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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V. Asha, J.
Candela Engineering Corporation – Petitioner
Versus
Corporation of Thrissur And Ors. – Respondents
WP(C).No.18809 OF 2020(A)
Decided On : 04-12-2020
Constitution of India-Art.14, 226;; Micro, Small and Medium Enterprises Development Act, 2006- Section 11 - No question of infringement of Article 14 if the Government tries to get the best person or the best quotation- The right to choose cannot be considered to be an arbitrary power-If the said power is exercised for any collateral purpose, the exercise of that power will be struck down.
Statement of facts:
The eligibility of the 4th respondent for exemption from payment of earnest money deposit and tender form fee, it is necessary to examine the relevant provisions in Micro, Small and Medium Enterprises Development Act, 2006. Exemptions are provided in accordance with the Procurement Preference Policy of the Government of India.
Finding of the court:
The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the Government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.
Result: Writ Petition dismissed.
JUDGMENT :
The 1st respondent invited tenders for the work of “supply, installation, testing and commissioning of high mast poles and luminaires in all divisions of Thrissur Municipal Corporation” as per Ext.P1 notice (NIT) dated 21.07.2020. The date fixed for submission of bids was 30.07.2020 and the date fixed for opening of the bids was fixed as 03.08.2020. It is stated that petitioner had submitted its bid specifying the rates for each of the materials, the name of branded products to be used etc. in the BoQ and the total amount quoted was Rs.3,21,99,990/-. There were 7 bids including that of petitioner. The 4th respondent was the lowest bidder (L1) and petitioner was L2 as per Ext.P6 bid list. It is submitted that petitioner came to know that the 4th respondent had not remitted the EMD amount of Rs.1 lakh. Petitioner claims that 4th respondent's bid should have been rejected on that ground itself. It is further stated that 4th respondent had also not uploaded the bid documents required whereas petitioner had uploaded the same in time. On coming to know about this, petitioner submitted Ext.P7 letter requesting the Corporation Engineer to check the credentials of the 4th respondent and as to whether it had complied with the technical conditions. The petitioner had also submitted Ext.P8 letter requesting to reject the tender submitted by the 4th respondent. It is stated that the 4th respondent thereafter produced a certificate dated 29.06.2020 obtained from the District Industries Center to the effect that its unit is eligible to get exemption from furnishing EMD and availing tender forms free of cost. According to the petitioner, the said certificate is misleading and EMD exemption is not available except for the products manufactured by the unit. It is stated that for supplying branded items manufactured by other companies, the 4th respondent cannot be granted any exemption. Relying on Ext.P10 letter from the District Industries Centre, Thrissur, petitioner claims that EMD exemption is available only for own manufactured items. It is stated that after it received Ext.P10 clarification, petitioner submitted Ext.P11 representation before the 3rd respondent pointing out the illegalities in accepting the tender of 4th respondent. This Writ Petition is thereafter filed seeking a direction that the 4th respondent shall not be awarded the work on the basis of Ext.P1 NIT.
2. The 4th respondent filed a counter affidavit stating that it is a Micro Enterprise registered under the Micro, Small and Medium Enterprises Development Act, 2006 (MSMED Act 2006) and is eligible for various benefits given by the Government to such units. Producing Annexure R4(b) Udyog Aadhar Memorandum relating to the registration of its Unit as a micro enterprise and Ext.R4(c) proceedings issued by the General Manager, District Industries Center, Thiruvananthapuram, the 4th respondent submitted that it is eligible to get exemption from furnishing EMD and also for availing tender forms free of cost as per the Government order issued on 21.06.2013 and 28.08.2014 and Ext.R4(d) order issued on 24.01.2019. It is stated that the Government Departments and organisations while undertaking purchase of goods and services should provide exemption from tender fee and Earnest Money Deposit to MSMEs (Micro, Small and Medium Enterprises) having Udyog Aadhar Registration. Pursuant to Ext.P1 NIT issued by the Thrissur Corporation the 4th respondent submitted its bid based on which Ext.R4(e) bid submission confirmation was obtained on 30.07.2020. It is stated that there was a difference of approximately Rs.23.25 lakhs between the bid submitted by the 4th respondent and by the petitioner who was the 2nd lowest bidder. It is stated that pursuant to the direction of this Court in Ext.R4(f) judgment in WP(C) No.17187/2020 filed by the 4th respondent, its complaint was placed before the Council of the 1st respondent and the Council decided to award the contract to 4th respondent in i
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