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2022 DIGILAW 245 (JK)

Tarlochan Singh v. Union of India

2022-05-13

PUNEET GUPTA

body2022
Judgment : Puneet Gupta, J. : The case of the petitioners is that the respondents floated the tender for road transport of Bulk Petroleum for advanced winter supplies for bulk Oil Storage and handling location in J&K (UT) vide tender No.RCC/NR/PSO/OPS/PT-141/20-21 for a period of three years with option for extension upto further two years at the sole discretion of the company. As per the clause of 1.4 of the NIT, the tenderer has to offer minimum three number of TTs in case of General and General MSE tenders and minimum two numbers in case of SC/ST. The petitioners participated in the tender process and their rates were also found as L-1 as the rates were quoted per K-1/Km. In the Reverse Auction process the tenderers was allowed to place his offer in terms of %age of the departmental estimate displaced on the portal and the band allowed for the same was 0% to -10%) of the departmental estimate. In terms of Clause 1.11 the evaluation of tenders was placed in Lot-1 and Lot-2 as per the ranking in terms of highest number of TTs offered by a particular bidder. The above process was to be continued till the requirement of the trucks is fully met against this tender. It was mentioned in the aforesaid clause that in case the requirement of TTs is not met by above process IOCL shall offer L-1 rates to balance tenders in order of their ranking, but in the present case the requirement could be met from the L-1 bidder figuring in Lot-1 and Lot-2 itself. In the aforesaid background the petitioners submit that the petitioners TTs are only required to be inducted and allotment orders are to be issued in their favour. As per the petition there is requirement of 25 numbers (12-14 KL) TTs under transport category at Jammu depot against the tender in question which cannot be allotted in favour of the any other contractor who has not participated in the said tender and their TTs are figuring in the Lot-1 and Lot-2. As per the petition there is requirement of 25 numbers (12-14 KL) TTs under transport category at Jammu depot against the tender in question which cannot be allotted in favour of the any other contractor who has not participated in the said tender and their TTs are figuring in the Lot-1 and Lot-2. The further case of the petitioners is that the petitioners have legitimate expectation to get their trucks tank inducted in pursuance to the terms and conditions of the NIT as they are L-1 bidders and in terms of evaluation they are figuring in the Lot-1 & Lot-2 prepared by the respondents No.2 & 3 in terms of the said NIT. The grievance of the petitioners is that by virtue of impugned notice dated 20.08.2021 the petitioners have been put to disadvantages position and thus deprived of their getting the allotment for the TTs. The action of the petitioners is contrary to the terms and conditions of the tender earlier issued by the respondents. 2. The objections to the writ petition have been filed by the official respondents as well as the private respondents. Of course, the writ petition has been opposed by the company and the private respondent with similar defence. The respondents while not disputing the tender and the terms and conditions mentioned in the same however state that the respondents company was at liberty to engage additional contractors/tank trucks without giving notice to the contractors who had been already appointed against the tender. The option was with the respondents to further meet their requirement for induction of additional tank trucks. The respondents have also referred to the circular/policy guidelines issued by them in the year 2015. There is no vested right in the petitioners to have further right in the shortfall of 25 tank trucks that arose due to cancellation of seven contracts which resulted into issuance of notice dated 20.08.2021, impugned in the writ petition. The specific case of the respondents is that Letter of Intent was issued to successful bidders of 318 tank trucks and therefore the process of the tender came to be finalized and the tender was formally closed. The tender was not alive after the desired number of trucks was achieved. The specific case of the respondents is that Letter of Intent was issued to successful bidders of 318 tank trucks and therefore the process of the tender came to be finalized and the tender was formally closed. The tender was not alive after the desired number of trucks was achieved. The precise submission is that once the tender process got concluded there was no obligation on part of the respondents to consider the unsuccessful bidder who could not be make the grade for the issuance of Letter of Intent (LOL) for the requirement of TTs. 3. Heard learned counsel for the parties and perused the file. 4. Mr. Amit Gupta, learned counsel appearing on behalf of the petitioners has indeed argued as per averments contained in the petition. The terms and conditions of the tender unambiguously gives leverage to the petitioners for additional TTs for which they are being deprived of by the respondents without any cogent reason. There was no reason for the respondents to overlook the claim of the petitioners in view Clause 1.4 and 1.11 of the NIT and that they were L-1 bidders. 5. Mr. V. R. Wazir, learned senior counsel and Mr. Anuj Dewan Raina, Advocate appearing on behalf of the respondents have argued that the petition is not maintainable and the remedy of the petitioners, if any, is not by way of writ petition. Reiterating the pleas taken in the respective objections it is argued that the respondents-company was not required to consider the claim of the petitioners so far as the procurement of additional TTs was concerned. The terms and conditions of the NIT themselves indicate that the company was not bound to oblige the petitioners and that the company could go for procurement of tank trucks without taking the petitioners on board. 6. The petitioners mainly relied upon 1.4 and 1.11 of the tender notice which is annexed as Annexure-1 with the petition. Clause 1.11(c) mentions that if the total requirement of TTs is not met by the process from clause (b) company is to offer L-1 rates to balance tenderers in order of their ranking for their acceptance. The above process is to continue till requirement of the trucks is fully met against this tender. Clause (b) of 1.11 states of price bid ranking of the tenders L-1, L-2 etc. The above process is to continue till requirement of the trucks is fully met against this tender. Clause (b) of 1.11 states of price bid ranking of the tenders L-1, L-2 etc. to be decided on minimum percentage quoted for all categories in the Reverse Auction. The company has discretion to negotiate with L-1 tenders to bring down the rates in case the rates offered L-1 tenders in the Reverse Auction are not acceptable to the company. L-1 rate shall be finalized and first allocation of TTs shall be done to L-1 tenderers. Clause (c) of the said 1.11 states that if the total requirement of TTs is not met by the above process as mentioned in Clause (b) the IOCL is to offer L-1 rates to balance tenderers in order their ranking. The above process is to continue till requirement of trucks fully met against this tender. As per Clause (d) the company reserves the right to either negotiate with L-2, L-3 etc. tenders or cancel the tenders and go for fresh NIT or invite/EOI at established L-1 rates to fulfil the required numbers of TTs. The submission of the learned counsel for the petitioner is that as the respondents-company was still in meet of the TTs later on therefore the petitioners in terms of aforesaid Clause 1.11 were entitled for additional TTs of which the mentioned is made in the impugned notice. It is profitable to take note of Clause 4(e) under the Head A ‘General Terms’ of tender terms and conditions which refers to the right of the oil company to reserve and without assigning reason whatsoever to engage additional contractors/tank trucks at any time without giving any notice whatsoever to the contractors already appointed against this tender. Clause 3 of the terms and conditions mentions of the forfeiture of the earnest money deposited in case there is breach of the terms mentioned in this clause. The respondents also rely upon the circular No.80 dated 20.11.2015 which also provides the option to the company to induct additional TTs from the existing dealer, transporter and in case the demand is not fulfilled by the tenderers, if initial NIT approved numbers has to be exceeded for reason non envisaged during floating of tenders. 7. The respondents also rely upon the circular No.80 dated 20.11.2015 which also provides the option to the company to induct additional TTs from the existing dealer, transporter and in case the demand is not fulfilled by the tenderers, if initial NIT approved numbers has to be exceeded for reason non envisaged during floating of tenders. 7. The only question which requires consideration is if the respondents company is bound to consider the case of the petitioners in case there is additional requirement of TTs by the company or the company could by-pass the claim of the petitioners herein as projected in the petition. The counsels for the parties have relied upon (AIR 2017 Gauhati 67 titled Plaban’s Trade & Agency Vs. Indian Oil Corporation) and 2018 (246) DLT 662 titled ‘M/s K.S. Roadlines and Ors. Vs. Bharat Petroleum Corporation Limited’ in support of their respective contentions. Both the aforesaid judgements are rendered keeping in view the terms and conditions of the NIT and the subsequent tender/notice issued by the Company whereby the company required additional TTs. In the latter case, on facts, the court held that the company was not obliged to act upon the tender conditions while procuring additional TTs. The company had discretion to procure the additional TTs without insisting upon the terms of the tender notice. 8. It is evident from the terms and conditions of the NIT and the circular of 2015 which is not under challenge in the present case that the respondents have liberty to procure additional TTs without insisting upon the earlier successful bidder of the tender issued by the company. The petitioners cannot for all times to come rely upon the tender terms and conditions of the NIT as the tender outlived its life on the completion of the tender process. The petitioners have been successful bidders in the tender and once the initial requirement of TTs was met the life of the tender was complete and the petitioners could not later on bank upon the tender. No doubt one of the conditions in the tender issued by the respondent-company mentioned of the eligibility of the earlier successful bidder of specific category yet the petitioners cannot rely upon the same for their own sole benefit. The clauses on which the petitioner rely upon do not envisage their application in case there is requirement for additional TTs. No doubt one of the conditions in the tender issued by the respondent-company mentioned of the eligibility of the earlier successful bidder of specific category yet the petitioners cannot rely upon the same for their own sole benefit. The clauses on which the petitioner rely upon do not envisage their application in case there is requirement for additional TTs. It cannot be said that there is any express clause in the tender which obliges the respondents-company to extend the benefit of the same to the bidders who were earlier successful in the tender in which they had participated. It is not that the petitioners have otherwise any grievance qua the terms and conditions mentioned in the tender notice and rightly so as they participated in it and were also successful bidders in the same. If the conditions are there in the tender on which the petitioners rely then the conditions on which the respondents rely are also incorporated and are not under challenge. The contingency plan which the Company might have to invoke after the completion of the tender process was mentioned in the tender and gave discretion and choice to the company how to proceed in the matter. It is not that the petitioners had protested the discretionary clause, later sought to be invoked by the respondents, when they participated in the tender process. It cannot either be the argument of the petitioners that the petitioners had shown the interest in the NIT and participated in the process as they anticipated that there will be requirement for additional TTs once the tender process is over. It is also to be noted that the respondents have taken the plea that seven bids had to be cancelled of the successful bidders of the initial tender and there was need for additional TTs. The circular or no circular of 2015, issued by the respondents-company and which is annexed with the objections of the respondents-Company also provided discretion to the respondents in the matter of procuring additional TTs. The petitioners cannot claim any vested right for additional TTs which was sought to be procured by the company through impugned notice of 20.08.2021. 9. The petitioners have no case to agitate the impugned notice issued by the respondents in facts and circumstances of the case. The petitioners cannot claim any vested right for additional TTs which was sought to be procured by the company through impugned notice of 20.08.2021. 9. The petitioners have no case to agitate the impugned notice issued by the respondents in facts and circumstances of the case. It is not pleaded in the petition that any particular individual or agency was to be favoured by virtue of impugned notice or that any fraud is otherwise being committed in the guise of the impugned notice. The right of the company to go for additional TTs without insisting upon the petitioners cannot be disputed in the facts and circumstances of the case. 10. Looked from any angle, the court holds that there is no reason to quash the notice dated 20.08.2021, impugned in the writ petition or direct the respondents to allot the additional requirement of TTs in favour of the petitioners. However, the respondent-company is at liberty to consider the grievance of the petitioners as projected in the petition, if the TTs are still required by the respondents. 11. The petition is without merit and is, accordingly, dismissed.