Civil Writ Petition Nos. 21863 and 21864 of 2016 (O&M). Case: R.S. Labour and Transport Contractor Vs Food Corporation of India and Ors.. High Court of Punjab (India)
| Case Number | Civil Writ Petition Nos. 21863 and 21864 of 2016 (O&M) |
| Counsel | For Appellant: Akshay Bhan, Senior Advocate and Abhishek Sanghi, Advocate and For Respondents: K.K. Gupta, Advocate |
| Judges | S.J. Vazifdar, C.J. and Anupinder Singh Grewal, J. |
| Issue | Civil Procedure Code |
| Judgement Date | March 06, 2017 |
| Court | High Court of Punjab (India) |
Judgment:
S.J. Vazifdar, C.J.
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It is not only convenient but necessary to consider both these petitions by a common order and judgment.
2(A) In CWP No. 21863 of 2016, the petitioners have sought a writ of certiorari to quash the Technical Bids Evaluation Summary dated 10.10.2016 of the committee constituted by respondent No. 1 rejecting their technical bid on the ground and with the remark:
"Cartelisation B/W R S Labour and Transport Contractor & Sushil & Co.". The petitioners have also challenged a communication dated 10.10.2016 addressed by the official respondents informing the petitioners of this decision and that the earnest money deposited (EMD) by them was forfeited.
(B) In CWP No. 21864 of 2016, the petitioners have sought an order quashing the Technical Bids Evaluation Summary dated 10.10.2016 by which the petitioners' technical bid was rejected by the committee. The rejection was on account of the forfeiture of the petitioners' EMD in the above matter and a term in the tender documents disqualifying a bidder whose EMD is forfeited in any other contract by respondent No. 1.
(C) In both the petitions, the petitioners have challenged the award of the work in favour of respondent No. 3 and have sought a writ of mandamus directing respondent Nos. 1 and 2 to consider their technical bids and to allot the tenders in accordance with law. Respondent No. 3 in CWP No. 21863 and 21864 of 2016 are one Gaurav Kumar and Shiva Transport Co., respectively."
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The official respondents have not contended that the petitioners' bids were not technically qualified for any other reason.
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The official respondents issued an e-Notice dated 30.09.2016 inviting tenders for the appointment of a Mandi Transport Contractor for the Dhamtan, Kharal, Jind and Safidon Mandis in the Jind district, Haryana. In respect of this tender, the petitioners submitted their bid as a Mandi Transport Contractor only for the Jind Mandi.
On 30.09.2016, the official respondents also issued an e-Tender Notice for the appointment of a Mandi Labour Contractor for Safidon Mandi in district Jind. The petitioners submitted a bid for the same.
5(A) The tender notice, inter alia, states:-
List of Documents to be uploaded in Technical bid folder/cover: Technical Bid as per Appendix II:
.........................................
PRICE BID to be uploaded in Financial bid folder/cover:
(i) Signed scanned copy (in pdf format) of Price Bid/Offered rate as per Appendix-III.
NOTE:-For detailed terms and conditions, MTC MTF applicable may be referred.
We have proceeded on the basis that the detailed terms and conditions of the Model Tender Form (MTF) are applicable. The following clause of the MTF was relied upon by the respondents:-
"Clause 12: In case of any clear indication of cartelization, the Corporation shall reject the tender(s), and forfeit the EMD."
(B) The petitioners' bid for being appointed a Mandi Transport Contractor in respect of the Jind Mandi was rejected on the ground that they had formed a cartel with another party and that their bid was, therefore, liable to be rejected in view of clause 12 of the MTF. This decision is challenged in CWP No. 21863 of 2016."
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Appendix-II of the e-Tender Notice pertains to the "TECHNICAL BID". Clause (iii) thereof stipulates the "TECHNICAL EXPERTISE". Sub-clause 5(ii) of clause (iii) contains the following note:-
"5. DETAILS OF SISTER CONCERNS
.............................................................................
NOTE:
.............................................................................
(ii) The parties whose EMD is forfeited by FCI will not be qualified."
The official respondents considered the petitioners to be ineligible to bid for the Mandi Labour Contractor tender on the basis of this clause and in view of the petitioners' EMD having been forfeited by the first respondent in respect of the other tender for the Mandi Transport Contractor for the Jind Mandi. This decision is challenged in the second petition viz. CWP No. 21864 of 2016.
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The above terms and conditions are the same in both the e-Tender Notices. Respondent No. 3 in CWP No. 21863 of 2016 Gaurav Kumar, who also submitted a tender, addressed a letter dated 06.10.2016, which stated the following: Of the four bidders the petitioners and M/s. Sushil & Co. "submitted the tender under cartelization". One Raj Singh is a partner in and the constituted attorney of the petitioners and another firm by the name of M/s. Shree Shyamji Transport Co. Raj Singh submitted the tender as a partner and constituted attorney of the petitioners. On behalf of M/s. Shree Shyamji Transport Co., he also entered into an agreement with M/s. Sushil & Co. for the supply of trucks to M/s. Sushil & Co. for the transport work. In CWP No. 717 of 2015, filed by the petitioners, Raj Singh stated that he is the caretaker of M/s. Sushil & Co. These facts established that the petitioners and M/s. Sushil & Co. had formed a cartel for the purpose of bidding in the present case. Respondent No. 3 requested the first respondent to invoke clause-12 and to reject the tenders submitted by the petitioners and M/s. Sushil & Co. as they formed a cartel.
The agreement that is referred to...
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