in case of Tejas Constructions and Infrastructure Private Limited Vs. Municipal Council, Sendhwa & Anr., reported in (2012) 6 SCC 464 and emphasized the observation made in Paragraph No.15, which reads as under : "15. A challenge to the award of the project work in favour of Respondent 2 involved judicial review of administrative action. The scope and the approach to be adopted in the process of any such review, has been settled by a long line of decision of this Court. Reference to all such decision is in our opinion unnecessary as the principles of law settled therefore are fairly well recognised by now. We may, therefore, refer to some of the said decisions only to recapitulate and refresh the tests applicable to such cases and the approach which a writ court has to adopt while examining the validity of an action questioned before it."
8. Learned advocate, Shri Majmudar, therefore, submitted that the present petition may not be Page 10 of 21 C/SCA/15393/2017 JUDGMENT entertained.
9. Learned AGP Ms.Asmit Patel referred to the papers and submitted that in all five persons had submitted bid and after verification and scrutiny of the documents, decision has been taken by the Committee to accept the bid of the respondent no.3. Learned AGP Ms.Patel submitted that as per Clause - 3, which provides for selection criteria, certificate or the authorization from the manufacturer would be sufficient and in the instant case, the respondent no.3 has been found to be eligible and qualified. She also submitted that apart from the letter, which has been referred by learned advocate, Shri Majmudar, letter dated 01.04.2017 from M/s. Garmin Ltd. would suggest that he has been authorized representative for marketing product of M/s. Garmin. She, therefore, submitted that the submission made by learned advocate for the petitioner about the qualification of the respondent no.3, is misconceived. She submitted that on compartive assessment and the scrutiny of papers, as the bid of the respondent no.3 for the same product was less, it has been acepted as it Page 11 of 21 C/SCA/15393/2017 JUDGMENT was found more competitive. She submitted that public interest is required to be considered and as the petitioner and the respondent no.3 both were found to be eligible fulfilling the eligibility criteria, their bid was considered and they were called for negotiation also by the Committee and, thereafter, decision has been taken. Learned AGP Ms. Patel submitted that therefore what is required to be considered is that if there is any malafide and when the bid of the respondent no.3 is more competitive that it has quoted less price for the same product, which is required to be given to the fishermen, it has been accepted. Learned AGP Ms.Patel submitted that pursuant to such acceptance of the bid, the work order has been given and the respondent no.3 is in process of supplying the product and the period of one year of empanelment is about to be over and, therefore, the present petition may not be entertained on the ground of delay also.
10. In rejoinder, learned Senior Counsel, Shri Percy Kavina submitted that aspect of delay may be examined with reference to the papers. He submitted that the petitioner has been pursuing Page 12 of 21 C/SCA/15393/2017 JUDGMENT the matter and had addressed three notices and earlier there was no response and, thereafter, reply was given and, therefore, it cannot be said that the petitioner has not been vigilant. He submitted that the issue is with regard to the eligibility and qualification of the respondent no.3, which may be considered dehors this period of delay.
11. In view of the rival submissions, it is required to be considered whether the present petition deserves consideration.
12. As referred to and discussed hereinabove, while examining the rival submission, first contention raised by learned Senior Counsel, Shri Percy Kavina about the eligibility criteria or the qualification of the respondent no.3 requires consideration. Clause - 3 referred to selection criteria and provides, "3.0 Selection Criteria i. The dealers/distributers should have valid authorization certificate issued by manufacturer of Global Positioning System (GPS) ii. The dealers/supplier should have minimum annual domestic turnover are as under. Page 13 of 21
C/SCA/15393/2017 JUDGMENT
Sr Items Annual Performance
no. Turnover Security
(in lakhs) Deposit
(in lakhs)
1 Global Positioning System (GPS) Rs.400.00 Rs.8.00
2 Flack Ice slurry Machine Rs.10.00 Rs.0.25
3 Solar dryer Rs.50.00 Rs.2.50
iii. The agency must have their sales network in the State of Gujarat."
13. Thus it provides that dealer or distributor should have authorization certificate from the manufacturer of GPS could be there. The authorization letter produced with the reply affidavit by the respondent no.3 at AnnexureR1 from Japan Marina Co. Ltd. is an authorization letter from the manufacturer called "Japan Marina Co. Ltd." and, therefore to that extent, the submission that the respondent no.3 is not having authorization from the manufacturer, does not survive.
14. Another facet of submission made by learned Senior Counsel, Shri Kavina with much emphasis that the certification from the manufacturer or the type of product has to be there i.e. if the devise which is required to be provided, is of Garmin, which is another multinational company then, it has to be Page 14 of 21 C/SCA/15393/2017 JUDGMENT from that manufacturer and not from any other manufacturer, is adding or reading something, which has not been supported or provided in the criteria. As stated above, selection criteria refers to the authorization from any of the manufacturer of the Global Positioning System. Therefore, the devise for Global Positioning System is to be supplied by the person, who is required to be authorized by any of the manufacturer of such devise like Global Positioning System. Therefore, the submission made by learned Senior Counsel, Percy Kavina that if the devise which is supplied or referred to is of Garmin, Garmin should have authorization or the respondent no.3 should have authorization from Garmin, cannot be readily accepted. Moreover the submissions, which have been made by learned Senior Counsel, Shri Percy Kavina raising an issue with regard to the eligibility criteria of the respondent no.3 would not survive in view of the authorization by Japan Marina Co. Ltd..
15. Another facet of submission that such authorization has to be by the manufacturer in respect of the devise, which is required to be Page 15 of 21 C/SCA/15393/2017 JUDGMENT provided, is misconceived inasmuch as the dealer may be required to provide such GPS of different manufacturer depending upon the suitability and the cost. Therefore once main emphasis on the aspect of eligibility of the respondent no.3 is not in issue, the submission made by learned Senior Counsel, Shri Percy Kavina with further details that there cannot be any certification by another brand or product of another manufacturer, would not survive.
16. Further as rightly submitted, the duration of such empanelment is about to be over as it was from March, 2017 to March, 2018 and when the empanelment granting permission or the contract for the supply has been implemented and executed, it would hardly call for any interference in exercise of judicial review. The scope of exercise of judicial review would be limited and it would be further narrowed down when the empanelment for the period is about to be over. Though learned Senior Counsel, Shri Percy Kavina has stated that on the aspect of delay, notices have been issued and time has been consumed, it would not be sufficient for exercise of discretionary Page 16 of 21 C/SCA/15393/2017 JUDGMENT jurisdiction under Article 226 of the Constitution of India. The petitioner could have moved the Court instead of having waited till May i.e. half of the period and then to raise contention about the eligibility of the respondent no.3, cannot be accepted. Reliance placed by learned Senior Counsel, Shri Percy Kavina on the judgment of the Hon'ble Apex Court in case of Subhash Projects & Marketing Ltd. Vs. W.B. Power Development Corporation Ltd. & Ors., reported in (2005) 8 SCC 438 will not have any application. It is required to be stated that in that case, even the price bid has not been opened and there was allegation of malafides, for which, inference was drawn. However, the judgment relied upon by learned advocate, Shri Majmudar of the Hon'ble Apex Court in case of Tejas Constructions and Infrastructure Private Limited (supra) referred to exercise of discretionary jurisdiction under Article 226 of the Constitution of India. Therefore, once the criteria of eligibility is fulfilled and the qualification of the respondent no.3 is not an issue, the decision to accept the bid of the respondent no.3 cannot be said to be erroneous Page 17 of 21 C/SCA/15393/2017 JUDGMENT particularly when the price quoted by the respondent no.3 is lower and competitive than the petitioner with regard to same product or Global Positioning System. Further it appears from the record that the respondents had appointed the Committee, which has after scrutiny of the relevant material finally accepted the bid of the respondent no.3 after inviting both, the petitioner and the respondent no.3 for negotiation. Therefore when the contract has almost come to an end or the period of empanelment is about to be over in March, 2018, it would hardly call for any interference. The Hon'ble Apex Court has considered broad guidelines with regard to the scope of exercise of discretionary jurisdiction under Article 226 of the Constitution of India in case of Tata Cellular Vs. Union of India, reported in (1994) 6 SCC 651, wherein it has been observed, "The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the Page 18 of 21 C/SCA/15393/2017 JUDGMENT application of Wednesbury principle of reasonableness (including its other facets pointed out above) but must be free from arbitrariness, not affected by bias or actuated by mala fides."
17. As stated above, as there are no issues with regard to the bias or any kind of malafides, in light of the observation made in the judgment in case of Tejas Constructions and Infrastructure Private Limited (supra), it would not justify interference in the present matter.
18. Further, the Hon'ble Apex Court in a judgment in case of Tejas Constructions and Infrastructure Private Limited (supra) quoting from earlier judgment of the Hon'ble Apex Court in case of Air India Ltd. Vs. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 has quoted the observation with regard to the scope of exercise of discretionary jurisdiction under Article 226 of the Constitution of India. It has been observed, ".................... Even when some defect is found in the decisionmaking process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. Page 19 of 21
C/SCA/15393/2017 JUDGMENT The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene."
19. A useful reference can also be made to the judgment of the Hon'ble Apex Court in case of Sam Built Well Private Limited Vs. Deepak Builders & Ors., reported in (2018) 2 SCC 176, wherein it has been observed, "............... Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decisionmaking process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. ................
................. Not having found malafides or perversity in the technical expert reports, the principle of judicial restraint kicks in, and any appreciation by the Court itself of technical evaluation, best left to technical experts, would be outside its ken." Page 20 of 21
C/SCA/15393/2017 JUDGMENT
20. Therefore, the present petition deserves to be dismissed and accordingly stands dismissed. Rule is discharged. Interim relief, if any, stands vacated.
Sd/ (RAJESH H. SHUKLA, J.) Gautam Page 21 of 21