ABG CEMENTS LTD Vs. COCHIN PORT TRUST

JUDGEMENT

(1.) Rejection of Ext.P6 Tender, inspite of quoting higher bid amount than the remaining bidder ( who happened to be disqualified for not submitting the EMD, leaving the petitioner as the sole valid tenderer) and the cancellation of Ext.P5 Tender notification vide Ext.P8, is the dispute raised in this writ petition.

(2.) Ext.P5 Tender was floated by the first respondent for leasing out 3.19 hectares of land to the north of Mattancherry Wharf in Willingdon Island for setting up facilities for handling bulk cement and allied cargo and bagging plant. The lease was for a period of 'thirty' years and the mode of allotment was by way of 'Tender cum Auction'. The petitioner and M/s. Malabar Cements Ltd.(who has not been included in the party array) were the only participants in the Tender proceedings. The case of the petitioner is that, the particular Berth, which is the subject matter of Tender, is in fact to be developed by the successful bidder spending a huge amount, as part of the BOT (Build, Operate and Transfer) arrangement and on expiry of the W.P. ) No. 3590 OF 2013 tenure, the entire infrastructure will stand handed over to the respondent/Cochin Port Trust. The petitioner satisfied all the requirements specified for Tender No.EMT/40/CEMENT STORAGE - IV/2012 in Ext.P6 and stood far above the other contestant viz. M/s.Malabar Cements. According to the petitioner, with intent to extend undue advantage to M/s.Malabar Cements Ltd., the better offer placed by the petitioner has been simply rejected without assigning any reason, which is contrary to the law declared by the Hon'ble Supreme Court, on the point and hence under challenge.

(3.) The respondents have filed a statement, pointing out that there is absolutely no basis for the allegations levelled against the respondents and that, by cancelling the Tender, no undue advantage is extended to the other tenderer, M/s. Malabar Cements Ltd. It is pointed out that the Net Present Value (NPV) offered by the petitioner was approximately Rs. 56.90 crores, whereas the NPV in the case of M/s. Malabar Cements was only Rs. 26.86 crores. On adding these amounts to the premium quoted, the total figure offered by the petitioner came W.P. ) No. 3590 OF 2013 to be Rs.58.40 crores; whereas the figure in respect of M/s.Malabar Cements was only Rs.49.86 crores. It is true that the total amount offered by the petitioner was higher than that of M/s.Malabar Cements. But, since the amounts offered by both the contestants were much below the 'reserve price/base price' fixed in terms of the 'Land Policy' for the Major Ports evolved by the Government of India, (Ministry of Shipping), the Tender Committee had no other alternative, but to recommend 'Discharge of the Tender', thus leading to Ext.P8 communication. Reliance is sought to be placed on Clause 13 (Section 2 - Instructions to Tenderers), which clearly stipulates that the Port Trust does not bind itself to accept the highest One Time Non - refundable Premium or any other Tender and reserves the right to accept any Tender in part or to reject any Tender or all Tenders without assigning any reasons whatsoever.