Calcutta High Court (Appellete Side)
The India Trading Company & Ors vs Hindustan Petroleum Corporation Ltd. & ... on 13 November, 2018
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
1
13.11.2018.
Item no. 447.
Court No. 1
dc/ap
M.A.T. No. 745 of 2018
With
CAN 5333 of 2018
The India Trading Company & Ors.
Versus
Hindustan Petroleum Corporation Ltd. & Ors.
Mr. Ambar Majumdar,
Mr. Santanu Chakraborty.
...For the Appellants.
Mr. Surojit Nath Mitra, Ld. Sr. Advocate,
Mr. Prasun Mukherjee,
Mr. Deepak Agarwal.
..For the HPCL.
This appeal is directed against a judgement and
order passed in the writ application. The subject matter of
challenge in the writ application was an order dated May
4, 2018 issued by the respondent-Corporation rejecting
the claim of the appellants for participation in the Road Transportation Tender 2018-23 for which expression of interest was invited by a notice dated February 12, 2018.
The fact of the case in a nutshell is that a "Road Transportation Tender 2018-23: Kolkata Terminal/Mourigram TOP" dated February 12, 2018 was issued by the respondent-Corporation inviting applications from the eligible Dealers/Direct Sales Consumers/SKO 2 Distributors for participating in the bid by submitting tender documents within March 6, 2018 (15:00 Hrs.). The appellant-Company submitted a representation dated April 3, 2018 offering its vehicle for acceptance of the respondent-Corporation for plying under the Tender in question with effect from October 1, 2018.
The respondent-Corporation in its reply dated May 4, 2018 rejected the prayer of the appellant-Company on the ground that the expression of interest tendered by the appellant-Company could not be accepted on the ground of non-fulfillment of the conditions prescribed in Clause 2(xvii) of the notice inviting tender relating to age criteria. According to the above Clause, the age of the vehicle offered, should not exceed 12 years for the concerned region, amongst other regions, as on (the Due date of EOI). The age of Tank Truck would be reckoned from the date of Manufacturing (Month & Year). The offered vehicles of the respondent-Company did not fulfil the above criteria.
The above letter of rejection was under challenge in the writ application. The writ application was rejected. Hence, this appeal.
It is submitted by Mr. Ambar Majumdar, learned Advocate appearing on behalf of the appellant-Company 3 that imposition of the restriction upon the owners of the vehicles the age of which were more than 12 years is arbitrary, unreasonable and violative of the fundamental right guaranteed under Article 14 of the Constitution of India. It is submitted by him that according to Clause 2(xvii) of the notice inviting tender in question prescribed the age of the offered vehicle for five years for Mumbai location, seven years for National Capital Region and twelve years for other locations without assigning any reason against that restriction. It is also submitted by Mr. Majumdar that the representation of the appellant- Company was accompanied by fit certificate and the records relating to fulfillment of pollution norms according to the provisions of the West Bengal Motor Vehicles Rules, 1989. According to him, the aforesaid restriction was contrary to the decision of the consortium of Indian Oil Corporation Limited, Bharat Petroleum Corporation Limited and Hindustan Petroleum Corporation Limited. Drawing our attention towards the notice inviting tender, it is submitted by him that the age of the eligible vehicle was prescribed as 14 years while under the notice inviting tender in question it was reduced to 12 years for the concerned region, arbitrarily. Reliance is placed by Mr. 4 Majumdar on the decisions of Coal India Limited & Ors.
- Vs. - Alok Fuels Private Limited & Ors. reported in (2010) 10 SCC 157 and Central Coalfields Limited & Anr. Vs. - SLL-SML (Joint Venture Consortium) & Ors. reported in (2016) 8 SCC 622 in support of his above submissions.
It is submitted by Mr. S.N. Mitra, learned Senior Advocate appearing on behalf of the respondent- Corporation that it is the discretion of the respondent- Corporation to fix the eligibility of the vehicles before entering into a contract with the vehicle owners/transporters concerned in order to ensure smooth, effective and uninterrupted supply of Petrol, Oil and Lubricants. According to him, unless arbitrariness is proved, the Court sitting in a writ jurisdiction must be slow to interfere with such an action on the part of the respondent-Corporation. According to Mr. Mitra, no restriction was imposed by virtue of the provision of Clause 2(xvii) of the notice inviting tender in question for the first time. He further submits that it was introduced from the year 2008 and the appellant-Company had been participating time and again in response to notice inviting tenders from 2008 onwards. The next limb of submission 5 of Mr. Mitra is the 12 years age limit of a vehicle was the maximum period mentioned in the notice inviting tender in question for the concerned region while shorter age limits of vehicles were prescribed for Mumbai location and National Capital Region. Therefore, it cannot be the allegation of the appellant-Company that they had suffered adversely in comparison to the vehicle owners or transporters of the other regions. Drawing our attention towards a Government Order No. 2827-WT/3M-86/2009 dated August 13, 2012, it is submitted by Mr. Mitra that the Government of West Bengal issued the above order in compliance of the order dated July 18, 2008 passed by a Division Bench of this Court (In re: W.P. 6377(W) of 2007) restricting plying of 15 years old commercial vehicles in the State. Therefore, according to him in view of the above order, there was no element of arbitrariness or violation of any fundamental right guaranteed to the appellant- Company. It is also submitted by Mr. Mitra that taking care of the above order, a provision was incorporated in the tender document for replacement of the vehicle during the existence of a contract in respect of Tank Trucks for adherence to the above condition.
6
We have heard the learned counsel appearing for the respective parties at length and we have considered the facts and circumstances carefully.
At the very outset, let us observe that in course of adjudication of a dispute by a Court sitting in writ jurisdiction, the issue of acceptance or rejection of a bid of a bidder should be looked at not only from the point of view of the unsuccessful bidder but also from the point of view of the employer.
In Ramana Dayaram Shetty -Vs.- International Airport Authority of India & Ors. reported in (1979) 3 SCC 489 it was observed by the Apex Court that the terms of notice inviting tender cannot be ignored as if they were redundant or superfluous. It was observed by the Hon'ble Supreme Court in the matter of Tata Cellular -Vs.- Union of India reported in (1994) 6 SCC 651 that there must be judicial restraint in interfering with the administrative function and ordinarily, the soundness of the decision taken by the authority ought not be questioned. However, the decision making process can only be subject to judicial review if it is irrational, malafide or intended to favour someone.
7
From the judgment impugned to this appeal, we find that the learned Single Judge took care of the discretionary power of the respondent-Corporation in taking a decision to mention a cut off age in the notice inviting tender for allowing the Tank Trucks to ply in different regions. The learned Single Judge further took into consideration the benefit enjoyed by a truck owners/dealers in the region concerned, which was maximum period of 12 years in comparison to the region of Mumbai, where the outer age was fixed for five years as also for National Capital Region in respect of which the outer age limit of the vehicle was fixed for seven years. We do not find any error or irregularity with regard to the above conclusion of the learned Single Judge.
More so, it was not in dispute that the appellant- Company had been participating in the tender process offering its Tank Trucks for plying in the region for carrying Petrol, Oil and Lubricants accepting the aforesaid provision.
We are aware of the fact that it was open for the appellant-Company to agitate its grievance in respect of the notice inviting tender in question in spite of participating in the tender process on earlier occasions 8 having similar clause, but we do not find any reason for the appellant-Company to wake up suddenly to challenge the above clause in the notice inviting tender of the respondent-Corporation after its expression of interest was rejected.
We find substance in the submissions made by the learned Senior Advocate appearing for the respondent- Corporation as also the finding of the learned Single Judge that after enjoying the benefit of maximum age limit of 12 years for the Tank Trucks in the region concerned, the question of arbitrariness does not lie on the mouth of the appellant-Company.
Last but not the least, we find that by virtue of the order dated August 13, 2012, a restriction has been imposed by the State Government on plying of commercial vehicles of more than 15 years of age in the State.
It will not be out of context to observe here that Mr. Majumdar, learned counsel appearing on behalf of the appellant-Company harps on the ground of fulfillment of the pollution norms of the Tank Trucks of the appellant- Company.
In our considered view, either such a submission is misconceived or it is an attempt to drag the Court to 9 rewrite the conditions of the contract. The basis of rejection of the offer made by the appellant-Company is non-fulfillment of a condition of the notice inviting tender.
So far as the maximum age of the Tank Trucks was concerned, it was an independent decision of the respondent-Corporation to accept the offer of plying vehicles to ensure smooth, effective and uninterrupted supply of Petrol, Oil and Lubricants. Fulfillment of the emission norms is a different issue altogether having no bearing on the issue involved in the writ application. We do not find any error or irregularity in the findings of the learned Single Judge in this regard.
With regard to the decision of Coal India Limited (supra), we find that the ratio laid down in the above decision is the scope of moving an application under Article 226 of the Constitution of India in contractual matters in a case of alleged violation of the provisions of Article 14. No challenge is thrown by the respondents with regard to the maintainability of the writ application nor has that ground been taken before us on behalf of the respondent-Corporation. Therefore, this judgment does not help the appellants in any way.
10
In view of the distinguishable facts and circumstances and the issue involved in the matter of Central Coalfields Limited (supra) in which the issue involved was the action on the part of the Authority in deviating from the terms and conditions of the notice inviting the judgment, does not help the appellants in any way.
In view of the discussions and observations made hereinabove, this appeal together with the application bearing CAN 5333 of 2018 are dismissed.
There will be, however, no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible on compliance of all necessary formalities.
(Debasish Kar Gupta, C.J.) (Shampa Sarkar, J.)