N.P. Gupta, J. - (1.) THESE two appeals have been filed seeking to challenge the common judgment of the learned Single Judge dt. 23.9.2008, dismissing the two writ petitions, being S.B. Civil Writ Petition No. 5119/2008 and 5622/2008. Since both the writ petitions involve common question of law and fact, and have been decided by common order, these appeals are also being decided by this common order. Appeal No. 887 was filed on 27.9.2008, while the other Appeal No. 920 was filed on 13.10.2008, and thus they are heard at admission stage itself, as the respondents have appeared as caveator.
(2.) FOR convenience we take up the facts from the file of S.A.W. 887/08. The petitioners by the writ petition sought to challenge the notice inviting tenders for road transportation of bulk petroleum products vide tender notice Annex. 1, and also prayed that the respondents be directed to reframe the terms and conditions of the tender, while modifying/eliminating the conditions which are arbitrary, discriminatory, against the principles of natural justice, unconstitutional or inconsistent to prevalent law. The tender notice was challenged mainly on the ground that the terms and conditions are wholly inconsistent with the prevalent Act and the Rules in force, and also incorporated in a discriminatory manner, and are unconstitutional. It is alleged, that the intention of the respondents from very beginning had been malafide in respect to the tanker truck owners, and in view of this the different terms and conditions were incorporated for the tanker truck owners and retail outlet dealers. Different terms being terms IV -3.a., 3.b., 3.c and 3.d have been reproduced, and challenged, by contending, that respondents had floated the tender by imposing variable and separate conditions for different categories, which eventually and certainly effect technical and price bidding, to the extent that ensuring special benefits to one in comparison to others, and did not provide equal platform for all, and hence these are discriminatory. Then, the different stipulations with respect to security i.e. For retail outlet dealers it being Rs. 50,000/ - while for others it being Rs. 5,00,000/ - per contract, had been challenged for it being discriminatory, arbitrary, unconstitutional. Then, the condition incorporated in the tender stipulating that the rates to be quoted should be within (+/ -) 10% of the estimated transportation rates given in the tender, has been challenged as constitutes hurdle in the free trade, as it stipulates that the person quoting beyond these rates either upward or downward shall be disqualified. It is pleaded that the transporters are presently providing their services at the rate of 1.19 P.K.L. -P.K.M., and are ready to discharge the function and work at the existing rate, while now they have been restricted to give the minimum rates as fixed by the respondents, which is nothing but clubbing hands with the retail outlet dealers, to keep away the other transporters. It is also contended, that the conditions No. 8.3.4 and 8.3.7 cannot be said to be just and proper, in view of the business environment, rather they are intended to pollute the environment due to product spillage from titling or leaky vehicle. Inter alia on these grounds the writ petition had been filed.
(3.) RESPONDENTS submitted detailed reply enclosing the various documents. Certain preliminary objections were also raised, including that before issuance of notice inviting tender, meetings were held at various levels during April and May, 2008, and was attended by various transporters, in which meeting the terms of the transport contracts were revised, which are under challenge, were also discussed and explained in detail, and that, in the meeting held on 17.5.2008, at Chittorgarh, the signatory of Writ Petition No. 5119 himself also attended, apart from various other members of the petitioner association, and no objection was raised about the impugned terms and conditions. The attendance sheet was produced as Annexure - R 2/1, but the petitioner has failed to disclose this material fact, which disentitles the petitioner to maintain the writ petition. Then, it is contended that the determination of eligibility conditions is essentially an administrative function, which is based on the policy decision of the respondents, and the said decision has been taken after due deliberations, keeping in view the past experience. The policy decision is applicable uniformly all over the country, and is in the larger interest of the public. Such policy decisions have always been declined to be interfered by the High Courts, as well as by the Hon'ble Supreme Court. Then, it is contended that the decision is out come of past experiences, as in the past, there had been complaints, mostly against small transporters, who were found to be indulging in malpractices, pilferage and adulteration of petroleum products, and on enquiry the complaints were found to be true, and with the result that respective transporters and vehicles were blacklisted, and the contracts awarded to them were cancelled. In this regard the respondents have produced the detail as Schedule -R, and that there was sharp increase in the instances of malpractice in the year 2007 -2008, and resultantly 14 transporters were blacklisted, out of which 8 were having single vehicle, four were having two vehicles, and so on. Thus, for this reason, and to reduce the number of transporters, so as to have better control, the stipulations were incorporated which cannot be interfered with. Then, the ground of delay has been taken, by contending, that the writ petition has been filed just at the nick of time which persuaded the court to grant interim stay, with the result, that in order to avoid inconvenience to the public, the existing contractor's contract had to be extended, which extended period has also expired on 30.9.2008, as such the delay is fatal. The allegation of discrimination was denied. It is contended that on earlier occasion, when the tenders were invited in the year 2005, the Earnest Money Deposit and Security Deposit were the same, which were never challenged. Then, para -wise reply has also been given, and while assailing the entitlement of the petitioner to challenge conditions of the tender notice, justification has also been pleaded for each and every altered condition. Regarding increase in the price also, it has been pleaded, that the respondents had undertaken a detailed study, and for the purpose of ensuring that the contract yields fair return, so as to avoid the contractor indulging in malpractice, for covering loss, the increased rate has been prescribed. Regarding discrimination, it was pleaded that the transporters and dealers form separate categories, and reasons have been given, as to why different stipulations have been provided for these two different categories of persons. Inter alia with this it is prayed that the writ petition be dismissed.;