SIDDHI TRAVELS Vs. INDIAN AIR LINES LIMITED

JUDGEMENT

(1.) Through this Special Civil Application, the petitioner has sought a writ against the impugned action of respondent no.1, Indian Airlines Limited, in respect of the award of the contract at Ahmedabad Airport, for providing one big passenger coach (TATA 1050) and one mini passenger coach (TATA 709) for passenger transport inside the Airport at Ahmedabad on monthly hire basis under annual contract for three years. Specifications were mentioned in the letter dated 1/02/1999 sent by the Indian Airlines to the petitioner. Such letters were also sent to other parties which are said to be 10 in number. The petitioner claims to be an operator of luxury buses since last 10 years and it is also conducting tours as an organiser. The petitioner also claims to have vast experience in the field of travels and that it is also a contractor for ONGC and IFFCO since last four years. The petitioner has come with the case that when the sealed quotations were invited as above, it was also stipulated vide letter dated 1/02/1999 itself that the rates per Kilometer plus additional charges, if any, may be quoted for taking the coach to the city in case of exigencies and it was further stipulated that the rates quoted should be inclusive of all taxes, insurance, diesel, driver, cleaner, maintenance, etc. Thus, quotations were to be deposited in a sealed envelope addressed to the Station Manager, Indian Airlines Limited, Ahmedabad and the last date for submission of such quotations at Ahmedabad was 8th February 1999. A copy of letter dated 1st February 1999 has been placed on record at Annexure 'A' to the petition. The petitioner submitted quotations on 6th February 1999 in the office of the Manager, Indian Airlines, Ahmedabad and the petitioner quoted Rs.75,500/for big bus for unlimited Kilometers (KMs.) per month. So far as mini bus is concerned, the petitioner quoted Rs.54,500.00 for unlimited KMs. per month. The petitioner's quotation dated 6/02/1999, Annexure 'B', shows that while quoting Rs.75,500/for the big bus for unlimited KMs per month, it was mentioned that it cannot be used outside Airport. While quoting Rs.54,500.00 for mini bus for unlimited KMs per month it was also mentioned that for use out of the Airport, rate would be Rs.9.00 per KM. Further that if timing of operation per day exceeds 15 working hours, extra amount of Rs.250/- per hour will be charged. It has been explained that this refers to item 7 of the letter by which quotations were invited and it means that in case the timing of operation exceeds 15 working hours per day, Rs.250.00 per hour shall be charged. The petitioner also agreed with the terms and conditions as contained in letter dated 1/02/1999, and also mentioned that it would provide buses within three months from the date of placing the order. It is further case of the petitioner that one Messrs Dipti Gas Services, Ahmedabad and respondent no.2, Messrs Neel Tej Travels, Malad (West), Mumbai had also submitted their respective quotations for this contract. The sealed quotations were opened in presence of the bidders on 9/02/1999 at the office of the Manager, Indian Airlines Ltd., Airport at Ahmedabad and there is no dispute between the parties that Messrs Dipti Gas Services Ltd. had quoted the lowest. However, it is the common case of the parties that Messrs Dipti Gas Services opted out. Thereafter as per the rates quoted by the petitioner and respondent no.2, the contest remained only between the petitioner and respondent no.2 as to who should be the second lowest after Dipti Gas Services. It is the claim of the petitioner that the petitioner was the second lowest and respondent no.2 was the third lowest. However, the petitioner has alleged that respondents nos.1 and 2 are stationed at Mumbai and therefore, respondent no.1 wanted to grant contract to respondent no.2 by making private negotiations and after entering into negotiations with respondent no.2 in absence of the petitioner and without inviting the petitioner for negotiations, the petitioner was elbowed out and respondent no.1 was going to give contract to respondent no.2. It is also alleged that the contract in question is to be executed at Ahmedabad and the respondent no.2 does not have any office or establishment at Ahmedabad. The respondent Corporation, therefore, may not be able to get complete benefit of the service of a party which is stationed out of the State. It has also been alleged that the contract in question involves maintenance of buses at the Ahmedabad Airport and the job involves care of the flights and the passengers. This Special Civil Application was filed before this Court on 7/03/1999. The matter came up before the Court on 6/04/1999. Notice returnable on 29/04/1999 was issued and on the same date ad interim order was also passed in the following terms :

(2.) In response to the said notice, affidavits in reply dated 27.4.199 and 28.4.199 were filed by respondents nos.2 and 1 respectively. Thereafter, an affidavit in rejoinder dated 12/05/1999 to the reply of respondent no.1 was filed by the petitioner. An affidavit in Sur Rejoinder dated 28/06/1999 was filed by respondent no.1 in reply to the affidavit in rejoinder dated 1 2/05/1999. An affidavit in Sur Sur Rejoinder dated 30/06/1999 was filed by the petitioner in reply to the Sur Rejoinder of respondent no.1. Thereafter, when the matter came up before the Court on 30th June 1999, after hearing both the sides, rule was issued and the matter was posted for 9/07/1999. The arguments were heard on 2/08/1999 and the matter was posted for dictation of the order.

(3.) From the pleadings as have been filed on behalf of respondent no.1, it is found that according to respondent no.1, respondent no.2 was the second lowest, who had quoted Rs.70,000.00 for the big bus and Rs.55,000.00 for the mini bus. These rates quoted by the respondent no.2 were coupled with the condition that R.T.O. permission and tax shall be paid by Indian Airlines as per Ex.2 produced on record by respondent no.1, with its affidavit in sur rejoinder dated 28th June 1999. According to petitioner the amount of tax for big bus comes out to be Rs.12,500.00, making the rate of respondent no.2 for big bus as Rs.82,500.00 and that for mini bus comes out to be Rs.7000.00 making the rate of respondent no.2 for mini bus as Rs.62,000.00. Thus, it is clear from the quotations of the petitioner and the quotations of respondent no.2, as it appears on the face of it that for both the items, rates of the petitioner were lower because the petitioner's rates were inclusive of tax liability whereas the rates of the respondent no.2 were exclusive of tax liability. Otherwise, for big bus, the rate as was quoted by the petitioner was higher than that of respondent no.2 and so far as the mini bus is concerned the rates quoted by the petitioner were lower in comparison to that quoted by respondent no.2. But that is not the end of the matter, reference has been made to the two quotations and on that basis while the petitioner claims that the rates quoted by him are more favourable to the Indian Airlines on overall basis in comparison to those which were quoted by respondent no.2 and therefore, on the basis of the rates and terms and conditions as quoted by the petitioner and respondent no.2 it is to be seen as to whose rates and terms were more favourable to the Indian Airlines in the matter of contract in question. In this regard a controversy has been raised on the basis of a document dated 6th February 1999 addressed to the Station Manager, Indian Airlines Ltd., Ahmedabad Airport by respondent no.2 handed over to the Manager, Ground Support Department at Mumbai. This document bears an endorsement dated 8/02/1999 under the signatures of the Manager, Ground Support Department of Mumbai, who has marked it to the concerned officer with the endorsement "Please act as required". While respondent no.1 in its pleadings has referred to this document dated 6/02/1999 and has pointed out that respondent no.2 had conveyed through this letter that in its quotation with regard to the payment of tax, it may be read as 'us' instead of 'Indian Airlines Ltd.'. It has also been mentioned in this letter dated 6.2.1999 that respondent no.2 has its corporate office at Ahmedabad and address of such corporate office has also been mentioned. On behalf of the petitioner repeated reference was made to the affidavit in reply dated 27th April 1999, filed by respondent no.2 and it has been submitted that in this affidavit in reply respondent no.2 himself has not made any reference to such a letter dated 6.2.1999. It has also been submitted that the pleadings of respondents nos.1 and 2 even on the question of negotiations were mutually contradictory inasmuch as respondent no.2 has raised a grievance in para 10 of its affidavit in reply dated 27.4.1999 that till the date the respondent had not initiated any negotiations with us, while respondent no.1 in para 4.7 of its reply dated 28.4.1999 had mentioned about negotiations with respondent no.2 on 4.3.1999. On the question of tax amount, respondent no.2 has stated at the end of para 8 that it had never mentioned any tax amount in its quotation and that it had clearly been written in the tender; "as per the terms and conditions of the tender", while ex.2, i.e. quotation of respondent no.2 filed by respondent no.1 with its reply dated 28.6.1999 clearly mentions that tax shall be paid by Indian Airlines Ltd. It is, of course, true that respondent no.2 has in this reply claimed to be the lowest bidder. So far as respondent no.1 is concerned its case is that the last date for submission of tenders was 8/02/1999. In response to the notice, tenders were received from the petitioner and others at the office of respondent no.1 at Ahmedabad, which were opened on 10th February 1999. Thereafter, said tenders received by respondent no.1 at their office at Ahmedabad were forwarded to the Regional Headquarters, Western Region of respondent no.1 at Mumbai. It is also the case of respondent no.1 that prior to opening of the aforesaid tenders duly forwarded by the Station Manager, Ahmedabad of respondent no.1 to Mumbai, a corrigendum dated 6/02/1999 on behalf of respondent no.2 was submitted before the Ground Support Department at Mumbai on the last date of submission of tenders, i.e. 8.2.1999 and tenders were opened thereafter on 10.2.1999. Said corrigendum, inter alia, referred to the quotations already sent by respondent no.2 to the office of respondent no.1 at Ahmedabad and the corrigendum dated 6/02/1999 submitted at Mumbai, inter alia, clarified that the quotation dated 1.2.1999, stands modified as the RTO permission and tax shall be paid by respondent no.2, Neel Tej Tours and Travels instead of Indian Airlines Ltd. as was stated in the quotation dated 1.2.1999. It has been pleaded that all the tenders were thereafter scrutinised by the negotiating committee consisting of the Deputy General Manager (Finance), Manager (Ground Support) and the Station Manager, Ahmedabad and the said negotiating committee after careful scrutiny of the aforesaid tenders came to the conclusion that Messrs Dipti Gas Services was the lowest tenderer, but said Messrs Dipti Gas Services when called for negotiations on 9.2.1999 it had sought time to submit revised offer. Time was granted upto 25.2.1999 which was further extended to 26.2.1999. However, ultimately on 3.3.1999, said Dipti Gas Services communicated their unwillingness to undertake the said work. It has been then pleaded that respondent no.2 was the second lowest, who had quoted Rs.75,000.00 and Rs.55,000/inclusive of taxes for big coach and mini bus respectively and subsequently during the course of negotiations on 4.3.1999 said Messrs Neel Tej Travels, respondent no.2 also agreed to reduce the rate from Rs.75,000.00 to Rs.48,000.00 and from Rs.55,000.00 to Rs.45,000.00 for the big bus and mini bus respectively inclusive of all taxes. It has also been stated that in such circumstances on 4.3.1999, minutes of finalisation for awarding the contract were drawn up and duly signed by the members of the negotiating committee, the matter was also discussed by the members with the Station Manager, Ahmedabad over telephone and the minutes were sent by fax to the Station Manager, Ahmedabad, who confirmed the minutes and finalised on 4.3.1999 and it was agreed that the contract for the aforesaid work be awarded to respondent no.2 in view of the facts that the rates quoted by respondent no.2 as per their tender dated 1.2.1999 read with corrigendum dated 6.2.1999 were next to Messrs Dipti Gas Services and the same were subsequently reduced further as stated above. It has been denied that respondent no.2 was secretly called for negotiations. It has also been stated that while the petitioner had quoted Rs.75,500/and Rs.54,500/- for the big bus and mini bus respectively, respondent no.2, Messrs Neel Tej Travels had submitted quotation of Rs.70,000/- and Rs.55,000.00 for big bus and mini bus respectively inclusive of taxes as read with corrigendum dated 6.2.1999, submitted to the office of respondent no.1 at Mumbai on the last date of submission of tenders, i.e. 8.2.1999 and prior to the opening of tenders at Ahmedabad by the office of respondent no.1 on 10.2.1999 and thus, there is no mala fide intention whatsoever on the part of respondent no.1 in finalising the contract pursuant to the tender dated 1.2.1999 and the corrigendum dated 6.2.1999. It is specifically denied that respondent no.1 was seeking to give benefit to respondent no.2 by over writing the offer of the petitioner and it has also been denied that respondent no.1 had called the respondent no.2 for private negotiations to the exclusion of the petitioner and it is further denied that respondent no.1 is seeking to grant contract to respondent no.2 by making private negotiations in absence of the lowest bidder, i.e. the petitioner, because respondents nos.1 and 2 are both stationed at Mumbai. In para 5 of the affidavit in sur rejoinder filed by respondent no.1, it has been submitted that the petitioner had expressed their inability in its quotation to allow respondent no.1, Indian Airlines to operate the coach outside the Airport premises and that it had been categorically stated by the petitioner, Messrs Siddhi Travels that they cannot allow user of the big bus out of the Airport premises. As against that respondent no.2 in their quotation dated 1.2.1999 stated that they will allow the big bus to be used out of the Airport on same terms and conditions and use of the big bus out of the Airport included diesel, cleaner, driver charges upto 24 working hours and that the rate quoted by respondent no.2 was Rs.12 per KM for the big bus and no charges whatsoever on hourly basis. It has been denied that respondent no.2 quoted Rs.70,000.00 plus taxes (Rs.12,500/-) for the said big bus and Rs.55,000 plus taxes (Rs.7,000/-) for the mini bus as alleged by the petitioner. In support of this averment, respondent no.1 has referred to documents, exhibits 1 and 2, respectively, i.e. quotation dated 6.2.1999 of the petitioner and quotation dated 1.2.1999 of respondent no.2.