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M/s. Ravindra Tours and Travels, represented by its Proprietor Vadlamudi Ravindra Kumar v/s Union of India, rep. by Secretary, Ministry of Petroleum and Gas & Others

    Writ Appeal No. 92 of 2021

    Decided On, 27 August 2021

    At, High Court of Andhra Pradesh


    For the Appellant: V.V. Satish, Advocate. For the Respondents: R1, None appeared, R2 & R3, V. Ashok Ram, R4, Kalla Tulasi Durgamba, Advocates.

Judgment Text

Arup Kumar Goswami, CJ.

1. This writ appeal is presented by the writ petitioner against the judgment and order dated 04.02.2021 passed by the learned single Judge in W.P.No.16322 of 2020 dismissing the writ petition.

2. Heard Mr. V.V. Satish, learned counsel for the appellant, Mr. V. Ashok Ram, learned counsel for respondent Nos.2 and 3 and Ms. Kalla Tulasi Durgamba, learned counsel for respondent No.4. None appears for respondent No.1-Union of India and respondent No.5-Regional Transport Authority, Vijayawada, Andhra Pradesh.

3. The appellant and respondent No.4 responded to a Tender Notification VJABP/PT/01/2020-21/Pickup bus, dated 29.06.2020, issued by respondent No.3, i.e., the Plant Manager, Indian Oil Corporation, Kondapalli Bottling Plant, IDA, Kondapalli, Vijayawada, Krishna District, for positioning and operation of 15 + 1 seater push-back shift pickup bus for double shift operation at Kondapalli Bottling Plant, Vijayawada. The said notification indicated that contract shall be initially for a period of one year, extendable for two more terms of one year each on the same rates, terms and conditions; the second year at the sole discretion of the Corporation and the third year on mutual consent, subject to satisfactory performance of the contractor. The model of the vehicle, in terms of the Notification, should be not older than 2019 model and it also provided that a tenderer can submit tender attaching proof of booking of new vehicle with the tender and submitting an undertaking to place the vehicle within 15 days of issue of Letter of Intent.

4. The special terms and conditions governing hiring of the pick-up bus, however, provided that the bus should be with minimum of 15 + 1 seating capacity and that vehicle offered should maintain all in-built features of the offered model in working condition to ensure hygiene and comfort level inside the vehicle.

5. At the time of issuance of the Notification, the appellant was the contractor supplying vehicles to respondent No.2-Corpoartion. The appellant offered brand new push-back seat vehicle with 15 + 1 seats and submitted booking order, while respondent No.4 offered a ‘Traveler 3700 Super with Highback seats 17 + 1 seater’. The respondent-Corporation declared respondent No.4 as L1, while the appellant was declared as L2. It is stated that after taking delivery of the offered vehicle, respondent No.4 removed high-back seats and in that place, he got fixed 15 + 1 push-back seats through an outside agency and that such an alteration, besides being in violation of the terms and conditions, is also in contravention of Section 52 of the Motor Vehicles Act, 1988. Accordingly, a representation dated 23.07.2020 was submitted by him to respondent No.3, in response to which respondent No.3 vide letter dated 28.07.2020, informed him that respondent No.4 did not produce the vehicle for inspection and the points raised by him would be scrutinised as per applicability. On 31.07.2020, the appellant was informed that respondent No.4 would take over operation from 01.08.2020. Since no action has been taken on the representation submitted, the writ petition was filed.

6. In the counter-affidavit filed by respondent No.3 in the writ petition, it is stated that the vehicle offered by respondent No.4 was modified with push-back seats on 20.07.2020 and the registration certificate and the fitness certificate were issued by respondent No.5 on 26.07.2020 and 27.07.2020, respectively, and the aforesaid fact demonstrates that the competent authority had validated the legality of the modified vehicle offered by respondent No.4 and thereafter only, being satisfied, work order dated 31.08.2020 was issued for a period of one year. It is stated that modified vehicle offered by respondent No.4 had 18 seats (15 push-back seats + 3 extra seats) and such seats were meant for driver, cleaner and one extra seat. In paragraph 6, it was stated as follows:

“It is further submitted that the 4th respondent offered a Brand New Force Traveller 3700. The technical specifications of the said vehicle, found in brochure, clearly mentioned that the said Vehicle was capable of having both seating types i.e. Recliner/High Back and was capable of having the seating capacity of 9+D, 12+D, 16+D, 17+D, that the owner could choose from. The 4th respondent purchased the said vehicle after getting the Seats modified by the Original Manufacturer i.e. SABOO FORCE MOTORS was submitted by the 4th respondent to the respondent Corporation herein and the same is filed herewith. It is therefore denied that the 4th respondent got fixed 15+1 Push Back seats through an outside worker. The seats were modified by the Original Manufacturer itself. The said averments by the writ petitioner clearly demonstrate that the writ petitioner has filed the instant WP, without proper knowledge of facts or material to support the Writ Petition.

7. In the counter-affidavit filed by respondent No.4, it is stated that he had offered a brand new Force Traveler T1 MD 3700 FM Model Vehicle. While denying the allegation that respondent No.4 had violated Section 52 of the Motor Vehicles Act, 1988, it is stated that he did not make any alteration of seats except backrest for the purpose of comfortability and he did not alter and did not modify the seating alignment from basic structure or increased or reduced the seating capacity.

8. In the reply-affidavit filed by the appellant/writ petitioner to the affidavit filed by respondent No.3, it is denied that the brochure of the vehicle offered by respondent No.4 shows that the option of recliners is available for 9+D, 12+D, 16+D and 17+D and it is asserted that the vehicle with 15+D recliner seats on 4200 wheel base is available and that the appellant/writ petitioner offered the very same vehicle.

9. Learned counsel for the appellant, by relying upon condition No.35 of the Notification, submits that the vehicle including the body, seats etc., must be manufactured by the original equipment manufacturer and there is an admission on the part of respondent Nos.3 and 4 that there was alteration with regard to changing of high-back seats to recliner seats. According to him, alteration was done through an outside agency, for which the respondents-authorities ought not to have accepted the vehicle offered by respondent No.4. The appellant had offered in-built reclining seat vehicle, which is costlier than the high-back seater vehicle offered by respondent No.4, which he, later on, modified to reclining seats.

10. It appears from the technical specifications of Traveller 3700 Super vehicle, which has capacity of 9+D, 12+D, 16+D and 17+D, seating types are available both in recliner and high-back. Force Royale Traveller bus, offered by the appellant, is having seating capacity of 15+D magnio seats with reclining back-rest coupled with arm-rest and integrated head-rest.

11. Learned counsel for respondent No.4 submits that while the vehicle offered by respondent No.4 was for Rs.21,98,258/-, the vehicle offered by the appellant was for Rs.24,19,644/-. Respondent No.4 purchased 17+D vehicle after getting seats modified by the original manufacturer in compliance of condition No.31 of the Notification. He further submits that respondent No.4 purchased brand new 17+D 3700 wheelbase bus and got the seats altered to make them recliner seats by SABOO Brothers, Vijayawada, who is the authorized agent of the original manufacturer. It is also contended that imposition of fine by the Transport authorities for change in the seating arrangement did not result in violation of any tender condition.

12. The learned single Judge has recorded a finding that 17+D bus sold by Force Motors Limited is having both types of seating arrangement i.e., recliner type as well as high-back type and that respondent No.4 purchased a brand new 17+D (3700WB) type of vehicle from Force Motors Limited and arranged recliners by fitting the brackets through SABOO Brothers, Vijayawada, who is the authorised agent/distributor of Force Motors Limited. Accordingly, it was held by the learned single Judge that respondent No.4 had not engaged the services of a third party to convert the seats from high-back type to recliner type and, therefore, there is no violation of tender conditions. Learned single Judge concurred with the submission of the learned counsel for the respondents that imposing of fine for minor alterations in the seating system cannot be treated as violation of the tender conditions and what was required by respondent No.2- Corporation was a 15+1 type of bus with recliner seats, which is provided by respondent No.4 for a lesser amount than the writ petitioner. It was further held by the learned single Judge that the deviation, if any, is relating to the seating arrangement concerning the comfort of the employees and it has nothing to do with the security of the employees and as respondent No.4 had offered his services for a far lesser amount than the writ petitioner, the decision of the respondent-Corporation for grant of award of contract to respondent No.4, thereby saving Rs.2.00 lakhs, cannot be faulted with. Holding so, the writ petition was dismissed.

13. On 22.07.2021, learned counsel for respondent No.4 had submitted that she would file copy of the invoice relating to the vehicle in question within a period of 7 days and, accordingly, a memo is filed by her on 27.07.2021, annexing Vehicle Tax Invoice, Form-22 under Rules 47(1) (g), 115, 124(2) and 127 of the Motor Vehicles Rules. From the said documents, it is evident that the vehicle, at the time of purchase, is having high-back seats.

14. Condition Nos.31 and 35 of the Notification, read as follows:

“31. The Vehicle should be maintained in perfect road worthy operating condition with excellent outlook, interior in all respects including safety features and other in-built features to ensure hygienic and comfortable ambience with effective & working AC feature during running state of vehicles, clean and hygienic seats covers, intact push back cushion seat, Window Curtains, Mobile Charging point etc., at all times. Spare wheel, tools and tackles and other essential items like first aid box, air fresheners, Fire Extinguisher etc must be available in the vehicle at all times. Fuels/Lubricants, spare etc. shall be arranged by the contractor at his own cost. IOCL authorities shall have the right to order the contractor to replace the vehicle if the same is found not meeting the special requirement as per the tender. Contractors should be in possession of contract carrier permits for the vehicle.

35. The complete vehicles thus offered including the body, seats etc., should be manufactured by the original equipment manufacturer. Any seating arrangement built by other parties on the chassis sold by some other manufacturer shall NOT be allowed and if such vehicle is offered under this contract, such tender shall be considered invalid. The vehicle offered should have valid Fitness certificate and license to ply on the road with capacity required as per this tender. The tenderer should fulfil all the statutory regulations of State and Central Government. The contractor has to ensure that all traffic rules and regulations in force are obeyed.”

15. Condition No.35 of the Notification makes it explicitly clear that the vehicle offered including the body, seats etc. should be manufactured by the original equipment manufacturer and any seating arrangement built by other parties on the chassis sold by some other manufacturer shall not be allowed and if such vehicle is offered under this contract, such tender shall be considered invalid.

16. Despite there being a model of 17+D having recliner seats, what was purchased by respondent No.4 was a 17+D model with high-back seats. This is the admitted position. Contention is advanced on behalf of respondent No.4 that high-back seats were modified into recliner seats through SABOO Brothers, Vijayawada. It is admitted position that the vehicle purchased by respondent No.4 was manufactured by Force Motors Limited. It is in that context, the argument of the learned counsel for the appellant becomes significant in that respondent No.4 quoted a price less than the price quoted by the appellant, as he never intended to purchase a vehicle with recliner seats in terms of the tender conditions. Learned single Judge is not correct in holding that deviation, if any, is relating to seating arrangement concerning the comfort of the employees and it had nothing to do with the security of the employees, and, therefore, the deviation, if any, in the seating arrangement is immaterial. When the vehicle is purchased by a tenderer without meeting the tender conditions at a lower price and subsequently, the same is altered in violation of the tender conditions in an attempt to comply with the tender conditions, such a tenderer, in essence, wants to steal a march over a tenderer who scr

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upulously follows the tender conditions while offering the vehicle and quotes price accordingly. When condition No.35 clearly mandated that vehicles offered including body, seats etc. should be manufactured by original equipment manufacturer, getting alteration done by SABOO Brothers, cannot validate such alteration, as SABOO Brothers is not the original equipment manufacturer. It has to be understood that the seating arrangement built by SABOO Brothers is on the chassis sold by Force Motors, i.e. the manufacturer and, therefore, when such a vehicle is offered, the tender, in terms of condition 35, ought to have been considered invalid. It is clear that in the attending facts and circumstances, when the vehicle offered does not conform to the tender conditions specified, the tender of respondent No.4 shall have to be considered as invalid. In such a situation, respondent Nos.2 & 3 ought to have considered the other tenderers in the fray for the purpose of award of contract. 17. In view of the above discussion, we find that learned single Judge was not correct in dismissing the writ petition. 18. Accordingly, we set aside the order of the learned single Judge and allow the appeal. We hold that the tender of respondent No.4 is invalid and, accordingly, direct respondent Nos.2 and 3 to take consequential steps in accordance with law. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.