Kerala High Court
Olympia Interior Enterprises vs Child Development Project ... on 2 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 2ND DAY OF MARCH 2022 / 11TH PHALGUNA, 1943
WP(C) NO. 4610 OF 2022
PETITIONER:
OLYMPIA INTERIOR ENTERPRISES,
OLYMPIA BUILDING, 15/31C SIDCO INDUSTRIAL PARK
THIRUVARP.P.O., KOTTAYAM 686 020.,
REPRESENTED BY ITS MANAGING PARTNER,
ABEY THOMAS, S/O.P.T.THOMAS.
BY ADV S.SUDHISH KUMAR
RESPONDENTS:
1 CHILD DEVELOPMENT PROJECT OFFICER,
I.C.D.S.URBAN 1,2,3,4,
PROJECT NO.143, 0032/22, 142,135 C.D.P.O,
CORPORATION OF KOZHIKODE,
C/O.CHILD DEVELOPMENT PROJECT OFFICER,
ICDS URBAN-III KOZHIKODE VENGALI-673021.
2 MUNICIPAL CORPORATION KOZHIKODE,
REPRESENTED BY ITS SECRETARY,
MUNICIPAL CORPORATION OFFICE,
KOZHIKODE-673021.
3 REGIONAL JOINT DIRECTOR,
DIRECTOR OF URBAN AFFAIRS, STATE OF KERALA,
SECRETARIATE, TRIVANDRUM-695003.
BY ADVS.
SHRI.K.P.G.MENON, SC, KOZHIKODE CORPORATION.
SHRI.V.KRISHNA MENON, SC, KOZHIKODE MUNICIPAL
CORPORATION
SMT.PARVATHY KOTTOL, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C)No.4610/2022
2
JUDGMENT
Dated this the 2nd day of March, 2022
The petitioner, an SSI Unit manufacturing wooden
furniture, is before this Court seeking to direct the
respondents to consider the petitioner's tender along with
other selected tenders and to give opportunity to the
petitioner to participate in the bid.
2. The learned counsel for the petitioner contends
that the petitioner-Unit is functioning in the SIDCO Industrial
Park, Kottayam and is having Udyog Aadhaar Registration
issued by the Ministry of Micro, Small and Medium
Enterprises, Government of India. In view of Ext.P2
Government Order dated 22.03.2021, the petitioner is
entitled for getting tender fee and EMD exemptions.
WP(C)No.4610/2022
3. The petitioner states that on 17.12.2021, the 2 nd
respondent floated Ext.P3 tender for supplying "good quality
hard wood cot with minimum five year warrantee for supply
to Ward Nos.1 to 75 of Kozhikode Municipal Corporation".
The petitioner submitted Ext.P4 bid in response to Ext.P3
tender notification. The tenders were opened on
06.01.2022. The petitioner's tender was rejected on the
ground that the petitioner did not upload fee exemption
certificate. In Ext.P5, it was recorded that the "fee
exemption certificate date expired".
4. The petitioner states that the Government has
issued Ext.P2 Government Order dated 22.03.2021
declaring that those units having Udyog Aadhaar
Registration are entitled to get exemption from tender fee
and EMD while submitting tender for different purchase of
goods and services by Government Departments and
Organisations. As on the date of submission of Ext.P3
WP(C)No.4610/2022
tender, the petitioner was entitled to get fee exemption
available as per Ext.P2 Government Order. Therefore, the
rejection of petitioner's tender is illegal and unsustainable.
5. The petitioner would submit that the petitioner is
the lowest tenderer and there is a huge difference between
the price quoted by the petitioner and the price quoted by the
person to whom now the tender is going to be awarded. As
per Clause 9.11 of Chapter IX of the Purchase Manual,
during the preliminary examination, if the Purchaser finds
some minor irregularity or informality, the Purchaser is
competent to waive the same provided the same does not
constitute any material deviation and financial impact. In the
petitioner's case, if such a waiver is given, that will benefit the
public exchequer to a great extent. In the circumstances, the
respondents ought to have exercised the discretion granted
under Clause 9.11 of Chapter IX of the Purchase Manual, in
the larger public interest and permitted the petitioner to
WP(C)No.4610/2022
produce hard copy of exemption certificate/document.
6. The learned Standing Counsel entered
appearance and resisted the writ petition on behalf of
respondents 1 and 2. The learned Standing Counsel
submitted that in response to Ext.P3 tender, 12 persons
submitted their offers. Out of the 12 candidates who
responded to Ext.P3, eight candidates were found eligible
and four candidates were found ineligible. Those four
candidates including the petitioner were found ineligible
since they did not upload certificate relating to fee
exemption. Therefore, respondents 1 and 2 decided to
reject the tenders submitted by those tenderers. The
petitioner has not been singled out and discriminated.
Tenders of all bidders who failed to upload the fee
exemption certificate, were rejected. There is no illegality.
7. I have heard the learned counsel for the
petitioner, the learned Standing Counsel representing
WP(C)No.4610/2022
respondents 1 and 2 and the learned Government Pleader
representing the 3rd respondent.
8. It is an admitted position that the tender
conditions required uploading of certificates entitling the
tenderers to get tender fee/EMD exemption as per Ext.P2
Government Order. Admittedly, the petitioner and three
others did not upload the documents which were required to
come to a conclusion that the petitioner is entitled to get
exemption.
9. The argument of the learned counsel for the
petitioner is that Clause 9.11 of Chapter IX of the Purchase
Manual mandates that during the preliminarily examination,
the Purchasers may also find some minor informality and/or
non-conformity in some tenders. The Purchaser may waive
the same, provided the same does not constitute any
material deviation and financial impact and, also, does not
prejudice or affect the ranking order of the tenders. A
WP(C)No.4610/2022
reading of Clause 9.11 would show that it is only a discretion
given to the Purchaser. The said Clause will not confer any
correspondent right on bidders. In the case on hand, taking
into consideration the context in which the tenders were
floated, respondents 1 and 2 decided to reject the tenders of
four candidates, who did not upload the requisite
documents. It cannot be said that the petitioner alone has
been discriminated.
In the facts and circumstances of the case, this
Court do not find any illegality or irregularity in respondents
1 and 2 rejecting the tender of the petitioner along with the
tender of three others. The writ petition fails and it is
accordingly dismissed.
Sd/-
N. NAGARESH
JUDGE
SR
WP(C)No.4610/2022
APPENDIX OF WP(C) 4610/2022
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE UDYOG AADHAAR
MEMORANDUM OF REGISTRATION
Exhibit P2 TRUE COPY OF G.O(P) NO.3/2021/SPD
DATED 22.03.2021 ISSUED BY STORES
PURCHASE (A) DEPARTMENT UNDER THE
KERALA GOVERNMENT
Exhibit P3 TRUE COPY OF THE TENDER NOTICE
BEARING NO. ICDS/U3/486/21 DATED
17.12.2021 ALONG WITH THE
SPECIFICATION ATTACHED TO THE TENDER
Exhibit P4 TRUE COPY OF THE BID ACKNOWLEDGEMENT
DATED 9.1.2022 WHICH SHOWS THAT THE
BID SUBMITTED AS 31.12.2021 AT
11.35AM
Exhibit P5 TRUE COPY OF THE TENDER SUMMARY
REPORT DATED 9.1.2022 SHOWING THE
BIDDERS LIST AND STATUS
Exhibit P6 TRUE COPY OF THE CERTIFICATE UNDER
"UDYAM REGISTRATION CERTIFICATE"
DATED 07.01.2022
Exhibit P7 TRUE COPY OF THE REPRESENTATION OF
THE PETITIONER DATED 9.01.2022
Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 14-1-
2022 PASSED BY THIS HON'BLE COURT IN
WPC NO.1234/2022
Exhibit P9 TRUE COPY OF THE ORDER DATED 2-2-2022
PASSED BY THE 1ST RESPONDENT
Exhibit P10 TRUE COPY OF THE NOTIFICATION DATED
19-1-2022 BEARING NO.SO278(E)
SR //TRUE COPY// PA TO JUDGE
