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Madhya Pradesh High Court · body

2009 DIGILAW 531 (MP)

PRIYA MINERALS v. STATE OF MADHYA PRADESH

2009-04-22

DIPAK MISRA, R.K.GUPTA

body2009
Judgment ( 1. ) THE petitioner by filing this petition has claimed numerous reliefs. The petitioner prays for writ of Certiorari for quashing the order of appointment of the respondent no. 3 as a successful bidder on 28/12/2006 for the sale of Rock Phosphate/phosphorus Penta Oxide in state of Assam/north Eastern State and West Bengal. The petitioner further prays for a writ of Certiorari to quash the order passed by the collector, Sagar restraining the petitioners and the other persons involved in the business of transportation and sale of their Rock phosphate/phosphorus Penta Oxide previously purchased by them. ( 2. ) THE facts leading to the present case are that the respondent no. 2 issued NIT notice inviting tender which is Annexure-P-1. The aforesaid tender was invited for sale of 15,000 metric tones of Rock Phosphate p. a. of Phasphorus Penta Oxide (P205) for two years containing 18-20% phosphorus Penta Oxide (P205) from its mines which located at Sagar and Chhatarpur for sale in Assam/north Eastern State and West bengal. As per the petitioners averments 5 tenders were received. So far as the petitioners No. 1 and 2 are concerned they were disqualified similarly other two parties such as Sirohiya and Sons P. Ltd Calcutta and Anoop traders, Gwahati Assam were also of disqualified. ( 3. ) IN view of the aforesaid the only qualified tenderer was the respondent no. 3 and his tender has been accepted. ( 4. ) ACCORDING to the petitioners they are qualified but on technical bid they have wrongly been disqualified. The respondent no. 2 in their return have submitted that both the petitioners were not possessing the registration from agriculture department of any of the State such as assam/north Eastern State and West Bengal or by the State of Kerala, tamilnadu, Karnataka to sell the Rock Phosphate/phosphorus Penta oxide. In the said State. The aforesaid registration was required under the provisions of Fertilizer Control Order, 1985. According to the respondents since the petitioners were not registered, therefore in technical bid they were not qualified and thus their tenders have not been considered. ( 5. ) ON behalf of the petitioner it is contended that the petitioner no. 1 was having such a registration. ( 6. ) TO substantiate the same the learned Counsel for the petitioner brought to our notice form Annexure-A-2 which is placed on record at page no. ( 5. ) ON behalf of the petitioner it is contended that the petitioner no. 1 was having such a registration. ( 6. ) TO substantiate the same the learned Counsel for the petitioner brought to our notice form Annexure-A-2 which is placed on record at page no. 29 of the documents of the paper book, which is alleged to be an enclosure to the tender form. With reference to the petitioner no. 1 it is to be seen that the another document has been placed on record which is said to be certificate issued from the Directorate of Agriculture, vindhyachal Bhawan, Bhopal (M. P.) and according to the same the said registration was issued on 14/02/2005 and was valid up to 31st March 2006. So far as the petitioner no. 2 is concerned similar document has been placed on record as Annexure-P-4, the same was issued on 31st march 2003 and it was valid till 31st March 2006. This is a document issued from the State of Assam which is said to be a certificate of registration to carry of the business of selling in the State of Assam. ( 7. ) IN view of the aforesaid facts the question in the present case is whether on the basis of the aforesaid documents both the petitioners were having valid registration in their favour on the date when the tender was submitted ? With reference to the documents as referred in page no. 29 of the paper book, it is only an acknowledgement with reference to the challan submitted by the petitioner of Rs. 300/- on 17/03/2005. This document is in the name of Shri M. A. Bhasyam, Managing Partner, of other company of Kattayam, and the same is not in the name of petitioner no. 1. The said document under these circumstances cannot be said tobe a required certificate. The question again arises in the present case with reference to the document which is at page 30. The validity of the said certificate was only till 31st March 2006. ( 8. ) IT is not a case of the petitioner no. 1 that while filling-up the tender form he has given intimation about moving of the application for renewal of the registration certificate which expired on 31st March 2006. The validity of the said certificate was only till 31st March 2006. ( 8. ) IT is not a case of the petitioner no. 1 that while filling-up the tender form he has given intimation about moving of the application for renewal of the registration certificate which expired on 31st March 2006. In the absence of any averments as such it is very difficult to accept the submission made on behalf of the petitioner no. 1 that on the date of submission of the tender he was having the valid registration certificate in his favour. The submission is that the validity of the certificate continues to be enforce because an application was submitted for renewal. It was for the petitioner to intimate in the tender form that the application for renewal has been made so that the benefit of Rule 11 of the Fertilizer Control Order, 1985 could have been given to the petitioner no. 1. ( 9. ) IN view of the aforesaid, we are not prepared to accept that Rule 11 of Fertilizer Control Order, 1985 would help the petitioner no. 1 in any manner. ( 10. ) WITH respect to the petitioner no. 2 the document is placed on record as Annexure-P-4. This is the registration certificate which was valid up to 31st March 2006. The tender was tobe submitted in terms to the NIT on 27/12/2006. There is nothing on record that any application as such for renewal was made. Further it is also not on record that the petitioner no. 2 in his tender form has intimated that an application for renewal has been made. The necessary condition in NIT for appointment of the agent for sale of Rock Phosphate/phosphorus Penta Oxide was that the bidders must possess the registration certificate of the agriculture department of any of the State i. e Assam/north Eastern State and West Bengal or State of Kerala, Tamilnadu, Karnataka to sell Rock phosphate/phosphorus Penta Oxide. This is said to be the necessary condition of the tender, and both the petitioners since were not having a valid Tender in their favour on 27/12/2006 which was last date of filling up the registration form, therefore it cannot be said that the respondents have acted arbitrarily in not accepting the bid submitted by the petitioners. This is said to be the necessary condition of the tender, and both the petitioners since were not having a valid Tender in their favour on 27/12/2006 which was last date of filling up the registration form, therefore it cannot be said that the respondents have acted arbitrarily in not accepting the bid submitted by the petitioners. It also cannot be said that the respondents arbitrarily have refused to consider the tender submitted by the petitioners. Both the petitioners were not having requisite and necessary condition as per the tender for the appointment of the agents. ( 11. ) IT is also submitted on behalf of the petitioner that out of total five bidders the bid of the respondent no. 3 has been accepted. In the present case as we have already discussed in the earlier paragrah that the respondent no. 1 has floated a tender. It is not a case where without inviting tender the respondent no. 3 has been appointed the agents to sale Rock Phosphate/phosphorus Penta Oxide. Other four persons were disqualified in the technical bid. The respondent no. 2 under the circumstances was left with no option to accept the tender of the respondent no. 3 which has also been accepted. It is also not the case of the petitioner that while accepting the bid of the respondent no. 3, the same is accepted on very lower price, so that this Court would have exercise the power of judicial review with respect to the arbitrariness of the respondents no. 2. ( 12. ) IT is not a case of the petitioners that the respondent no. 3 was not qualified. ( 13. ) IN view of the aforesaid aspect we are of the opinion that while distributing the State larges the respondent no. 2 has not acted arbitrarily when the tender of the respondent no. 3 was accepted. It is also not a case of the petitioners that the condition, which was imposed of having the registration from the agriculture department of the concerned State where Rock Phosphate/phosphorus Penta Oxide were to be sold is arbitrary. The condition as such is a necessary condition in view of the Fertilizer Control Order, 1985 which provides for obtaining the registration to said minerals. ( 14. The condition as such is a necessary condition in view of the Fertilizer Control Order, 1985 which provides for obtaining the registration to said minerals. ( 14. ) THE another submission made on behalf of the petitioners to quash the order passed by the Collector, wherein the Collector, Sagar has restrained the petitioners and any other persons involved in the business of transportation and sale of their Rock Phosphate/phosphorus penta Oxide previously. The aforesaid condition has nexus. It is so because the petitioners do not have the registration with them, which is required under the Fertilizer Control Order, 1985, even for the sale of such articles there was a possibility that the petitioners may sell previously purchased material to transport from the outside state. ( 15. ) IN view of the aforesaid we do not interfere into the said order. We also do not find any case in favour of the petitioner and accordingly petition stands dismissed.