Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 629 (ORI)

Santosh Kumar Sadangi v. State of Odisha

2017-06-23

K.R.MOHAPATRA, VINEET SARAN

body2017
JUDGMENT : Krushna Ram Mohapatra, J. 1. The petitioner in this writ petition, seeks for a direction to set aside the decision of the authorities under Odisha State Civil Supplies Corporation (for short, 'the Corporation) in rejecting his technical bid for appointment of "Level-II Transport Contractor for Transportation of Food Grains from Rice Receiving Centre-cum-Departmental Storage Centres to Retail Centres" (for short, 'the Level-II Transport Contractor') as well as for a direction to open and consider his price bid for the said tender. The averments in the writ petition reveal that pursuant to a Tender Call Notice dated 09.03.2017 for appointment of Level-II Transport Contractor, the petitioner submitted his bid along with relevant documents in respect of Berhampur Municipal Corporation as well as Sorada and Dharakot Blocks. As per the schedule, the technical bid was opened on 23.03.2017 in present of all the bidders and their representatives. The technical bid of the petitioner in respect of all the three units were rejected on the ground that there was no valid fitness certificate of the vehicle of the petitioner bearing registration No. OR 10G 5541 and instead a copy of the registration volume of the said vehicle, obtained from R.T.O., Koraput, was produced, which was not acceptable. The same was verbally intimated to the petitioner. The representations of the petitioner in this regard were also not considered. As per the tender condition, the petitioner had documents of two vehicles owned by him, out of which fitness certificate in respect of vehicle No. OR 10C 7657, produced by the petitioner, was valid up to 27.03.2017. Since the original fitness certificate of vehicle No. OR 10G 5541 was misplaced at the relevant time, the petitioner had submitted a copy of the registration volume granted by the RTO, Koraput, which disclosed that the fitness of the said vehicle was valid till 21.04.2017. The petitioner however obtained fitness certificate of the said vehicle in prescribed form subsequently and submitted it before the authorities of the Corporation, which was not accepted as by that time the technical bid of the petitioner had already been rejected. Thus, it is contended in the writ petition that action of the opposite parties in rejecting the bid of the petitioner is arbitrary and unreasonable. Hence, the writ petitioner seeks the aforesaid relief. 2. The Corporation filed its counter affidavit refuting contentions made in the writ petition. Thus, it is contended in the writ petition that action of the opposite parties in rejecting the bid of the petitioner is arbitrary and unreasonable. Hence, the writ petitioner seeks the aforesaid relief. 2. The Corporation filed its counter affidavit refuting contentions made in the writ petition. It is contended, inter alia, that although the petitioner had submitted the fitness certificate in respect of vehicle No. OR 10C 7657, which was valid up to 27.03.2017, he had not submitted the fitness certificate in prescribed form in respect of vehicle No. OR 10G 5541. On the other hand, he had submitted a copy of the registration volume of the vehicle issued by the RTO, Koraput. Since the fitness certificate in prescribed was not produced along with tender papers and a copy of the registration volume of the said vehicle issued by the RTO, Koraput was enclosed to his technical bid, the same was not accepted. The certificate of fitness is being issued under Rule-22 of the Orissa Motor Vehicles Rules, 1993 (for short, 'OMV Rules), Rule-22(1) of the said Rules prescribes that the certificate of fitness shall be granted or renewed by an Inspector of Motor Vehicles or Junior Inspector of Motor Vehicles or any person authorised by State Government for the said purpose. Clause-7 of the Tender Call Notice clearly provided that the statement of own vehicles along with attested photocopies of the registration certificate and fitness certificate issued by the Transport Department had to be attached to the technical bid. Further, Clause 2.3 provides that in case any document, as per the check list (Annexure-II to the Tender Call Notice), is not attached to the technical bid, then the tender papers can be rejected on that count alone. As such, the bid of the petitioner was not technically qualified to be considered for appointment of Level-II Transport Contractor. The same was also intimated to him verbally as per Clause - 12 of the guidelines provided by the State Government. In that view of the matter, the writ petition would not be maintainable and is liable to be dismissed. 3. Heard learned counsel for the parties and perused the records, more particularly relevant provisions of the Tender Call Notice, which are relevant for adjudication of the case. In that view of the matter, the writ petition would not be maintainable and is liable to be dismissed. 3. Heard learned counsel for the parties and perused the records, more particularly relevant provisions of the Tender Call Notice, which are relevant for adjudication of the case. Taking into consideration the contentions raised in the pleadings as well as submissions made by learned Counsel for the parties, the only question that requires adjudication is that whether the submission of copy of registration volume of the vehicle bearing registration No. OR 10G 5541, which disclosed that the fitness of said vehicle is valid up to 21.04.2017, is sufficient compliance of the terms and conditions of the Tender Call Notice. Clause-7.1 of the Tender Call Notice reads as follows: 7. Requirement of vehicle "7.1. The tenderer shall have minimum 02 (Two) number of Transport Vehicles registered in his/her name/in the name of the family members. Additional requirement of vehicles can be availed on hire basis. A statement of own vehicles along with the attested photocopies of the Registration Certificate and Fitness Certificate issued by the Transport Department has to be attached to the 'Technical Bid." (emphasis supplied) As per requirements of Clause 7.1, in addition to the attested photocopy of the registration certificate, the petitioner was required to enclose a copy of the fitness certificate issued by the Transport Department relating to his vehicles along with the Technical Bid. Admittedly, the petitioner had not submitted the fitness certificate of his vehicle No. OR 10G 5541 and had submitted a copy of the registration volume issued by the RTO, Koraput in respect of the said vehicle along with technical bid. However, the fitness certificate in respect of vehicle No. OR 10C 7657 was enclosed with his Technical Bid. The District Tender Committee did not accept copy of the registration volume of vehicle No. OR 10G 5541, as sufficient compliance of production of the fitness certificate and rejected the technical bid of the petitioner as it fell short of minimum requirement of two transport vehicles registered in the name of the petitioner. 4. It is submitted by Mr. The District Tender Committee did not accept copy of the registration volume of vehicle No. OR 10G 5541, as sufficient compliance of production of the fitness certificate and rejected the technical bid of the petitioner as it fell short of minimum requirement of two transport vehicles registered in the name of the petitioner. 4. It is submitted by Mr. Biswal learned Counsel for the petitioner that production of the copy of the registration volume of the vehicle in respect of vehicle No. OR 10G 5541 issued by the RTO, Koraput on 17.05.2017 and produced along with his technical bid, should have been treated to be sufficient compliance of submission of fitness certificate. The copy of the registration volume of the said vehicle clearly disclosed that it had a valid fitness for the relevant period. As the copy of the fitness certificate of the vehicle in question was lost, the petitioner had obtained the copy of the registration volume of the said vehicle on 17.05.2017 and produced it along his technical bid. The Corporation in its counter affidavit has not disputed either the genuineness of the copy of the registration volume or the validity of the fitness of the said vehicle of the petitioner. It being hyper-technical, rejected the technical bid of the petitioner without providing any reasonable opportunity to make good the said minor deficiency. The learned Counsel for the petitioner also relied upon Clause-15 committed of the Tender Call Notice, which reads as follows: "15. Clerical errors or omission (s) committed by the tenderer: In case of any clerical error or minor omission(s) in the tender paper, the District Tender Committee may take a suitable decision keeping in view the intension of the tenderer, if s/he is otherwise qualified." (emphasis supplied) Referring to the said Clause, it is submitted that the District Tender Committee could have taken a suitable decision in favour of the petitioner keeping in view his bonafide intention to participate in the tender. He further contended that as per Clause-1.9 of the Tender Call Notice, the District Tender Committee could have given reasonable time to the tenderer for production of the original documents, i.e., the fitness certificate of his vehicle, as he was otherwise qualified. 5. Mr. He further contended that as per Clause-1.9 of the Tender Call Notice, the District Tender Committee could have given reasonable time to the tenderer for production of the original documents, i.e., the fitness certificate of his vehicle, as he was otherwise qualified. 5. Mr. Sahoo, learned Counsel for the Corporation, on the other hand, reiterating the contentions raised in the counter affidavit, submitted that technical bid of the petitioner was defective, inasmuch as, he had not enclosed the attested copy of the fitness certificate of his vehicle to it. Referring to Clause-2.3 of the Tender Call Notice, he submitted that in case any documents as per the check list (Annexure-II to the Tender Call Notice) is not attached to the technical bid, the bid shall be rejected out-right. It is submitted that since the petitioner had not produced the fitness certificate in question, the District Tender Committee had no other option but to reject his technical bid. Rule-22.(1) of the OMV Rules provides that the Inspector of Motor Vehicles/Junior Inspector of the motor vehicles or any person authorised in that behalf can issue a fitness certificate in prescribed form. Admittedly, the RTO is not the authority to issue a fitness certificate. Thus, a copy of the registration volume of the vehicle in question issued by RTO, Koraput cannot be treated to be sufficient compliance of production of the fitness certificate as per the check list. The petitioner had also never requested to produce the fitness certificate in question at the time of verification of the technical bid. Thus, the authorities had no other option but to reject his technical bid. Clause-7 (quoted supra) of the tender paper deals with requirement of vehicles. It provides that a tenderer shall have minimum two numbers of transport vehicles registered in his name. He has to submit a statement of his own vehicle along with attested copy of registration certificate as well as fitness certificate in respect of the said vehicle along with technical bid. The petitioner had, in fact, submitted copies of registration certificates in respect of the vehicle bearing No. OR 10C 7657 and OR 10G 5541. He, however, could not produce fitness certificate in respect of the vehicle bearing No. 10G 5541. The petitioner had, in fact, submitted copies of registration certificates in respect of the vehicle bearing No. OR 10C 7657 and OR 10G 5541. He, however, could not produce fitness certificate in respect of the vehicle bearing No. 10G 5541. The copy of the registration volume of the said vehicle disclosed that the fitness certificate of the said vehicle was valid up to 21.04.2017 the District Tender Committee did not accept the same on two grounds, viz. (i) It is not in Prescribed form of the OMV Rules; (ii) the RTO, Koraput is not the authority to issue such certificate. 6. In order to assess correctness of the decision taken by the District Tender Committee, it is relevant to refer Clause-15 of the Tender Call Notice (quoted supra), which clearly stipulates that in case of minor, omission (s), the District Tender Committee has discretion to take a suitable decision keeping in view the intention of the tenderer, if he is otherwise qualified. It is not the case of the Corporation that the petitioner had ever made any endeavour or attempt to create any hindrance in the process of tender. Thus, the intention of the petitioner is clear in participating in the process of tender. In such a situation, the ratio decided in M/s. Poddar Steel Corporation v. M/s. Ganesh Engineering Works, AIR 1991 SC 1579 , would be of great assistance for adjudicating the issue. In the said case, a tenderer was required to deposit the earnest money by banker's cheque of State Bank of India, but the tenderer had submitted the cheque of Union Bank of India duly authenticated by the Bank and bank's assurance to honour the same was also obtained. While answering the issue, at paragraph-6 of the said judgment, the Hon'ble Supreme Court held as follows: "It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank clause No. 6 of the tender notice was not obeyed literally, but the question is as to whether the said noncompliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases." In the case of Rashmi Metaliks Ltd. v. Kolkata Metropolitan Development Authority, 2013(6) Supreme 521 , the tenderer was required to submit the latest income tax return with the tender papers, which was not filed. Discussing the facts and circumstances of the said case, the Hon'ble Supreme Court held that the income tax return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In paragraph-13 of the said judgment, the Hon'ble supreme Court held as follows: "....the filing of the latest Income Tax Return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the Appellant company and if even thereafter no rectification had been carried out, the position may have been appreciably different..." In the instant case, Clause 7.1 of the tender condition made it clear that the tenderer should have minimum two numbers of transport vehicles in his/her name or in the name of his family member (s). The same is an essential condition to be complied with by the tenderer. Submission of attested photocopy of fitness certificate of the vehicle was also required to be produced along with technical bid. The petitioner had submitted documents to the effect that the vehicle had valid fitness for the relevant period. According to the petitioner, the copy of the registration volume of the vehicle was submitted along with the technical bid, as fitness certificate of the vehicle was misplaced. The petitioner had submitted documents to the effect that the vehicle had valid fitness for the relevant period. According to the petitioner, the copy of the registration volume of the vehicle was submitted along with the technical bid, as fitness certificate of the vehicle was misplaced. The Corporation does not challenge the genuineness of the copy of the registration volume but refused to accept the same, as according to it, the fitness certificate ought to have been issued by the Inspector of Motor Vehicles in the prescribed form and the copy of the registration volume was issued by the RTO Koraput, who was not the authority to issue fitness certificate under the OMV Rules. The RTO maintains the registration volume of each vehicle registered in the concerned district, which also contains details, including fitness of the vehicle. RTO is an authority higher in rank to that of the Inspector of Motor Vehicle. Thus, the information supplied by him, which is borne out from the record of the vehicle prepared in course of due discharge of his duties, could not have been ignored on a hyper-technical plea. Taking into consideration the view expressed in the case of Poddar Steels (supra), it can be safely said that all the terms and conditions of the Tender Call Notice may not be followed in meticulous detail in its literal term. The condition of the Tender Call Notice can be liberalized/relaxed at the discretion of the authority, namely, the District Tender Committee to achieve the object for which the tender is floated. In the instant case, Clause-15 of the Tender Call Notice (quoted supra) also gives such a discretion to District Tender Committee, But as it appears, the District Tender Committee has failed to exercise the discretion conferred on it. 7. Clause 1.9 of the tender paper also confers power on the District Tender Committee to give tenderer a reasonable time for production of the original documents as per his/her request on genuine ground. In the instant case, the petitioner has made out a case of not producing fitness certificate along with technical bid, for which he had produced copy of the registration volume of the vehicle. Intention of the petitioner was also very much clear to participate in the tender. 8. In the instant case, the petitioner has made out a case of not producing fitness certificate along with technical bid, for which he had produced copy of the registration volume of the vehicle. Intention of the petitioner was also very much clear to participate in the tender. 8. Taking into consideration the discussions made above, we are of the view that rejection of the technical bid of the petitioner by the District Tender Committee was arbitrary and unreasonable and the same is accordingly set aside. We, accordingly, direct the District Tender Committee to open the price bid of the petitioner along with others and proceed with the matter in accordance with law. The writ petition is allowed to the extent stated above. No costs.