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2015 DIGILAW 2762 (MAD)

Saravana Transports rep. by its Partner v. Managing Director, Tamil Nadu Civil Supplies Corporation

2015-08-11

R.SUBBIAH

body2015
ORDER : This Writ Petition has been filed praying for a Writ of Mandamus forbearing the first respondent in any way from issuing the contract / work order pertaining to the transportation of commodities from Food Corporation of India Depots to Tamil Nadu Civil Supplies Corporation Storage points on the basis of the tender notification dated 18.06.2015 in respect of Ramnad, Sivagangai and Udhagamandalam. 2. The case of the petitioner is that he is a Class I Transport Contractor having rich experience in transportation since 1992. He has been dealing with the transportation business by transporting the food commodities from the respective Food Corporation Depots to various depots through out Tamil Nadu. While so, the Tamil Nadu Civil Supplies Corporation, Chennai, had issued the tender notification inviting tenders for transportation of commodities from Food Corporation of India Depots for the period from 01.07.2015 to 30.06.2017 (except Krishnagiri and Thiruvallur Districts) on 18.06.2015. As per the said notification, the tender was issued for transportation of commodities through out Tamil Nadu, for which, the petitioner had quoted tenders in respect of transportation of the commodities for Ramnad, Sivagangai and Uthagamandalam. The last date for submission of the tender documents for Ramnad and Sivaganga was 07.07.2015 at 11.00 a.m. while for Udhagamandalam it was fixed on 08.07.2015 at 11.00 a.m. The said tender consists of two parts. It is averred that Part-I deals with technical bid, while Part 2 deals with price bid. 3. While so, the technical bid for Ramnad and Sivagangai was opened on 07.07.2015 at 11.30 a.m. and Part II bid was opened on the same day at 2.30 p.m. It is stated that the petitioner qualified in both the bids, namely, technical bid and price bid. When the petitioner expected that the contract would be awarded to him, curiously, the first respondent had issued the said tender to the second respondent herein, who is the second lowest bidder. Similarly, the first respondent did not chose to open the technical bid of the petitioner for Sivagangai and Udhagamandalam, though he opened the technical bid of the second respondent herein, on the scheduled date and time fixed by the first respondent. The first respondent has also awarded the contract in favour of the second respondent. 4. The petitioner, being the lowest tenderer, on questioning the reason for non-awarding the contract for Ramnad Region, the first respondent gave an evasive reply. The first respondent has also awarded the contract in favour of the second respondent. 4. The petitioner, being the lowest tenderer, on questioning the reason for non-awarding the contract for Ramnad Region, the first respondent gave an evasive reply. Later, he came to know that it was not considered as he did not produce the turnover certificate as per the stipulation in column No.4. However, the petitioner claims that he has produced the said Certificate for the years 2013-2014 and 2014-2015 which was issued by the first respondent himself wherein it was stated that the petitioner has carried over the business to the tune of Rs.265 Lakhs during the year 2014-2015. Therefore, the first respondent had erroneously rejected the claim of the petitioner with a mala fide intention for Ramnad Region. 5. Apart from that, it is alleged by the petitioner that the first respondent did not open the tender for Sivagangai and Udhagamandalam with regard to price bid and the said contract was awarded to the second respondent. Further, though the first respondent is duty bound to announce the results of the tender on the very same day, for Ramnad and Sivagangai Region, it was announced only on 10.07.2015, which is violation of the terms and condition of the very tender. It is pertinent to point out that in the tender notification issued by the first respondent, at column Part I qualification bid morefully with regard to ineligibility of the participants it was stated that the 'the tenderer is ineligible to participate in the tender if he or she is convicted for criminal misconduct or the tenderer or any of his partner or any of his directors as the case may be, is declared insolvent or an indischarged insolvent or has been detained under any law such as FERA COFEPOSA GOONDA's Act etc or any DVAC enquiry or any FIR pending / filed by CS CID Food Cell until the acquittal. However, the second respondent is involved in illegal acts of transporting the material belonging to the first respondent. To sum up, the first respondent has pre determined his mind to help the second respondent by all means. Hence, he has come up with this Writ Petition for the relief stated supra. 6. However, the second respondent is involved in illegal acts of transporting the material belonging to the first respondent. To sum up, the first respondent has pre determined his mind to help the second respondent by all means. Hence, he has come up with this Writ Petition for the relief stated supra. 6. The first respondent has filed a counter inter alia stating that the respondent Corporation is entrusted with the major task of procurement, storage and distribution of essential commodities to 32,000 nos of ration outlets functioning through out Tamil Nadu for which the first respondent corporation is storing food grains in more than 300 godowns at various regions. The procured paddy, hulled rice from the mills apart from wheat and other Public Distribution System commodities are lifted from Food Corporation of India. (for short 'FCI') Such allotment from Central Government for every month will lapse if there is any failure to lift the stock from FCI within the end of every month. As such, the FCI liftment is time bound one. In connection with the above aspect, the transport contractors are appointed for each region every year under the above two major categories. In this case, the petitioner had participated for FCI movement for Ramnad, Sivaganga and Udhagamandalam regions for the tender year 2015-2017 for a period of two years. It is further averred that the tenderer should satisfy and fulfil all the conditions stipulated in the tender documents. One among such conditions is that valid PAN CARD of the tenderer with self attestation should be enclosed and original must be produced at the time of verification. If any deviation noticed, the part II cover (price bid) will not be opened under any circumstances. 7. Further, the tenderer must have an average annual turnover off Rupees Two crores for the preceding three assessment years i.e.2012-2013, 2013-2014 and 2014-2015 for transportation of rice, sugar, wheat, paddy and dhal with the details of quantity & commodity transported should be produced duly certified by the concerned authority and also duly certified by the Charted Accountant and to produce xerox copy of Income Tax Return filed in the name of tenderer or the firm with Income Tax Department office seal, profit and loss statement, balance sheet, SARAL/Form No.2/2D duly attested by the Charted Accountant. Further, the tenderer must have experience in transportation of rice, sugar, wheat, paddy and dhal for three years, the experience certificate must be produced containing the particulars of transport charges received, the commodity and quantity transported and obtained from the public sector undertaking of State/Central Government. The amount received for transportation of rice, sugar, wheat, paddy and dhal alone will be calculated in respect of turn over for preceding three years. 8. While the situation stood thus, the petitioner had produced turn over certificate for more than six crores through Charted Accountant, however, on verification, it came to light that his turn over was only Rs.99 Lakhs alone. Hence, the second lowest tenderer, namely, the second respondent, was declared as the lowest tenderer for FCI movement, Ramnad District. As the petitioner's Certificate produced for turn over for more than six crore through Charted Accountant has not tallied with the respondent's corporation account, the price bid of the petitioner for Sivagangai and Udhagamandalam was not considered although the price bid of the other tenderers were opened and the second respondent was declared as the lowest tenderer for the above said two regions. Though he claimed that he is the transport contractor for FCI movement in Dharmapuri Region for the year 2013-2014 and 2014-2015, on verification, it was found that he was not the FCI contractor for the period from 2013-2014 and 2014-2015. As the petitioner had produced a false certificate for the turn over for 2013-2014 and 2014-2015, his claim was turned down by the first respondent. Therefore, he he has no locus standi to file this Writ Petition as he has not approached the first respondent with clean hands. 9. Added further, the petitioner has not produced proper PAN CARD in the name of M/s.Saravana Transport. During verification, it came to light that the Registration Deed produced by the petitioner has been cancelled by the District Registrar, Pudukkottai, as per the letter dated August 2015 and therefore, it was construed that the petitioner has not produced proper PAN Card in the name of M/s.Saravana Transports. Thus the learned counsel for the first respondent prayed for the dismissal of this Writ Petition. 10. The second respondent has also filed a detailed counter affidavit reiterating the averments made by the first respondent. 11. This matter came up for hearing on 15.07.2015 and this Court had granted an order of interim injunction. 12. Thus the learned counsel for the first respondent prayed for the dismissal of this Writ Petition. 10. The second respondent has also filed a detailed counter affidavit reiterating the averments made by the first respondent. 11. This matter came up for hearing on 15.07.2015 and this Court had granted an order of interim injunction. 12. The learned counsel for the petitioner submitted that though the petitioner is the lowest tenderer and was fully eligible to participate in the tender in question, the first respondent did not choose to issue work order / contract to the petitioner for the reasons best known to him. Further, the situation has gone from bad to worse when the first respondent did not chose to open the technical bid of the petitioner alone, when he had chosen to open the bids of the second respondent for both the regions. Therefore, not only principals of natural justice is violated but also, there is mala fide on the part of the first respondent. Yet another ground for rejection is that the petitioner's PAN Card stands in the name of Saravana Transports while the name of the transport firm of the petitioner in other documents including the alleged partnership deed produced in the tender is Saravana Tranport. For which, the learned counsel for the petitioner submitted that it is a bona fide mistake and only on this ground, the first respondent cannot reject the case of the petitioner in toto. Further, it is incorrect to state that the petitioner has not produced the turn over certificate as required by the petitioner. Though the petitioner has produced the said Certificate, it was withdrawn by the Regional Manager of TNCST-Dharmapuri on 02.07.2015 for the reasons best known to him. The third reason assigned by the first respondent is that the petitioner firm was not registered. However, it is stoutly denied by the learned counsel for the petitioner that he has been doing this transport business since 1992. However, in the year 2014, some of the partners were included in the firm and therefore it was reconstituted, which cannot be construed as the petitioner has established his firm only in the year 2015 alone. Further, the learned counsel for the petitioner submitted that the second respondent in favour of whom the contract was awarded is involved in a criminal case. 13. Further, the learned counsel for the petitioner submitted that the second respondent in favour of whom the contract was awarded is involved in a criminal case. 13. The learned Additional Advocate General through his counter affidavit submitted that as per the tender conditions, the petitioner has to produce three year turn over certificate duly certified by a Charted Accountant. Though he has produced the same, it is only for a period of two year and not for three years. Further, the turn over certificate issued by the competent authority was later withdrawn on 02.07.2015 and therefore, at the most, the petitioner can be construed as not having the Certificate as required by the first respondent. Further, the partnership firm was also subsequently cancelled by the District Registrar. Therefore, he prayed for the dismissal of this Writ Petition. 14. The second respondent has submitted that he being the second lowest tenderer and also since the petitioner does not fulfil the conditions laid down by the first respondent, he may be awarded with the contract, as he has invested huge money in this regard. 15. Heard the submissions made by the parties concerned and perused the materials available on records. 16. Though very many contentions have been raised in this Writ Petition by both the parties, this Court wants to deal with the primary aspect involved in this Writ Petition, which will be the basis for considering the other issues. Prima facie, it comes to light that the petitioner does not fulfill the major conditions stipulated in the tender documents. In the case on hand, the basic ingredient for awarding the contract is the petitioner should have turn over certificate for a period of preceding three assessment years, namely, 2012-2013, 2013-2014 and 2014-2015 in transportation of rice, sugar, wheat, paddy and dhal with the details of quantity and commodity transported, so as to draw an inference that the petitioner has the capacity to fulfil the requirements of the first respondent. Though the said Certificate dated 02.07.2015 was initially issued in favour of the petitioner, on enquiry, at a later point of time, it was cancelled by the first respondent, as he was not the FCI contractor, as claimed by him. The petitioner has not chosen to challenge the cancellation Certificate in the manner known to law. Though the said Certificate dated 02.07.2015 was initially issued in favour of the petitioner, on enquiry, at a later point of time, it was cancelled by the first respondent, as he was not the FCI contractor, as claimed by him. The petitioner has not chosen to challenge the cancellation Certificate in the manner known to law. Once the Certificate is found to be a false one, the first respondent thought it fit not to open the price bid of the petitioner for Sivagangai and Udhagamandalam although the price bid of the other tenderers were opened, in which the second respondent was declared as the lowest tenderer. Therefore, the petitioner cannot allege that with a mala fide intention his price bid alone for other regions have not been opened by the petitioner. Further, time and again, the Supreme Court has reiterated the fact that in the matter of tenders, the scope of interference of the Court is limited in nature. Similarly, the judicial review in the administrative action in awarding the tender is also limited in nature. This Court does not find any merit in the case of the petitioner and hence, the Writ Petition is liable to be dismissed. 17. For the reasons stated above, the Writ Petition fails and the same is dismissed. No costs, consequently, connected miscellaneous petitions are closed.