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Judgment
S. Jagadeesan, J.—W.P. 18044 of 2000 has been filed for the issue of a writ of prohibition, prohibiting the Respondents 1 to 3 herein from awarding the contract to any tender by relaxing the terms and conditions of the tender for the transport of bulk L.P.G.
W.P.15644 to 15646 of 2000 have been filed for the issue of a writ of mandamus forbearing the Respondents 1 to 9 from awarding the contracts for road transport of bulk LPG pursuant to the tender notification dated 14/5/1999 to any tenderer without the tender notification dated 14/5/1999 to any tenderer without the tenderer satisfying the tender condition of owning trucks on the date of submission of tender.
The facts necessary for the disposal of the writ petitions are that the three oil Corporations, the Indian Oil Corporation, the Hindustan Petroleum Corporation Limited and the Bharath Petroleum Corporation Limited, have called for the tenders for transport of bulk LPG. The case of the Petitioners is that, as per the tender condition, the tenderer must own the tank, trucks. The Oil Corporations now accepted the tender submitted by the individual Respondents who have been impleaded as parties to the proceedings, even though they do not own any truck on the date of submission of the tender, those Respondents have produced only the letter of indent and that has been accepted by the Oil Corporations and the individuals have been granted time for the production of the vehicle i.e., tanks-trucks. Hence these Writ petitions have been filed.
On behalf of the second Respondent a counter affidavit has been, filed stating that the writ petitions are not maintainable in view of the Arbitration Clause in the Agreement. The Petitioners are all the existing contractors, whose term is to expire. They failed to participate in the fresh auction and as such they are not aggrieved persons. There is no restriction or prohibition that those who do not own the vehicle cannot submit the tender. The clause relied upon by the Petitioners is only for giving preference. It does not mean that those who do not own the vehicle cannot submit their tender.
On behalf of the other Oil Corporations also counter affidavit has been filed in the same line as that of the counter affidavit of the second Respondent. W.P. 15644 of 2000 has been filed by the Association and as such the writ petition cannot be maintained.
Counter affidavit has been filed on behalf of some of the Respondents whose tender has been accepted. It is stated on their behalf that the Petitioners participated in the auction without raising any objection. After satisfying the credential bid, the price bid was considered. As the tenderer whose tender has been accepted are not owning the vehicle as on date, they have been granted time for the production of the vehicle on the basis if the letter of indent produced along with the tender. Hence now it is not open to the Petitioners to challenge the action of the Respondents 1 to 3.
Mr. R. Krishnamoorthy, learned Senior counsel contended that the preamble of the tender makes it very clear that the tender is being called for only from the LPG tank-truck owners and Corporations Dealers/Distributors. Hence those eligible to submit the tender are only the tank-truck owners and the Corporations'' Dealers/Distributors. It is also mentioned in the tender form that preference will be given to the tenderers having licensed/registered and operational tank-trucks. The licensed/registered and operational tank-trucks. The preference clause also specify that the tenderer having licensed/registered and operational tank-trucks will get a priority. The guidelines also mention about the preference.
Mr. M. Venkatachalapathy, the learned senior counsel appearing for the Petitioners in one of the writ petitions also adopted the arguments of Mr. Krishnamoorthy and further contended that the interest of the Scheduled Caste however had been safeguarded under Clause 5(d) of the tender conditions. Since none of the. Petitioners have challenged the validity of the reservation, the question for consideration is whether the scheduled caste tender is entitled for a special treatment by granting of time to produce the vehicle when the eligibility of the tenderer is that he must own the vehicle or must have licensed/registered operational trucks:
On behalf of the Corporations Mr. K. Kumar and Mrs. Meera Gupta contended that the ownership is not the condition precedent for submitting the tender. When that be the case, there is no illegality on the part of the Oil Corporations in accepting the lowest tender submitted by the Schedule caste tenderer by providing time enabling them to produce the vehicle. This is only to give effect to the policy of the government to help the poorer Sections to get adequate business to improve their standard of life. They also relied upon the judgment of this Court in Southern Region Bulk LPG Transport Owners Association v. Union of India W.P. 8479 and 8862 of 1996 dated 5/9/1996.
Mr. N.R. Chandran, the learned Senior Counsel appearing for one of the impleaded parties in W.P. Nos. 15655 to 15646 of 2000 adopted the arguments of Mr. N.P. Kumar and pleaded that his client is the owner of the vehicle. Even though he had been granted the contract, by virtue of the interim orders granted in the W.M. Ps. he has been asked to stop the transport and hence suitable directions may be issued to the Respondent Oil Corporations to permit his client to continue the transport contract.
The short question for consideration of this Court is whether the tender notification dated 14/5/99, calling for the tenders for the transport of the bulk LPG envisages any condition that the persons who own the vehicle or the control of the vehicles on the date of submission of the tender alone can submit the tender or whether it is open to the Respondent Oil Corporations to accept the tender of those who do not possess or have control over the trucks on the date of submission of the tender and further enable them to grant time to those tenderers to produce the vehicle.
The preamble of the tender mentions that the closing of the tender is 11.00 hours on 14/5/1999 wherein it is stated that the Indian Oil Corporation Limited (Marketing Division), Bharat Petroleum Corporation Limited, and Hindustan Petroleum Corporation Limited, Public Sector enterprises, invite sealed tenders under Two-Bid system, from LPG tank truck owners, and Corporations Dealers/Distributors, for award of separate contracts for road transportation of bulk LPG for a period of 2 years, with option for extension upto 1 year at the sole discretion of the Contracting Corporation. Clause 4 refers to the preference to the tenders having licenses/registered and operational tank-trucks. Clause 5 deals with reservation. As there is no challenge with regard to the reservation, it is unnecessary to discuss about the same.
In the tender documents, relating to the credentials bid, it is stated as follows:
THIS IS TO AFFIRM THAT NO LICENSED LPC T/T OWNED BY THE TENDERER (S) OR AT LEAST ONE LICENSED LPG IT IS OWNED BY THE TENDERER (S) ( STRIKE OUT WHICHEVER IS NOT APPLICABLE ALL TERMS AND CONDITIONS OF THE TENDER ARE ACCEPTED BY THE TENDERER ALI INFORMATION AND STATEMENTS FURNISHED BY THE TENDERERS IN ALI THESE TENDER DOCUMENTS ARE TRUE AND OPEN FOR THOROUGH VERIFICATION.
Further a sheet has been enclosed calling for the proforma with regard to the details of the vehicle whether owned of hired and other particulars.
On the basis of the above particulars it is contended by the learned Counsel for the Petitioners that the ownership or having control of the vehicle is a condition precedent for the submission of the tender and that being the eligibility ,those who do not possess or have any control over the tank-trucks are not eligible to submit their tender and on that basis those tenders ought to have been rejected. It is not open to the authorities to accept the tender on hypothetical basis by giving time for the production of the vehicle which ultimately may or may not be done.
On behalf of the Respondents, it is contended that there is absolutely no bar from considering the tender of those who do not possess or have control of the tank-trucks, the preferential Clause cannot be considered to be a restriction for other category. A perusal of the entire guidelines would make it clear that it is optional for the authorities to give preference or priority to the owners of the vehicle or those who are having control of the tank-trucks. Some of the Clauses make it clear that there is no prohibition for considering the tender submitted by those; especially belongs to SC/ST who do not possess or have control of the vehicle. The conditions referred to the credentials bid relied upon by the Petitioners enables the tenderer to strike out whichever is not applicable. Hence the affirmation is only to ascertain the number of licensed LPG tank-trucks under his control. But at the same time, it cannot be construed as if it is condition precedent for owning a truck by the tenderer and hence the number of trucks or at least one licenced LPG tank-truck is owned by the tenderer'' can be strike off by the tenderer if he did not own the vehicle. The persons who have been now granted time for the production of the vehicle belong to Scheduled Caste and Scheduled Tribe as the reservation is made for them, It is to implement the policy of the government, the authorities have adopted this mode of granting time for those tenderer who do not possess or control over the same on the date of the tender.
On a careful consideration of the above contentions, it is necessary to decide as to whether the tenderer owning or having possession or having control of the tank-trucks is a pre-condition for considering the credentials bid of the tenderer.
As already pointed out by the learned Counsel for the Petitioners that the preamble made a specific reference that the tenders are being called for from LPG truck owners and Corporations'' Dealers and Distributors. The preferential clause refers to the tenderers having licensed/registered and operational tank trucks.
From this, it is clear that the eligibility of the submission of the tender is of two categories;
(1) LPG tank owners
(2) Corporation'' Dealers /Distributors I) these are all the two categories eligible to submit the tender, the other things such as the preference etc need nor be discussed. Even if preference is to be considered, that preference will be among the two categories. The tank owners will be automatically entitled. The preference Clause may be in respect of the second category the Dealers and Distributors who are having the licensed/registered and operational tank trucks under their control.
Whether on the date of submission of the tender, the tank-truck must be available or not has to be construed only from the guidelines issued to the tenderer.
In the guidelines also it is mentioned that preference would be given to the tenders having licensed/registered and operational tank trucks. Clause 4 deals with the credential bid and set-B deals with the supporting documents. Clause 8 of Set-C contemplates the production of the authenticated copies of registration certificate, certificate of fitness and route permit for the tank-trucks Clause II of Set-C requires the production of authenticated copies of commissioner of Explosive Licenses for each of the tank- trucks offered. Sub-Clause 12 of Set-C contemplates the production of the authenticated copies of valid comprehensive Insurance Policy for each tank-trucks offered. Clause 5 deals with the. proforma. It requires the tenderer to produce the affidavits from the owners of the attached (hired) tanks-trucks.
The above referred to affirmation or the conditions prescribed in the guidelines envisage that these are all the documents must be furnished as supporting documents. When the registration certificate, certificate of fitness and route permit along with the explosive licence as well as the insurance policy are the documents to be submitted as supporting documents, it cannot be said that the vehicle need not be available on the date of submission of the tender. These are all the documents pertaining to the existing vehicle alone and not the documents pertaining to the vehicle which is to be produced on a future date. There is no Clause in the tender condition enabling the authorities to relax the tender condition or enabling them to accept the tender with an undertaking to produce the vehicle at a later date, even though they belong to Scheduled Caste or Schedule Tribe. Whichever class the tenderer may belong, when the condition is one and the same, it is expected that the tenderer should comply with the requirements of such conditions.
However, Mr. Kumar, the standing counsel for the second Respondent referred to the Clause 3 of the guidelines dealing with the credential bid (set-B) which requires the tenderers to submit the credential bid in three pages including statement of particulars of tank-trucks offered, if any. He also draw the attention of this Court to the particulars to be furnished by the tenderer by stating ''Yes'' or ''No'' in respect of the following documents: -
(1) Credential bids in three pages including statement of particulars of tank-trucks, offered, if any.
(2) authenticated copies of commissioner of Explosive Licenses for each of the tank-trucks offered.
(3) authenticated copies of valid comprehensive insurance policy for each tank-truck offered.
His contention is that these Clauses referred to the tank-trucks ''offered''. That means those particulars have to be furnished only in respect of the vehicles offered by the tenderer. That does not mean that the tender which do not accompany those particulars are liable to be rejected or cannot be considered. This is only an additional Clause, calling upon those tenderers who offered their vehicle readily, to furnish the particulars of the vehicle. Those who do not possess or own the vehicle need not furnish those particulars. The above particulars are needed to consider their preferences on priority basis. Hence the authorities are empowered to accept the tender submitted by those who do not own or possess the vehicle on the date of tender and such tenderers have been granted time for the production of the vehicle. Hence the relief sought for by the Petitioners cannot be granted.
I am unable to agree with the above contention of the learned Counsel for the Respondents 2 and 3. When the guideline prescribes the condition of the accompanying supporting documents, proforma to mark ''Yes'' or ''No'' to point out whether such documents are accompanied or not cannot be interpreted in a separate manner, as it has already been held that the production of the supporting documents such as registration certificate, certificate of fitness, route permits of the tank trucks, explosive license and the comprehensive insurance policy are also to be produced, the word ''offered'' in the pre amble cannot be interpreted by giving out totally a different meaning of giving an option. There also the copies of the relevant documents in respect of the tank-trucks offered must be accompanied with the tender documents and that can be the only interpretation possible for the word ''offered''.''
Hence conjointly the guidelines as well as the preamble contemplates the submission of the tender by only the two categories, one is the owners of the LPG tank truck and another is corporations'' Dealers/Distributors.
Mr. Kumar relied upon the judgment of this Court in W.P.8479 and 8862 of 1996. In my view, that judgment has no relevance to the case on hand. In the said case, originally a condition was imposed that the tenderer must own a vehicle. Subsequently that was modified by issuing corrigendum ,removing the said stipulation of owning the vehicle and introducing the clause that preference will be given to the tenderers having licensed/registered and operational LPG tank trucks. That was challenged before this Court. The learned Judge upheld the same stating that the amendment has been issued to enable those who do not own the vehicle on the date of tender, that too especially under preference to Scheduled Caste/Scheduled Tribe people who are not placed in such an affluent position to own the vehicle. There the question did not arise for consideration as to whether the tenderer must have the possession or control over the vehicle though he may not own the vehicle.
In the present writ petitions, this Court is concerned with the question of those who do not own as well as do not have possession or having control over the vehicle. It is evident that the Respondents have accepted the tenders and granted six months time for the tenderers to produce the vehicles: thereby postpone the date of entering into the agreement. As already pointed out, the tender conditions do not contemplate such eventualities and permitting the authorities to accept the tender on a hypothetical basis of anticipating the production of the vehicles at a later point of time. When it is mentioned that tenders are being called for from tank-truck owners and Corporation'' dealers/distributors, only these two categories are eligible to submit tender. Further the Arbitration Clause is of on use as the subject-matter of these proceedings do not relate to any dispute between the parties.
So far as the question of locus standi is concerned, whether the Petitioners had participated in the auction or not is immaterial. When the authorities are acting illegally or contrary to the provisions of the statute, it is open to any individual to challenge their action as it is essential that the authorities must be made to confine within their jurisdiction.
In the recent judgment, in the case of M.S. Jayaraj Vs. Commissioner of Excise, Kerala and Others, the Supreme Court has held as follows:
In this context we noticed that this Court has changed from the earlier strict interpretation regarding locus standi as adopted in The Nagar Rice and Flour Mills and Others Vs. N. Teekappa Gowda and Bros. and Others, and Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, and a much wider canvass has been adopted in later years regarding a person''s entitlement to move the High court involving writ jurisdiction. A four-Judge Bench in Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed and Others, pointed out three categories of persons vis-a-vis the locus standi:
(1) a person aggrieved;
(2) a stranger: and
(3) a busybody or a meddlesome interloper. Learned Judges in that decision pointed out that anyone belonging to decision pointed out that anyone belonging to the third category is easily distinguishable and such person interferes in things which do not concern him as he masquerades to be a crusader of justice. The judgment has cautioned that the High Court should do well to reject the petitions of such busybody at the threshold itself. Then their Lordships observed the following: (SCC p. 683. para 38)
The distinction between the first and second categories of applications, though real, is not always well demarcated. The first category has, as it were, two concentric zones; a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of ''persons aggrieved''. In the grey outer circle the bonds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outer zone may not be ''persons aggrieved....
In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground of locus standi. If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range for which auction was held) and have his business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits.
For the above reasons, the writ petitions shall stand allowed, directing the Respondents 1 to 3, the Oil Corporations, to accept the tenders only from those who are the owners of the tanks-trucks and the Corporations'' Dealers/Distributors, whose vehicle was available at the time of the tender and to enter into the transport agreement immediately on the acceptance of their tender.