2015 (Ii) Ilr - Cut- 422

2015 (II) ILR - CUT- 422 D.H.WAGHELA, C.J. & BISWANATH RATH, J. W.P.(C) NOS. 10308, 10331 & 10961 OF 2015 M/S. ABC TRANS CARRIERS PVT. LTD. ……..Petitioner .Vrs. PARADIP PORT TRUST & ORS . ……..Opp. Parties TENDER – Tender conditions can not be changed after the tender is opened. In this case PPT issued e-Tender inviting eligible bidders for installation of three Harbour Mobile Cranes (HMCs) – No stipulation for grant of fourth HMC to M/s. Bothra by the same tender process – However after opening of tenders, the tender committee had decided to issue license for the fourth HMC without proper tendering process – It is also not proved on record that the petitioners were taken into confidence before the tender committee had decided to issue license for the fourth HMC – Denial of equal opportunity to the other prospective bidders in public interest – Action of PPT is violative of Article 14 of the Constitution of India which is to the benefit of M/s. Bothra Shipping Service Pvt. Ltd. and to the detriment of the petitioners – Some under hand dealing and prior understanding could be inferred from the demeanours of the tender committee – The action of the tender committee/authority has to be fair, reasonable, non- discriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism and in pursuit of promotion of healthy competition and equitable treatment – Held, tender conditions can not be changed after the tender is opened – Letter of intent Dt. 28.3.2015 for grant of license to M/s. Bothra Shipping Service Pt. Ltd. along with transactions consequential thereto are all set aside as illegal and arbitrary as far as the parties herein are concerned. (Paras 10 to 14) Case Laws Referred to :- 1. (2007) 14 SCC 517 : Jagdish Mandal vs. State of Orissa & Ors. 2. AIR 1993 SC 352 : R.N.Gosain v. Yashpal Dhir 3. (1994)6 SCC 651 : Tata Cellular Vs. Union of India, 4. (2006)11 SCC 548 : B.S.N.Joshi & Sons Ltd. v. Nair Coal Services Ltd. 5. AIR 1990 SC 393 : Raunaq International Ltd. v. I.V.R.Construction Ltd. & ors, 423 M/S. ABC TRANS CARRIERS -V- PARADIP PORT TRUST [D.H.WAGHELA, C.J. ] 6. (2012)10 SCC.1 : Natural Resources Allocation, In re, Special Reference No.1 of 2012 9. AIR 1985 SC 1147 : Ram and Shyam Company v. State of Haryana & ors., 10. AIR 2012 SC 2915: M/s. Michigan Rubber(India)Ltd. v. State of Karnataka, 11.(2012)5 SCC 559 : Arup Das & ors., v. State of Assam & Ors. 12.(2010) 10 SCC157 : M/s. Coal India Ltd. & Ors. v. Alok Fuels(P) Ltd, For Petitioner : Dr. Ashok Ku. Mohapatra, Senior Advocate, Mr. Sanjit Mohanty, Senior Advocate, M/s.Digambara Mishra, S.K.Satapathy For Opp. Parties : M/s.Goutam Mishra, D.K.Patra & A.Dash Mr. B.Gupta, Senior Advocate, M/s.Keshab Ch. Kar, G.M.Rath & S.S.Padhy M/s.Bijay Laxmi Tripathy, CGC M/s.Bibekananda Nayak, S.K.Panda, C.Satapathy Date of Hearing : 14. 07. 2015 Date of Judgment: 27. 07. 2015 JUDGMENT D.H.WAGHELA, C.J. 1. These three petitions by successful bidders for license to supply, install, commission, operate and maintain three Harbour Mobile Cranes ('HMC' in short) are argued and heard together and disposed by this common judgment. 2. The petitioners M/s. ABC Trans Carriers Pvt. Ltd ('ABC' in short), M/s. Orissa Stevedores Ltd ('OSL' in short) and M/s. Viable Infrastructures & Logistic Pvt. Ltd. ('Viable' in short) have approached this Court mainly against Paradip Port Trust and its officers ('PPT' for short) and M/s. Bothra Shipping Service Pvt. Ltd ('Bothra' in short) with the main prayer to quash the decision of the Tender Committee to award license for fourth HMC in favour of M/s. Bothra. 424 INDIAN LAW REPORTS, CUTTACK SERIES [2015 ] The facts and contentions being similar in all the petitions, relevant facts are taken from W.P.(C) No. 10308 of 2015. 3. The facts relevant for the present purpose are that PPT had issued e- Tender or notice for online tender from eligible bidders for grant of license for supply, installation, commissioning, operation and maintenance of three 100 ton HMCs for five years inside PPT. Bids were opened on 2.3.2015. According to Clause-9 of the tender documents, there was scope for amendment of bid documents and, according to Clause-11, bidders were to quote revenue sharing per ton in percent of Tariff Authority for Major Ports ('TAMP' in short) rate. The highest revenue sharing offered by the bidders were to be accepted and separate bids were required to be submitted for each crane. By Clause-27, PPT reserved the right to reduce the number of cranes required to be deployed from 3 to 2 at the time of finalization of tender, depending on prevailing situation. The PPT was to award the contract to such bidders as were conforming to the techno- commercially responsive and highest evaluated bids. It was further indicated that the bidders shall have to match highest quoted rate. The second highest bidder had the first right of refusal and so on. If other bidders did not agree to match the highest rate, fresh offers were to be invited through open tender. 4. By issuing addendum on 23.2.2015 to the tender notice, PPT changed the dates of opening of the Tender and stipulated that bidder or its subsidiary or its associate could participate for one HMC only. By second addendum dated 24.2.2015 only time for the opening of the tenders was changed to 16.00 hours on 7.3.2015. 5. On 25.3.2015, the Tender Committee consisting of six officials of PPT met and found the petitioners and M/s. Bothra to be qualified bidders with OSL being highest bidder offering 9% of revenue sharing. Therefore, other bidders were called upon to match the rate offered by the highest bidder. It was also recommended by the Committee that in case all the bidders match the highest rate then four numbers of HMC might be deployed as against three, as there was further requirement. On the basis of such minutes of the meeting, M/s. Bothra was issued the letter of intent dated 28.3.2015 for grant of license for the fourth HMC. 6. The grievance of the petitioners is that fourth HMC was not part of the tender-notice and hence award of contract and license for the fourth HMC was contrary to the tender-notice and, it being a State largess, it was awarded without due process to the detriment and possible loss to the 425 M/S. ABC TRANS CARRIERS -V- PARADIP PORT TRUST [ D.H.WAGHELA, C.J. ] petitioners. Under such circumstances, oblique motive and extraneous considerations were alleged against the PPT. It is averred by the petitioners that there was a hidden agenda to somehow accommodate M/s. Bothra in view of cancellation of two earlier tender notice dated 12.8.2014 and 4.12.2014 wherein only two bidders participated. While HMC could be procured and installed within a period of six months M/s. Bothra was so sure of getting the award that they moved the machine within a month. It is alleged that had there been an offer to the petitioners, they could make available and install fourth HMC, but before such opportunity arose, the addendum to the tender notice was issued. It is also averred that variation in the tonnage, the petitioner would get to handle with four new HMCs, would cause loss of Rs.2 crores per annum to the petitioner. 7. As against the above case of the petitioner in the respective writ petitions, PPT has contended that it had reserved the right to reduce number of cranes required to be deployed from 3 to 2 at the time of finalization of tender process, depending on the prevailing situation. Licensees were to be permitted to install HMCs inside port prohibited area to operate any cargo berths depending on the operational requirement of the Port. It is averred that PPT would ensure that quantity of cargo to be handled by the HMCs during the financial year would be rationalized on the basis of capacity as well as availability of HMCs, even as PPT did not give any commitment to the bidders or licensees. That there was adequate cargo for the petitioners and other crane operators to function round the clock. Thus, no prejudice would be caused to the petitioners, if the fourth HMC were allowed to operate in public interest and to cope with higher target fixed for the port by Ministry of Ports. On that basis, it is submitted that in view of increasing traffic at the port and increasing period of break down among the existing HMCs, the petitioners were not likely to suffer any loss due to installation and operation of the fourth HMC. 8. By filing an affidavit of its Vice-President, M/s. Bothra, respondent No.8 has opposed the petition with the contentions that the issues raised by the petitioners are speculative, misleading and based on suppression of material facts and without the petitioner having a locus standi . It is submitted that the petitioners have never raised any objection to the grant of license for the fourth HMC to respondent no.8 and they are estopped from raising objection at a belated stage as the respondent has already invested substantial amount of money and manpower in fulfillment of installation of the crane. That the petitioners' pleas are not in public interest.

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