HARCHANDRAI BAGOMAL DAAL MILL Vs. UNION OF INDIA

JUDGEMENT

(1.) The Petitioner who is a registered partnership firm and dealing with the business of milling of various kinds of pulses including Chana Dal (Gram) has questioned the eligibility condition of tender proceedings held through Respondent No.2 for supply of milled Chana to Chhattisgarh State Civil Supplies Corporation Limited under implementation of Central Government Scheme offering Rs.15/kg. subsidy on PSS/PSF stock of Chana Whole for utilization under various welfare Schemes of the State of Chhattisgarh. The terms and conditions for auction was made available by National Agricultural Cooperation Marketing Federation Limited (hereinafter referred to as 'NAFED') e-portal (nafed.agribazaar.com) and the Petitioner finding himself to be not fulfilling Clause 3(b) of the eligibility condition, has filed this writ petition with following relief(s) :-

(2.) Learned senior counsel appearing for the Petitioner submitted that imposing Clause 3(b) in eligibility condition is arbitrary, unreasonable, irrational and not having any nexus with the object sought to be achieved. He further submitted that action on the part of Respondent No.2 is not only arbitrary, but discriminatory as Respondent No.2 invited bids for supply of milled Chana to Chhattisgarh State Civil Supplies Corporation Limited under implementation of Central Government Scheme offering Rs.15/kg subsidy on PSS/PSF stock of Chana Whole for utilization under various Schemes of the State of Chhattisgarh. He further submitted Clause 3(a) of eligibility condition restricts the participation of more bidders and Clause 3(b), which is experience clause, wherein the supply made to Central/State Government Institutions/PSU/Co-operative agencies appointed by the Government only is recognized. He further submitted that in State of Kerala and Gujarat, no such eligibility condition is made part of the tender document. He further submitted that as per scope of work, the work is only with respect to lift the un-milled stock of Chana from the place identified by Respondent No.2; as in this case mentioned by learned counsel is Indore, Madhya Pradesh and thereafter, it is to be milled and to be packed in small packets of 1 kg., therefore, it does not come within the work of supply from the Petitioner or by other participants in the bid. He further submitted that Clause 3(a) of the eligibility condition is violative to Article 301 of the Constitution of India, therefore, both eligibility conditions i.e. 3(a) and 3(b) are required to be struck down. He also submitted that Petitioner is in the business of Dal Mill for last several years and had made supply to other private concerns/business firms. He lastly submitted that earlier, experience clause as mentioned in Clause 3(b) for supply of 10,000 metric ton of packed pulses in past two years to any Central/State Government Institutions/PSU/Co-operative agencies appointed by the Government, but that has been reduced to 5,000 metric ton of packed pulses in past three years to any Central/State Government Institutions/PSU/Co-operative agencies appointed by the Government by subsequent notification, which shows that action on the part of Respondent No.2 is only to grant undue advantage to some persons/bidders.

(3.) Per contra, learned counsel appearing for Respondent No.2 submitted that so far as Clause 3(a) of the eligibility condition is concerned, it was not challenged by the Petitioner in his writ petition, therefore, without there being any pleading, the Petitioner cannot be permitted to raise a ground in oral submission. He further submitted that total supply of Chana Whole (Gram) is of 35,000 metric ton within a period of 7 months from September 2019 to March 2020, which comes as 5,000 metric ton per month, but in the experience clause, it has generously made 5,000 metric ton of packed pulses in past three years to any Central/State Government Institutions/PSU/Co-operative agencies appointed by the Government. He further submitted that there is no arbitrariness in amending the condition of experience of supply from 10,000 metric ton to 5,000 metric ton as it has not been made to give undue advantage to any of the interested bidder, but it has been relaxed for the benefit of all interested bidders including the Petitioner; in fact, the Petitioner is also a beneficiary of the act of reducing the experience of supply of packed pulses in past three years. He further submitted that there is an agreement between Respondent No.2 and Respondent No.3 for the purpose of supply of 35,700 metric ton of milled Chana from September 2019 to March 2020 and different conditions have been made for supply under the said agreement along with penalty clause. He further submitted that imposing of experience clause is only to avoid penalty clause because if imposed, then it will be a loss of Respondent No.2. Looking to the volume of work, the experience which is required under the auction document is not harsh or irrational. The requirement of supply comes to about 5,000 metric ton per month whereas experience has been sought only with respect to supply of 5,000 metric ton in past three years. He further submitted that Respondent No.2 is a Co-operative Society, therefore, no writ petition can be lie against it. He also submitted that in case of Kerala, the State is procuring Urad, Moong and Toor varieties of pulses in a bag of 30 kg. packing, whereas in State of Chhattisgarh, the State is procuring Chana in 1 kg. poly packing, further packing in 50 kg. PP Bags, therefore, nature of work of Kerala and Chhattisgarh cannot be equated. He lastly submitted that writ petition being devoid of substance, it is liable to be dismissed.