NEW JAMMU FLOUR MILLS PVT LTD Vs. UNION OF INDIA
LAWS(J&K)-2006-9-11
HIGH COURT OF JAMMU AND KASHMIR
Decided on September 29,2006

New Jammu Flour Mills Pvt Ltd Appellant
VERSUS
UNION OF INDIA Respondents

JUDGEMENT

- (1.) FOOD Corporation of India, Regional Office, Jammu, issued an Emergent Notice under No. Stg.32(3)/JK/Tender/05 -06/1793 dated 29.07.2006 inviting on the spot offers from financially sound parties having sound business competence and fulfilling eligibility requirements as per Model Tender Form (MTF) clauses for appointment of Road Transport Contractor on day -to -day basis, to be opened on 01.08.2006 at 12.00 noon. Complete failure of State Road Transport Corporation to supply the required number of trucks to carry the food grains to various parts of the State, had necessitated the issuance of this Emergent Notice which, inter alia, provided that since acute scarcity conditions were prevailing in the entire State, the working of the successful Transport Contractor would be monitored for a period of ten (10) days and in the event of short supply of trucks, the work would be carried out at his cost till finalization of regular Tender Enquiry. The Food Corporation of India ( hereinafter FCI for short) issued a Tender Notice for appointment of Regular Transport Contractors for transportation of food grains Ex -Jammu to various centers mentioned in the tender notice under Two Bid System from financially sound parties possessing sound business competence and eligibility. This notice was published on 01.08.2006. One hundred and five (105) tender documents were purchased by different parties. Fifty eight (58) tender documents were received before the date fixed for the purpose. A committee of officers comprising fourth to eighth respondents examined the Technical Bids and prepared comparative statements showing details of documents attached with technical bids for determining the eligibility of tenderers, who had participated in the Tender Enquiry. M/S New Jammu Flour Mills Pvt. Ltd., Sarore, Jammu, the writ petitioner offered its Technical Bid for three centers viz. (i) Jammu to Baramulla; (ii) Jammu to Kupwara; and (iii) Jammu to Kishtwar; alongwith Rupees fifty lacs as earnest money. The petitioner appears to have been informed in terms of communication dated 01.09.2006 that the opening of the price bid had been fixed on 01.09.2006 at 2.30 p.m., at the Regional Office of the Food Corporation of India. The petitioner appears to have been conveyed that the price bids offered by the petitioner for three centers had not been opened. The petitioner thereafter filed OWP No. 611/2006 seeking a direction to the respondents to open the price bids offered by the petitioner for three centers. On coming up of this petition for consideration after notice, a communication is stated to have been produced by the respondents with a view to make the pending writ petition infructuous, says the petitioner. This communication No.Stg.32(3)/JK/Tender/06/376 dated 02.09.2006 emanates from premeditated exercise of the respondents to oust the petitioner from the competition to facilitate completion of tender enquiry in favour of a particular contractor. It is further stated by the petitioner that there were nine participants out of which four formed a cartel belonging to one Ch. Nagar Singh who, for the past some years, had been making continuous efforts to continue with the same contract.
(2.) THE petitioner has questioned the Emergent Notice dated 29.07.2006, communication dated 02.09.2006 of the FCI, besides clause (iii) of the Technical Bid document. Communication dated 02.09.2006 and clause (iii) of the Technical Bid document are reproduced hereunder for facility of reference: - @TBLCEN = "Communication dated 02.09.2006 @TBLCEN = FOOD CORPORATION OF INDIA Ref. No. Stg.32(3)/JK/Tender/05 -06/376 Dated: 02.09.2006. The Manager, M/S New Jammu Flour Mills (Pvt.) Ltd., Adda Sarore, Bari Brahmana, JAMMU. Sub: Request for written reason for rejection of Tender Sir, Reference your letter No. nil dated 02.09.2006 seeking reasons as to why the tenders submitted for stations of Baramulla, Kupwara have been rejected by FCI and as to why 3rd bid meant for Kishtwar station has not been opened. In this regard it is informed that Technical Bid clause (iii) contemplates the condition concerning experience in respect of eligibility and for your reference the same is reproduced below: "Enclose experience certificate for rake handling and transportation duly obtained from Manufacturer/Handling agency/Govt. Department/PSU/Public Ltd. Company dealing in fertilizers, food grains, cement or similar products during the preceding three years of which the value of single contract should not be less than 50% of the estimated value of present contract (for amount please refer press advertisement with respect to corresponding centre) in any of those three years otherwise work experience not be considered. It has been found that you were not found eligible for consideration for opening of price bid in respect of Stations Jammu -Baramulla, Jammu -Kupwara. It be also noted that Certificate of experience appended by you alongwith your tender on being verified at our level from the Agency (Commdt. 259 Coy ASC (Sup) Type G C/O 56 APO) having issued the Certificate, it has been noticed that in any of the year preceding the year of tender enquiry in question, your concern had not performed the work of transportation as per the requirements contained in clause (iii) above. However, we have considered your claim of consideration in respect of Jammu -Kishtwar Center viewing that single contract though of 2 years be taken as a single contract and declared you eligible for the said center so because the value of the contract in respect of Contract No.2 -15 Corps was over and above the minimum requirement of Jammu -Kishtwar Center. So far as opening of price bid of Jammu -Kishtwar Center is concerned, it be noted that a unanimous decision was taken by the Committee to further seek opinion in respect of your eligibility even for the said Center so that the Corporation is saved from unwarranted litigations at the instance of various participants in the Tender Enquiry. We hope and expect that this would suffice and kindly be informed that date and time of opening of price bid in respect of Jammu -Kishtwar center shall be intimated after the decision in terms of the above is taken. Yours faithfully, Sd/ - (I. K. KOUL) MANAGER (STG.) FOR GENERAL MANAGER Clause (iii) of the Technical Bid. "Technical Expertise Enclose experience certificate for rake handling and transportation duly obtained from Manufacturer/Handling agency/Govt. Department/PSU/Public Ltd. Company dealing in fertilizers, food grains, cement or similar products during the preceding three years of which the value of single contract should not be less than 50% of the estimated value of present contract (for amount please refer press advertisement with respect to corresponding centre) in any of those three years otherwise work experience not be considered. Objections on behalf of Respondent Nos. 2 to 8.
(3.) RESPONDENT Nos. 2 to 8 have filed their objections stating that the present writ petition was barred by principles of Res judicata, in that, the petitioner had filed present writ petition during the continuation of its OWP No. 611/2006. On merits of the case of the petitioner as to its eligibility for the Technical Bid, the respondents say that a Committee of five officers had been appointed to examine and evaluate the documents, which were to be examined by the competent authority for determining the eligibility of the respective contractors. This Committee, while examining the Technical Bids of various tenderers, noticed that the experience certificate furnished by the petitioner was vague, non -speaking besides not being in consonance with the requirement of clause III(i) of the Technical Bid. It appeared to the respondents that the petitioner had manipulated the certificate for ensuring its eligibility clearance. The certificate issued by Deputy Commandant of 259 Coy/ASC(SU) Type -G C/o 56 APO, indicated that the contract period for the transportation charges of Atta and Wheat amounting to Rs.11,93,08,585/ -, was from 17.09.2001 to 17.09.2003, 01.08.2003 to 01.08.2005 and 01.08.2005 to 31.07.2006. This, according to the respondents, would mean that it had total work experience of six years. Finding this certificate to be doubtful, the respondents had sought clarification from Commandant 259 ASC C/o 56 APO. In response to this communication, the Deputy Commandant, with a view to communicate the details of the contract, did not indicate the value of the single contract in any of these six years. The communication/certificate for transportation, though referred to as a single contract of 15 Corps of the value of Rs.3,47,79,303/ -, could make the petitioner eligible for Financial Bid for the contract of transportation of food grains from Jammu to Kishtwar. The eligibility of the petitioner for contract of transportation from Jammu to Kishtwar on the strength of the value of a single contract being Rs.3,47,79,303/ - was, however, deferred pending receipt of legal opinion in the matter in view of the objections raised by others that the petitioner did not fulfill the requirement of preceding three years experience for this centre as well. Respondents have justified the issuance of Emergent Notice on the basis of emergency, which had arisen because of the failure of the earlier transport contractor, to supply food grains to various parts of the State, resulting in an alarming situation. The terms and conditions of the Bid document have been justified by the respondents saying that the guidelines issued earlier by the Central Vigilance Commission, were followed by fresh guidelines by the CVC on 04.09.2006, which were adhered to by all the Governmental departments and Public Sector Undertakings including the respondents. Respondents have stated that the eligibility clause questioned by the petitioner in this writ petition had been questioned in OWP No. 551/2006. The Court, on finding the Technical Expertise clause to be reasonable, however, dismissed the writ petition, relying on Directorate of Education & ors v. Educomp Datamatics Ltd. & ors (2004) 4 SCC 19. Submissions On behalf of petitioner;


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