Karnataka High Court
M/S.Mysore Concrete Products vs The Managing Director on 5 August, 2013
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
W.P. Nos.34759-762/2011 & 41823/2011 (GM-TEN)
BETWEEN:
1. M/S.MYSORE CONCRETE PRODUCTS
A PARTNERSHIP FIRM,
REP. BY ITS PARTNER
SHRI NAVAL KISHORE MALU
AND HAVING ITS OFFICE NO.8,
1ST MAIN, GANDHINAGAR,
BANGALORE-560099
2. M/S SHREE STRUCTURALS
A PROPPRIETORSHIP CONCERN
REP. BY ITS PROPRIETOR
SHRI NAVAL KISHORE MALU
AND HAVING ITS OFFICE NO.8,
1ST MAIN, GANDHINAGAR,
BANGALORE-560009
3. M/S ARADHYA CONCRETE PRODUCTS
A PROPPRIETORSHIP CONCERN
REP. BY ITS PROPRIETOR
SRI I P MALLOKARADHYA
AND HAVING ITS OFFICE: PLOT NO.301
HEBBAL INDUSTRIAL AREA
MYSORE-570016
4. M/S MYSORE CEMENT PIPES
A PARTNERSHIP FIRM, REP. BY ITS
MANAGING PARTNER SHRI BHANU
KIRAN AND HAVING ITS
OFFICE: PLOT NO.302
HEBBAL INDUSTRIAL AREA
MYSORE-570016
5. M/S SREE INDUSTRIES
A PROPRIETORSHIP CONCERN
2
REP. BY ITS PROPRIETOR,
SHRI RAGHU AMBERKAR AND
HAVING ITS OFFICE AT
NO.117/10/35-B, NEAR STATE BANK
OF MYSORE, K R ROAD
DAVANAGERE-577001 ... PETITIONERS
(BY SRI PADMANABHA MOHALE, Sr.ADV. FOR
M/S. DEEPAK & V JAYARAM)
AND:
1. THE MANAGING DIRECTOR
CHAMUNDESHWARI ELECTRICITY
SUPPLY CORPORATION LIMITED
CORPORATE OFFICE NO.927
L J AVENUE, NEW KANTHARAJE
URS ROAD, SARASWATHIPURAM
MYSORE-570009
2. SUPERINTENDING ENGINEER (ELE)
PROCUREMENT,
CHAMUNDESHWARI ELECTRICITY
SUPPLY CORPORATION LIMITED
CORPORATE OFFICE NO.927
L J AVENUE, NEW KANTHARAJE
URS ROAD, SARASWATHIPURAM
MYSORE-570009
3. EXECUTIVE ENGINEER (ELE)
CHAMUNDESHWARI ELECTRICITY
SUPPLY CORPROATION LIMITED
O & M DIVISION, CESC
MANDYA
4. EXECUTIVE ENGINEER (ELE)
CHAMUNDESHWARI ELECTRICITY
SUPPLY CORPROATION LIMITED
O & M DIVISION, CESC
PANDAVAPURA
5. EXECUTIVE ENGINEER (ELE)
CHAMUNDESHWARI ELECTRICITY
SUPPLY CORPROATION LIMITED
O & M DIVISION, CESC
CITY AREA DIVISION, MYSORE
6. EXECUTIVE ENGINEER (ELE)
CHAMUNDESHWARI ELECTRICITY
3
SUPPLY CORPROATION LIMITED
O & M DIVISION, CESC
RURAL AREA DIVISION
MYSORE
7. EXECUTIVE ENGINEER (ELE)
CHAMUNDESHWARI ELECTRICITY
SUPPLY CORPORATION LIMITED
O & M DIVISION, CESC
CHAMARAJANAGAR
8. EXECUTIVE ENGINEER (ELE)
CHAMUNDESHWARI ELECTRICITY
SUPPLY CORPROATION LIMITED
O & M DIVISION, CESC
HUNSUR
9. EXECUTIVE ENGINEER (ELE)
CHAMUNDESHWARI ELECTRICITY
SUPPLY CORPROATION LIMITED
O & M DIVISION, CESC
MADIKERI
10. EXECUTIVE ENGINEER (ELE)
CHAMUNDESHWARI ELECTRICITY
SUPPLY CORPROATION LIMITED
O & M DIVISION, CESC
CHANNARAYAPATNA
11. EXECUTIVE ENGINEER (ELE
CHAMUNDESHWARI ELECTRICITY
SUPPLY CORPROATION LIMITED
O & M DIVISION, CESC
HASSAN
12. EXECUTIVE ENGINEER (ELE)
CHAMUNDESHWARI ELECTRICITY
SUPPLY CORPROATION LIMITED
O & M DIVISION, CESC
HOLENARASIPURA ... RESPONDENTS
(BY SRI N KRISHNANADA GUPTA, ADV. FOR R1-4)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO
QUASH THE ORDER DT 11.3.11 PASSED BY R1 FURNISHED AS
ANNX-Q AND CONSEQUENTLY QUASH OFFICIAL MEMORANDUM
DATED 13.4.11 VIDE ANNX-T ISSUED BY R2 AND ETC.
4
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING :
ORDER
The petitioners are before this Court assailing the order dated 11.03.2011 impugned at Annexure-Q and also the official memorandum dated 13.4.2011 at Annexure-T to the petition. The petitioners have further assailed the order dated 10.03.2011 at Annexure-R and the official memorandum at Annexure-H as also the order at Annexure-J to the petition.
2. The respondents have entered appearance and filed their objection statement.
3. Heard Sri Padmanabha Mahale, learned senior counsel appearing on behalf of Sri Deepak, learned counsel for the petitioners and Sri N.Krishnananda Gupta, learned counsel appearing for respondents.
4. The petitioners herein are the suppliers of concrete poles to the respondents, who had responded to the tender which had been floated by the respondents. 5 The issue in the instant petitions relates to the payment of transportation charges for the poles manufactured by the petitioners and supplied for the benefit of the respondents. It is to be noticed that the petitioners were before this Court earlier in W.P.Nos.31468-31474/2010 (GM-TEN) which was disposed of on 18.11.2010 (Annexure-O). In that view of the matter, the details of all contentions which have been put forth herein need not be gone into by this Court since at the first instance while this Court taking note of the manner in which the respondents had initiated proceedings for recovery of the amount which had been paid towards transportation costs, had directed the respondents to reconsider the matter in the light of the representations which had been submitted by the petitioners and based on fresh representations along with documents that would be produced. In that light, the respondents have reconsidered the matter and the impugned orders have been passed more particularly by the proceedings and order dated 10.03.2011 and 11.03.2011 wherein the respondents have arrived at the conclusion that the 6 transportation charges payable to the petitioners would be admissible to the maximum distance of 50 kms and therefore, the case of the petitioners for payment of transportation charges beyond the distance of 50 Kms has not been accepted. In view of the said recommendations in the proceedings, the Appellate Authority was also of the view that there were no grounds for consideration of the case of the petitioners and accordingly, the same has been rejected.
5. To consider the correctness or otherwise of the reasons put forth in the proceedings by the Appellate Authority, the materials produced on record would indicate that initially in the bid document, the terms have been referred to. The said terms have been extracted in the impugned proceedings to notice that the transportation charges is payable to the extent of 50 Kms. The petitioners had however made representations claiming that in certain cases, the distance to where the poles were to be supplied was more than 50 Kms and as such the transportation charges payable should be on the actual distance travelled for delivery. Since the Appellate 7 Authority has already extracted the portion of the bid document, the consideration made by the respondents with regard to the request put forth by the petitioners needs to be referred. In this regard, the learned senior counsel for the petitioners has placed reliance on the official memorandum dated 24.09.2008. In the said official memorandum, reference is made to the existing bid conditions and the amendedment is also provided for. The portion which was indicated as the amended clause is extracted, which reads as hereunder:
"Clause No.1.1(c) & 1.1(d) are deleted from the P.O. Transportation Charges (including loading at manufacturing centre, F & I from centre to the designated site and unloading) are to be paid extra over and above Ex-works as indicated in above table, subject to the following conditions:-
Transportation Charges shall remain FIRM throughout the period of contract. When the material are supplied as per the direction of the Corporation to the divisional stores/work spots the transportation charges payable are limited to the shortest route from the manufacturing center."8
6. A perusal of the same would indicate that there was a recommendation to amendment to delete the existing Clause Nos. 1.1(c) & 1.1(d) and thereafter to indicate that the transportation charges payable would be limited to the shortest route from the manufacturing centre when the material is supplied as per the direction of the Corporation to the divisional stores/work spots. It is based on such amendment, the petitioners contend that in cases where the transportation of the poles is made by the shortest route to the place of delivery as per requirement and if such route is more than 50 Kms, the respondents are required to consider this aspect of the matter and pay the same. From the other documents which have been brought to the notice of this Court, it is to be seen that in subsequent tender document, the said incorporation had not been made despite there being such recommendation. It is in that circumstance, the respondents were required to consider the case of the petitioners in the light of the said amendment which had been proposed and the transportation costs that was required to be paid. This aspect of the matter has not 9 received consideration of the respondents or the Appellate Authority.
7. It is no doubt true that in the internal statutory audit, the period for which such payment had been made was taken into consideration and the Statutory Auditor was of the view that the terms of the contract would indicate that payments made are more than what has been indicated by payment of transportation charges. As already noticed, since proposal for recovery has been made based on such Audit report, the petitioners were before this Court in W.P.No.31468-31474/2010 and this Court by the earlier order dated 18.11.2010 keeping in view the fact that such action had been resorted to by the respondents without proper consideration, had directed for reconsideration of the matter. In that view, what is to be kept in view is that the respondents were to keep in view all aspects of the matter including the amendment which had been referred to in the Official Memorandum as indicated above and also the fact as to the delivery was made to the divisional stores/work spot as per direction and thereafter they were to arrive at a conclusion as to 10 whether the case of the petitioners requires to be considered for the purposes of payment of the actual transportation charges, if the shortest route is kept in view.
8. If these aspects are kept in perspective and the proceeding impugned herein dated 11.03.2011 (Annexure- Q) is perused, it is seen that the Appellate Authority in fact has only referred to the existing terms and conditions relating to the transportation charges, which is extracted in the course of the said order and thereafter, has arrived at the conclusion that in view of the terms indicated thereunder, it would have to be limited to a maximum of 50 Kms. However, what is required to be noticed in the said proceedings is that the Appellate Authority has taken into consideration the representations made by the suppliers indicating that even though the poles have been delivered to certain sites which are more than 100 Kms, at least the actual transportation charges to the maximum of 75 Kms be paid. The Appellate Authority while considering the said request of the petitioners and also taking note of the existing terms in the tender document 11 in fact has not referred to the Official Memorandum whereby the amended clauses were proposed to pay the actual transportation costs taking into consideration the shortest route by which the delivery was to be made, if such delivery was made as required by the Corporation.
9. Therefore, all these aspects of the matter are necessary to be noticed by the Appellate Authority to come to a conclusion as to whether in the facts and circumstances of the instant cases, the shortest distance by which the poles were delivered, if on instruction of the Corporation, could be taken into consideration and as to whether such distance would be way beyond the distance which was contemplated. Since these are aspects which relate to the contract including supplementary clauses, the respondents, more particularly the Appellate Authority no doubt would have to examine these aspects of the matter and thereafter come to a conclusion on these aspects.
10. Hence, without expressing any opinion on the actual transportation charges that is liable to be paid by 12 the respondents to the petitioners herein, the Appellate Authority is directed to reconsider the matter keeping in view the amendment which was indicated by the Official Memorandum, the applicability of the same to the instant facts and thereafter find out as to whether the same could be applicable to the case of the petitioners' and thereafter come to a conclusion in accordance with law. It is made clear that the decision herein as already indicated above would be limited to the transportation charges and if at all the petitioners have any other issues relating to price variation or otherwise, the same could be agitated separately by the petitioners, since they are issues relating to the contract and the respondents would look into the same based on the terms and conditions of the contract. The petitioners are granted liberty of filing further documents, if any, which are necessary for the decision to be made by the Appellate Authority.
11. In that view of the matter, the manner of consideration as presently made by the Appellate Authority is not justified and as such the impugned 13 proceedings stand quashed. The matter stands remitted to Appellate Authority for reconsideration in the manner indicated above.
These petitions stand disposed of in the above terms.
Sd/-
JUDGE akc/bms