M/S Rahul Saluja vs Food Corporation Of India
2022 Latest Caselaw 1544 MP

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 IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                              BEFORE
               HON'BLE SHRI JUSTICE VIVEK RUSIA
                                  &
       HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)

                   ON THE 3rd OF FEBRUARY, 2022

                WRIT PETITION No. 28566 of 2021

  Between:-
   M/S    RAHUL    SALUJA   THROUGH
   PROPRIETOR MR. RAHUL SALUJA, ADD:
   DUBEY COLONY, NEAR SAI RAM FLOUR
   MILL (MADHYA PRADESH)
                                                       .....PETITIONER
  (BY SHRI VIBHOR KHANDELWAL, LEARNED COUNSEL)

  AND

   FOOD CORPORATION OF INDIA THROUGH
   GENERAL MANAGER REGIONAL OFFICE-
1.
   CHETAK BHAWAN, MAHARAN PRATAP
   NAGAR (MADHYA PRADESH)
   M/S S.K. TRANSLINES PVT. LTD. THROUGH
   ITS DIRECTOR SURESH DADA JAIN
2.
   COMPLEX, MIDC, AJANTA ROAD, JALGAON
   (MAHARASHTRA)
                                                   .....RESPONDENTS
  (RESPONDENT NO.1 BY MS. SWATI UKHALE, LEARNED COUNSEL )

  (RESPONDENT NO.2 BY SHRI SAMEER ANANT ATHAWALE, LEARNED
  COUNSEL )
                  (Heard through Video Conferencing)
 VIVEK RUSIA. J passed the following:

                        ORDER

The present writ petition is filed being aggrieved by the order

dated 14.12.2021 passed by respondent No.1 whereby the petitioner

has been declared disqualified to participate in the tender issued vide

NIT dated 26.08.2021. Being aggrieved by the aforesaid order, the

petitioner submitted a representation and the same has also been

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dismissed vide order dated 10.12.2021.

2. By way of the present petition, the petitioner is seeking the

following relief: -

7.1. That, the instant writ petition may kindly be allowed,

and the impugned order dated 14.12.2021 and

disqualification status declared by respondent No.1

concerning the petitioner may kindly be set aside.

7.2 That, respondent No.1 may kindly be directed not to

accept the tender bid submitted by respondent No.2 and may

further be directed not to proceed and not to issue work

allotment order on the subject NIT and bid status uploaded

by respondent No.1 on their official website.

The facts of the case in short are as under:

3. The petitioner is a proprietorship firm and has filed the present

petition through its proprietor Rahul Saluja. Respondent No.1 is a

statutory corporation of the Government of India under the Ministry of

Consumer Affairs constituted for storage, distribution and

transportation of Food grans etc.

4. Respondent No.1 issued NIT dated 26.08.2021 inviting the bids

for awarding the contract of Regular Handling and Transport

Contractor for food grans etc at Railhead and other storage centers

within a radius of 100 kilometres from Municipal Officer/Railway

goods/shed/siding/food storage for the period of two years. The

petitioner as well as respondent No.2 along with others submitted their

bids. The petitioner has submitted a bid on 29.09.2021 for Rail Head/

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Center Handling and Transport Contractor (HTC) Shamgarh, Food

Corporation of India, Divisional Office, Ujjain. The petitioner has

deposited earnest money, security deposit by enclosing all the required

documents along with the tender form. On 09.12.2021, respondent

No.1 has declared the petitioner as disqualified for two reasons, firstly,

the petitioner has submitted the EPF Inspection Report dated

18.01.2021 without any documents like clearance certificate about

payments of all the dues by the employer or EPF department, and

secondly, the petitioner has submitted HLRT Experience Certificate

whereas the tenderer should have experience of Rake Handling and/or

Transportation related to the Rake movement only. After the rejection

of the tender of the petitioner, respondent No.2 has been found L-1 and

a work order has been issued, which is not challenged in this petition.

Being aggrieved by the above action the petitioner has submitted a

representation dated 10.12.2021 to respondent No.1 and after the

rejection of the said representation, the present writ petition is being

filed before this Court.

5. Shri Vibhor Khandelwal, learned counsel for the petitioner

submits that the petitioner has wrongly been declared disqualified

despite fulfilling all the necessary qualifications as required in the NIT.

So far as reasons No.1 is concerned, the petitioner has submitted all

the Challan of payment of all pending dues of EPF as pointed out in

the inspection report to establish that there are no dues of EPF. The

committee has adopted a very technical approach in rejecting the bid

of the petitioner. So far the reason no 2 is concerned, the same

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certificate, had been accepted the respondent no.1, as qualified for

HTC Jukehi, Tehsil Maihar, District Satna, Division Rewa (M.P.).

HLRT experience certificate and HTC certificate are the same things

as clarified by District Manager M.P. State Civil Supply Corporation,

Bhopal vide letter dated 15.09.2021 to the Assistant General Regional

Office, FCI, Bhopal. The petitioner has annexed the proforma of work

experience certificate dated 17.07.2020 that from 01.04.2018 to

31.03.2019, the petitioner has completed the work of transportation on

HLRT of the total value of Rs.3,62,03,226/-. Hence the impugned

action is an illegal and arbitrary exercise of power.

6. Respondent No.1 has filed a reply by submitting that the

petitioner's technical bid was disqualified due to non-submission of

required documents including experience certificate of rake movement

and for want of confirmation from the EPF Authorities and Principle

employer in respect of no dues in PF contribution. In NIT total of 9

bidders participated and out of 9 bidders, 5 were declared disqualified

including the petitioner. The price bid of the remaining four bidders

was opened in which respondent No.2 has been found L-1. The

petitioner cannot be presumed that he has quoted the lowest rates than

respondent No.2 because he has not disclosed its rate in representation

dated 10.12.2021. The representation of the petitioner has duly been

considered and rejected by the competent authority. The tender

selection committee has acted fairly and transparently, hence, no

interference is called for. Ms Swati Ukhale has placed reliance over the

judgment passed by this Court in similar facts and circumstances

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reported in 2021 (4) MPLJ 428 (Shrishti Infrastructure Development

Corporation Ltd. Vs. State of Madhya Pradesh) in which this court

has declined to interfere with tender matter.

7. Shri Sameer Athawale learned counsel for respondent No.2

submits that after awarding the work order, respondent No.2 has

invested a huge amount and deployed the numbers of trucks. The

petitioner has not challenged the LOI or the work order issued in

favour of respondent No.2. Respondent No.2 has nothing to do with

the rejection of tender of the petitioner on technical ground.

Respondent No.1 has produced all documents and the record of the

tender committee which reveals fairness and transparency on the part

of the tender selection committee, hence, the petition is liable to be

dismissed.

We have heard learned counsel for the parties and perused the

records and judgment cited by the counsels.

8. The petitioners have submitted an online tender for appointment

Handling and Transport Contractor from HTC Shamgarh, hence the

petitioner has filed this writ petition before this court bench at Indore

otherwise all the cause of action has accrued with the territorial

jurisdiction of Principal seat of this High Court. The tender of the

petitioner has been rejected on two counts as stated above.

Qualification conditions for the tender are provided in clause 3 of NIT.

According to which the tenderer should have experience of Rake

Handling and /or Transportation (Transportation shall be related to

Rake Movement Only) duly obtained from Manufacturer/PSU/Govt.

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Dept./Public Ltd. Company/ Private Company dealing in the field of

Fertilizer, Food grains, Cement, Sugar, Coarse grains or similar

products. The NIT was issued by the FCI for the appointment of the

loading/unloading/ handling and transport contractor. The description

of work is, in brief, is given in NIT and according to which

unloading/loading of the food grains begs from/into railway wagons,

trucks etc. The tenderer must get themselves fully acquainted with the

size and location of godowns viz-a-viz loading/unloading points from

trucks/wagons. It has been clarified in condition No.3.1 that the tender

should have experience in Rake Handling and/or transportation. The

petitioner has submitted an experience certificate of HLRT means

Handling Long Route Transport and a letter sent by District Manager

that the meaning of HLRT in respect of Rake Movement. The authority

who has issued tender for engagement of contractor for specific work

is the best person to decide the eligibility criteria, qualification and

condition of tender and according to them, the contractor having

experience of HLRT is not sufficient or not equivalent to RHT i.e.

Rake Handling Transportation. This Court cannot sit as an Appellate

Authority to adjudicate the same. As per qualification condition when

it is found that the petitioner does not fulfill the same, the Court cannot

interfere.

9. So far as rejection of another ground is that for the HTC

contractor where the handling work has been undertaken the tenderer

must submit the documents with the technical bid along with other

documents in respect of EPF returns:-

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• The copies of all monthly challans for experience period along with an undertaking by way of an affidavit on a stamp paper of appropriate value indicating the details of claimed experience should be submitted. The format for undertaking is also attached with this NIT.

• Following documents are also to be submitted by the bidders for Proof of deposit of EPF for the relevant experience period, (if experience is HTC or Handling Contract irrespective of contract value of centre) i.e. 1 NDC from RPFC Or

2. Confirmation from EPF authorities and confirmation from Principle employer OR

3. Inspection Report and / or confirmation from Principle Employer OR

4. Confirmation of Principal Employer if the EPF was deducted and submitted by the Principal Employer itself in its own code. • Apart from the above, the Undertaking regarding EPF defaults in relation to work carried out for FCI in past is also to be submitted by bidders as per the prescribed format attached with this NIT.

10. The petitioner has submitted a copy of all monthly challan but

apart from that, no dues certificate of RPFC or confirmation of EPF

authorities and confirmation of Principle Employer or inspection

report or confirmation from Principal Employer have not been

submitted by the petitioner. Although the challan submitted by the

petitioner indicates that after the inspection report all dues have been

cleared but as per the strict condition of the tender one of the aforesaid

certificates ought to have been annexed. It is always the satisfaction of

the Principal Employer or the EPF authorities as to there is no default

or pending dues of EPF, hence, we are not inclined to interfere with the

decision taken by respondent No.1 in rejecting the technical bid of the

petitioner.

11. Even otherwise, the petitioner has claimed the relief that

impugned order 14.12.2021 be quashed, the disqualification status

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declared by respondent No.1 be also be set aside and respondent No.1

be directed to not to accept the tender bid submitted by respondent

No.2. The petitioner filed the present petition on 21.12.2021 after the

issuance of a work order dated 15.12.2021 in favour of respondent

No.2. The work order had been issued to the respondent on 15.12.2021

i.e. before the filing of the writ petition on 21.12.2021 . Thereafter

respondent No.2 has filed a copy of the work order along with return

on 10.01.2022, despite that the petitioner has not challenged the

aforesaid order. At this stage, no such permission can be granted to

amend the petition. Therefore, the relief claimed in the petition cannot

be granted in absence of challenging or seeking the quashment of

appointment of respondent No.2 vide letter dated 15.12.2021. Hence,

the writ petition is hereby dismissed.

No order as to cost.

Certified copy as per Rules.

      ( VIVEK RUSIA )                 ( RAJENDRA KUMAR (VERMA )
          JUDGE                                 JUDGE

      praveen/-


Digitally signed by PRAVEEN
NAYAK
Date: 2022.02.07 17:14:49
+05'30'