SCA/1057/2008 6/ 6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1057 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH HONOURABLE MR.JUSTICE D.H.WAGHELA ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= ASHAPURA ENTERPRISE THROUGH KAMLESH GANATRA - Petitioner(s) Versus FOOD CORPORATION OF INDIA THROUG GENERAL MANAGER & 2 - Respondent(s) ================================================= Appearance : MR MAULIK G NANAVATI for Petitioner(s) : 1, MR.MIHIR JOSHI WITH MR SHAKEEL A QURESHI for Respondent(s) : 1 - 2. M/S THAKKAR ASSOC. for Respondent(s) : 3, ================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 30/06/2008 ORAL JUDGMENT
(Per
: HONOURABLE MR.JUSTICE M.S.SHAH)
What
is challenged in this petition under Article 226 of the Constitution
is the decision of respondent No.1 ý Food Corporation of India
(ýSFCIýý or the ýSCorporationýý for short) awarding Handling and
Transport Contract for FSD Bhavnagar on regular basis for a period of
two years.
2. The
FCI invited tenders in January 2008 for the above contract for the
estimated value of Rs.1.04 crores. The petitioner and respondent No.3
submitted their respective tenders. Respondent No.3 was considered to
be eligible and the petitioner was dis-qualified on the following
grounds:-
The power of
attorney is not furnished for particular H&T contract at FSD
Bhavnagar.
The revised
partnership deed dated 08.02.2007 has not been registered with
Registrar of firms under ýSForm No.Gýý.
Property including
nos. of trucks of partner is not shown in the revised partnership
deed dated 08.02.2007.
The
above grounds were communicated to the petitioner vide F.C.I.’s
letters dated 21.01.2008 at Annexure P-3 to the petition.
3. Mr.S.N.
Shelat, learned counsel with Mr.Maulik Nanavati, for the petitioner
has challenged the above decision on the ground that the FCI has
ignored the relevant criteria and has taken into account the
irrelevant material. As regards ground No.1, it is submitted that
when the petitioner had produced the power of attorney in favour of
its authorised representative, (one of the partners) it was not
necessary for the power of attorney to mention the particular H&T
contract at FSD Bhavnagar. General power of attorney was for all
contracts to be entered into by the partnership firm and it can never
be said that the power of attorney must be executed in respect of
each contract.
4. As
regards the second ground, it is submitted that the partnership firm
was registered on 27.12.2005 and merely because there was a change in
the partnership by another partner called Dashrathsingh Gohil joining
the firm, non-registration of such change in composition of the firm
does not change the status of the firm as a registered partnership
firm. It is also submitted that in any view of the matter, after the
tenders were submitted, the said change in composition of partnership
firm has also been registered.
5. As
regards the third ground, it is submitted that Mr.Dashrathsingh B.
Gohil owns five trucks and that the photostat copies of the
registration certificates in respect of these five trucks produced
with tender form indicates that Dashrathsingh Gohil is the owner of
the trucks, that was sufficient for complying with the tender
conditions and sufficient assurance that the trucks are available
with the partnership firm for the purpose of the contract in
question, if awarded to the partnership firm.
6. On
the other hand, Mr.Mihir Joshi with Mr.Kureshi for the F.C.I. has
opposed the petition and relying on the affidavit-in-reply filed by
the Assistant General Manager of the Corporation has sought to
justify the decision of the Corporation. It is submitted that
Dashrathsingh Gohil having only 2% share in the profit and loss of
the firm is shown to be the owner of five trucks and that fact cannot
indicate that the partnership firm itself has all the five trucks in
its common stocks.
7. Mr.Pahwa,
learned counsel for respondent No.3 has also opposed the petition and
submitted that respondent No.3 has been the existing contractor with
the F.C.I. for the last 2 ½ years at Bhavnagar and that
respondent No.3 is also operating similar contracts with F.C.I. at
other places at Wadhwan, Rajkot, Bhavnagar and Vadodara and has been
rendering satisfactory services. It is also submitted that last year,
the F.C.I.’s contractor at Bhavnagar had committed the default and
respondent No.3 agreed to take over the transport operations at a
much lower rate, even incurring loss, only to see that the F.C.I. is
not put into difficulty and at that time, respondent No.3 was
informed that satisfactory performance of that contract at a much
lower rate would be taken into consideration while taking future
decisions. Mr.Pahwa has submitted that though the rate quoted by
respondent No.3 was 95% above the estimated rate and F.C.I. has also
taken the decision to award the contract to respondent No.3,
respondent No.3 is prepared to reduce the rate to 86% above the
estimated rate and that looking to the cost analysis, it is not
possible for respondent No.3 to reduce the rate any further. It is
also submitted that the cost of diesel has substantially gone up in
the last six months and in absence of any escalation clause,
respondent No.3 will also have to bear any additional increase in the
cost of diesel which is likely to rise again in future.
8. After
hearing the learned counsel for the parties, we called for the rates
at which similar contracts were awarded by F.C.I. In the year 2008,
in Saurashtra as well as some other regions of the State, the rates
varied from 36% to 60% above the estimated value of contract in
February, 2008. The rates at which the contracts were awarded in
June, 2008, varied between 150% and 170% above the estimated value of
contract.
9. Having
heard the learned counsel for the parties, we appreciate the
contention urged on behalf of the petitioner regarding the first
ground on which the petitioner was disqualified. The same could not
have been held out against the petitioner, as the power of attorney
produced by the partnership firm was wide enough to bind the firm in
all matters pertaining to the contract in question. We do not propose
to express any opinion on the second ground because in our opinion,
the third ground which was held out by the Corporation for
disqualifying the petitioner appears to have been sufficiently borne
out by the record of the tender proceedings.
10. As
indicated earlier, the contract is for Handling and Transporting of
the food grain bags at the food storage depot, Bhavnagar and,
therefore, the contractor is required to operate trucks. One of the
tender conditions is that the contractor shall have ownership proof
of four trucks at least three months old prior to the date of opening
of tenders supported with legible xerox copies of RC books and road
tax paid up-date. The condition further requires that in case of
partnership firm, the property/trucks of the partners should be
thrown in common stocks.
11. All
that the petitioner had done in the instant case, while submitting
the tenders, was to produce the xerox copies of the Registration
Certificate in respect of the five trucks belonging to Dashrathsingh
Gohil, one of the partners of the firm, but no other material was
submitted along with the tender papers to show that Dashrathsingh
Gohil had thrown his trucks in the common stocks of the partnership
firm. We find considerable substance in the objection raised by the
Corporation that production of xerox copies of registration
certificates of trucks in the name of a partnership firm was not
sufficient compliance with the tender conditions. The submission
urged by Mr.Shelat for the petitioner that in such cases, partnership
deed need not indicate or describe the assets of the partnership
firm, may not be considered as unreasonable but at least some
authenticated document ought to have been produced with the tender
papers to show that Dashrathsingh Gohil had thrown the trucks in
question in the common stocks of the partnership firm. A mere
statement by the power of attorney holder of the petitioner firm
stating that these trucks were available to the partnership firm was
not sufficient to bind Dashrathsingh Gohil.
12. The
learned counsel for the petitioner submits that Dashrathsingh Gohil
is now prepared to submit on affidavit that the trucks will be
treated as common stocks of the partnership firm. That could not be
accepted at this stage in the facts and circumstances of the case
particularly in view of the fact that monsoon has already set in
Bhavnagar region and there would be definite urgency for the FCI to
see that the contract awarded by the Corporation to respondent No.3
gets implemented at the earliest.
13. While
dismissing the petition, we record the statement made by Mr.Pahwa,
learned counsel for respondent No.3 that respondent No.3 agrees to
carry out the contract at 86% SOR as against 95% above SOR which was
the rate previously offered by respondent No.3.
Notice
is discharged.
(M.S. SHAH, J.)
(D.H.WAGHELA, J.)
Hitesh