Dismissed

Kerala State Labourfed v. Travancore Sugars and Chemicals Ltd.

Kerala HC1 Mar 2021WP(C)/146/2021

Case brief

AI extract

What is this about?

The petitioner, a Micro Enterprise, approached the court seeking enforcement of an exemption order that would have allowed it to bid without depositing an Earnest Money Deposit. The court examined the definition of 'Stores' under the relevant Government Order and concluded that the item in the tender was not within the scope of the exemption.

What did the court decide?

The writ petition was dismissed as the petitioner failed to demonstrate that the purchased item falls within the definition of 'Stores' covered by the exemption order.

Kerala State Labourfed Vs Travancore Sugars… — Public Procurement and Tenders | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.NAGARESH

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MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942 WP(C).No.146 OF 2021(P)

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PETITIONER:

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KERALA STATE LABOURFED, SANGEETH NAGAR - 506, TC OLD 24/451, TC NEW 28/622, OPP. SRI. SWATHI THIRUNAL COLLEGE OF MUSIC, GANDHI BHAVAN ROAD, ARISTO, NEAR THAMPANOOR, THYCAUD P.O, TRIVANDRUM - 695014, REPRESENTED BY ITS MANAGING DIRECTOR.

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BY ADVS. SMT.M.SANTHI (K/868/2011) SRI.G.RANJU MOHAN

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RESPONDENT:

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TRAVANCORE SUGARS AND CHEMICALS LTD., VALANJAVATTOM P.O, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN - 689104, REPRESENTED BY ITS MANAGING DIRECTOR.

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R1 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R1 BY ADV. SRI.K.JOHN MATHAI R1 BY ADV. SRI.JOSON MANAVALAN R1 BY ADV. SRI.KURYAN THOMAS R1 BY ADV. SRI.PAULOSE C. ABRAHAM R1 BY ADV. SRI.RAJA KANNAN R1 BY ADV. SRI.JAI MOHAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) No.146/2021

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J U D G M E N T

~ ~ ~ ~ ~ ~ ~ ~ ~

Dated this the 1^st day of March, 2021

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The petitioner, an Apex Body of Primary Labour Co-operative Societies has approached this Court seeking to direct the respondents to re-tender Ext.P1 tender process, for supply of Extra Neutral Alcohol.

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The petitioner would contend that they are engaged in blending, bottling and sale of Indian Made Foreign Liquor. The respondent published a tender notification (Ext.R1(a)) inviting tenders for Extra Neutral Alcohol for the period from 01.01.2021 to 30.06.2021. The said notification provided that the tenderers should remit tender fee of ₹1,250/- and EMD of ₹7.5 lakhs.

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The petitioner would contend that the petitioner is a Micro Enterprises falling under the Micro, Small and Medium Enterprises Development Act and is entitled for exemption

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WP(C) No.146/2021

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from payment of EMD in view of Ext.R1(c) GO(P) No.6/2014/SPD. Therefore, the petitioner did not remit the EMD. The bid made by the petitioner was not entertained by the respondent for non-payment of EMD.

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The learned counsel for the petitioner pointed out that as per GO(P) No.6/2014/SPD dated 17.05.2014, the MSMEs need not pay EMD or Tender Fee. The said G.O. is applicable to State Government Departments as well as Public Sector Undertakings. The Micro, Small and Medium Enterprises should be given exemption from payment of tender fee and EMD. Therefore, non-consideration of the petitioner's tender is illegal, arbitrary and ultravires.

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The learned Senior Counsel assisted by the counsel appearing for the respondent, on the other hand, would submit that Ext.R1(a) is a Stores Purchase Manual. Its applicability to the respondent company is admitted. However, what is being procured under the tender notification is not 'Store'. Therefore, the petitioner cannot claim benefit of GO(P) No.6/2014/SPD dated 17.05.2014. The learned

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Standing Counsel further pointed out that the petitioner has participated in the tender after noticing the tender conditions. Therefore, after participating in the tender proceedings with a clear understanding of the terms and conditions of the tender, the petitioner cannot be permitted to challenge the outcome of the tender.

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Heard learned counsel for the petitioner and learned Standing Counsel for the respondent.

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The fact that the petitioner is a Micro Enterprises Unit is not under serious dispute. The applicability of Ext.R1(c) Government Order to the respondent company is also not disputed. However, from Ext.R1(d) Stores Purchase Manual, it can be seen that the Government of Kerala has framed the said Manual for the purpose of purchase of Stores. The term “Store” has been defined under Clause 1.16 of Ext.R1(d). As per Clause 1.16, the term “Stores” means all articles and materials (other than cash and documents) which come into the possession of a Government servant for use in the Public Service. This will also include Annual Maintenance

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Services/Contract for maintenance of machinery/equipment, computers, etc. This term does not, however, include items like dietary articles of the animals in zoos, sundry articles like fuel, dietary products, etc.

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What is sought to be purchased under Ext.R1(a) notification is Extra Neutral Alcohol. It is not intended for use in the public service. The Standing Counsel for the respondent would state that the Extra Neutral Alcohol is being purchased for using as a raw material for manufacturing purpose.

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There is nothing in the pleadings to show that the purchase of Extra Neutral Alcohol is for the purpose of use in public service. In the circumstances, the exemptions granted to MSMEs under Ext.R2(d) will not enure to the benefit of the petitioner, in respect of purchase of Extra Neutral Alcohol by the respondent.

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Furthermore, the petitioner has already made their bid and participated in the tender. After having participated in the tender, the petitioner cannot now turn around and

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challenge the conditions of tender.

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In the circumstances, I find no merit in the writ

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petition and it is accordingly dismissed.

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Sd/-

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N. NAGARESH, JUDGE

aks/02.03.2021

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APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE NOTICE INVITING TENDERS BEING NOTIFICATION NO. MPA/ENA/2021/1 DATED 11.12.2020 ISSUED BY THE RESPONDENT.

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EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 28.12.2020 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT.

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EXHIBIT P3 TRUE COPY OF THE RECEIPT DATED 28.12.2020 ISSUED BY THE RESPONDENT. EXHIBIT P4 TRUE COPY OF THE UDYOG ADHAR REGISTRATION CERTIFICATE ISSUED BY THE MINISTRY OF MICRO, SMALL AND MEDIUM ENTERPRISES.

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RESPONDENT'S EXHIBITS:

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EXHIBIT R1(a) TRUE COPY OF THE TENDER CONDITIONS FOR THE SUPPLY OF EXTRA NEUTRAL ALCOHOL (ENA) FOR THE PERIOD 01.01.2021 TO 30.06.2021 ISSUED BY THE RESPONDENT WHICH ARE PART OF EXHIBIT P1 NOTICE INVITING TENDER.

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EXHIBIT R1(b) TRUE COPY OF THE PETITIONER'S LETTER DATED 28.12.2020 BEARING REF.NO. LF/4491/TENDER/97-1/2020 TO THE RESPONDENT.

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EXHIBIT R1(c) TRUE COPY OF G.O.(P) NO.06/2014/SPD DATED 17.05.2014 ISSUED BY STORE PURCHASE DEPARTMENT, GOVT OF KERALA.

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EXHIBIT R1(d) TRUE COPY OF THE RELEVANT PAGES OF THE STORES PURCHASE MANUAL REVISED EDITION 2013 ISSUED BY THE AUTHORITY UNDER THE GOVERNMENT OF KERALA, STORE PURCHASE DEPARTMENT AS AVAILABLE ON KERALA.GOV.IN WEBSITE.

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EXHIBIT R1(e) TRUE COPY OF G.O. (P) NO. 2/2019/SPD DATED 24.01.2019 ISSUED BY THE STORE PURCHASE DEPARTMENT, GOVT. OF KERALA. EXHIBIT R1(f) TRUE COPY OF THE RELEVANT PAGES OF GO(P) NO. 07/2014/SPD ISSUED BY STORES PURCHASES DEPARTMENT, GOVT OF KERALA, DATED 28.08.2014. EXHIBIT R1(g) TRUE COPY OF THE GO(RT) NO. 5382/2020/FIN. DATED 18.09.2020 ISSUED BY FINANCE DEPARTMENT, GOVT OF KERALA.

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Kerala State Labourfed v. Travancore Sugars and Chemicals Ltd.

Case brief

What is this about?

What did the court decide?

Kerala State Labourfed v. Travancore Sugars and Chemicals Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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