Document Fragment View

Matching Fragments

1. Rule. With the consent of the parties the matter is taken up for final hearing and disposal.

2. The present petition relates to the export cargo handling services at Indira Gandhi International Airport (Cargo Terminal). Cargo Handling is divided into two sub groups: one for imports and one for exports. In March 2002 a tender was floated for Cargo Handling Services at Indira Gandhi International Airport (Cargo Terminal). The tender comprised of a two part bid: (i) a technical bid and (ii) a price/commercial bid. The petitioner along with several others submitted their bids for the export cargo handling services. After the evaluation of the technical bids only three parties remained: the petitioner, respondent No. 4 and respondent No. 3.

It is an admitted fact that respondent No. 3 was already providing the import cargo handling services. This being so, Mr. Mehta contended that as a general rule respondent No. 3 ought not to have even been considered for the export cargo handling services. He fairly stated that while it is true, that the Airport Authority of India (Respondent No. 2) by virtue of the said Clause 14 had the right to award both the contracts to a single party if the situation as demanded in the best interest of AAI, this was not such a situation. The petitioner was ready and willing to discharge the obligations if the contract was awarded to it. Thus, in the first instance the petitioner ought to have been approached. It is further pointed out that the petitioner was not even called for discussions whereas the letter dated 17.7.2003 itself indicates that respondent No. 3 was called for discussion held in the office of the General Manager, Cargo regarding temporary arrangement for handling export cargo at the IGI Airport Cargo Terminal. Mr Mehta further submitted that the award of the temporary contract to respondent No. 3 was clearly arbitrary and was done behind the back of the petitioner who was also keenly interested in the matter as it was the petitioner's initial letter dated 14.6.2003 and subsequent follow up action which resulted in respondent No. 4's contract being cancelled on the ground that it had been obtained on mis-representation, false documents and upon playing a fraud. Thus, it was natural and reasonable for the respondent No. 2 to have first approached the petitioner for taking over the export cargo handling functions which had been hitherto carried out by the respondent No. 4.

Relying upon the above learned senior counsel for the petitioner submitted that the decision to award the export cargo handling services, albeit temporarily, to respondent No. 3 was taken completely ignoring the fact that the petitioner was ready and willing and available to do the same and had been pursuing the matter from the very beginning. The petitioner is aggrieved not so much by the decision itself but the fact that it was completely ignored and not even called for discussions. At best it was a case of non-application of mind and at the worst it was one of rank arbitrariness. Either way, the decision was bad. This is further aggravated by the fact that if it is held that respondent No. 4 had fraudulently got the contract then in law it was the petitioner who would have been L-1 as fraud vitiates everything and the respondent No. 4's bid would be non-est. In that event, the petitioner would clearly be L-1 and the contract would have been awarded to him. Respondent No. 4's fraudulent actions have resulted in injustice to the petitioner. This injustice is further compounded by the fact that when the temporary arrangement was made the petitioner was not even considered or called for discussions. To my mind, the submissions made on behalf of learned counsel for the petitioner are very compelling and no reasonable explanation has been offered by the respondent for excluding the petitioner from even discussions while the cargo handling services were temporarily awarded to the respondent No. 3.

11. In this view of the matter, the decision of the respondent No. 2 to award the contract temporarily to respondent No. 3 cannot stand the scrutiny of reasonableness and is liable to be set aside on the ground of arbitrariness. Accordingly, the letter dated 17.7.2003 of the respondent No. 2 whereby the respondent No. 3 has been granted the work temporarily is quashed and set aside. Since the petitioner was L-1 (behind the bid of respondent No. 4), and was ready and willing at all stages to take on the job, the petitioner ought to have been approached first for the export cargo handling services. Learned counsel for the petitioner has clearly submitted that the petitioner would be satisfied entirely if the work awarded to respondent No. 3 is awarded to the petitioner on the same terms and conditions. In view of this, he would not press for the other prayers and particularly prayer (c). He would also not press for the award of the contract proper as the respondents have indicated that a fresh tender would be called in the near future. He would be fully satisfied if a temporary arrangement till such fresh tender is finalised is made with the petitioner instead of the respondent No. 3. It is also clear that awarding the temporary arrangement to the petitioner would also be in consonance with Clause 14 of the original NIT which indicated that in normal circumstances both export and import cargo handling services should not be handled by the same person. The impugned order dated 17.7.2003 in favor of respondent No. 3 is quashed and it is directed that the respondent No. 2 award the same to the petitioner on the same terms and conditions. The respondent No. 2 shall at the same time ensure that the transition from respondent No. 3 to the petitioner is done smoothly and without any disruption in the export cargo handling services. It is also pertinent to note that, despite service, respondent No. 3 chose not appear in the present proceedings.