Andhra Pradesh High Court - Amravati
M/S. Ravindra Tours And Travels vs Union Of India on 27 August, 2021
* IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE NINALA JAYASURYA
+ WRIT APPEAL No.92 of 2021
% 27.08.2021
# M/s. Ravindra Tours and Travels, represented by
its Proprietor Vadlamudi Ravindra Kumar,
S/o. Satyanarayana, aged 57 years, D.No.40-1-118,
SVS Kalyanamandapam, Benz Circle, Vijayawada,
Krishna District - 520010 ...Appellant
Versus
Union of India, rep. by Secretary, Ministry of Petroleum
and Gas, Shastri Bhavan, New Delhi -110001, and others ... Respondents
! Counsel for the Appellant : Mr. V.V. Satish
^ Counsel for respondent No.1 : None appeared
^Counsel for respondent Nos.2 & 3 : Mr. V. Ashok Ram
^Counsel for respondent No.4 : Ms. Kalla Tulasi Durgamba
^Counsel for respondent No.5 : None appeared
<Gist :
>Head Note:
? Cases referred:
HCJ & NJS,J
2 W.A.No.92 of 2021
IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI
HON'BLE Mr. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE Mr. JUSTICE NINALA JAYASURYA
WRIT APPEAL No.92 of 2021
(Through Video-Conferencing)
M/s. Ravindra Tours and Travels, represented by
its Proprietor Vadlamudi Ravindra Kumar,
S/o. Satyanarayana, aged 57 years, D.No.40-1-118,
SVS Kalyanamandapam, Benz Circle, Vijayawada,
Krishna District - 520010 ... Appellant
Versus
Union of India, rep. by Secretary, Ministry of Petroleum
and Gas, Shastri Bhavan, New Delhi -110001, and others ... Respondents
Counsel for the appellant : Mr. V.V. Satish
Counsel for respondent No.1 : None appeared
Counsel for respondent Nos.2 & 3 : Mr. V. Ashok Ram
Counsel for respondent No.4 : Ms. Kalla Tulasi Durgamba
Counsel for respondent No.5 : None appeared
Date of hearing : 03.08.2021
Date of judgment : 27.08.2021
JUDGMENT
(Arup Kumar Goswami, CJ)
This writ appeal is presented by the writ petitioner against the judgment
and order dated 04.02.2021 passed by the learned single Judge in W.P.No.16322
of 2020 dismissing the writ petition.
2. Heard Mr. V.V. Satish, learned counsel for the appellant,
Mr. V. Ashok Ram, learned counsel for respondent Nos.2 and 3 and
Ms. Kalla Tulasi Durgamba, learned counsel for respondent No.4. None appears
for respondent No.1-Union of India and respondent No.5-Regional Transport
Authority, Vijayawada, Andhra Pradesh.
3. The appellant and respondent No.4 responded to a Tender Notification
VJABP/PT/01/2020-21/Pickup bus, dated 29.06.2020, issued by respondent
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No.3, i.e., the Plant Manager, Indian Oil Corporation, Kondapalli Bottling Plant,
IDA, Kondapalli, Vijayawada, Krishna District, for positioning and operation of 15
+ 1 seater push-back shift pickup bus for double shift operation at Kondapalli
Bottling Plant, Vijayawada. The said notification indicated that contract shall
be initially for a period of one year, extendable for two more terms of one year
each on the same rates, terms and conditions; the second year at the sole
discretion of the Corporation and the third year on mutual consent, subject to
satisfactory performance of the contractor. The model of the vehicle, in terms
of the Notification, should be not older than 2019 model and it also provided
that a tenderer can submit tender attaching proof of booking of new vehicle
with the tender and submitting an undertaking to place the vehicle within 15
days of issue of Letter of Intent.
4. The special terms and conditions governing hiring of the pick-up bus,
however, provided that the bus should be with minimum of 15 + 1 seating
capacity and that vehicle offered should maintain all in-built features of the
offered model in working condition to ensure hygiene and comfort level inside
the vehicle.
5. At the time of issuance of the Notification, the appellant was the
contractor supplying vehicles to respondent No.2-Corpoartion. The appellant
offered brand new push-back seat vehicle with 15 + 1 seats and submitted
booking order, while respondent No.4 offered a 'Traveler 3700 Super with High-
back seats 17 + 1 seater'. The respondent-Corporation declared respondent
No.4 as L1, while the appellant was declared as L2. It is stated that after taking
delivery of the offered vehicle, respondent No.4 removed high-back seats and in
that place, he got fixed 15 + 1 push-back seats through an outside agency and
that such an alteration, besides being in violation of the terms and conditions, is
also in contravention of Section 52 of the Motor Vehicles Act, 1988.
Accordingly, a representation dated 23.07.2020 was submitted by him to
respondent No.3, in response to which respondent No.3 vide letter dated
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28.07.2020, informed him that respondent No.4 did not produce the vehicle for
inspection and the points raised by him would be scrutinised as per
applicability. On 31.07.2020, the appellant was informed that respondent No.4
would take over operation from 01.08.2020. Since no action has been taken on
the representation submitted, the writ petition was filed.
6. In the counter-affidavit filed by respondent No.3 in the writ petition, it is
stated that the vehicle offered by respondent No.4 was modified with push-back
seats on 20.07.2020 and the registration certificate and the fitness certificate
were issued by respondent No.5 on 26.07.2020 and 27.07.2020, respectively,
and the aforesaid fact demonstrates that the competent authority had validated
the legality of the modified vehicle offered by respondent No.4 and thereafter
only, being satisfied, work order dated 31.08.2020 was issued for a period of
one year. It is stated that modified vehicle offered by respondent No.4 had 18
seats (15 push-back seats + 3 extra seats) and such seats were meant for driver,
cleaner and one extra seat. In paragraph 6, it was stated as follows:
"It is further submitted that the 4th respondent offered a Brand New
Force Traveller 3700. The technical specifications of the said
vehicle, found in brochure, clearly mentioned that the said Vehicle
was capable of having both seating types i.e. Recliner/High Back and
was capable of having the seating capacity of 9+D, 12+D, 16+D, 17+D,
that the owner could choose from. The 4th respondent purchased
the said vehicle after getting the Seats modified by the Original
Manufacturer i.e. SABOO FORCE MOTORS was submitted by the 4th
respondent to the respondent Corporation herein and the same is
filed herewith. It is therefore denied that the 4th respondent got
fixed 15+1 Push Back seats through an outside worker. The seats
were modified by the Original Manufacturer itself. The said
averments by the writ petitioner clearly demonstrate that the writ
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petitioner has filed the instant WP, without proper knowledge of
facts or material to support the Writ Petition.
7. In the counter-affidavit filed by respondent No.4, it is stated that he had
offered a brand new Force Traveler T1 MD 3700 FM Model Vehicle. While
denying the allegation that respondent No.4 had violated Section 52 of the
Motor Vehicles Act, 1988, it is stated that he did not make any alteration of
seats except backrest for the purpose of comfortability and he did not alter and
did not modify the seating alignment from basic structure or increased or
reduced the seating capacity.
8. In the reply-affidavit filed by the appellant/writ petitioner to the
affidavit filed by respondent No.3, it is denied that the brochure of the vehicle
offered by respondent No.4 shows that the option of recliners is available for
9+D, 12+D, 16+D and 17+D and it is asserted that the vehicle with 15+D recliner
seats on 4200 wheel base is available and that the appellant/writ petitioner
offered the very same vehicle.
9. Learned counsel for the appellant, by relying upon condition No.35 of the
Notification, submits that the vehicle including the body, seats etc., must be
manufactured by the original equipment manufacturer and there is an admission
on the part of respondent Nos.3 and 4 that there was alteration with regard to
changing of high-back seats to recliner seats. According to him, alteration was
done through an outside agency, for which the respondents-authorities ought
not to have accepted the vehicle offered by respondent No.4. The appellant
had offered in-built reclining seat vehicle, which is costlier than the high-back
seater vehicle offered by respondent No.4, which he, later on, modified to
reclining seats.
10. It appears from the technical specifications of Traveller 3700 Super
vehicle, which has capacity of 9+D, 12+D, 16+D and 17+D, seating types are
available both in recliner and high-back. Force Royale Traveller bus, offered by
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the appellant, is having seating capacity of 15+D magnio seats with reclining
back-rest coupled with arm-rest and integrated head-rest.
11. Learned counsel for respondent No.4 submits that while the vehicle
offered by respondent No.4 was for Rs.21,98,258/-, the vehicle offered by the
appellant was for Rs.24,19,644/-. Respondent No.4 purchased 17+D vehicle
after getting seats modified by the original manufacturer in compliance of
condition No.31 of the Notification. He further submits that respondent No.4
purchased brand new 17+D 3700 wheelbase bus and got the seats altered to
make them recliner seats by SABOO Brothers, Vijayawada, who is the authorized
agent of the original manufacturer. It is also contended that imposition of fine
by the Transport authorities for change in the seating arrangement did not
result in violation of any tender condition.
12. The learned single Judge has recorded a finding that 17+D bus sold by
Force Motors Limited is having both types of seating arrangement i.e., recliner
type as well as high-back type and that respondent No.4 purchased a brand new
17+D (3700WB) type of vehicle from Force Motors Limited and arranged recliners
by fitting the brackets through SABOO Brothers, Vijayawada, who is the
authorised agent/distributor of Force Motors Limited. Accordingly, it was held
by the learned single Judge that respondent No.4 had not engaged the services
of a third party to convert the seats from high-back type to recliner type and,
therefore, there is no violation of tender conditions. Learned single Judge
concurred with the submission of the learned counsel for the respondents that
imposing of fine for minor alterations in the seating system cannot be treated as
violation of the tender conditions and what was required by respondent No.2-
Corporation was a 15+1 type of bus with recliner seats, which is provided by
respondent No.4 for a lesser amount than the writ petitioner. It was further
held by the learned single Judge that the deviation, if any, is relating to the
seating arrangement concerning the comfort of the employees and it has
nothing to do with the security of the employees and as respondent No.4 had
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offered his services for a far lesser amount than the writ petitioner, the decision
of the respondent-Corporation for grant of award of contract to respondent
No.4, thereby saving Rs.2.00 lakhs, cannot be faulted with. Holding so, the writ
petition was dismissed.
13. On 22.07.2021, learned counsel for respondent No.4 had submitted that
she would file copy of the invoice relating to the vehicle in question within a
period of 7 days and, accordingly, a memo is filed by her on 27.07.2021,
annexing Vehicle Tax Invoice, Form-22 under Rules 47(1) (g), 115, 124(2) and
127 of the Motor Vehicles Rules. From the said documents, it is evident that the
vehicle, at the time of purchase, is having high-back seats.
14. Condition Nos.31 and 35 of the Notification, read as follows:
"31. The Vehicle should be maintained in perfect road worthy
operating condition with excellent outlook, interior in all
respects including safety features and other in-built features to
ensure hygienic and comfortable ambience with effective &
working AC feature during running state of vehicles, clean and
hygienic seats covers, intact push back cushion seat, Window
Curtains, Mobile Charging point etc., at all times. Spare wheel,
tools and tackles and other essential items like first aid box, air
fresheners, Fire Extinguisher etc must be available in the vehicle
at all times. Fuels/Lubricants, spare etc. shall be arranged by
the contractor at his own cost. IOCL authorities shall have the
right to order the contractor to replace the vehicle if the same is
found not meeting the special requirement as per the tender.
Contractors should be in possession of contract carrier permits
for the vehicle.
35. The complete vehicles thus offered including the body, seats
etc., should be manufactured by the original equipment
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manufacturer. Any seating arrangement built by other parties on
the chassis sold by some other manufacturer shall NOT be
allowed and if such vehicle is offered under this contract, such
tender shall be considered invalid. The vehicle offered should
have valid Fitness certificate and license to ply on the road with
capacity required as per this tender. The tenderer should fulfil
all the statutory regulations of State and Central Government.
The contractor has to ensure that all traffic rules and regulations
in force are obeyed."
15. Condition No.35 of the Notification makes it explicitly clear that the
vehicle offered including the body, seats etc. should be manufactured by the
original equipment manufacturer and any seating arrangement built by other
parties on the chassis sold by some other manufacturer shall not be allowed and
if such vehicle is offered under this contract, such tender shall be considered
invalid.
16. Despite there being a model of 17+D having recliner seats, what was
purchased by respondent No.4 was a 17+D model with high-back seats.
This is the admitted position. Contention is advanced on behalf of respondent
No.4 that high-back seats were modified into recliner seats through SABOO
Brothers, Vijayawada. It is admitted position that the vehicle purchased by
respondent No.4 was manufactured by Force Motors Limited. It is in that
context, the argument of the learned counsel for the appellant becomes
significant in that respondent No.4 quoted a price less than the price quoted by
the appellant, as he never intended to purchase a vehicle with recliner seats in
terms of the tender conditions. Learned single Judge is not correct in holding
that deviation, if any, is relating to seating arrangement concerning the comfort
of the employees and it had nothing to do with the security of the employees,
and, therefore, the deviation, if any, in the seating arrangement is immaterial.
When the vehicle is purchased by a tenderer without meeting the tender
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conditions at a lower price and subsequently, the same is altered in violation of
the tender conditions in an attempt to comply with the tender conditions, such
a tenderer, in essence, wants to steal a march over a tenderer who scrupulously
follows the tender conditions while offering the vehicle and quotes price
accordingly. When condition No.35 clearly mandated that vehicles offered
including body, seats etc. should be manufactured by original equipment
manufacturer, getting alteration done by SABOO Brothers, cannot validate such
alteration, as SABOO Brothers is not the original equipment manufacturer. It
has to be understood that the seating arrangement built by SABOO Brothers is on
the chassis sold by Force Motors, i.e. the manufacturer and, therefore, when
such a vehicle is offered, the tender, in terms of condition 35, ought to have
been considered invalid. It is clear that in the attending facts and
circumstances, when the vehicle offered does not conform to the tender
conditions specified, the tender of respondent No.4 shall have to be considered
as invalid. In such a situation, respondent Nos.2 & 3 ought to have considered
the other tenderers in the fray for the purpose of award of contract.
17. In view of the above discussion, we find that learned single Judge was not
correct in dismissing the writ petition.
18. Accordingly, we set aside the order of the learned single Judge and allow
the appeal. We hold that the tender of respondent No.4 is invalid and,
accordingly, direct respondent Nos.2 and 3 to take consequential steps in
accordance with law. No order as to costs. Pending miscellaneous applications,
if any, shall stand closed.
ARUP KUMAR GOSWAMI, CJ NINALA JAYASURYA, J
MRR
