Dismissed

Bimal V.S v. Aiport Authoirty of India

Kerala HC15 Jul 2014WP(C)/10961/2014

Case brief

AI extract

What is this about?

This writ petition challenging an airport lounge license award was dismissed. The court held the petitioner lacked locus standi as he never intended to run a hotel himself. The petition was also barred by delay and laches given the 5th respondent's substantial investment and prior launch.

What did the court decide?

Writ petition dismissed as the petitioner lacked locus standi and the petition was barred by delay and laches.

Bimal V.S Vs Aiport Authoirty of India — Public Procurement and Tenders | Kerala HC (2014)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

¶4

TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936

¶5

WP(C).No. 10961 of 2014 (U)

¶6

PETITIONER :

¶7

BIMAL V.S, AGED 40 YEARS, S/O VASAPPAN, RESIDING AT T.C.19/44, VISHAKAM, THELI BHAGAM, NEAR VIJAYA MOHINI MILLS, THIRUMALA P.O.,THIRUVANANTHAPURAM.

¶8

BY ADVS.SRI.S.VINOD BHAT

¶9

SRI.LEGITH T.KOTTAKKAL

¶10

RESPONDENT(S):

¶11

1. AIPORT AUTHOIRTY OF INDIA, HAVING ITS REGISTERED OFFICE AT RAJIV GANDHI BHAVAN, SAFDARJUNG AIRPORT, NEW DELHI -110 037

¶12

2. THE AIRPORT DIRECTOR, THIRUVANANTHAPURAM, INTERNATIONAL AIRPORT, THIRUVANANTHAPURAM -695 008

¶13

3. MANAGER (COMMERCIAL), THIRUVANANTRHAPURAM INTERNATIONAL ARIPORT, THIRUVANANTHAPURAM -695 008

¶14

4. UNION OF INDIA, REPRESENTED BY ITS SECRETARY,

¶15

MINISTRY OF AVIATION, NEW DELHI -110 001

¶16

5. M/S. GURUVAYOOR RESORT, ANAJANA NAGAR, RAILWAY STATION ROAD, BEHIND PARTHASARATHY TEMPLE, GURUVAYOOR- 680 101

¶17

R1 TO R3 BY ADV. SRI.V.SANTHARAM R4 BY ADV. SRI.P.MURALEEDHARAN, CGC

¶18

SRI.P.PARAMESWARAN NAIR,ASG OF INDIA

¶19

R5 BY DR.K.P.SATHEESAN,SENIOR ADVOCATE ADV. SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR

¶20

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06-2014, THE COURT ON 15-07-2014 DELIVERED THE FOLLOWING:

¶21

sts

¶22

WP(C).No. 10961 of 2014 (U)

¶23

APPENDIX

¶24

PETITIONER(S)' EXHIBITS

¶25

EXHIBIT P1 COPY OF THE NOTICE INVITING TENDER

¶26

EXHIBIT P2 COPY OF THE TYPED VERSION OF LETTER SENT BY THE PETITIONER TO RESPONDENT NO.2 DATED 25-03-2014

¶27

EXHIBIT P3 COPY OF THE REPLY DATED 01-04-2014 ISSUED BY THE RESPONDENT NO. 2

¶28

EXHIBIT P4 COPY OF THE EXTRACT OF LIST OF HOTELS FROM GOVERNMENT SITE TOURISM. GOV. IN

¶29

RESPONDENT(S)' EXHIBITS:

¶30

EXHBIIT R2(A) COPY OF THE HRACC CERTIFICATE DATED 13/11/2007 ISSUED BY MINISTRY OF TOURISM, GOVERNMENT OF INDIA TO THE 5TH RESPONDENT.

¶31

EXHBIIT R2(B) COPY OF THE CONFIRMATION LETTER GIVEN TO EXHBIIT-R2(A) CERTIFICATE BY REGIONAL DIRECTOR, MINISTRY OF TOURISM, GOVT. OF INDIA

¶32

EXHBIIT R2(C) COPY OF THE PROFIT AND LOSS ACCOUNT OF THE 5TH RESPONDENT FOR THE YEAR END 31/01/2011

¶33

EXHBIIT R2(D) COPY OF THE COMPLAINT RECEIVED FROM A US CITIZEN TRAVELLED THROUGH TRIVANDRUM INTERNATIONAL AIRPORT

¶34

EXHBIIT R2(E) COPY OF THE E-MAIL COMMUNICATIONS SENT BY AIRPORT SERVICE MANAGER OF QATAR AIRWAYS TO AA1.

¶35

EXHBIIT R2(F) COPY OF THE AWARD LETTER DATED 14/08/2013 GIVEN TO THE 5TH RESPONDENT.

¶36

EXHBIIT R2(G) COPY OF THE LICENCE AGREEMENT DATED 12/09/2013 EXECUTED BY THE 5TH RESPONDENT.

¶37

EXHBIIT R2(H) COPY OF THE LETTER DATED 13/03/2014 ALONG WITH COMPLAINT DATED 17/02/2014

¶38

EXHBIIT R2(I) COPY OF THE LETTER DATED 10/05/2013

¶39

EXHBIIT R2(J) COPY OF THE JUDGMENT DATED 02/12/2013 IN W.A.NO.1806 OF 2013 FILED BY M/S HOTEL RUBY ARENA.

¶40

EXHBIIT R2(K) COPY OF THE SAID LETTER DATED 19/10/2013

¶41

2/-

¶42

-2-

¶43

WP(C).NO.10961/2014

¶44

EXHBIIT R2(L) COPY OF THE REPORT SENT BY AAI, TRIVANDRUM TO THE REGIONAL HEADQUATERS (RHQ), CHENNAI VIDE LETTER NO.AAT/COM/3(23.2/7/2012/1446 DATED 31/12/2012

¶45

EXHBIIT R2(M) COPY OF THE LETTER NO.PLG/518/2.9/THIRUVANANTHAPURAM/2013 DATED 22/02/2013

¶46

EXHBIIT R2(N) COPY OF THE OFFICE NOTES SIGNED BY EXECUTIVE DIRECTOR (COMMERCIAL), EXECUTIVE DIRECTOR (PANNING), MEMBER (OPERATIONS) AND CHAIRMAN, AAI

¶47

EXHBIIT R2(O) COPY OF THE UNDERTAKING DATED 01/07/2013

¶48

EXHBIIT R2(P) COPY OF THE TENDER PROCESSING NOTES

¶49

EXHBIIT R2(Q) COPY OF THE TECHNICAL EVALUATION SHEET

¶50

EXHBIIT R2(R) COPY OF THE FINANCIAL BID EVALUATION SHEET

¶51

EXHBIIT R2(S) COPY OF THE ELECTRONIC TENDER STATEMENT

¶52

EXHBIIT R2(T) COPY OF THE MINUTES OF THE LCAC MEETING HELD ON 12/08/2013

¶53

EXHBIIT R2(U) COPY OF THE STAR CLASSIFICATION ORDER DATED 04/05/2007 ISSUED TO M/S PUARTHAM RESIDENCY.

¶54

EXHBIIT R2(V) COPY OF THE RELEVANT PAGES (CHAPTER-2 AT PAGES 5 TO 16) OF THE COMMERCIAL MANUAL.

¶55

EXHBIIT R2(W) COPY OF THE JUDGMENT DATED 24/09/2013 IN WP(C) 19933/2013

¶56

EXHBIIT R2(X) COPY OF THE STAY ORDER DATED 29/10/2012 IN WP(C).NO.25183 OF 2012

¶57

EXHBIIT R2(Y) COPY OF THE COMMON ORDER DATED 19/12/2013 IN WP(C). NO.25183/2012, WP(C).NO.19847/2013 AND WP(C).NO.21620/2013

¶58

EXHBIIT R2(I) COPY OF THE LETTER DATED 10/05/2013

¶59

EXHBIIT R2(J) COPY OF THE JUDGMENT DATED 02/12/2013 IN W.A.NO.1806 OF 2013 FILED BY M/S HOTEL RUBY ARENA.

¶60

EXHBIIT R2(K) COPY OF THE SAID LETTER DATED 19/10/2013

¶61

EXHBIIT R5(A) COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 14/08/2013

¶62

EXHBIIT R5(B) COPY OF THE LICENCE AGREEMENT EXECUTED BETWEEN THE 2ND RESPONDENT AND 5TH RESPONDENT DATED 12/09/2013

¶63

EXHBIIT R5(C) COPY OF THE PHOTOGRAPH SHOWING THE INAUGURATION OF THE EXECUTIVE LONGUE AT THE INTERNATIONAL AIRPORT OF THIRUVANANTHAPURAM

¶64

3/-

¶65

-3-

¶66

WP(C).NO.10961/2014

¶67

EXHBIIT R5(D) COPY OF THE ANOTHER PHOTOGRAPH

¶68

EXHBIIT R5(E) COPY OF THE STATEMENT SHOWING THE REMITTANCE OF THE LICENCE FEE BY THIS RESPONDENT FROM OCTOBER 2013.

¶69

EXHBIIT R5(F) COPY OF THE STAR CLASSIFICATION ORDER ISSUED BY THE REGIONAL DIRECTOR, HRACC DATED 13/11/2007

¶70

EXHBIIT R5(G) COPY OF THE COVERING LETTER WRITTEN BY THE 5TH RESPONDENT TO THE REGIONAL DIRECTOR, INDIA TOURISM DATED 24/10/2013

¶71

EXHBIIT R5(H) COPY OF THE LETTER GIVEN BY THE ASSISTANT DIRECTOR, INDIA TOURISM DATED 6/11/2013

/TRUE COPY/

P.A.TO.JUDGE

sts

**A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.No.10961 of 2014

¶76

Dated this the 15^th day of July 2014

¶77

J U D G M E N T

¶78

This writ petition is filed challenging the award of work relating to the licence to operate executive lounge in the security Hold Area of International Terminal Building of Thiruvananthapuram Airport.

¶79

The facts involved in the case would disclose that the 1^st respondent issued Notice Inviting Tender (NIT) for operating the aforesaid executive lounge. The eligibility criteria inter alia included that the tenderer should be Scheduled Airlines/Chamber of Commerce/Hotels having categorization as per HRACC. The contention of the petitioner is that though the 5^th respondent was awarded the work, it being a hotel, it did not have HRACC categorization which is a mandatory requirement for eligibility criteria. Hence the award in favour of the 5^th respondent is illegal, contrary to the terms of tender and is liable to be quashed.

¶80

W.P.C.No.10961/2014

¶81

¶82

Counter affidavit is filed by respondents 1 to 3 and 5^th respondent. The common contention urged by the respondents is the locus standi of the petitioner. They also contend that though the work was awarded as early as on 14/08/2013 at Ext.R5(a), the agreement executed as per Ext.R5(b) dated 12/09/2013 and thereafter the lounge was inaugurated on 23/12/2013 after expending more than Rs.50 lakhs with all modern facilities, the writ petition is filed only on 09/04/2014. Hence there is delay and laches in filing the writ petition. It is also contended that the 5^th respondent had HRACC categorization for five years from 13/11/2007 and during the period when the tender was invited, their application for renewal of HRACC categorization was pending. The respondents also submitted that the petitioner is a stooge of the previous contractor who did not operate the executive lounge in a proper manner. Petitioner was never a competitor and he was not eligible for submitting any tender as he never had a

¶83

W.P.C.No.10961/2014

¶84

¶85

Hotel. The whole intention of the petitioner is to prevent operation of the executive lounge by the 5^th respondent at the instance of M/s.Hotel Ruby Arena, the previous contractor. Hence it is contended that the writ petition is filed with mala fide intention. As far as HRACC categorization is concerned, it is admitted that the 5^th respondent did not have the said eligibility at the relevant point. The award has been given in favour of the 5^th respondent, as they submitted HRACC classification which is valid from 2007 to 2012 and therefore they have qualified in participating the tender. That apart, since the award is in public interest, the same may not be interfered by this Court.

¶86

Having regard to these factual issues, the first two questions to be considered is the locus standi of the petitioner and also whether the writ petition can be entertained on account of delay and laches.

¶87

W.P.C.No.10961/2014

¶88

¶89

In regard to the locus standi of the petitioner, it is inter alia contended by the petitioner that he was interested in submitting his offer acting upon NIT. According to him, he wanted to know about the possibility of participating in the tender process by associating a hotel (Malankara Restaurant) which is not categorized as per HRACC. When enquired, he was informed that only hotels having HRACC will be eligible to participate in the tender. This contention does not appear to be correct as he himself does not run any hotel. He cannot associate with another person having HRACC categorization and participate in the tender. In that view of the matter, it is clear that the petitioner is not a person interested in tender process. He is only set up by some others and therefore the contention urged by respondents 1 to 3 assumes importance and is possible. In the absence of any material to indicate that the petitioner's opportunity to participate in the tender is lost on account of the respondent authorities relaxing the eligibility criteria, I

¶90

W.P.C.No.10961/2014

¶91

¶92

do not think that the petitioner has approached this Court with clean hands. He has filed this writ petition only at the instance of some other person, who is either an unsuccessful tenderer or as contended by respondents 1 to 3, a person who does not want the executive lounge to function in the said area. Hence I am of the view that the petitioner has no locus standi to file this writ petition.

¶93

As far as the contention regarding delay and laches is concerned, it is evident that the work was awarded, agreement was executed and the executive lounge started functioning much prior to the date of filing the writ petition. If the petitioner was a genuine person who was really concerned with the award of work in favour of the 5^th respondent, he should have approached the Court at least at the time when respondents 1 to 3 have pre-qualified the 5^th respondent. The work itself was awarded on 14/08/2013 and this writ petition was filed only on 09/04/2014. In respect of a contract work where third party rights are created and

¶94

W.P.C.No.10961/2014

¶95

¶96

when substantial investments are made by them, delay and laches in challenging the award of work gains importance and therefore this writ petition is liable to be dismissed on the ground of delay and laches as well.

¶97

As far as the eligibility criteria of the 5^th respondent is concerned, it is an admitted fact that at the time when the offers were invited, the 5^th respondent did not have HRACC classification though according to them, they had the said classification for a period of five years from 2007 to 2012. Public authorities which prescribe prequalification criteria have to comply with such qualification criteria strictly. If any relaxation is intended, such benefits should be extended to others also by inviting fresh tenders or issuing an addendum to the NIT. Though I am not interfering with the award of work in favour of the 5^th respondent on account of other reasons and that too in public interest, public authorities like respondents 1 to 3 should strictly adhere to the eligibility criteria while pre-

¶98

W.P.C.No.10961/2014

¶99

¶100

qualifying tenderers and they cannot take a stand that they are entitled to relax such criteria on their own.

¶101

With the above observation, this writ petition is

¶102

dismissed.

¶103

(sd/-)

¶104

(A.M.SHAFFIQUE, JUDGE)

¶105

jsr

Bimal V.S v. Aiport Authoirty of India

Case brief

What is this about?

What did the court decide?

Bimal V.S v. Aiport Authoirty of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Iqbal Vs Asharaf K.K.

Shibu Vs State of Kerala

N Somakumar Vs Kerala Water Authority

Dr.Arun.B.R. Vs Union of India

Payyannur Labour Contract Co-Op. Society Vs State of Kerala

Hrishikesh Vs Technology Parks