Gujarat High Court Case Information System
Print
SCA/5125/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5125 of 2008
With
SPECIAL
CIVIL APPLICATION No. 5123 of 2008
=================================================
RATANSINGH
& BROS. - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
=================================================
Appearance
:
Special
Civil Application No. 5125 of 2008
MR
ND NANAVATI SENIOR ADVOCATE with MR MITUL K SHELAT for Petitioner(s)
: 1,
MR KB TRIVEDI ADVOCATE GENERAL with MS SANGEETA VISHEN ASST.
GOVERNMENT PLEADER for Respondent(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) : 2,
DS AFF.NOT FILED (N) for Respondent(s) : 3,
5,
MR BB NAIK for Respondent(s) : 4,
Special
Civil Application No. 5123 of 2008
MR
YN OZA SENIOR ADVOCATE with MR MK PUROHIT for Petitioner(s) : 1,
MR
KB TRIVEDI ADVOCATE GENERAL with MS SANGEETA VISHEN ASST. GOVERNMENT
PLEADER for Respondent(s) :
1,
=================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.S.SHAH
and
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 29/03/2008
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE M.S.SHAH)
Leave
to join Marine Products Export Development Authority, MPEDA House,
Panampilly Avenue, P.B. No.4272, Kochi as party respondent in Special
Civil Application No.5123 of 2008.
2. RULE.
Ms Sangita Vishen, learned AGP waives service of Rule for respondent
No.1. Mr BB Naik, learned counsel waives service of Rule for
respondent No.4. The representatives of other bidders also waive
service of Rule.
3. Heard
the learned counsel for the parties on the question of interim
relief.
4. Mr
YN Oza for petitioner ? Shri Datari Matsyodhyog Seva Sahakari
Mandali Ltd. in Special Civil Application No. 5123 of 2008 states
that last year Nilkamal Ltd. had sold insulated ice boxes of the
blow mould category to Mundra Enterprise for a price of Rs.686/-. The
representative of Nilkamal Ltd. – Mr Jignay H Dave who is present
before the Court was put a specific query ? whether similar
insulated boxes were sold by Nilkamal Ltd. to Mundra Enterprise at
the said rate. Mr Dave for Nilkamal Ltd. answered in the affirmative,
but further added that the price was exclusive of taxes and the
taxes were to the extent of 16.48% excise duty plus other taxes. Mr
Dave further submits that the prices of raw materials i.e. the
plastic granules have gone up substantially in the last one year.
It
is also the case of Mr Oza for the petitioner that Nilkamal Ltd. is
supplying similar insulated ice boxes with 50 litres capacity to the
Special Commissioner of Fisheries, Government of Tamilnadu, Chennai
at the rate of Rs.700/-.
5. It
is pertinent to note that these very boxes purchased by Mundra
Enterprise from Nilkamal Ltd. were sold by Mundra Enterprise to the
Government at the rate of Rs.2000/- per box plus taxes and the stand
of the State Government is that the State Government had found the
rates to be very high and, therefore, it wanted to invite fresh
tenders but because of the intervention of the Court, the boxes were
purchased at the rate of Rs.2000/- per box plus taxes. Today our
attention is invited to the rates quoted by the parties in their
tenders as under :-
Mangal
Shree Creation Pvt. Ltd. Rs.2355
Prince
Plastics International Pvt. Ltd. Rs.2620
Sintex
Industries Ltd. Rs.2670
Nilkamal
Ltd. Rs.2692
6. While
joining the four bidders and issuing notice to them on 27.3.2008, it
was specifically indicated in our order that the notice shall state
that all the parties may be required to participate in the inter-se
bidding which shall take place before this Court today i.e. on
29.3.2008. When the Court called upon the parties to participate in
the inter-se bidding, the representatives of all the fours parties
stuck to the rates quoted by them in their bids.
7. Having
heard the learned counsel for the parties, we are of the view that
prima-facie there seems to be some substance in the case of the
petitioner i.e. Shri Datari Matsyodhyog Seva Sahakari Mandali Ltd.
that the parties have prima-facie formed a cartel which is going to
adversely affect the public interest. We find that the Government
proposes to purchase 40,000 such insulated boxes at the rate of
Rs.2355 per box which will come to Rs.9.42 crores, and with taxes it
will come to Rs.10,59,75,000/-.
8. Ordinarily,
this Court is not to sit in appeal over the decision of the
administrative authorities in such matters. However, our attention is
invited by Mr Nanavati and Mr Oza to higher price/ lower price
certificate being insisted upon in such matters where a bidder is
required to certify that he/they have not supplied or quoted for any
item similar to the tender enquiry at prices lower than those quoted
for the relevant items to any Government/ Semi Government/ Public /
Charitable Trust Organization / Institution within a period of 180
days preceding the last date of submission of the tender and further
undertaking that he/they will not supply or quote for any item in
tender enquiry in question at prices lower than those quoted for the
relevant items to any Government/ Semi Government/ Public /
Charitable Trust Organization / Institution within the period of
validity of the offer / rate contract. The certificate also requires
the bidder to undertake to bring to the attention of the Director any
incidence of breach of any of the above paras within 30 days from
the occurrence of the breach and further undertake to refund/
reimburse the difference which may arise due to breach of any of the
above paras and that the decision of the Director as regards to the
determination of quantum payable shall be final.
Nothing
is shown as to why such a certificate was not incorporated in the
terms and conditions of the tender in question when the amount
involved is about Rs.10 crores.
9. In
Special Civil Application No.5123 of 2008, a cooperative society of
fishermen have raised certain issues. We are not interfering with the
view of the first respondent that only blow moulded insulated boxes
are required to be purchased. However, the manner in which the
bidding process has been carried out does not meet with our approval.
10. As
regards the submission of the learned Advocate General that the
allocation of grant of Rs.4.5 crores will lapse if the amount is not
spent by 31st March 2008, it is not indicated in the first
place as to when the funds were allocated because if the funds were
allocated earlier, it was not necessary for respondent No.1 to wait
till last week of March 2008 to undertake the bidding process. Even
if there is any administrative difficulty on this issue, there is
nothing to prohibit respondent No.1 from moving the concerned
authority for re-allocation of the same grant, which is often done in
such cases.
11. In
our view, therefore, the larger public interest demands that
respondent No.1 be directed to issue a fresh tender notice inviting
bids for the insulated boxes as per the requirements wherein the
certificate as referred to hereinabove is insisted upon so that the
parties who have supplied in the past similar items at lower rates do
not quote exorbitant amount while submitting their bids to the first
respondent. The advertisement shall also specifically state that blow
moulded insulated boxes of 50 litres capacity shall carry test report
from Central Institute of Fisheries Technology stating sea worthiness
and transport worthiness tests of the boxes. The advertisement shall
be published within three weeks from today.
It
is directed accordingly.
12. It
is clarified that as far as the petitioner in Special Civil
Application No.5125 of 2008 is concerned, we are not interfering
with the assessment made by respondent No.1 about the physical sample
submitted by the petitioner However, when the fresh tender notice is
issued, the present petitioner is not prohibited from submitting its
fresh tender along with such physical sample as it may choose to
produce before the authority.
(M.S.
SHAH, J.)
(RAVI
R. TRIPATHI, J.)
zgs/-
Top