High Court of Punjab and HaryanaCRM-M/47928/2022allowed

Bharat Bhushan Ashu v. State Of Punjab And Another

2024-12-20Mr. Justice Mahabir Singh Sindhu14 pages

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The Government of Punjab, through its Food Procuring Agencies and the Food Corporation of Indía procures food grains (mainly paddy and wheat) on behalf of the Government of India, from various purchase centers situated in the State of Punjab. The procured food grains are then stored at different plinths /Godowns owned/ hired by State Procurement Agencies. The Cartage of food grains from mandis to various storage points, including rice mills, situated up to 8 KM from such mandi(s) is got done from various contractors and the Labour operations in the godowns (including P.E.G) are got carried out from Labour & Construction Societies, Worker Management Committees and other labour contractors, on the basis of contracts awarded through competitive tenders. The Policy, for Labour and Cartage of foodgrains for the year 2020 21 shall be as under:

1 to 4 .............................................................................

A to F .......................................................................................... In case of tenderer applying for cartage, either alone or along with labour, Tenderer must have minimum turn over from the cartage work of foodgrains of Govt agencies in any one financial year out of previous 3 financial years i.e., from 2017 18 to 2019 20 depending upon the capacity of cluster applied for:

Total arrival of wheat/paddy(whichever is higher) in Mandis in previous year falling under one cluster.

Minimum turnover required (In Rupees) Sr.

No.

(Only Mandi(s) from which cartage has to be done to be included to calculate capacity).

Up to 5000 M.T.

10,00,000 2.

5001 Μ.Τ. to 10,000 Μ.Τ.

20,00,000 3.

10,001 M.T. to 20,000 Μ.Τ.

40,00,000 4.

20,001 Μ.Τ. to 30,000 Μ.Τ.

60,00,000 5.

30,001 M.T. to 40,000 Μ.Τ.

80,00,000 6.

40,001 Μ.Τ. to 50,000 Μ.Τ.

1,00,00,000 7.

50,001 Μ.Τ. to 75,000 Μ.Τ.

2,00,00,000

75,001 Μ.Τ. to 1,00,000 M.T.

3,00,00,000 9.

Above 1,00,000 M.T.

4,00,00,000 Note 1: Copy of the audited balance sheet of the concerned financial year shall be uploaded with the Technical Bid as proof of turnover." ##?)6)67)+ # # ? $ ?# 8) 5 # #? ## $ # *H! +6-6-)6)6 *H!+68C8)6)6 ? % /2 )(6-)6)6/7)629)-6-)6)6 4 # $)-6-)6)6 *H7+68C8)6)6 E 7 :1.

Petitioner claims to be prospective tenderer for the work of Cartage of foodgrains from respective mandis to storage points of Cluster Talwandi Bhai, Distt.Ferozepur, pursuant to the notice inviting E Tender for labour and cartage works during 2020 21, published in various newspapers on 24.1.2020, supplemented by the Corrigendum Tender Notice dated 6.7.2020 (P 2) whereby the last date for submission of tender forms is 28.7.2020 and opening of technical bids is 29.7.2020.

Grievance of the petitioner is directed towards Clause 5(G) of the Punjab Food Grains Labour and Cartage Policy,2020 21 (P 1) (for short Policy 2020 21) issued by the Department of Food and Civil Supplies and Consumer Affairs, whereby for the first time a condition has been provided requiring tenderer to have minimum turnover from the cartage work of foodgrains of any Governmental agency of one year out of three years from 2017 18 to 2019 20, thereby rendering the petitioner ineligible to apply on account of not having worked with the Government agency in the recent past inspite of having sufficient

experience in the previous years. Thus, the challenge in the present petition is to Clause 5(G) of Policy 2020 21. . ....................................................................... ' After hearing counsel for the petitioner at length, we are not persuaded to invoke our writ jurisdiction as we find no fault with the action of the respondents.

In order to examine the issue involved in this petition, it would be beneficial to reproduce the said Clause 5(G) of Policy 2020 21, which reads as under:

Clause 5(G): In case of tenderer applying for cartage either alone or along with labour, Tenderer must have minimum turn over from the cartage work of foodgrains of Government agencies in any one financial year out of previous 3 financial years i.e. from 2017 18 to 2019 20 depending upon the capacity of cluster applied for: Sr.

Total arrival of wheat/paddy(whichever is higher) in Mandis in previous year falling under one cluster.

Minimum turnover required (In Rupees) No.

(Only Mandi(s) from which cartage has to be done to be included to calculate capacity).

Up to 5000 M.T.

10,00,000 2.

5001 Μ.Τ. to 10,000 Μ.Τ.

20,00,000 3.

10,001 M.T. to 20,000 Μ.Τ.

40,00,000 4.

20,001 Μ.Τ. to 30,000 Μ.Τ.

60,00,000 5.

30,001 M.T. to 40,000 Μ.Τ.

80,00,000 6.

40,001 Μ.Τ. to 50,000 Μ.Τ.

1,00,00,000 7.

50,001 Μ.Τ. to 75,000 Μ.Τ.

2,00,00,000 8.

75,001 Μ.Τ. to 1,00,000 M.T.

3,00,00,000 9.

Above 1,00,000 M.T.

4,00,00,000 It is apparent that for a tenderer to apply for allotment of contract for cartage alone or alongwith labour, he must have a

minimum turnover from the cartage work of foodgrains from any of the Government agency in the 3 financial years as per specified capacity of the cluster. It is also matter of record that the policy containing clause was notified on 30.3.2020. It is further apparent that Government to protect its interest in such like commercial transactions affecting public interest has tried to provide some leverage to the prospective contractors who have executed certain works of required magnitude in the recent past. 5.

....................................................................... 6.

In the backdrop of aforesaid law on the subject, it cannot be denied that each contract and, in any event, each type of contract would require an elaborate exercise while fixing the terms and conditions of the notice inviting tenders. The party inviting tenders is free to adopt any reasonable method for the purpose of fixing the terms and conditions of the tenders. They may rely upon experts or consultants. They may rely upon in house expertise or may seek the assistance of other consultants. The terms of the invitation to tender is in the realm of contract. The Government must have freedom of contract.

In the present case if the Government has introduced this additional requirement of a tenderer having executed work of Government agency of minimum turnover in any one year in the previous three years towards the soundness, capacity and ability of a contractor to ensure the timely and successful execution of the work (especially in these challenging times of pandemic Covid 19), the action cannot be termed to be unreasonable, irrational or arbitrary, so as to persuade us to interfere in our writ jurisdiction, keeping in view the law settled by Hon'ble the Supreme Court. Dismissed." 8. > ? % * *H7+6-6- )6)6 # $)(6-)6)6/7)62 # 7 "1.

Feeling aggrieved by the order dated 17.07.2020 (Annexure P/6) whereby respondent No.2 rejected the representation of the petitioner seeking participation in the

tender process initiated by respondent No.1 for labour and cartage of foodgrains, on the ground of his being inexperienced contractor, the petitioner has sought the indulgence of this Court for issuance of a writ in the nature of certiorari quashing the above said order as well as Clause 5(ii)(G) of the Punjab Foodgrains Labour and Cartage Policy, 2020 21 (for short "PFLC Policy") and has made a further prayer for issuance of a writ in the nature of mandamus directing the respondents to permit him to participate in the tender processes within the State of Punjab and to consider his bids.

....................................................................... ....................................................................... 6. However, we do not find the afore discussed contentions to be tenable at all because a bare perusal of the impugned order (Annexure P/6) reveals that it has been specifically mentioned therein that "cartage" which was categorized as "unskilled work" till the previous year, i.e. 2019 20, has now been included in the category of the "skilled work" as per the decision taken by the Council of Ministers, Punjab on 02.03.2020. Even otherwise, undoubtedly, the foodgrains are perishable goods/items. It being so, the timely and proper handling of the same after its harvesting, i.e.

, loading, transportation, unloading and storage thereof, is of utmost importance to keep the same preserved for being distributed and utilized so as to achieve the object and the goal behind the enactment of the Food Corporation of India Act, 1964 (as amended from time to time) and this work certainly involves skill.

Undisputedly, framing/floating of a policy is exclusively within the domain of the Executive. The Authority/Agency

seeking any work to be got done through the tender process is supposed to be well within its rights to determine/stipulate the terms and conditions regarding the mode and manner of the execution of the said work. It is also well settled that the Courts should not sit over the decisions taken by the Executive/the Government as the Court of Appeal or the Reviewing Authority except in the eventualities where such decisions are mala fide or arbitrary. When applied on the touch stone of the above said proposition, the impugned clause of PFLC Policy requiring a tenderer to have the experience in the cartage of foodgrains, the same being a categorized skilled work, for at least one year in the preceding three years, cannot be held to be malafide or arbitrary. Resultantly, the impugned order (Annexure P/6) which is also broadly based on the said clause, does not warrant any interference by this Court. 8.

As regards the last contention of learned counsel for the petitioner regarding the impugned clause being contrary to Annexure P/7 while claiming this document to be the MTF, it is worth while to mention here that a plain reading thereof shows that it has been issued by the General Manager (Region), Food Corporation of India Regional Office, Haryana, Panchkula. Hence, the same cannot be taken to be the MTF meant to be followed throughout the country. Thus, Annexure P/7 is also of no avail to the petitioner to substantiate his claim in this petition.

As a sequel to the foregoing discussion, it follows that the present petition, being devoid of any merit, deserves dismissal. We order accordingly."

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There cannot be any controversy that sub section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence e (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon f filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC.

It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case.

the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."

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