Bombay High Court
M/S. Jay Mata Di Transport Thr. ... vs Inidan Oil Corporation Ltd And Anr on 11 May, 2021
Bench: K.K. Tated, Abhay Ahuja
18- WPST 10567 of 2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION ST No. 10567 OF 2021
M/s. Jay Mata Di Transport
Through Aakash Ashok Saroj ...Petitioner
Vs.
Indian Oil Corporation Ltd.
and Anr. ...Respondents
*********
Mr. Chaitanya Nikte a/w. Ms. Sneha Bhange a/w. Mr.
Sudmedh Ruikar for Petitioner
Mr. Akash Rebello a/w. Mr. Parag Sharma a/w. Aditi Phatak
a/w. Parchehr Zaiwalla a/w. Kirti Ojha i/b. Udwadia & Co. for
Respondent No.1 (Indian Oil Corporation)
Mr. Ajinkya Badar for Respondent No.2
*********
CORAM: K.K.TATED &
ABHAY AHUJA, JJ.
(VIDEO CONFERENCING)
DATED : MAY 11, 2021
P.C.
1. Heard learned counsel for parties.
2. By this petition under Article 226 of the Constitution
of India, the Petitioner is challenging the letter dated 3 rd
May, 2021 by which Respondent No.1- Indian Oil
Corporation Ltd. cancelled the letter of allotment issued in
favour of the Petitioner for breach of terms and conditions of
tender notice. It is the case of the Respondents that the
Petitioner violated clause 5 and 18 of the Tender Notice.
Hence, they issued cancellation letter dated 3rd May, 2021.
Clause 5 and 18 of the Tender Notice reads thus:
V.A. Tikam 1/8
18- WPST 10567 of 2021.odt
"(5) Tenderers will not be allowed to offer such
Tank Trucks (Tts) in this tender, which are already
under contract with HPCL/BPCL. In case tenderer
wishes to offer such (Tts), the bids submitted
should accompany with a written "No Objection
Certificate" (NOC) issued by the concerned Oil
Company.
(18) Please note that at any stage if it is found
that the information/document submitted in the
tender is false/forged, suitable action as deemed fit
including rejection of tender and forfeiture of EMD
shall be taken. Hence, tenderers are advised to
submit true/correct information/document in the
tender."
3. The learned counsel Mr. Chaitanya Nikte appearing for
the Petitioner submits that in the present proceeding their
truck bearing No. MH 12 MV 5815 was working with
Hindustan Petroleum Corporation Ltd. Therefore, they
immediately applied to the Company by letter dated 23 rd
November, 2020 for giving NO Objection (Exhibit 'B' page
31). He submits that subsequently they received the NOC
from the Hindustan Petroleum Corporation Ltd. Inspite of
that the Respondents issued cancellation letter dated 3rd
May, 2021 for making incorrect statement in bids
documents. Hence he filed the present petition.
4. The learned counsel for the Petitioner submits that
the said hyper technical approach taken by the Respondent
is not correct. He submits that submission of NOC along
V.A. Tikam 2/8
18- WPST 10567 of 2021.odt
with bids was not mandatory. He relies on the judgment of
the Apex Court in the case of Rashmi Metaliks Limited
And Anotehr Vs. Kolkata Metropolitan Development
Authority And Others [(2013) 10 Supreme Court Cases,
Page 95]. Paragraphs 17 and 19 read thus:
"17. So far as Clause (j) of the detailed notice
inviting E-tender No. 01/KMDA/MAT/CE/2013-2014
dated 10-5-2013 emanating from the office of the
Chief Engineer is concerned, it seems to us that
contrary to the conclusion in the impugned
judgment, the clause is not an essential element or
ingredient or concomitant of the subject NIT. In
the course of hearing, the income tax return has
been filed by the appellant Company and scrutinised
by us. For Assessment Year 2011-2012, the gross
income of the appellant Company was
Rs.15,34,05,627, although for the succeeding
Assessment Year 2012-2013, the income tax was
nil, but substantial tax had been deposited.
19. In this analysis, we find that the appeal is
well founded and is allowed. The impugned
is accordingly set aside. The
disqualification of the appellant Company on the
ground of it having failed to submit its latest income
tax return along with its bid is not sufficient reason
for disregarding its offer/bid. The respondents are
directed, therefore, to proceed further in the
1 Rashmi Metaliks Ltd. V. Kolkata Metropolitant development Authority, MAT No. 1031
of 2013 decided on 11-7-2013(Cal)
V.A. Tikam 3/8
18- WPST 10567 of 2021.odt
matter on this predication. The parties shall bear
their respective costs."
He also relies on the judgment of this Court in the
matter of Agrawal Roadlines Pvtl Ltd. Vs. Indian Oil
Corporation Ltd. and others [(2003(1) Mh.L.J. page 56]
Paragraphs 7 and 8 read thus:
"7. The aforesaid law laid down by the Apex
Court in Poddar Steel Corporation is squarely and
fully applicable to the facts and circumstances of
the present case. The only mistake committed by
the petitioners was that they annexed the demand
draft issued in favour of other Corporation. That
was only a technial irregularity and did not in the
facts of the could be said to violate the essential
conditions of the tender notice. It was only because
of inadvertence that the demand draft purchased
by the petitioners got interchanged. Under the
terms and conditions of the tender notice, inter
alia, for the satisfaction of financial credibility of
the bidder, the condition is that earnest money of
Rs.12000/- by way of crossed demand draft/pay
order from the scheduled bank in favour of
concerned corporation is deposited with the bid.
The Corporations, viz. IOC, HPCL and BPCL ought
not to have given strict construction to clause 7of
the tender which provided that the earnest money
deposit as provided in clauses 5 and 6 by crossed
Demand Draft/Pay Order drawn on any Scheduled
V.A. Tikam 4/8
18- WPST 10567 of 2021.odt
Bank, be in favour of concerned Corporation like
Indian Oil Corporation Ltd. (MD), Bharat Petroleum
Corporation Ltd. (MD) and Hindustan Petroleum
Corporation (MD). The essential clause concerning
an interest free earnest money deposit of
Rs.12000/- finds place in clause 6 which, of course,
was required to be construed strictly, but clause 7
could not have been given effect in meticulous
detail as has been sought to be given when the
petitioners did purchase demand draft in favour of
concerned corporation in the required sum from
scheduled bank- the only mistake, these drafts got
interchange at the time of submission of tenders
and this mistake reflected at all necessarily
places in the tender form. The contention of Mr.
Siodia that this Court should not interfere in
administrative decision when admittedly thre was
some mistake by the petitioners in the facts of the
present case does not deserve to be accepted. If an
administrative decision is based on hypertechnical
approach by treating a non-essential condition of
the tender notice as essential condition, such
administrative decision shall be ceased to be fair
and lack reasonableness warranting interference
in suitable and deserving cases under Article 226.
8. The judgment of the Apex Court in Ramana
Dayaram Shetty vs. International Airport Authority
of India, AIR 1979 SC 1628 and G.J. Fernandez vs.
State of Karnataka, AIR 1990 SC 958 relied upon
by the learned counsel Mr. Siodia, need not detain
V.A. Tikam 5/8
18- WPST 10567 of 2021.odt
us as in Poddar Steel Corporation (supra) the Apex
Court considered the aforesaid judgments and
observed in para 6 which we have noted above."
On the basis of these facts, the learned counsel for the
Petitioner submits that till further hearing, the
Respondents may be restrained from allotting the said
tender in respect of these six trucks to any third party.
5. On the other hand, the learned counsel Mr. Akash
Rebello for Respondent No.1 submits that he requires some
time to file his reply. He further submits that there is no
question of granting any ad-interim relief in favour of the
Petitioner at present. He submits that as per the terms and
conditions of the tender notice particularly clause 5, it is
specifically stated that it is the duty of the Petitioner to
place on record NOC before given his bids according to
tender. He submits that in the present matter on the date of
submitting the bids, the said truck was working with other
company. Hence, the Respondents issued cancellation letter
dated 3rd May, 2021.
6. The learned counsel for the Respondents further
submits that even the Petitioner in paragraph 6 of the
petition specifically admitted that on the date of submitting
bid on 1st December, 2020, the Petitioner was not having
NOC in respect of the said truck bearing No. MH 12 MV 5815
from other company. Paragraph 6 of the petition reads thus:
"6. The Petitioner states that the last date of
V.A. Tikam 6/8
18- WPST 10567 of 2021.odt
submission of bid was 01/12/2020, however the
Petitioner could not procure NOC from HPCL for
want of lette44r from the respondent. Therefore,
the Petitioner contacted Mr. Lokhande, Senior
Manager of IOCL few days prior to the due date of
submission and informed that they do not have
written NOC from HPCL with regards to TT MH 12
MV 5915 for want of letter from IOCLL, and
accordingly requested for the same. However, Mr.
Lokhande refused to give nay such letter.
Thereafter the Petitioner called Mr. Sushant Kumar,
Sr. Officer of IOCL and communicated its difficulties,
who informed the petitioner that if the TT is not in
service of HPCL, the petitioner should submit its
bid. Accordingly, the Petitioner submitted its bid on
29/11/2020 for 6 Tank Trucks. Hereto annexed
and marked as Exhibit C is the copy of Bid
acknowledgement dated 29/11/2020. The
Petitioner craves leave to refer and rely upon
transcripts of the communication made by the
Petitioner with Mr. Lokhande and Mr. Sushant
Kumar."
On the basis of these submissions, the learned
counsel for the Respondent No.1 submits that there is no
question of granting any ad-interim relief.
7. We heard both the learned counsels at length. It is to
be noted that in the present proceeding, prima facie reveals
that on the date of submitting the bid, the said truck bearing
V.A. Tikam 7/8
18- WPST 10567 of 2021.odt
No. MH 12 MV 5815 was working with other company, which
violated Clause No.5 of the Tender Notice. Even the
authorities citied by the Petitioner, are not helpful in the
present case. In any case, in a matter in hand there is a
specific clauses No. 5 and 18 in the Tender Notice. Hence,
till reply, there is no question of grant of any ad-interim
relief in favour of the Petitioner.
8. Hence, the following order:
ORDER
(a) Respondents to file an affidavit-in-reply on or before
28th May, 2021 with copy to other side.
(b) Rejoinder, if any, to be filed on or before 4th June, 2021
with copy to other side.
(c) At present, no ad-interim relief is granted.
(d) Matter to appear on board on 15th June, 2021.
(ABHAY AHUJA, J.) (K.K.TATED, J.)
V.A. Tikam 8/8
