Kerala High Court
V.K.Lalithakumari vs Indian Oil Corporation Ltd on 13 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
WP(C) NO. 10836 OF 2021
PETITIONER:
M./S.ADAMS TRANSPORTS
CHITHRAPUZHA, IRIMBANAM P.O., ERNAKULAM-682 309,
REPRESENTED BY ITS MANAGING PARTNER.
BY ADVS.
K.JAJU BABU (SR.)
SMT.M.U.VIJAYALAKSHMI
SRI.BRIJESH MOHAN
RESPONDENTS:
1 INDIAN OIL CORPORATION LTD
REGIONAL CONTRACT CELL, MARKETING DIVISION,
REGIONAL CONTRACT CELL, SOUTHERN REGIONAL
OFFICE, INDIAN OIL BHAVAN, UTHAMAR GANDHI SALAI,
NUNGAMBAKKA, CHENNAI-600 034, REPRESENTED BY THE
GENERAL MANAGER.
2 THE GENERAL MANAGER (CONTRACT CELL)
INDIAN OIL CORPORATION LTD., MARKETING DIVISION,
REGIONAL CONTRACT CELL, INDIAN OIL BHAVAN,
UTHYAMAR GANDHI SALAI, NUNGAMBAKKA, CHENNAI-600
034.
3 THE CHIEF GENERAL MANAGER,
INDIAN OIL CORPORATION, KERALA STATE OFFICE,
PANAMPILLY AVENUE, PANAMPILLY NAGAR, COCHIN-682
036.
4 THE JOINT DIRECTOR,
MICRO SMALL AND MEDIUM ENTERPRISES (MSME)
DEVELOPMENT INSTITUTE (DI), GOVERNMENT OF INDIA,
MINISTRY OF MSME, AYYANTHOLE P.O., THRISSUR-680
003.
5 M/S. KANNAMPUZHA TRANSPORTING COMPANY,
DOOR NO.XIV/525, KANNAMPUZHA, PARIYARAM P.O.,
W.P.(C) No.10836 of 2021 & con. cases 2
THRISSUR-680 721.
6 M/S. GOOD SHEPHERD TRANSPORT,
BUILDING NO.14/242, KAIRALI JUNCTION, KAT
ENGINEERING, VADAKKUMPURAM P.O., ERNAKULAM-683
521.
7 M/S. ALLIED SURFACE LOGISTICS,
6/138/1, MUKKADAKKAL COMPLEX, CHITHRAPUZHA,
IRUMPANAM, COCHIN-682 306.
BY ADVS.
M.GOPIKRISHNAN NAMBIAR, SC
K.JOHN MATHAI
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
JOSON MANAVALAN
KURYAN THOMAS
PAULOSE C. ABRAHAM
RAJA KANNAN
SRI.E.K.NANDAKUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.08.2021, ALONG WITH WP(C).11874/2021
AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.10836 of 2021 & con. cases 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
WP(C) NO. 11874 OF 2021
PETITIONER:
V.K.LALITHAKUMARI
AGED 70 YEARS
W/O.K.V. RAMAKRISHNAN, LAGI NIVAS, KUTTEMPEROOR
P.O. MANNAR, ALAPPUZHA 689 623.
BY ADVS.
K.JAJU BABU (SR.)
M.U.VIJAYALAKSHMI
BRIJESH MOHAN
RESPONDENTS:
1 INDIAN OIL CORPORATION LTD
REGIONAL CONTRACT CELL, MARKETING DIVISION,
REGIONAL CONTRACT CELL, SOUTHERN REGIONAL
OFFICE, INDIAN OIL BHAVAN, UTHAMAR GANDHI SALAI,
NUNGAMBAKKA, CHENNAI -600034, REPRESENTED BY THE
GENERAL MANAGER.
2 THE GENERAL MANAGER
(CONTRACT CELL), INDIAN OIL CORPORATION LTD.,
MARKETING DIVISION, REGIONAL CONTRACT CELL,
INDIAN OIL BHAVAN, UTHAMAR GANDHI SALAI,
NUNGABAKKA, CHENNAI- 600034.
3 THE CHIEF GENERAL MANAGER,
INDIAN OIL CORPORATION, KERALA STATE OFFICE,
PANAMPILLY AVENUE, PANAMPILLY, NAGAR, COCHIN-
682 036.
BY ADVS.
W.P.(C) No.10836 of 2021 & con. cases 4
SRI.NANDAKUMAR
M.GOPIKRISHNAN NAMBIAR
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
PAULOSE C. ABRAHAM
RAJA KANNAN
NAYANPALLY RAMOLA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.08.2021, ALONG WITH WP(C).10836/2021,
12449/2021 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.10836 of 2021 & con. cases 5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
WP(C) NO. 12449 OF 2021
PETITIONER:
FASTTRACK LOGISTICS
REP. BY ITS MANAGING PARTNER, SHAIJAN, AGED 50,
S/O. VELAYUDHAN, NEDUVELI HOUSE, THURAVUR P.O.,
ANGAMALY-683572.
BY ADVS.
SAIBY JOSE KIDANGOOR
BENNY ANTONY PAREL
S.SIBHA
RESPONDENTS:
1 INDIAN OIL CORPORATION LIMITED,
REPRESENTED BY ITS CHAIRMAN, HAVING ITS
HEADQUARTERS AT 079/3, SADIQ NAGAR, J B TITO
MARG, NEW DELHI-110049.
2 INDIAN OIL CORPORATION LIMITED,
REPRESENTED BY ITS GM, OPERATIONS KERALA STATE
OFFICE, PANAMPILLY NAGAR, KOCHI-682036.
3 INDIAN OIL CORPORATION LIMITED,
REPRESENTED BY ITS GENERAL MANAGER, CONTRACT
CELL, CHENNAI.
BY ADVS.
SRI.E.K.NANDAKUMAR
M.GOPIKRISHNAN NAMBIAR, SC
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
W.P.(C) No.10836 of 2021 & con. cases 6
PAULOSE C. ABRAHAM
RAJA KANNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.08.2021, ALONG WITH WP(C).11874/2021
AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.10836 of 2021 & con. cases 7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 13TH DAY OF AUGUST 2021 / 22ND SRAVANA, 1943
WP(C) NO. 13265 OF 2021
PETITIONERS:
1 CONCORD TRANSPORTS
REPRESENTED BY ITS MANAGING
PARTNER,JOHNY.C.D,AGED 65, S/O
DEVASSY,KALAMPARAMBIL BUILDING,
PERUMBAVOOR ROAD,KALADY.P.O,683574.
2 FASTTRACK LOGISTICS,
REPRESENTED BY ITS MANAGING PARTNER,
SHAIJAN,AGED 50 YEARS,S/O VELAYUDHAN,NEDUVELI
HOUSE,THURAVUR.P.O, ANGAMALY-683572.
BY ADVS.
SAIBY JOSE KIDANGOOR
P.M.MOHAMMED SALIH
PARVATHY VIJAYAN
ARJUN ANIL
BENNY ANTONY PAREL
SIBHA S
RESPONDENTS:
1 INDIAN OIL CORPORATION
REPRESENTED BY ITS CHAIRMAN,
HAVING ITS HEADQUARTERS AT 079/3,
SADIQ NAGAR,J B TITO MARG,NEW DELHI-110049.
2 INDIAN OIL CORPORATION LIMITED,
REPRESENTED BY ITS GM,OPERATIONS,KERALA STATE
OFFICE,
PANAMPILLY NAGAR,KOCHI-682036.
W.P.(C) No.10836 of 2021 & con. cases 8
3 INDIAN OIL CORPORATION LIMITED,
REPRESENTED BY ITS GENERAL MANAGER,
CONTRACT CELL,CHENNAI-600018.
BY ADVS.
SRI.E.K. NANDAKUMAR
M.GOPIKRISHNAN NAMBIAR, SC.
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
PAULOSE C. ABRAHAM
RAJA KANNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 13.08.2021, ALONG WITH WP(C).11874/2021
AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.10836 of 2021 & con. cases 9
P.B.SURESH KUMAR, J.
--------------------------------------------
W.P.(C) Nos.10836, 11874, 12449 & 13265 of 2021
----------------------------------------
Dated this the 13th day of August, 2021.
JUDGMENT
The question arising for consideration in these
matters being common, they are disposed of by this common
judgment.
2. The parties and documents are referred to in
this judgment, unless otherwise mentioned, as they appear in
W.P.(C) No.13265 of 2021.
3. The matters relate to the tenders floated by
M/s.Indian Oil Company Limited (the Company). The Company
issued Ext.P7 notice inviting e-tenders for road transportation
of bulk petroleum products from its Cochin Terminal for a period
of three years from 01.11.2020. The total tank trucks required
W.P.(C) No.10836 of 2021 & con. cases 10
by the Company for the said purpose was 291, consisting 151
tank trucks having the capacity of 12-16 kilolitres and 140
tank trucks having the capacity of 18-40 kilolitres. Out of the
said requirement, among others, 25% was reserved for Micro
and Small Enterprises. In terms of the said tender notice, the
tenderers were required to offer tank trucks having the
capacities aforesaid in the proportion of 1:1 and the maximum
number of tank trucks that could be offered by one tenderer
was limited to 29. It was however made clear in the tender
notice that the tenderers are free to offer tank trucks otherwise
than in the said proportion also. Those who do not have ready
built tank trucks were also permitted participate in the tender.
It was, however, clarified in the tender notice that those
tenderers who have offered tank trucks in the proportion 1:1
will be included in one lot namely Lot No.1 and would be
preferred over the remaining tenderers. Similarly, it was
clarified in the tender notice that those tenderers who have
offered tank trucks otherwise than in accordance with the
W.P.(C) No.10836 of 2021 & con. cases 11
proportion 1:1 will be included in another lot namely Lot No.2
and they will be considered for grant of award of contract only
if the required number of trucks cannot be procured from the
tenderers included in Lot No.1. Again it was clarified in the
tender notice that the remaining eligible tenderers who do not
have ready built tank trucks will be included in another lot
namely Lot No.3 and they will be considered if the required
number of trucks cannot be procured from the tenderers
included in Lot Nos.1 and 2. It is prescribed in the notice that
the lowest tenderer (L1) in Lot No.1 will be preferred over
others and if there are more tenderers offering the same lowest
rate, tenderers among them, who have offered more number of
vehicles will be preferred over others. Similarly, it is prescribed
in the notice that if there are more number of tenderers
offering lowest rate and equal number of vehicles, allotments
will be made having regard to the average age of the tank
trucks offered, by preferring those who have offered new tank
trucks over those who have offered old tank trucks. The
W.P.(C) No.10836 of 2021 & con. cases 12
tenders received pursuant to Ext.P7 notice have been
processed and contracts in respect of the entire fleet of 291
tank trucks were awarded to 18 tenderers.
4. The notice inviting tender provides that the
tenderer to whom contract is awarded has to make available
the tank trucks within the time stipulated therein. A few among
the tenderers who have been awarded the contracts have
however not placed the tank trucks offered by them within the
time stipulated in the notice. The Company, in the
circumstances, issued Ext.P4 tender notice inviting tenders for
procuring the deficit number of tank trucks namely 35
numbers, having the capacity of 12-16 kilolitres and 44
numbers having the capacity of 18-40 kilolitres. It is prescribed
in Ext.P4 tender notice that only those tenderers who have
been awarded contracts pursuant to Ext.P7 tender notice would
be entitled to participate in the said tender.
5. The petitioner in W.P.(C) No.10836 of 2021 is
one of the tenderers who has participated in the tender process
W.P.(C) No.10836 of 2021 & con. cases 13
pursuant to Ext.P7 notice. They have offered 28 tank trucks in
the proportion 1:1 and claimed allotment against the quota
earmarked for Micro and Small Enterprises. Although the
petitioner had offered maximum number of tank trucks and
had quoted the lowest rate, he was not awarded any contract.
Instead, contracts in respect of tank trucks reserved for Micro
and Small Enterprises have been awarded to respondents 5 to
7. The case set out by the petitioner in the said writ petition is
that the decision of the Company to award the contracts in
respect of tank trucks reserved for Micro and Small Enterprises
to respondents 5 to 7 in preference to the petitioner is
arbitrary. The stand taken by the Company in this matter is that
since there were more than one tenderer who have offered the
same number of vehicles and the lowest rate, contracts have
been awarded, having regard to the age of the tank trucks and
since the entire quota earmarked for Micro and Small
Enterprises was exhausted by tenderers who have been placed
above the petitioner in Lot No.1 itself, contracts could not have
W.P.(C) No.10836 of 2021 & con. cases 14
been awarded to the petitioner.
6. The petitioner in W.P.(C) No.11874 of 2021 is
another tenderer who has participated in the tender process
pursuant to Ext.P7 notice. She offered 4 trucks having the
capacity of 12-16 kilolitres. According to the petitioner, as she
has offered the lowest rate, she should have been awarded
contract in respect of the 4 tank trucks offered by her. The
stand taken by the Company in this matter is that since the
petitioner has not offered tank trucks in the proportion 1:1 as
mentioned in the tender notice, she was entitled to be
considered for award only on her turn in Lot No.2 and the quota
was exhausted by tenderers who are included in Lot No.1 itself.
7. The petitioners in W.P.(C) Nos.12449 and
13265 of 2021 also are tenderers who have participated in the
tender process pursuant to Ext.P7 invitation and who were not
awarded the contract, though they have offered the L1 rate, as
the quota was exhausted by tenderers who have been placed
above them in the respective lots. The case set out by the
W.P.(C) No.10836 of 2021 & con. cases 15
petitioners in the said writ petitions in essence is that the tank
trucks included in Ext.P4 notice being tank trucks covered by
Ext.P7 notice, there cannot be a separate tender process for
procuring the same and the contracts in respect of the same
ought to have been awarded to tenderers who have
participated in the tender process pursuant to Ext.P7 notice on
the basis of their merit. It is also their case that at any rate, the
provision in Ext.P4 notice confining the opportunity to
participate in the tender to those tenderers who have been
awarded contract pursuant to Ext.P7 notice, is arbitrary and
discriminatory. The petitioners therefore seek directions to the
Company to award the contracts in respect of the tank trucks
covered by Ext.P4 notice to the tenderers who have
participated in the tender process pursuant to Ext.P7 notice on
the basis of their merit. The stand taken by the Company in
these matters is that Ext.P7 tender stands closed upon
awarding contracts in respect of the entire fleet of tank trucks
and upon refunding the earnest money deposited by the
W.P.(C) No.10836 of 2021 & con. cases 16
unsuccessful tenderers and no further contract can be awarded
based on the said notice. It is also the stand of the Company
that in terms of Ext.R1(b) circular issued by the competent
authority of the Company, the deficit number of tank trucks
can be procured only from the existing operators.
8. Heard Sri.Saiby Jose Kidangoor, learned
counsel for the petitioners in W.P.(C) Nos.12449 of 2021 and
13265 of 2021, Sri.Jaju Babu, learned Senior Counsel for the
petitioners in W.P.(C) Nos.10836 of 2021 and 11874 of 2021 as
also Sri.E.K.Nandakumar, learned Senior Counsel for the
Company.
9. Though very many contentions have been
taken by the petitioners in W.P.(C) Nos.12449 of 2021 and
13265 of 2021 in their respective writ petitions, the only
contention raised by their learned counsel, Sri.Saiby Jose
Kidangoor, at the time of hearing was that having regard to
the specific provisions in Ext.P7 tender notice, the Company is
precluded from issuing a fresh tender notice for procuring the
W.P.(C) No.10836 of 2021 & con. cases 17
deficit number of tank trucks covered by Ext.P7 notice. It was
argued by the learned counsel that the scheme of Ext.P7
tender notice is that if the tenderers who are awarded the
contracts fail to furnish tank trucks within the time stipulated
in the tender notice, the allotment process shall be continued
until the Company is in a position to procure the entire fleet of
tank trucks covered by the tender notice. The learned counsel
elaborated the said argument referring to the provision in
Ext.P7 tender notice that the same is issued for the purpose of
awarding the contracts for transportation of bulk petroleum
products for a period of three years from 01.11.2020.
According to the learned counsel, insofar as Ext.P7 tender
notice was issued for procuring 291 tank trucks, there cannot
be any separate tenders for the said requirement during the
period mentioned in Ext.P7 notice. The learned counsel
reinforced the said contention placing reliance on the provision
in Ext.P7 tender notice that the tender process initiated in
terms of the said notice will be continued till the requirement of
W.P.(C) No.10836 of 2021 & con. cases 18
the trucks against the said tender is fully met. It was also
argued by the learned counsel, placing reliance on clause E(8)
of the terms and conditions of the tender that a fresh tender
notice in the nature of Ext.P4 can be issued only in the event of
closure and resitement of a location.
10. The learned Senior Counsel for the petitioners
in W.P.(C) Nos.10836 of 2021 and 11874 of 2021 supported the
arguments advanced by Sri.Saiby Jose Kidangoor. He also
placed emphasis on the provision in Ext.P7 tender notice that
the tender process initiated in terms of the same will be
continued till requirement of tank trucks against that tender is
fully met.
11. Per contra, the learned Senior Counsel for the
Company argued that the tender process initiated in terms of
Ext.P7 notice stands concluded upon awarding contracts for the
entire fleet of 291 tank trucks required for the Company and
upon refunding the earnest money deposit furnished by the
unsuccessful tenderers. According to the learned Senior
W.P.(C) No.10836 of 2021 & con. cases 19
Counsel, fresh contracts cannot be awarded on the basis of the
said tender process. It was argued by the learned Senior
Counsel that merely for the reason that tenders have been
invited pursuant to Ext.P7 notice for a specified period, it
cannot be said that a fresh tender process cannot be initiated
for procuring tank trucks which the tenderers to whom
contracts have been awarded failed to provide. It was also
argued by the learned Senior Counsel that the requirement of
tank trucks against Ext.P7 tender notice was fully met when
the company awarded contracts pursuant to the said tender
notice and it cannot, therefore, be contended that Ext.P4
tender notice was issued violating the stipulation to that effect
in Ext.P7. It was also argued by the learned Senior Counsel
that clause E(8) of the terms and conditions of the tender deals
only with closure and resitement of a location and the
provisions therein cannot be interpreted to contend that a fresh
tender can be issued only when a location is closed and resited.
That apart, placing reliance on Annexure R1(b) circular issued
W.P.(C) No.10836 of 2021 & con. cases 20
by the competent authority of the Company, the learned Senior
Counsel submitted that insofar as a full fledged selection
process has been completed for procuring the tank trucks
required for the Company for a period, it is the policy of the
Company that there need not be a fresh tender process for
procuring additional tank trucks required during the period, and
the same can be procured from the successful tenderers
themselves. It was also pointed out by the learned Senior
Counsel that none of the petitioners have challenged Annexure
R1(b) circular and that the direction contained therein cannot
be said to be illegal or arbitrary in any manner.
12. In the light of the submissions made by the
counsel for the parties on either side, the only question that
falls for consideration in these matters is whether the Company
is justified in issuing Ext.P4 tender notice for procuring the tank
trucks covered by Ext.P7 tender notice.
13. It is trite that an instrumentality of a State is
free to settle the terms of its tenders and the same are not
W.P.(C) No.10836 of 2021 & con. cases 21
open to judicial scrutiny unless it is shown that the same are
actuated by malice. Similarly, when it comes to the
understanding and interpretation of the terms of a tender, in
the absence of any malice attributed to the authorities, the
understanding and interpretation of the tender inviting
authority shall be accepted by the court, for the tender inviting
authority is the best Judge to decide as to how the tender
documents are to be interpreted. Needless to say that if two
interpretations are possible, then the interpretation of the
author must be accepted and the courts would interfere in
matters of contracts involving State instrumentalities only to
prevent arbitrariness, rationality, bias, malafides or perversity
[See Silppi Constructions Contractors v. Union of India,
(2020)16 SCC 489]. With this approach in mind, I shall deal
with the present case.
14. As noted, though very many contentions have
been raised by the petitioners in the writ petitions concerning
the correctness of the awards made by the Company pursuant
W.P.(C) No.10836 of 2021 & con. cases 22
to Ext.P7 tender notice, their learned counsel have not pursued
any of those contentions. Instead, as noted, the only point
pressed into service was concerning the justifiability of Ext.P4
tender notice. As rightly pointed out by the learned Senior
Counsel for the Company, merely for the reason that Ext.P7
tender notice was issued for procuring tank trucks mentioned
therein for a period of three years from 01.11.2020, it cannot
be said that the Company is precluded from inviting a fresh
tender for making up any shortfall in the requirement on
account of the failure on the part of the tenderers in providing
tank trucks, especially when it has a policy in place prescribing
the manner in which such shortfalls are to be made up.
15. True, it is provided for in sub-clause (c) of
Clause 1.11 in Ext.P7 tender notice that if the total
requirement of tank trucks is not met in the process mentioned
in sub-clause (b), the Company shall offer L1 rates to balance
tenderers in the order of their ranking namely L-2, L-3, etc. for
their acceptance and the above process will be continued till
W.P.(C) No.10836 of 2021 & con. cases 23
the requirement of the trucks against the tender is fully met. It
is also provided in sub-clause (d) of clause 1.11 of the tender
notice that if the total requirement of the tank trucks is not met
by the process mentioned in sub-clause (b) and sub-clause (c),
the Company may either negotiate further with L-2, L-3 and so
on who have quoted rates or cancel the tender or go for other
alternative courses mentioned therein. Sub-clauses (b), (c) and
(d) of clause 1.11 falling under the head 'EVALUATION OF
TENDERS' read thus:
"b) PRICE BID RANKING of the tenderers i.e. L-1,
L-2, L-3, etc shall be decided on minimum percentages
quoted for all categories in the Reverse Auction. In
case rates offered by L-1 tenderers in the Reverse
Auction, are not acceptable, then IOCL has the
discretion to negotiate with L-1 tenderers to bring
down the rates. L-1 rates shall be finalised and first
allocation of TTs shall be done to L-1 tenderers.
Selection Matrix of TTs at finalised L-1 rates shall be as
follows:-
Rank as per LOT-1 LOT-2 LOT-3
Price Bid
L1 Selection 1 Selection 2 Selection 3
c) If the total requirement of TTs is not met by above
W.P.(C) No.10836 of 2021 & con. cases 24
process from at b), IOCL shall offer L-1 rates to balance
tenderers in order of their ranking i.e. L-2, L-3,L-4 .......
etc. for their acceptance.
The above process shall continue till requirement of
the trucks is fully met against this tender.
d) If the total requirement of TTs is not met by above
process at b) and c), IOCL reserves the right to either
further negotiate with L-2, L-3......Ln tenderers OR
Cancel the tender and go for fresh NIT OR invite public
EOI at established L-1 rates to fulfill the required nos.
of TTs."
A reading of the extracted clauses would show beyond doubt
that what is indicated therein is that the Company would
pursue the tender process until it is able to procure the tank
requirements in terms of the notice. As noted, the petitioners
would interpret the said clauses to contend that even the
deficit tank truck requirement of the Company arising on
account of the failure on the part of the tenderers who have
been awarded the contracts to provide tank trucks are to be
procured in terms of Ext.P7 notice itself, whereas the Company
would contend that the said provisions in the tender notice are
W.P.(C) No.10836 of 2021 & con. cases 25
not intended, and cannot be made use of, for procuring the
deficit number of tank trucks. In a dispute of this nature,
according to me, this court is bound to accept the stand of the
Company and I do so also for the reason that the Company had
a policy in place right from the year 2015 for dealing with such
a contingency.
16. Again, the argument advanced by the learned
counsel for the petitioners, placing reliance on clause E(8) of
the terms and conditions of the tender, that a fresh tender is
provided in terms of the tender notice only in the contingency
referred to in that clause and in no other circumstances, is only
to be rejected. Clause E(8) of the terms and conditions of the
tender reads thus:
"8. Resitement of an old top loading location to
a new top loading location - In case a location is
closed and resited to a new location (where closed
location and resited location are both top-loading
locations), Company will have right to direct
Contractors to shift to the new location without any
compensation and at the same rates, terms and
conditions.
W.P.(C) No.10836 of 2021 & con. cases 26
Those Contractors who wish to withdraw from the pool
or not offer TTs at the same terms & conditions will be
allowed to do so. In such an event where Company will
require additional TTs(gap created from NIT Nos. vs. TTs
not offered during re-sitement) option will be given to
existing willing Contractors to bridge the gap through a
gate notice and if requirement is not met from existing
Contractors, then, Company reserves the right to go for
NIT or Public EOI."
A reading of the extracted clause would indicate that the same
deals only with the closure and resitement of a location and it
cannot be interpreted to contend that the Company cannot
issue a tender notice in the nature of Ext.P4. Here again, the
specific case of the Company is that the clause aforesaid in the
tender notice does not apply at all in the matter of the
Company procuring deficit number of tank trucks, if the
tenderers in a tender process to whom the contracts have been
awarded fail to provide the tank trucks covered by the awards.
I do not find any reason to reject the said stand of the
Company.
W.P.(C) No.10836 of 2021 & con. cases 27
17. As contended by the learned Senior Counsel
for the Company, it is seen that Ext.P4 tender notice has been
issued in the light of AnnexureR1(b) circular issued by the
competent authority of the Company. The petitioners do not
challenge Annexure R1(b) circular in these proceedings. That
apart, insofar as the contracts in respect of the entire fleet of
tank trucks covered by Ext.P7 notice have been awarded after
a due process of selection, a circular in the nature of Annexure
R1(b) permitting award of contracts for the deficit arose on
account of the failure on the part of the tenderers in providing
the tank trucks, to those who have come out successful in the
selection process, instead of taking up the burden of
undertaking a fresh selection process, cannot be said to be
illegal or arbitrary in any matter. True, there would be certainly
two views on the issue whether it was proper on the part of the
Company in preferring tenderers who have already been
awarded contracts over similarly placed tenderers who have
not been awarded with contracts. But, according to me, the
W.P.(C) No.10836 of 2021 & con. cases 28
aforesaid cannot be a reason for this court to interfere with the
process commenced by the Company as per Ext.P4 notice.
In the circumstances, there is no merit in the writ
petitions and the same are, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Mn
W.P.(C) No.10836 of 2021 & con. cases 29
APPENDIX OF WP(C) 10836/2021
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE RELEVANT EXTRACT OF
THE TENDER FOR ROAD TRANSPORTATION OF
BULK PETROLEUM PRODUCTS VIDE TENDER
NO.SRCC/PT/064/KESO/2020-21.
EXHIBIT P2 TRUE COPY OF THE SUMMARY REPORT DATED
28.01.2021 PUBLISHED BY THE 1ST
RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE EMAIL COMMUNICATION
DATED 05.02.2021 SENT BY PETITIONER TO
THE CORPORATION.
EXHIBIT P4 TRUE COPY OF THE TENDER SUMMARY REPORT
DATED 18.04.2021 OF THE 1ST RESPONDENT
PUBLISHING THE PRICE BID UPDATED ON
10.03.2021.
EXHIBIT P5 TRUE COPY OF THE COMPLAINT SUBMITTED BY
THE PETITIONER BEFORE THE 4TH
RESPONDENT ON 14.03.2021 THROUGH EMAIL.
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED
14.03.2021 SUBMITTED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED
16.03.2021 SUBMITTED BY THE PETITIONER
BEFORE THE 3RD RESPONDENT THROUGH
EMAIL.
EXHIBIT P8 TRUE COPY OF THE PROCUREMENT POLICY
ORDER DATED 23.03.2012 PUBLISHED BY THE
MINISTRY OF MICRO, SMALL AND MEDIUM
ENTERPRISES.
EXHIBIT P9 TRUE COPY OF THE EMAIL FORWARDED BY THE
PETITIONER ON 16.03.2021 TO THE
TENDERING AUTHORITY.
EXHIBIT P10 TRUE COPY OF THE REPLY DATED 17.03.2021
W.P.(C) No.10836 of 2021 & con. cases 30
FORWARDED BY THE CORPORATION TO THE
PETITIONER THROUGH EMAIL.
EXHIBIT P11 TRUE COPY OF THE REQUEST DATED
07.04.2021 SUBMITTED BY THE PETITIONER
AND OTHERS BEFORE THE 3RD RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED
23.11.2017 IN WA NO.1999/2017 OF THIS
HON'BLE COURT.
EXHIBIT P13 TRUE COPY OF THE ORDER DATED 13.04.2021
IN WPC NO.7342/2021 OF THIS HON'BLE
COURT.
EXHIBIT P14 TRUE COPY OF THE LETTER VIDE
REF.NO.KESO/OPS/51/POL/PT/IMNM/16-
17/252 DATED 15.06.2021 (WRONGLY TYPED
AS 15.06.2020)
EXHIBIT P15 ISSUED BY THE GENERAL MANAGER OF IOC
STATE OFFICE TO THE PETITIONER
TRUE COPY OF THE NOTICE INVITING GATE
TENDER FOR POL CONTRACT AT COCHIN
TERMINAL VIDE
REF.NO.SRCC/PT/064/KESO/2020-21/GATE
TENDER/JUN 2021
RESPONDENT'S
EXHIBITS
EXHIBIT R1(a) TRUE COPY OF THE MINUTES OF THE PRE-
BID MEETING HELD ON 09.09.2020
EXHIBIT R1(b) TRUE COPY OF THE E-MAIL DATED
17.03.2021
EXHIBIT R1(c) TRUE COPY OF THE E-MAIL DATED
25.03.2021
EXHIBIT R1(d) TRUE COPY OF CIRCULAR DATED 20.11.2015
W.P.(C) No.10836 of 2021 & con. cases 31
APPENDIX OF WP(C) 11874/2021
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE LETTER OF INTENT DATED
29.05.2017 FOR BULK TRANSPORTATION OF
PETROLEUM PRODUCTS ISSUED TO 4 TANK
TRUCKS OF THE PETITIONER BY THE
CORPORATION.
Exhibit P2 TRUE COPY OF THE RELEVANT EXTRACT OF
NOTICE INVITING TENDER (NIT) PUBLISHED
BY THE 2ND RESPONDENT FOR TRANSPORTATION
OF BULK PETROLEUM PRODUCTS.
Exhibit P3 TRUE COPY OF THE RELEVANT EXTRACT OF THE
APPLICATION TOWARDS EXT. P2 NIT
SUBMITTED BY THE PETITIONER.
Exhibit P4 TRUE COPY OF THE SUMMARY REPORT DATED
28.1.2021 PUBLISHED BY THE 1ST
RESPONDENT.
Exhibit P5 TRUE COPY OF THE STATUS REPORT DATED
05.02.2021 SHOWING THE LI INFORMATION
PAGE IN THE WEBSITE OF THE 1ST
RESPONDENT.
Exhibit P6 TRUE COPY OF THE JUDGMENT DATED
08.04.2021 IN WPC NO. 8898/2021 OF THIS
HON'BLE COURT.
Exhibit P7 TRUE COPY OF THE REPRESENTATION DATED
16.04.2201 SUBMITTED BY THE PETITIONER
BEFORE THE 2ND RESPONDENT.
Exhibit P8 TRUE COPY OF THE TENDER SUMMARY REPORT
DATED 18.04.2021 PUBLISHED BY THE 2ND
RESPONDENT PUBLISHING THE PRICE BID
UPDATED ON 10.03.2021.
Exhibit P9 TRUE COPY OF THE INTIMATION DATED
03.05.2021 FORWARDED BY THE 1ST
RESPONDENT TO THE PETITIONER.
Exhibit P10 TRUE COPY OF THE CURRENT LI
W.P.(C) No.10836 of 2021 & con. cases 32
TRANSPORTATION RATE (INCLUSIVE OF
TAXES), AND TERMS AND CONDITIONS
PUBLISHED IN THE WEBSITE ON 05.02.2021.
Exhibit P11 TRUE COPY OF THE LETTER VIDE
REF.NO.DESO/OPS/51/POL/PT/IMNM/16-17/252
DATED 15.06.2021(WRONGLY TYPES AD
15.06.2021) ISSUED BY THE GENERAL
MANAGER OF IOC STATE OFFICE, TO THE
PETITIONER
Exhibit P12 TRUE COPY OF THE LETTER DATED 17.06.2021
FORWARDED BY THE PETITIONER TO THE
GENERAL MANAGER, IOC-STATE OFFICE
RESPONDENTS' EXHIBITS
ANNEXURE R1(A) TRUE COPY OF THE FIRST PAGE FROM THE
MSTC LTD PORTAL ACCESSED ON 05.02.2021
ANNEXURE R1(B) TRUE COPY OF TENDER SUMMARY REPORTS
PRINTED ON 07.06.2021
W.P.(C) No.10836 of 2021 & con. cases 33
APPENDIX OF WP(C) 12449/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE TECHNICAL CORRIGENDUM
DATED NIL.
Exhibit P2 TRUE COPY OF THE COMMUNICATION ISSUED
BY THE 2ND RESPONDENT DATED 15.6.2021.
Exhibit P3 TRUE COPY OF THE REPRESENTATION
PREFERRED BY THE PETITIONER DATED
14.6.2021.
Exhibit P4 TRUE COPY OF THE REPRESENTATION
PREFERRED BY THE PETITIONER DATED
14.6.2021
Exhibit P5 TRUE COPY OF THE TENDER NOTIFICATION
FOR ROAD TRANSPORTATION OF BULK
PETROLEUM PRODUCTS ISSUED BY THE 1ST
RESPONDENT DATED NIL
Exhibit P6 TRUE COPY OF THE COMMUNICATION DATED
15/3/2021 ISSUED TO THE PETITIONER BY
THE 3RD RESPONDENT
W.P.(C) No.10836 of 2021 & con. cases 34
APPENDIX OF WP(C) 13265/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE TECHNICAL CORRIGENDUM
DATED NIL
Exhibit P2 TRUE COPY OF THE REPRESENTATION
PREFERRED BY THE 2ND PETITIONER BEFORE
THE 2ND RESPONDENT DATED 14.06.2021
Exhibit P3 TRUE COPY OF THE REPRESENTATION
PREFERRED BY THE 2ND PETITIONER BEFORE
THE 3RD RESPONDENT DATED 14.06.2021
Exhibit P4 TRUE COPY OF THE NOTICE DATED NIL OF THE
INDIAN OIL CORPORATION.
Exhibit P5 TRUE COPY OF THE COMMUNICATION DATED
15.03.2021 ISSUED TO THE FIRST
PETITIONER BY THE THIRD RESPONDENT
Exhibit P6 TRUE COPY OF THE COMMUNICATION DATED
15.03.2021 ISSUED TO THE SECOND
PETITIONER BY THE THIRD RESPONDENT
Exhibit P7 TRUE COPY OF THE TENDER NOTIFICATION FOR
ROAD TRANSPORTATION OF BULK PETROLEUM
PRODUCTS ISSUED BY THE 1ST RESPONDENT
DATED NIL
EXHIBIT P8 TRUE COPY OF THE PREBID - MINUTES OF
MEETING DATED 09.09.2021
RESPONDENTS'
EXHIBITS
ANNEXURE R1(A) THE TRUE COPY OF THE RELEVANT PAGES OF
THE TENDER NO.SRCC/PT/064/KESO/2020-21
ANNEXURE R1(B)
THE TRUE COPY OF THE CIRCULAR DATED
20.11.2015
