Himachal Pradesh High Court
M/S Rishubh Sales Corporation vs Union Of India And Others on 30 March, 2015
Bench: Chief Justice, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
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CWP No. 1287 of 2015 Judgment reserved on: 24.3.2015 Date of Decision : March 30, 2015.
M/s Rishubh Sales Corporation ...Petitioner Versus Union of India and others . ...Respondents.
Coram The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ? Yes For the Petitioner : Mr. Ajay Sharma, Advocate.
For the respondents : Mr. Ashok Sharma, Assistant Solicitor General of India.
Tarlok Singh Chauhan, Judge By medium of this writ petition, the petitioner has claimed the following substantive reliefs:
"(a). That impugned letter dated 21.1.2015, Annexure P-9, may very kindly be quashed and set aside with suitable directions to the respondents to adhere to letter dated 14.1.2015, Annexure P-5, issued with respect to approval of the tender of the petitioner and allow the petitioner to complete the said work in accordance with the terms of the tender, in the interest of law and justice.
(b) That in the alternative, it is submitted that petitioner having been put to heavy losses - financial and mental, and in the reputation of business of the petitioner also, although the same is not able to be calculated in terms of money, but respondents may very kindly be directed to pay a sum of ` 50.00 lacs to the petitioner in lumpsum. This prayer is being made in the alternative and respondents can be left with the option to recover the said amount from the erring officers/officials."
______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 15/04/2017 17:54:17 :::HCHP 2 The facts as pleaded in the petition are thus.
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2. On 12.9.2014 the respondents invited tenders for supply of ISO certified Indian Manufacturers' Make SMF UPS Batteries with two years' warranty for the year 2014-15 for supplying the same to various Post Offices in H.P. Postal Circle on buy-back scrap of old batteries scheme. This tender was cancelled and a fresh tender for the same items was issued on 24.11.2014 and the date of opening of the technical bid was fixed on 19.12.2014 and commercial bid on 20.12.2014. However, the respondents opened the technical bid which was fixed on 20.12.2014 earlier on 19.12.2014 itself without intimation to the petitioner.
3. The petitioner vide communication dated 14.1.2015 (Annexure P-5) was informed by the respondents that the competent authority had approved his rates for the supply of 12V 18 AH and 12 V 42 AH SMF ETDC/JIS certified UPS Batteries under buy back with two years warranty at the rate of ` 1585.40 and ` 2843.75 paise respectively. It was further mentioned that the rates approved would be applicable for a period of one year w.e.f. 14.1.2015 to 13.1.2016.
4. The petitioner was directed to produce the sample of batteries for verification and checking and after approving the same the petitioner was informed through e-mail for supply order whereby it was required to supply these items to the incumbents/ incharges of Post Offices/Sub Post Offices in the State of Himachal Pradesh. The respondents asked for security in the shape of FDR and pledge the same in the name of the respondents which was duly pledged on 17.1.2015.
::: Downloaded on - 15/04/2017 17:54:17 :::HCHP 35. It is then pleaded that since the requirement of the .
respondents was emergent, the petitioner immediately contacted M/s Exide Batteries Ltd. manufactures of Batteries and procured the requisite batteries. As the supplies were to be made to far and distinct places, the petitioner also purchased a vehicle, the invoice whereof has been annexed as Annexure P-8 with the petition. All of a sudden vide letter dated 21.1.2015 the approval granted in favour of the petitioner on 14.1.2015 was ordered to be kept in abeyance till further orders.
6. After making desperate attempts here and there to know the reasons why the approval in its favour had been kept in abeyance, the petitioner was compelled to make a representation dated 10.2.2015 to the respondents but to no avail and thereafter constraining him to approach this Court by way of present petition.
7. In reply to the petition, the respondents have raised preliminary submission to the effect that the rates of the petitioner were approved erroneously by calculating tax @ 5% against 'D' form but no order was placed with the petitioner by respondent No.2. The petitioner was asked to furnish performance security in the shape of bank FDR vide letter dated 14.1.2015. However, in the meanwhile, M/s R.B. Enterprises, SCO 135, Sector 28D, Chandigarh and M/s Dynamic Powers, HSIIDC, Kundli, Sonipat, Haryana who also participated in the tender process and allotted partial work, had intimated/objected telephonically as well as in writing that the relaxation of tax on production of 'D' form for Central/State Government had already been withdrawn w.e.f. 1.4.2007 as finds mention in the letter of Excise and ::: Downloaded on - 15/04/2017 17:54:17 :::HCHP 4 Taxation Department, Government of Himachal Pradesh bearing No. 12-18/80-EXN-Tax-0758-10838 dated 9th May, 2007. Subsequently, .
the copy of this letter was collected for confirmation and after satisfying itself, a tender Re-evaluation Committee was constituted to re-evaluate the commercial bids in the light of instructions issued by the competent authority on 21.1.2015 and thereafter the approval of tender rates for supply of UPS batteries was ordered to be held in abeyance till further orders.
8. According to the respondents the petitioner had misled the respondent with his letter dated 'Nil' received in the office of respondent No.2 on 22.12.2014 i.e. after opening of tender wherein the petitioner had stated that "tax will be charged @ 5% against 'D' form if the tax will be more, I will not claim the difference from the Department" which was in violation to the provision of Rule 160 (xi) of GFR wherein it was clearly provided "Bidders should not be permitted to alter or modify their bids after expiry of the deadline for receipt of bids". The tax relaxation against form 'D' had already been withdrawn by the Central/State Government on 9.5.2007 consequent upon change in the rate structure of Sales Tax (VAT) and such purchaser accordingly attracted clearly VAT rate applicable within the State vide Excise and Taxation Department letter dated 9.5.2007. The rates quoted by the petitioner were approved by calculating tax @ 5% against 'D' form which in fact were required to be calculated @ 13.75%.
9. Respondents did not deny the receipt of the earnest money but claimed that the same stood released by respondent No.2 ::: Downloaded on - 15/04/2017 17:54:17 :::HCHP 5 to the petitioner vide his letter dated 19/24.2.2015. Even the .
performance security amounting to `3,66,900/- which was received by the respondent was ordered to be returned to the petitioner vide letter dated 24.2.2015.
10. In rejoinder, the petitioner has stated that it was owing to earlier practice as is prevalent in the respondent department that petitioner while submitting his bid calculated the tax against 'D' form at the rate of 5% and incorporated the same in the bid forms, which were accepted by the respondents and therefore, they could not now turn around and question the same. The petitioner has reiterated that in the event of tax being charged at higher rate, it was ready to bear the said liability and would not claim the difference from the respondents. It is lastly averred that even after deducting the tax at the rate claimed by the respondents themselves, even then the rates offered by the petitioner are the lowest.
11. We have heard learned counsel for the parties and have also gone through the records carefully.
12. The respondents in order to justify their stand that the tender of the petitioner in fact was not the lowest have relied upon the re-evaluation made by the Tender Re-evaluation Committee on 30.1.2015 which is as under:
Sr Name of Rate quoted for Rate quoted Rate quoted Rate quoted for No. tenderer 12V/7AH for 12V/18AH 12V/26AH 12V/42AH
1. Dynamic ` 530.46 ` 1809.78 ` 2936.37 ` 4197.50 Powers
2. Rishubh ` 768+105.60 `1748+240.35 `2397+329.59 ` 3375+464.06 Sales (13.75%ST) (13.75%ST) (13.75%ST) (13.75%ST) Corporat- =`105.60-100 =`1984.35-250 =`2726.59-400 =`3839.06-
ion = ` 791.60 = ` 1734.35 = ` 2326.59 700 = ` 3139.06 ::: Downloaded on - 15/04/2017 17:54:17 :::HCHP 6
3. RB ` 657.00 ` 1628.00 ` 1842.00 ` 2867.00 Enterprises .
Lowest ` 530.46 ` 1628.00 ` 1842.00 ` 2867.00 Rates
13. Admittedly the petitioner vide letter dated 'Nil', which was received by the respondents on 22.12.2014 had already informed them that though in the tender offered by it regarding supply of UPS Batteries the tax shown to be charged was at the rate of 5% against form 'D' but in case the tax would be more, it would not claim the difference of the tax from the department. It is relevant to quote in verbatim the letter which reads thus:
"To Chief Post Master General H.P. Circle, Shimla.
Subject: Vide your Reference letter number Tech/2-33/2014-15.
Sir, Refer to our tender dated 27.12.2014 regarding supply of UPS Battery in this regard. It is submitted that tax will be charged @ 5% against FORM 'D'/ If the tax will be more, I will not claim the difference of the tax from the department.
For Example: The rate of the 12 Volt 42 AH Battery= `3375+5% tax =`3543.75 - `700.00 (old scrap battery rate) = `2843.75 net."
14. Based upon such communication, the petitioner was informed vide letter dated 14.01.2015 that its tender for the supply of 12 V 18 AH & 12 V 42 AH SMF ETDC/JIS certified UPS Batteries under buy back with two years warranty in various Post Offices in Himachal Pradesh Circle i.e. `1585.40 and `2843.75 paise respectively had been approved. It is apt to reproduce the contents of this letter which reads thus:
::: Downloaded on - 15/04/2017 17:54:17 :::HCHP 7"To M/s Rishubh Sales Corporation .
Didwin Tikker Hamirpur, Distt. Hamirpur - 177401 Sub: Approval of Tender Rates for supply of 12V7 AH and 12V 42 AH UPS batteries.
With reference to your Tender dated 24.11.2014, it is intimated that the competent authority has approved your rates for the supply of 12 V 18 AH & 12 V 42 AH SMF ETDC/JIS certified UPS Batteries under buy back with 2 (two) years warranty in various Post Offices in Himachal Pradesh Circle i.e. `1585.40 (Rs. One thousand five hundred eighty five and paise forty only) and `2843.75 (Rs. Two thousand eight hundred forty three and paise seventy five only) respectively. The rates approved by this office will be applicable for the period of one year w.e.f. 14.01.2015 to 13.01.2016.
You are requested to show the sample of the above mentioned UPS battery to be supplied to the undersigned on any working day. The specification of the above approved item should be as per parameters and technical specifications given in the Tender. The above rates are F.O.R. for Post Offices in H.P.Circle. You are also requested to deposit in cash in any Post Office under UCR (Unclassified Receipts)/F.D.R. pledged to Asstt. Director (Technology) O/o CPMG H.P. Circle, Shimla an amount equal to 5% of the value of the work allotted to you i.e. Rs.67,36,819.55 (Rs. Sixty seven lakhs thirty six thousand eight hundred nineteen and paise fifty five only) security deposit within 7 days from the date of acceptance of the tender order."
15. Now when the rates approved in favour of the petitioner are compared with the re-evaluation made by the Tender Re-evaluation Committee on 30.1.2015 it would be seen that though according to the respondents the lowest rates for 12 V 18AH batteries is `1628/- whereas the rates approved in favour of the petitioner are definitely lower at `1585.40. Similarly, the rates approved for 12 V 42 AH batteries according to the respondents is `2867/-, whereas the rate of the petitioner is lower at `2843.75 paise. Once this be the position, then it can definitely be concluded that petitioner had not only offered ::: Downloaded on - 15/04/2017 17:54:17 :::HCHP 8 the lowest price but the same in turn had been approved by the .
respondents themselves and thereafter even orders had been placed.
16. The supplies being made by the petitioner are indisputably to a Government Department i.e. Department of Posts, once the department itself is a beneficiary on account of the lowest tender being offered by the petitioner, then the tender offered by the petitioner cannot be kept in abeyance that too only on a technical ground. The action of the respondents is thus not only perverse, unreasonable but also arbitrary and if allowed to stand would seriously affect the public interest and therefore, cannot be sustained and is accordingly set-
aside.
17. In view of the aforesaid discussion there is merit in this petition and the same is accordingly allowed and the letter dated 21.1.2015 (Annexure P-9) is quashed and set-aside. Pending application, if any, is also disposed of. The parties are left to bear their own costs.
( Mansoor Ahmad Mir)
Chief Justice
March 30, 2015 (Tarlok Singh Chauhan),
(GR) Judge.
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