Kerala High Court
Reji Varghese vs Bharath Petroleum Corporation Ltd on 6 July, 2012
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
FRIDAY, THE 15TH DAY OF MARCH 2013/24TH PHALGUNA 1934
WP(C).No. 29385 of 2012 (W)
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PETITIONER(S) :
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REJI VARGHESE, AGED 43 YEARS
S/O.K.P.VARGHESE, PROPRIETOR, BOON CARRIERS
DOOR NO.XVI-301
KAVUNGAMOOLAYIL KILUTHATTLE (ALAMBIL), KANGARAPADY
VADACODE P.O., ERNAKULAM, COCHIN 682 021.
BY ADVS.SRI.R.D.SHENOY (SR.)
SRI.K.C.ELDHO
SRI.JIJO THOMAS
RESPONDENT(S) :
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1. BHARATH PETROLEUM CORPORATION LTD.
REPRESENTED BY ITS TERRITORY MANAGER KOCHI LPG
LPG FILLING PLANT, KOCHI REFINERY, AMBALAMUGHAL
ERNAKULAM, PIN CODE 682 302.
2. THE REGIONAL LPG MANAGER
SOUTH, BHARAT PETROLEUM CORPORATION LIMITED, NO.1
RANGANADHAN GARDENS, OFF 11TH MAIN ROAD, ANNA NAGAR
CHENNAI 600 040.
3. BINOY ALEX,S/O.ALEX, M/S. PARUMALA TRANSPORTS,
CHIYYARAM P.O., THRISSUR, 680 026.
4. ANAND OMMEN
S/O.OMMEN, M/S. PANANGOTTE TRANSPORTS, ALUMMOODU P.O
MUKHATHALA, KOLLAM 691 577.
5. K.K.GEORGE
FATHERS NAME NOT KNOWN TO THE PETITIONER
KANNANKARA MALIL HOUSE, KOTHAMANGALAM
ERNAKULAM DISTRICT, KOTHAMANGALAM P.O, PIN-.
R1 & R2 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR
` SRI.P.GOPINATH
SRI.P.BENNY THOMAS
SRI.K.JOHN MATHAI
R3 TO R5 BY ADV. SRI.P.RAMAKRISHNAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-03-2013ALONG WITH WP(C) 29423/2012, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
BP
WP(C).No. 29385 of 2012 (W)
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT P1. A TRUE COPY OF THE PUBLICATION OF TENDER IN MALAYALA
MANORAMA DAILY DATED 06.07.2012.
EXHIBIT P2. A TRUE COPY OF THE CREDENTIAL CUM PRICE BID GIVEN TO THE
PETITIONER.
EXHIBIT P3. A TRUE COPY OF THE PHYSICAL VERIFICATION REPORT OF VEHICLE
NO.KL.7.BT.6406.
EXHIBIT P4. A TRUE COPY OF THE PHYSICAL VERIFICATION REPORT OF VEHICLE NO.
KL.7.BT.4867.
EXHIBIT P5. A TRUE COPY OF THE PHYSICAL VERIFICATION REPORT OF VEHICLE NO.
KL.7.BT.5584.
EXHIBIT P6. A TRUE COPY OF THE REPRESENTATION DATED 2.78.12 SUBMITTED BY
THE PETITIONER.
EXHIBIT P7. A TRUE COPY OF THE JUDGMENT DATED 14.08.2012 IN WPC
NO.19202/2012 OF THIS HONOURABLE COURT.
EXHIBIT P8. A TRUE COPY OF THE JUDGMENT DATED 14.08.2012 IN WPC
NO.1750/2012 OF THIS HONOURABLE COURT.
EXHIBIT P9. A TRUE COPY OF THE CONTEMPT NOTICE DATED 4.12.2012.
EXHIBIT P10. A TRUE COPY OF THE ORDER DATED 29.11.2012 OF THE 2ND
RESPONDENT.
EXHIBIT P11. COPY OF THE COMMUNICATION ISSUED BY THE R2 DT 07/10/2010.
EXHIBIT P12: COPY OF THE POSTAL OVER OF EXHIBIT P-11 DT 10/12/2012.
EXHIBIT P13. COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DT 11/2/2013.
RESPONDENTS' EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
BP
C.K. ABDUL REHIM, J.
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W.P.(c) Nos. 29385 & 29423 OF 2012
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DATED THIS THE 15th DAY OF MARCH, 2013
J U D G M E N T
Issue involved in these writ petitions relate to tender invited by the 1st respondent (herein after referred to as 'the company') for transportation of packed LPG cylinders from their bottling plants at Kochi, Palakkad and Kannur. Since common question arises in both these cases, they were considered together and disposed of through this common judgment. Reference to exhibits is made in the order as they were produced in W.P (c) Nos.29385/2012.
2. The company invited, "tender for transportation of packed LPG cylinders Ex-LPG Bottling Plant BPCL Kochi & PMC Bottling Plants KSCCF-Palakkad & MEC-Kannur"
(herein after referred to as the 'tender'). Offers from persons willing to transport filled and empty LPG cylinders in trucks, either owned or hired, was invited through the tender. Petitioners are persons participated in the tender. Exhibit P2 tender document contains two parts, the 'credential bid' and the 'price bid'. Terms and condition of W.P.(c) Nos.29385 & 29423/2012 -2- the tender are incorporated therein. The tenderers have to furnish particulars of the trucks which they are offering, in the prescribed format, at the time of submission of the tender. After opening the 'credential bid' and after verification of credentials of the tenderer only the price bid will be opened. As part of verification of credentials, the tenderers have to produce all the vehicles offered by them for physical verification along with its documents. Petitioners in these cases are challenging acceptance of the credential bids submitted by respondents 3 to 5. The challenge is on the basis that respondents 3 to 5 had offered only brand new chassis of trucks purchased by them and they have failed in offering 'ready trucks' fitted with facilities for transportation of LPG cylinders in vertical position. Objection is that the respondents 3 to 5 have failed in fulfilling the tender conditions by offering 'box type' trucks and failed in producing for physical verification 'ready trucks' suitable for transportation of LPG cylinders. What was produced by them was only 'chassis' and not W.P.(c) Nos.29385 & 29423/2012 -3- 'trucks' and their tender could not have been accepted by the company, is the contention. It was also pointed out that the respondents 3 to 5 were not possessing registration certificate of the chassis at the time of submission of tenders.
3. Since Ext.P6 and similar other letters submitted by the petitioners, objecting acceptance of tender of respondents 3 to 5 were not considered, the petitioners have approached this court in W.P (c) Nos.19202/2012 and 19217/2012. In Ext.P7 judgment this court directed the 1st respondent to consider the objections with notice to respondents 3 to 5, before finalising the tender. Respondents 3 to 5 have taken up the matter in writ appeals filed before this court. In Ext.P8 judgment, a Division Bench of this court observed that, on the basis of the hearing already conducted the officials of the 1st respondent company has to take a decision. Hence the company was directed to take a decision and to communicate the same to the appellants. The company was restrained from W.P.(c) Nos.29385 & 29423/2012 -4- implementing the decision till the expiry of 7 days from the date of such communication.
4. Exhibit P10 is the decision taken by the 1st respondent consequent to the directions contained in Ext.P8 judgment. Through a cryptic order it was decided to accept the tenders of the respondents 3 to 5. The relevant extract of the decision taken in Ext.P10 is as follows:-
"After considering all aspects, it has been decided to accept the technical tender of the appellants in Writ Appeals 1750/2012 and 1752/2012 mentioned above."
These writ petitions were originally filed challenging Ext.P10. But during pendency of these cases, the company had issued another proceedings as per Ext.P13. It is mentioned in Ext.P13 that in view of the observations made by this court that the impugned order is totally non- speaking, the company thought it appropriate to issue detailed order in the matter. Therefore the matter was considered and a reasoned order was issued. In Ext.P13, after considering contentions raised at the time of hearing, W.P.(c) Nos.29385 & 29423/2012 -5- it is observed that the objections cannot be accepted and it is rejected. Relevant portion in Ext.P13 enumerating the reasonings is extracted below;
"1. There is no bar in the tender terms and conditions in accepting chassis owned by a tenderer. The main object of the tender is transportation of packed LPG cylinders through road and the aim of technical bid is limited to identifying transporters who can successfully transport the cylinders as prescribed/required by BPCL, as transportation of LPG Cylinders does not require complex expertise/machinery. A chassis, which has temporary registration under the Motor Vehicles Act, can also be considered at the stage of technical bid. The required compliance with all the provisions of the Motor Vehicles Act specified in Clause 8 are to be considered only with reference to the date on which the vehicles are to be produced for executing the contract.
2. The Corporation has the right to decide for itself the requirements of the Corporation and accept or reject offers on the basis of such evaluation. In the facts of the present case, the interest of the Corporation is not in any manner prejudiced by considering chassis at the time of technical evaluation.
W.P.(c) Nos.29385 & 29423/2012 -6-
3. By accepting the maximum number of technical bids, chance for lower rate quotes will increase and will be more beneficial to BPCL.
4. Intention of the technical bid is to identify persons who can place the trucks which meet the specifications as desired by the Corporation after conclusion of contract. The relevant date as far BPCL is concerned is date of demand from BPCL to place the trucks and not any other date. This is evident from Clause 35 of the tender terms and conditions which states that "successful tenders will have to provide company's visual manifestation standards BPCL logo and other safety/operational requirement on trucks engaged by them strictly as per the specification and drawings to be advised by BPCL", as well as from the terms of the agreement which form part of the tender document by virtue of Clause 32 of the tender conditions.
5. As per clause 18, the tenderer has to produce to BPCL for its verification along with documents within 7 days of the date notified by BPCL, all ready trucks (owned, attached) which have been quoted by the tenderers. If the trucks are not produced for verification, company may not consider the price bid submitted by tenderer. This process is included in the terms and conditions with an intention to verify the ownership and to verify whether the tenderer will be able to produce the trucks on demand by BPCL after W.P.(c) Nos.29385 & 29423/2012 -7- conclusion of contract. On verification if BPCL found that the tenderer can produce the completed truck as required/specified by BPCL then BPCL can consider the price bid. As per the above clause, even if trucks are not produced for verification, company can consider the price bid, as the term used is 'may not consider' and not 'shall not consider'.
6. The date of physical verification was postponed purely due to internal administrative requirements of BPCL and not to favour any particular tenderer(s)."
By virtue of amendment made to the writ petitions, the petitioners are also challenging Ext.P13.
5. Heard; Sri. R.D. Shenoy, Senior Counsel appearing for the petitioners and Sri.P. Gopinath Menon counsel appearing for the 1st respondent company and its officials, as well as Sri. P. Ramakrishnan, learned counsel appearing for respondents 3 to 5. The Senior counsel had drawn attention of this court to various clauses contained in Ext.P2 tender document. Clause 4 (e) thereof permit prospective transporters who wish to enter into the transportation field of LPG cylinders, who do not own any trucks to submit tender, by offering trucks under W.P.(c) Nos.29385 & 29423/2012 -8- "proposed category", subject to a maximum of 3 numbers of trucks. Referring to the list of documents which is to be attached along with the tenders, it is pointed out that every tenderer is bound to produce authenticated copies of R.C Book, certificate of fitness, route permits, copy of invoice or any supporting documents confirming compliance of Euro-III standards of emission for vehicles manufactured after 01-04-2005, and valid insurance policy etc., with respect to each of the trucks offered. It is also pointed out that tenderers have to submit separate declarations in form EXH-A1 or EXH-B1, as the case may be, with respect to vehicles offered under the tender. Those declarations contain undertaking to place those trucks at the disposal of the company within 15 days of award of the contract on issuance of the Letter of Indent (LOI). It also include declaration to the effect that the original of R.C Books of each truck will be produced at the time of verification and that the 'box type trucks' offered are capable of carrying cylinders in vertical tires. It is to be further declared that W.P.(c) Nos.29385 & 29423/2012 -9- the trucks listed confirms to Motor Vehicles Act and other statutory requirements. Petitioners further point out that, under clause 8.8 of Ext.P2 tender document it is mentioned that, "tenderers are strictly advised to quote only for 'goods trucks' as would appear in original R.C. books on physical verification". It is further pointed out that clause 8 of the tender conditions insist upon the tenderers to produce 'ready trucks' either owned or attached, offered in tenders' for verification along with documents, within 7 days of the date notified by the company. Considering the above terms and conditions of the tender document it is explicitly clear that those who owned or hired 'ready trucks' (box type trucks) alone are entitled to participate in the tender, is the contention. Therefore it is contended that acceptance of tenders submitted by respondents 3 to 5, offering only new chassis of trucks, which are not even permanently registered, is purely illegal and violative of terms and conditions. Hence tenders of respondents 3 to 5 are liable to be rejected, is the contention.
W.P.(c) Nos.29385 & 29423/2012 -10-
6. Reference was also made to Exts.R3 (a) and R3
(b) documents. Exhibit R3 (a) is a letter submitted by the 3rd respondent to the company seeking clarification. It mentioned therein that he is proposing to participate in the tender with new chassis of trucks. The company was required to clarify whether the trucks should registered in the name of the tenderers and whether chassis of trucks with temporary registrations are eligible to participate in the tender. In Ext.R3 (b) is the reply given by the company, which reads as follows;
"You can go ahead with purchase of the brand new trucks and offer trucks along with documents with temporary registration numbers on or before the closing date & time - and these will be considered as READY OWNED TRUCKS.
The temporary registration should be in the name of the tenderer as mentioned in the tender docs."
7. The reasoning contained in Ext.P13 for rejecting the objections are that, there is no bar in accepting the chassis of trucks. According to the company the technical bid (credential bid) is limited only to the extent of W.P.(c) Nos.29385 & 29423/2012 -11- identifying transporters who can successfully transport the cylinders. A chassis which has got temporary registration can also be considered at the stage of technical bid, is the observation. The required compliance of provisions of the Motor Vehicles Rules and other specifications arises only on the date on which the vehicles are to be produced for commencement of the contract. The 1st respondent had also stated that the company has got right to decide the requirements and to accept or to reject the offers, on the basis of such evaluation. The prime consideration should be the interest of the company. It is not in any manner prejudicial to consider the chassis at the time of evaluation of the technical bid. According to the company, acceptance of maximum number of technical bids will only increase chance of quoting lower rates, which will be more beneficial. It is also stated that technical bid is intended only to identify person who can place trucks which meets the specifications, after conclusion of the contract. The relevant date as far as the company is concerned, is the W.P.(c) Nos.29385 & 29423/2012 -12- date on which the contractor has to place the trucks for operation. As per terms of the tender, if on verification the company finds that the tenderer can produce completed trucks as required, the company can consider the price bid. As per Clause 18, even if the trucks are not produced at the time of verification the company can consider the price bid as the term used is "may not consider" and not "shall not consider".
8. The reasonings mentioned in Exhibit P13 are assailed contending that the company being a Public Sector undertaking is bound to act in public interest, strictly in conformity with the statutes and the terms and conditions of the tender, in strict adherence to the principles of equality enshrined under Article 14 of the Constitution of India. In such matters private interest of the company or even commercial interest cannot be pleaded as a shield to violate any of the tender conditions, prejudicial to any of the competitors or in any manner favouring any of the tenderers. Learned Senior counsel had drawn my attention W.P.(c) Nos.29385 & 29423/2012 -13- to the Annexure appended to the tender document which contains standard terms and conditions. It indicates that the vehicles should comply with all the specifications including exhibition of marks (logo) of the company. Referring to photographs enumerated in the said Annexure, it is pointed out that what is to be offered is only 'box type' trucks for carrying LPG cylinders in vertical position. Reference is also made to the declaration to be furnished regarding details of trucks that it confirms with the Motor Vehicles Act and Rules framed thereunder. In this regard reference is made to Rule 302 to 304 of the Kerala Motor Vehicle Rules which stipulate specifications with respect to goods carriages. On the basis of the terms and conditions of the tender enumerated hereinabove, arguments were advanced that the tender contemplated only about offers to be made by owners of 'trucks' or by those who can arrange 'trucks' on hire. The tender does not visualise acceptance of any offer from a person who owns 'chassis' instead of 'ready trucks' (box type trucks). The respondent Company W.P.(c) Nos.29385 & 29423/2012 -14- is not entitled to deviate from the terms and conditions of the tender for the purpose of accepting the 'chassis' produced for verification which are having only temporary registration. Therefore the acceptance of credential bid of respondents 3 to 5 cannot be sustained, is the contention.
9. Prime question to be decided based on the factual matrix is as to whether the 'trucks' mentioned in the tender document include 'chassis of trucks'. In other words, whether the tender contemplates acceptance of offers made on the basis of 'chassis of trucks' procured by the tenderers. On a plain interpretation of various conditions in the tender document, it is evident that insistence is for submitting offers only on the basis of 'trucks' owned or hired by the tenderers. But, while considering the scheme of the tender it is evident that, at the time of submitting the bids the tenderers are only bound to enumerate the list of vehicles offered by each of them. They are also bound to produce copies of documents relating to such vehicles. After submission of tenders they are bound to produce the W.P.(c) Nos.29385 & 29423/2012 -15- vehicles for physical verification along with the documents. Admittedly, respondents 3 to 5 had offered only 'chassis of trucks' having temporary registrations. They have produced those chassis for physical verification along with the Temporary Registration Certificates and other documents. Procedure is that, if the credential bid is admitted then the company will proceed to open the price bid. If any of the tenderer is found eligible to be awarded with the work, the company will issue intimation to make available the vehicles for commencement of the contract. Going by contents of the declarations which is to be submitted under EXH-A1, undertaking is made by each of the tenderers to place the trucks at the disposal of the Company within 15 days after awarding of the work intimated through LOI. Therefore it is evident that, the production of the trucks for commencement of the contract happens only within 15 days of awarding the work through LOI or within the extended period if any permitted. Evidently, if a successful tenderer fails to make available W.P.(c) Nos.29385 & 29423/2012 -16- the trucks at the disposal of the company within the time stipulated, the contract will be liable to be cancelled. Penal consequence in such occasion; like blacklisting of the particular vehicle or the career as such, will follow. Considering such a procedure and scheme contemplated under the tender, whether the company was rightful in accepting the offer made on the basis of 'chassis of trucks' having only temporary registration, is the question. Whether such acceptance is contrary to terms and conditions of the contract or as to whether the Company had acted in an illegal, unreasonable or arbitrary manner in accepting such tenders, is the question posed for decision.
10. Sri. P.Gopinath Menon, learned counsel appearing for the company had placed reliance on EXH-A1 declaration itself. It is pointed out that the declaration is only to the effect that the tenderer will provide the vehicles at the disposal of the company in case the work is awarded and when LOI is issued. The undertaking is only to produce the trucks within 15 days of awarding of the work, or within the W.P.(c) Nos.29385 & 29423/2012 -17- extended period if any permitted. Attention is drawn to EXH-B1 declaration to be furnished by the tenderers under the 'proposed category'. It permits a tenderer even not to furnish details of trucks, if they are not available. In such cases they need to furnish only the proposal regarding making available of such vehicles. He also pointed out Clause 32 of Exhibit P2 wherein the tenderers are permitted to seek advice or to discuss the details with the authorities of the company before quoting the tender. According to him Exhibit P3(a) clarification was sought for and the reply was given only matters in accordance within the procedure contemplated in the tender. Learned counsel had drawn my attention to the format of the agreement which has to be executed on awarding of the contract. Clause 1 contained in the format of agreement indicate that the tenderer is undertaking only to produce vehicles at the disposal of the company within 15 days or within such extended period after awarding the work. It is further pointed out that the obligation on the part of the tenderers with respect to W.P.(c) Nos.29385 & 29423/2012 -18- adherence of the specification in conformity with the Motor Vehicles Act, is only a requirement to be complied at the time of the contract. According to learned counsel, the tender in question contemplates only trucks which are capable of carrying L.P.G. cylinders in vertical position to be produced at the time of commencement of the contract. If on consideration of the credential bid and on physical verification of the vehicles, the company is convinced that any tenderer has got chassis of trucks which are capable of production in a finished form within 15 days of confirmation and award of the work or within any extended period as permitted by the company, there is nothing wrong in accepting such credential bids. It is strongly contended that such matters comes within discretionary powers of the company who is the awarder of the contract. Judicial review in such matters is totally beyond scope and will be beyond the powers vested on this court under Article 226, is the contention.
W.P.(c) Nos.29385 & 29423/2012 -19-
11. Sri. P. Gopinath Menon had placed reliance on a decision of the honourable Supreme Court, in Jagadeesh Mandal V. State of Orissa and others (2007) 14 SCC
157. The hon'ble Supreme Court had referred to its earlier decision in Air India Limited V. Cochin International Airport Limited (2000) 2 SCC 617) wherein it is observed that, the State or its Corporations, instrumentalities and agencies are bound to adhere to norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though such decisions are not amenable to judicial review, the court can examine the decision-making process and interference is possible if it is vitiated by malafides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have a public duty to be fair to all concerned. Even when some defect is found in the decision-making 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 for W.P.(c) Nos.29385 & 29423/2012 -20- making out a legal point. 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 interfere, the court should intervene. On the basis of the above principles settled in Air India's case the honourable apex court in Jagadeesh Mandal's case observed that, contract is a commercial transaction and evaluating tenders and awarding of contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interference even if procedural aberrations or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful W.P.(c) Nos.29385 & 29423/2012 -21- tenderers with imaginary grievances, wounded pride, and business rivalry, to make mountains out of molehills of some technical/procedural violations or some prejudice to self, and persuading courts to interfere by exercising power of judicial review, should be resisted. Therefore a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose itself. Question as to whether the process adopted or decision made by the authority is malafide or as to whether it is intended to favour someone or as to whether the process adopted or decision made is so arbitrary and irrational to say that no responsible authority acting responsibly in accordance with relevant law would have reached such a decision, are the parameters. Lastly, the court has to look into whether public interest is affected or not. Learned counsel for the company contended that the decision impugned herein does not warrants judicial review, on the basis of the parameters prescribed by the apex court.
W.P.(c) Nos.29385 & 29423/2012 -22-
12. On behalf of the company reliance was also placed on the decision of the honourable Supreme Court in Sterling Computers Limited V. M/s. M&N publications Limited and others (1993) 1 SCC 445). While dealing with issues involved under contractual obligations, it is held that, under special circumstances discretion has to be considered to the authorities who have to enter into contract, giving them liberty to assess the over all situations for the purpose of taking a decision as to whom the contract be awarded and on what terms. If a decision has been taken in bonafide manner, although not strictly following the norms laid down by the courts, such decisions are to be upheld on the principle laid down by Justice Holmes; that the courts while judging constitutional validity of executive decisions must grant certain measure of freedom of "play in the joints" to the executive. Contentions based on the dictum as above is that, unless this court finds that the reasoning mentioned in Exhibit P13 are malafide or so irrational, unreasonable or arbitrary, W.P.(c) Nos.29385 & 29423/2012 -23- interference shall be restrained.
13. Sri. P.Ramakrishnan, learned counsel appearing for respondents 3 to 5 submitted that with respect to offering of new chassis of trucks, they have already sought clarification as permitted under Clause 30 (2) of Exhibit P2 and it is only after obtaining Exhibit R3(b) letter they have submitted the bids. It is mentioned that the 3rd respondent had offered 20 chassis purchased in his own name by incurring huge amounts. So also respondents 4 and 5 had offered 5 & 3 trucks respectively. The chassis of the trucks were having temporary registration in their respective names. It is pointed out that they have already submitted declarations along with the tenders undertaking to produce the trucks at the disposal of the company within 15 days of awarding of the contract through LOI or within any extended time as permitted by the company. It is pointed out that, if they fail to produce the trucks at the time of commencement of the contract with due specifications and compliance of all requirements enumerated, the company W.P.(c) Nos.29385 & 29423/2012 -24- will be at liberty to take action for cancellation of the contract. Learned counsel contended that the credential bids are valid because under Clause 16(b) of Exhibit P2 the tenderer need to submit either the Registration Certificate or the copy of invoice or the certificate of fitness or the route permit, with respect to the trucks offered. He had further pointed out that, the reason for offering new chassis is only because of the selection criteria provided under Clause 21 of the tender document, which provides preference on the basis of the age of the trucks; i.e, latest year model will be given preference. Therefore, acceptance of credential bids of the respondents is always subject to production of ready trucks at the commencement of the contract, and hence there is no illegality, error or impropriety in the decision, is the contention.
14. While evaluating the rival contentions, I take note of the fact that, Clause 30 in Exhibit P2 provides that the company reserves right to accept or reject any or all tenders in whole or in part and or to divide the work W.P.(c) Nos.29385 & 29423/2012 -25- amongst tenderers in the manner considered suitable at the sole discretion of the company, without assigning any reason. Further, Clause 39 contemplates the evaluation criteria and method of awarding of the contract should be based on the lowest quoted rates, resulting into lowest cash out flow to the company on an over all basis. Considering the discretion available to the company to the above extent, whether the decision taken to accept credential bids of respondents 3 to 5 need to be interfered in exercise of judicial review vested on this court, in order to grant a discretionary relief, is the question posed. It is to be analysed as to whether such decision is malafide or it is so unreasonable, irrational or arbitrary. From the scheme of the contract it is evident that ready trucks (box type trucks) need be produced at the disposal of the company only after 15 days of LOI or within the extended period if any permitted. So permitting a person to participate in the tender with new chassis of trucks having temporary registration in their own name, cannot be termed as an W.P.(c) Nos.29385 & 29423/2012 -26- irrational, unreasonable or arbitrary decision, even if in strict sense it is construed that the term "truck" contemplated under the contract will not include the "chassis of a truck." As observed above, natural consequence of failure to produce ready trucks at the commencement of the contract will be cancellation of the tender and penal consequences corollary to such cancellation. But it cannot be presumed that the persons producing the chassis will fail in discharging their obligation. Learned Senior counsel fairly conceded that the petitioners have no case that the impugned decision is malafide in any manner. Eventhough allegation is made that such a decision is intended to favour respondents 3 to 5, it has come out that credential bids of so many others were also accepted, and most of them have quoted the same rates. Going by judicial precedents settled by the hon'ble apex court, I am persuaded to refrain from interfering with the impugned decision in exercise of judicial review, because I am not convinced in any manner that the W.P.(c) Nos.29385 & 29423/2012 -27- impugned decision is so unreasonable, arbitrary or irrational. Hence I decline relief, in exercise of the discretionary jurisdiction vested on this court under Article
226.
15. Under the above mentioned circumstances, these writ petitions deserve no merit and they are accordingly dismissed. However, I make it clear that this judgment will not in any manner preclude respondents 3 to 5 from discharging their obligations to produce ready trucks for commencement of the contract within the period stipulated. Needless to observe that on failure the company will be at liberty to cancel the contract and to take appropriate penal actions. It will be left open to the petitioners to seek such actions from the side of the company, on any such event of failure.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG/Pn True copy P.A to Judge