Full Text
HIGH COURT OF DELHI
Date of Decision: 03rd MARCH, 2023 IN THE MATTER OF:
M/S RAHUL ROADWAYS .... Petitioner
Through: Mr. S.B. Upadhaya, Senior Advocate with Mr. Neeraj Shekhar, Mr. Ashutosh Thakur, Dr. Sumit Kumar, Mr. Abhishek Pandey, Mr. Keshav Baheti, Advocates
Through: Mr. Rahul Mehra, Senior Advocate with Mr. Gurpreet Singh, Mr.Chaitanya Gosain, Advocates
Mr. Somnath Bharti, Ms. Richa Kapoor, Mr. Projanya Rathore, Advocates for R-3 and R-4
M/S MAHIPAL GUPTA & ORS .... Petitioners
Through: Mr. B.K. Sood and Mr. Harish Gaur, Advocates
Through: Mr. Rahul Mehra, Senior Advocate with Mr. Gurpreet Singh, Mr.Chaitanya Gosain, Advocates
Ms. Richa Kapoor, Mr. Somnath Bharti, Mr. Kunal Anand, Mr. Vipin T.P., Advocates for R-2 and R-3
Mr.Anurag Ahluwalia, CGSC with Mr. Abhigyan Sidhant, Advocate
SH. RUCHIT BANSAL .... Petitioner
Through: Ms. Richa Kapoor, Mr. Somnath Bharti, Mr. Kunal Anand, Mr. Vipin T.P., Advocates
Through: Mr. Gurpreet Singh, Advocate Ms. Hetu Arora Sethi, Additional
Standing Counsel, GNCTD Mr. Somnath Bharti, Ms. Richa Kapoor, Mr. Projanya Rathore, Advocates for R-3 and R-4
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The validity of Tenders for supply and transportation of Specified Food Articles (hereinafter referred to as “SFA”), under the National Food Security Act, 2013 (hereinafter referred to as “NFSA”) from godowns of the Food Corporation of India (hereinafter referred to as “FCI”) to Fair Price Shops (hereinafter referred to as “FPS”) located within the NCT of Delhi by allowing vehicles which are not CNG compliant falls for consideration in the instant writ petition. The controversy in the present matters is whether such tenders are in breach of the various orders passed by this Court or not. For ease of reference, W.P.(C) No. 11749/2022 is being treated as the lead matter and consequentially proceed to ascertain the fate of the other matters.
2. The Petitioners in W.P.(C) No. 11749/2022 are contractors and transporters and running their businesses as a contractor for Delhi State Civil Supplies Corporation Ltd. (hereinafter referred to as “DSCSCL”) for supplying and transportation of SFAs from FCI godowns to FPSs. Respondent No. 1 is the Government of NCT of Delhi and Respondent No. 2 is DSCSL.
3. The genesis of the present dispute lies in a series of orders of this Court, the National Green Tribunal (hereinafter referred to as “NGT”) and the policy measures adopted Respondent Nos. 1 & 2 pursuant thereto. The factual matrix leading up to the filing of the present matter is set out hereinbelow: -
I. Orders of the Hon’ble Apex Court and NGT i. On 11.12.2015, NGT passed an Order in OA No. 21/2014 barring registration of new diesel vehicles as well diesel vehicles of over 10 years of age, in NCT of Delhi given the significant role of diesel vehicles in deteriorating air quality in Delhi (hereinafter referred to as “Order dated 11.12.2015”). The relevant excerpt of the Order is reproduced hereunder: - "As an interim measure till next date of posting subject to hearing of all the concerned parties, we direct that Diesel Vehicles of more than 10 years of age as already directed as well as new diesel vehicle would not be registered in NCT, Delhi". ii. On 16.12.2015, the Hon’ble Apex Court passed an Order in W.P.(C) No. 13029/1985, wherein it allowed for registration of new commercial light duty diesel vehicles engaged in essential supplies. iii. Parallelly, on 10.11.2016, NGT passed an Order making the Order dated 11.12.2015, among other orders passed by it in the same proceedings, applicable mutatis mutandis to various orders passed in respect of other states and the NCT of Delhi (hereinafter referred to as “Order dated 10.11.2016”). iv. On 13.04.2017, the Hon’ble Apex Court, in W.P.(C) NO. 13029/1985 passed another Order prohibiting registration of vehicles other than BSIV compliant vehicles sold before 31.03.2017. The Order stated as follows: - “Accordingly, for detailed reasons that will follow, we directthat: (a) On and from 1st April, 2017, such vehicles that are not BS-IVcompliant shall not be sold in India by any manufacturer or dealer, that is to saythat such vehicles whether two wheeler, three wheeler, four wheeler or commercial vehicles will not be sold in India by the manufacturer or dealer on and from 1st April,2017. (b) All the vehicles registering authorities under the Motor Vehicles Act, 1988 are prohibited for registering such vehicles on and from 1st April, 2017 that do not meet BS-IV standards, except on proof that such a vehicle has already been sold on or before 31st March, 2017.” v. Pursuant to the Order dated 13.04.2017, registration of BSIV compliant vehicles engaged in essential services was also barred. Certain applications were filed before the NGT seeking directions for registration of such vehicles and thereafter, on 30.01.2018, the NGT passed an Order (hereinafter referred to as “Order dated 30.01.2018”) permitting registration of such vehicles subject to certain conditions, in the following terms: - “We, therefore, allow these applications directing the Transport Commissioner, Transport Department, Government of NCT Delhi to register the BS-IV compliant vehicles referred to in the said applications on the following conditions:
1. That the new vehicles that are sought to be registered now should be BS-IV compliant.
2. The Applicant shall file an Affidavit before the Tribunal as well as before RTO that they do not possess or engage any diesel vehicle/truck/tanker which is more than 10 years old for the purpose of transportation.
3. It is also directed to furnish details of the other vehicles owned by this Applicant in the form of Affidavit.
4. The said vehicle should be duty maintained and used only for exclusive purpose of carrying petroleum products and providing essential services or as indicated herein and no other use.
5. It should not increase the width or height of the vehicles and it should be strictly within the specified limit.
6. All these vehicles will be fitted with GPS.
7. The log-book shall also be maintained.” vi. On account of the Order dated 30.01.2018 passed by the NGT, further applications were filed which included inter alia an application filed by Respondent No. 3 herein seeking permission for registration of BSIV compliant vehicles. On 27.07.2018, the NGT passed an Order (hereinafter referred to as “Order dated 27.07.2018”) deciding these applications, allowing the same subject to the conditions mentioned in the Order dated 30.01.2018.
II. Orders of this Court and subsequent developments vii. In the meanwhile, a Public Interest Litigation being W.P.(C) NO. 514/2017 was filed before this Court seeking issuance of appropriate directions in respect of the issue of overloaded trucks plying in NCT of Delhi in violation of Rule 90(7) of the Central Motor Vehicle Rules, 1989 (hereinafter referred to as “1989 Rules”). Vide its judgment dated 06.12.2017 (hereinafter referred to as “Judgment dated 06.12.2017”), this Court disposed of the petition inter-alia directing that provisions of the 1989 Rules are strictly complied with. viii. Pursuant to the Judgment dated 06.12.2017, on 13.02.2018, the Transport Department of Respondent No. 1 wrote to the FCI with respect to overloading of vehicles for food items and non-use of vehicles registered elsewhere locally. Notwithstanding the specific issue of overloading trucks, it also directed for a strict compliance of the provisions of 1989 Rules. ix. In light of the Judgment dated 06.12.2017 and the subsequent policy communications, on 18.05.2018, Respondent No. 2, issued a memorandum (hereinafter referred to as “Memorandum dated 18.05.2018”) requesting contractors, including the Petitioners, to comply with certain “new norms and rules on priority” basis, which, inter-alia required that “the vehicle having National Permit and registered in Delhi (i.e. NCR) shall not pick up or set down goods between two points situated in the NCR unless they conform to the mass emission standards (Bharat Stage IV)”. x. Aggrieved by this specific stipulation contained in Clause 3 of the Memorandum dated 18.05.2018, certain contractors filed W.P.(C) No. 6820/2018 before this Court which was dismissed in terms of the Order dated 04.07.2018 wherein it was observed that the Memorandum dated 18.05.2018 and Clause 3 therein, was issued in furtherance of the mandate of proviso to Rule 90(7) of the 1989 Rules (hereinafter referred to as “Order dated 04.07.2018”). xi. Parallelly, the NGT also passed its Order dated 27.07.2018 whereby it permitted use of BSIV compliant vehicles in supply of essential services. xii. In November 2019, Respondent No. 2 floated e-tenders (hereinafter referred to as “November Tenders”) for supply and transportation of SFAs from FCI godowns to FSPs within Delhi. It was provided that “the tenderer shall use BS-IV & CNG trucks allowed by concerned Government Authorities/National Green Tribunal, Courts &any other government establishment”. xiii. On 18.12.2019, Respondent No. 2 circulated minutes of its meeting (hereinafter referred to as “MOM dated 18.12.2019”) wherein it resolved to amend the terms and conditions of its tenders to invite participation from contractors having a fleet of CNG compliant vehicles to avoid any hindrance in smooth distribution of SFAs from FCI godowns. xiv. Accordingly, tenders were floated in January 2020 for supply of SFAs to FSPs. It was provided that “The tenderer shall use only CNG trucks in PDS supplies allowed by concerned Government Authorities/ National Green Tribunal, Courts &any other government establishment.” xv. On 08.01.2020, Mr. Rajpal Khatri, Respondent No. 3 herein, filed W.P.(C) No. 201 of 2020 before this Court challenging the decision of Respondent No. 2 permitting operation of only CNG vehicles for the purposes of supply of SFAs to FSPs. On 14.01.2020, a similar writ petition being W.P.(C) No. 1552 of 2020 was filed by M/s Bansal Transportation Co., Respondent No.4, herein, and both the petitions were clubbed together for adjudication by this Court. xvi. In the interregnum, the Covid-19 pandemic broke out. To tackle the challenges faced by lower income groups and in order to provide them food grains the Government of India introduced the Pradhan Mantri Garib Kalyan Anna Yojana (hereinafter referred to as “PMGKAY”) under Aatmnirbhar Bharat., in April 2020. After introduction of the PMGKAY, Respondent No. 2 was required to supply and distribute under both, the NFSA and the PMGKAY. xvii. In July 2020 itself, on 20.07.2020 and 28.02.2020, Respondent No.2 issued office notes (hereinafter referred to as “Office Notes of July 2020”) wherein it inter alia permitted changed the terms and conditions of the proposed e-tender documents allowing BSIV/CNG Trucks instead of only CNG Trucks as had been the position in the tenders floated in January, 2020. xviii. In furtherance of Office Notes of July, Respondent No. 2 issued Notice Inviting Tenders in August 2020 (hereinafter referred to as “August 2020 Tenders”), Respondent No. 2 which allowed for diesel operated BSIV vehicles, and proceeded to award the said tender to Respondent No. 3 herein. xix. On 30.06.2021, DSCSCL executed agreements with various contractors which also included certain petitioners for the supply of food grains under PMGKAY. These agreements provided as follows: - “9I. The transporter shall use only CNG/BS-IV trucks in PDS supplies allowed by concerned Government Authorities/ National Green Tribunal, Courts & any other government establishment. The transporter should have the owning capacity of vehicles/trucks of 30 MT for all the groups (maximum four groups) irrespective of allocation of each group.” xx. On 15.07.2021, Respondent Nos. 3 & 4 withdrew W.P.(C) No. 201 of 2020 and W.P.(C) No. 1552 of 2020, respectively. xxi. From April 2022 to August 2022, DSCSL sought various extensions for lifting of SFAs pending under PMGKAY scheme and NFSA. In June 2022, DSCSCL granted an extension of 6 months to all contractors engaged in lifting of food grains under the PMGKAY and NFSA. xxii. In July 2022, DSCSCL floated a new tender wherein the eligibility criteria were further amended in the following terms: - “ ……………….
3. The tenderer shall use BS IV, BSVI/CNG GPS enabled trucks in PDS supplies allowed by concerned Government Authorities/National Green Tribunal, Courts & any other government establishment and further amendments/guidelines issued by the any authority time to time. The tenderer shall arrange required number of trucks per day for each Godown as per Annexure A. The tenderer should have the owning capacity of vehicles/trucks of 60 MT for each Godown……….” xxiii. On 08.08.2022, the Petitioners approached this Court by filing W.P.(C) No. 11749 of 2022 wherein this Court passed an interim order directing no work orders shall be issued by Respondent NO. 2 until further orders. xxiv. On 14.10.2022, DSCSCL cancelled the July 2022 tender and informed this Court of the same on 27.10.2022 and this Court recorded the submissions of DSCSCL and granted it permission for re-issuance of the tender. xxv. Aggrieved by the decision of DSCSCL to cancel the July 2022 tender, Ruchit Bansal, proprietor of the L[1] bidder in the July 2022 tenders, filed W.P.(C) No. 15543 of 2022. xxvi. In November 2022, the cancelled tender was re-issued and the terms of stated therein were as follows: - “……………………… The tenderer shall use Delhi state registered BSIV, BSVI/CNG GPS enabled trucks in PDS supplies allowed by concerned Government Authorities/National Green Tribunal, Courts & any other government establishment and further amendments / guidelines issued by the any authority time to time. The tenderer shall arrange required number of trucks per day for each godown as per Annexure A. The tenderer should have the owning capacity of vehicles/trucks of 60 MT for each godown…………..” xxvii. Aggrieved by the addition of the condition that the vehicle ought to be Delhi registered, M/s Rahul Roadways filed the connected writ petition being W.P.(C) No. 16973 of 2022.
4. Learned Counsel appearing on behalf of the Petitioners, vehemently contends that the decision of Respondent No. 2, DSCSCL, to allow plying of BSIV vehicles for the purposes of transportation of food grain has been made to favor Respondent Nos. 3 & 4. On the basis of the MoM dated 18.12.2019, the Petitioners have acquired CNG vehicles at huge cost in order to comply with the policy of Respondent Nos. 1 & 2. By going back on their representations, Respondent Nos. 1 & 2 are in breach of the principles of legitimate expectations and promissory estoppel and the impugned decision has deprived the Petitioners of their right to have the contract.
5. Per contra, learned Counsel appearing on behalf of Respondent No. 2, DSCSCL has drawn the attention of this Court to the orders of the NGT and this Court and the subsequent policy framed by DSCSCL in respect of its tenders. He states that supply of SFAs being an essential service relating to food products, orders of the NGT, this Court and extant policies of Respondent No. 1 and 2, permit for plying of BSIV vehicles carrying such items. The impugned decision taken by DSCSCL not being illegal, he has sought to contextualize the decisions of mandating only CNG compliant vehicles in the first place and then reversing its stance to allow BSIV vehicles. As stated by Respondent No. 2 on affidavit, it has been submitted before us that Respondent No. 2 sought to change the terms and conditions of the tenders floated after the issuance of MoM dated 20.12.2019 in order to have uninterrupted supply of SFAs in a time bound manner. Accordingly, tenders floated after 20.12.2019 invited contractors/transporters having a fleet of CNG trucks to prevent inclusion of a prohibited vehicle or one which may be banned in the future as a pre-emptive measure since Respondent No.2 is engaged in the supply of food grains to people belonging to weaker sections of the society.
6. He has further submitted that with the outbreak of Covid-19 and the accompanying challenges that it brought with itself, PMGKAY was launched under the aegis of the Union Govt. and Respondent No. 2 was the agency responsible to ensure distribution of supplies under the same. On account of the increased obligation to supply food grain while not having enough participation from contractors, Respondent No. 2 took a conscious decision of amending the eligibility terms and conditions for the tenders again by proposing to include BSIV vehicles so that continuous supply of food grains could be ensured under the PMGKAY and NFSA. Accordingly, it is stated by Respondent No. 2, that BSIV vehicles were made eligible vide, (i) approval granted by the Chairman cum Managing Director of DSCSCL, (ii) administrative office notes dated 20.07.2020 and (iii) document dated 28.07.2020 with further amendment to clause 6(a) and 6(d). It is in furtherance of the aforestated approvals that the Notice Inviting Tenders was issued with the amended conditions. He, therefore, submits that there is not a trace of perversity or arbitrariness in the decision-making process of Respondent No. 2.
7. In similar vein, learned Counsel appearing for Respondent No. 3 has submitted that DSCSCL’s decision of permitting participation of contractors with BSIV vehicles after initially mandating participation by contractors with only CNG compliant vehicles, reflects a meticulous, considered and lawful approach. It is his submission that quantities allocated to the Petitioners in terms of the January 2020 tenders were much beyond their transportation capacities and DSCSCL became cognizant of the same at a very nascent stage of implementation of the criteria allowing only CNG compliant vehicles. He has invited our attention to the correction letter issued on 22.03.2020, wherein DSCSCL allowed BSIV vehicles for transportation of SFAs from FCI godowns to FSPs in Delhi. He highlights that all tenders floated thereafter, i.e., the August 2020, May 2022 and July 2022 have consistently permitted plying of BSIV run vehicles.
8. Insofar, the argument that of the Petitioner that plying of BSIV trucks is illegal, is concerned, he submits that it is explicitly clear that in terms of the Orders of the Supreme Court, NGT and pursuant policy framed by the competent authorities, BSIV vehicles purchased up to March 2020 are permitted to remain operational for the entire duration of their registration for essential services. There being no bar in law upon operation of BSIV compliant vehicles for essential services, the relaxation of conditions that had been imposed by Respondent No. 2 in November 2019 are completely justifiable, more so when it is facing challenges in discharging its function of distribution of food grains and such relaxation has caused no prejudice to the Petitioners in participating in the tenders in any manner whatsoever.
9. Heard the learned counsels appearing for the parties and perused the material on record.
10. The quintessential issue that this Court has been seized of, is, whether the decision of Respondent No. 2, DSCSCL to permit plying of BSIV compliant vehicles for the purposes of distributing SFAs from FCI godowns to FSPs in Delhi, is contrary to the extant Orders of the Hon’ble Supreme Court, NGT, this Court and the policy framed by Respondent Nos. 1 & 2 subsequently.
11. It is not in dispute that the DSCSCL had itself mandated plying of only CNG compliant vehicles in terms of its MoM dated 18.12.2019 and the January 2020 tenders floated thereafter. It is evident from a perusal of the MoM dated 18.12.2019 that the motivation behind doing so, at the time, seems to have been, ensuring hindrance free supply of SFAs from FCI godowns to FSPs located in Delhi in anticipation of a possible blanket ban on diesel vehicles considering the deteriorating air quality in Delhi.
12. At this juncture, it becomes pertinent to note that, even though DSCSCL took the said decision, there was nothing in law barring transportation of food grains through BSIV compliant diesel vehicles. It is clear that the Order dated 27.07.2018 passed by the NGT permitted for registration of BSIV diesel vehicles subject to certain conditions. It is further clear that Orders passed by this Court required all vehicles to comply with the 1989 Rules, which did not bar plying of BSIV compliant vehicles either. Accordingly, the communications issued by the Transport Department of Respondent No. 1 also required mere compliance with the 1989 Rules. Therefore, vide the MoM dated 18.12.2019, DSCSCL, exercised its discretion to narrow down the class of vehicles allowed within the aforestated regulatory framework to only include CNG compliant vehicles for bonafide reasons that it has shed light upon in the MoM dated 18.12.2019 itself.
13. It is also not in dispute that with the outbreak of COVID-19, there were nationwide restrictions on movement which caused significant economic hardship and led to a domino effect that admittedly resulted in widespread unemployment and shortage of basic food supplies among economically underprivileged sections of the society. To tackle the said issue, the PMGKAY was launched by the Central Government. As the nodal agency for implementation of the PMGKAY along with its pre-existing obligations under the NFSA, DSCSCL was subjected to enhanced obligations of supplying with limited resources given the continued impact and subsequent outbreak of new variants of Covid-19. In an endeavor to put forth before this Court the magnitude of its obligations under both the NFSA and PMGKAY, DSCSCL has provided a chart to assist this Court which is reproduced hereunder: - Month Jun-22 (NFSA & PMGKAY) Short fall Jul-22 (NFSA & PMGKAY) Aug-22 (NFSA & PMGKAY) Sep-22 (NFSA & PMGKAY) Oct-22 (NFSA & PMGKAY) Nov-22 (NFSA & PMGKAY) Godo wn & Grou p Transpo rter Tru cks Req uire d Truc ks Provi ded Truc ks Requi red Truc ks Provi ded Truc ks Requi red Truc ks Provi ded Truc ks Requi red Truc ks Provi ded Truc ks Requi red Truc ks Provi ded Trucks Requir ed Truck s Provi ded Maya puri- A M/s Mahipal Gupta 338 341 -47 442 334 -108 362 332 -30 371 306 -65 398 324 -74 362 168 -194 B M/s Satguru Transpo rt Co. 837 649 -188 921 645 -276 754 633 -121 815 610 -205 836 611 -225 715 312 -403 C M/s Vikramj eet Singh 652 543 -109 725 541 -184 593 536 -57 642 523 -119 659 548 -111 548 274 -274 D M/s Vikramj eet Singh 250 218 -32 276 223 -53 227 224 -3 245 222 -23 256 224 -321 232 111 -121 Ghevr a-A M/s Mahipal Gupta 929 452 -477 1023 504 -519 837 520 -317 911 496 -415 928 488 -440 724 552 -172 Ghevr a-B M/s Rajastha n Road Carrier 593 338 -255 654 383 -271 535 383 -152 572 346 -226 592 367 -225 480 392 -88 Ghevr a-C M/s Rajastha n Road Carrier 834 547 -287 918 584 -334 752 571 -181 823 499 -324 833 576 -257 720 604 -116 Narel a-A M/s Shri Krishna Tpt. Co 904 673 -231 996 686 -310 816 679 -137 886 672 -214 904 692 -212 763 674 -89 Narel a-C M/s Abhishe k Tyagi 656 -526 1304 671 -633 1067 700 -367 1126 719 -407 1181 691 -490 912 696 -216 Narel a-D M/s Kaka Tpt. Co. 426 296 -130 469 280 -189 384 279 -105 416 261 -155 425 276 -149 348 273 -75 CTO Pusa- A M/s Roop Lal Yadav 773 576 -197 854 562 -292 699 562 -137 762 548 -214 775 538 -237 677 483 -194 CTO M/s 486 420 -66 543 406 -137 445 403 -42 471 408 -63 493 400 -93 431 359 -72 Pusa- B Roop Lal Yadav Okhla -A M/s Delhi State Tpt. Co. 844 619 -225 935 505 -430 765 625 -140 784 625 -159 847 598 -249 735 554 -181 Okhla -B M/s Delhi State Tpt. Co. 704 429 -275 775 300 -475 634 444 -190 677 444 -233 706 570 -136 610 323 -287 Shakt i Nagar M/s National Transpo rt 736 691 -45 710 686 -24 666 687 21 710 663 -47 736 688 -48 699 685 -14 Total 105 7448 -3092 11546 7310 -4236 9534 7578 -1956 10209 7342 -2867 10567 7591 -2976 8956 6460 -2496 Status of allocation, pendency and daily lifting target of November 2022 under PMGKAY as on 05.12.2022 Name of Godowns Name of Transporters PMGKAY November 28797.55 Lifting 03/12/2022 2250.09 Cumulative lifting upto 14823.93 Opening Pendency of 13973.62 % of lifting
51.48 Lifting target for the day 1622.37 Shortfall 627.72 Lifting target for 1552.62 Narela-A M/s Shri Krishna Tpt. Co Narela-B M/s Bansal Tpt. Co. 24731.10 2517.23 14906.64 9824.46 60.27 1234.17 1283.06 1091.61 Narela-C M/s Abhishek Tyagi 38045.55 948.40 6793.58 31251.97 17.86 3220.04 -2271.64 3472.44 Narela-D M/s Kaka Tpt. Co. 13727.25 1289.99 4905.24 8722.01 36.00 1001.20 288.79 969.11 Status of allocation, pendency and daily lifting target of November 2022 under PMGKAY as on 05.12.2022 Name of Godowns Name of PMGKAY November 12935.50 Lifting 0.00 1856.63 Opening 11078.87 14.35 Lifting the day 1107.89 Shortfall -1107.89 1230.99 Mayapuri- A M/s Mahipal Gupta Mayapuri- B M/s Satguru Transport Co. 26928.00 2823.09 4982.60 21945.40 18.50 2194.54 628.55 2488.88 Mayapuri- C M/s Vikramjeet Singh 21214.60 3684.84 2967.80 18246.80 13.99 1824.68 1860.16 2027.42 Mayapuri- D M/s Vikramjeet Singh 8200.85 1395.30 998.61 7202.24 12.18 720.22 675.08 800.25 Status of allocation, pendency and daily lifting target of November 2022 under PMGKAY as on 05.12.2022 Name of Godowns Name of PMGKAY November 29792.95 Lifting 3252.99 9203.82 Opening 2058[9].12 30.89 2384.21 Shortfall 868.78 2287.68 Ghevra-A M/s Mahipal Gupta Ghevra-B M/s Rajasthan Road Carrier 18875.20 626.75 5386.41 13488.79 28.54 1411.55 -784.80 1498.75 Ghevra-C M/s Rajasthan Road Carrier 26754.90 344.17 4699.65 22055.25 17.57 2239.94 -1895.77 2450.58 Status of allocation, pendency and daily lifting target of November 2022 under PMGKAY as on 05.12.2022 Name of Godowns Name of PMGKAY November 27413.80 Lifting 778.56 4247.56 Opening 23166.24 15.49 2394.48 Shortfall -1615.92 2574.03 Okhla-A M/s Delhi State Tpt. Co. Okhla-B M/s Delhi State Tpt. Co. 22844.30 690 4225.86 18618.44 18.50 1930.92 -1240.17 2068.72 Status of allocation, pendency and daily lifting target of November 2022 under PMGKAY as on 05.12.2022 Name of Godowns Name of PMGKAY November Lifting Opening Pendency Lifting Shortfall Lifting CTO Pusa-A M/s Roop Lal Yadav 24867.40 1020.18 6740.04 of 18127.36 27.10 the day 1914.75 -894.57 for 2014.15 CTO Pusa-B M/s Roop Lal Yadav 15697.55 1454.58 4373.95 11323.60 27.86 1277.82 176.76 1258.18 Status of allocation, pendency and daily lifting target of November 2022 under PMGKAY as on 05.12.2022 Name of Godowns Name of PMGKAY November 23173.25 Lifting 1415.60 9705.33 Opening 13467.92 41.88 1488.35 Shortfall -72.75 1496.44 Shakti Nagar M/s National Transport TABLE A – NFSA & PMGKAY December 22, ONORC Scheme and January 2023 Name of Godowns NFSA December Opening Pendency 03.01.2023 PMGKAY December Opening Pendency ONORC SCHEME Opening Pendency NFSA January Opening Pendency Total Opening Pendency Lifting required per day upto 31.01.2023 Trucks required per day upto 31.12.2022 (considering avg truck capacity 70 qtls) Mayapuri 70786.45 57159.01 25157.07 68745.74 221848.27 10564.20 151 Ghevra 76700.26 75324.46 23569.92 77494.20 253088.85 12051.85 172 Narela 54839.89 87601.70 21797.61 100421.32 264660.52 12602.88 180 CTO Pusa 42027.55 37503.63 13572.23 41649.21 134752.62 6416.79 92 Okhla 40012.19 46527.08 23746.95 49822.74 160108.96 7624.24 109 Shakti Nagar 17244.55 18556.07 7450.78 24571.42 67822.83 3229.66 46 Total 301610.89 322671.96 115294.56 362704.64 1102282.046 52489.62 750
14. The chart reproduced above reflects that there was a manifold increase in supply obligations imposed upon DSCSCL. In fact, the various extension letters produced by DSCSCL reflects the challenges encountered by the DSCSL in meeting its supply obligations under the NFSA and the PMGKAY. A perusal of the abovementioned chart reflects the shortfall in the number of trucks that the transporters who are at the moment operating in lifting the foodgrains from the godowns. The chart also explains the shortfall in meeting the target of lifting the foodgrains from the godowns. The submission of the learned Counsel for the Respondent is that the contractors who are operating in the field at present are virtually holding the State to ransom. They are not lifting the foodgrains and at the same time, they are abusing the process of law by preventing the State from proceeding ahead from filing tenders to assuage the worsening the situation which is preventing the State Government from fulfilling its obligation of providing adequate foodgrains to the teeming millions in the city who are below the poverty line. Respondent No. 2 has attempted to canvas before us that it is in this backdrop that it had to issue the Office Notes of July 2020 and thereafter bring about a change in the eligibility criteria in subsequent tenders to allow plying of BSIV compliant vehicles in transportation of food grains under the schemes.
15. What emerges from the foregoing paragraphs is that while the law does not bar plying of BSIV compliant vehicles in terms of the extant framework, DSCSCL, in its wisdom, decided to give a go by to their narrowing down the class of eligible vehicles to only CNG operated trucks and have restored the eligibility criteria to original position, within the limits of what is permissible by law.
16. As long as the tendering authority does not explicitly contravene any statutory provisions and/or orders of the court of law, there is a degree of deference owed to its decisions as the author of the contract. This position of law has been crystallized in a catena of decisions. The Apex Court in Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited &Anr., (2016) 16 SCC 818, has observed as under:-
17. Another seminal pronouncement of the Hon’ble Apex Court on this issue came about in the judgment of Municipal Corporation, Ujjain &Anr. v. BVG India Limited &Ors., (2018) 5 SCC 462 wherein the Hon’ble Apex Court opined: -
18. In Silppi Constructions Contractors vs. Union of India and Anr., (2020) 16 SCC 489, the Apex Court has observed as under:-
20. The essence of the law laid down in the judgments referred to above is the exercise of restraint andcaution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the State instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.”
19. In N.G. Projects Limited v. Vinod Kumar Jain and Ors., (2022) 6 SCC 127, the Apex Court has held as under:- “23. In view of the above judgments of this Court, the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work.”
20. The aforementioned judgments make it clear that tendering authority, being the author of the tender, is best placed to determine the terms and conditions which govern the award of the tender. It is not a writ court’s domain to sit as an appellate authority over a decision taken by the tendering authority and scope of interference being extremely narrow; interference is warranted only in situations where the decision of the tendering authority is colored in malafide, or was intended to favor someone or is so outrightly perverse that a reasonable person could not have arrived at such decision. There is a coherent line of reasoning behind the decision to allow only CNG compliant vehicles and thereafter restoring of the criteria to the original position of allowing BS-IV complaint vehicles as well. In the said circumstances, no case is made out for interference by this Court in the decision of Respondent No.2.
21. The Petitioners have further contended that the decision of DSCSCL is hit by the principles of legitimate expectations and promissory estoppel. It is now well settled that the doctrine of legitimate expectations and promissory estoppel cannot be invoked in abstract and the Courts are bound to see all aspects including the objectives to be achieved and the public good at large [Refer to: Union of India v. Unicorn Industries, (2019) 10 SCC 575; Kasinka Trading v. Union of India, (1995) 1 SCC 274]. The Courts cannot bind the government to policy decision if the same is changed due to overreaching concerns of public interest. The Hon’ble Apex Court in the case of Food Corporation of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71, has observed as under: -
22. The contention of the Petitioners that they have invested a substantial amount of money in buying CNG trucks in view of the decision taken by the government to restrict the vehicles only to CNG trucks for the purpose of procuring foodgrains and, therefore, they are entitled to get tenders quashed on the basis of promissory estoppel and legitimate expectation cannot be accepted in view of the fact that data submitted by the Respondents which demonstrates that the targets for lifting the foodgrains is not being achieved and there is a huge shortfall in the number of trucks available with the Respondents to achieve this target.
23. The tenders invited by DSCSCL pertain to distribution of ration which is directly benefitting the economically weaker sections of our society. The function discharged by DSCSCL is of absolute importance and the decisions taken by it are in furtherance of securing the ends of smooth distribution of ration. Considering the public interest involved and also that it has been established before us that the decisions of DSCSCL are fair and adequately reasoned, we are of the opinion, that the argument of the Petitioners that the decisions of DSCSCL are in violation of the principle of legitimate expectations, is untenable and therefore cannot be accepted.
24. The challenge to the condition in the tender, that vehicles which have been offered for the purpose of transportation of food grains should be registered in Delhi is arbitrary and is not in consonance with the Motor Vehicles Act, is also not tenable. As stated earlier, a Public Interest Litigation, being W.P.(C) No.514/2017, was filed in this Court seeking issuance of appropriate directions in respect of the issue of overloaded trucks plying in NCT of Delhi in violation of Rule 90(7) of the 1989 Rules and the said Writ Petition was disposed of by this Court directing that the provisions of the 1989 Rules should be strictly complied with. In light of the said direction, the Govt. of NCT of Delhi has issued letters in this aspect. Learned Counsel for Respondent No.1 has referred to a letter dated 13.02.2018 issued by Transport Department, GNCTD. The said letter reads as under:- “GOVERNMENT OF NATIONAL CAPITAL TERRITORY TRANSPORT DEPARTMENT (ENFORCEMENT BRANCH) 5/5, Under Hill Road, Delh-54 Date - 13.Feb.2018 No. ED/CCENFTTPT; 20184-11 Special Commissioner Department of Food Supplies & Consumer Affairs Government of NCT of Delhi. IP Estate. New Delhi - Senior Regional Manager Food Corporation of India Rajender Place New Delhi - 110001 Subject: Overloading of vehicles for food items and non-use of other state registered vehicles locally.
1. In Reference to order dated 06.12.2017 issued by the Hon‟ble Court in WP (C) 514/2017. The court has directed for strict compliance of Section 113 of the MV Act 1988 and Rule 90(s) of the CMVR 1989.
2. As you know that using other state vehicles and loading vehicles more than their limit is just ignoring their illegal activities which is a type of corruption. These activities encourage violation of traffic rules resulting in increase in accidents, pollution and many other subsequent losses to the society and citizens. Whereas it should be taken as joint efforts to deal with all kinds of irregularities and tight against pollution.
3. In view of above it is informed that regular strict cheeks on above violations will be done by the Enforcement Branch of the Transport Department. Vehicles violating the above rules will be impounded and necessary complaints will be lodged with the appropriate legal authorities against the concerned officers i.e. the officials issuing and receiving the loaded goods) will be lodged with the appropriate legal authorities.
4. It is therefore requested to follow/abide the law and the instructions of judiciary. Only vehicles registered in Delhi may be hired for transportation of food items in the area of NCT of Delhi. The vehicles hired and the quantity of material loaded in the vehicles should be as per the authorized parameters. The concerned officer may be told lobe vigilant in his routine work so that the Motor Vehicles Act/Rules are not violated. ”
25. A perusal of the said letter shows that the State Government has decided that only vehicles registered in Delhi may be hired for transportation of food items in areas of NCT of Delhi.
26. The said letter is in consonance with Rule 90(6) of the Central Motor Vehicles Rules and, therefore, the condition imposed in the tender restricting the vehicles registered only in Delhi cannot be found fault with.
27. Rule 90 of the Central Motor Vehicles Rules, 1989 was amended on 02.10.2018 and the amended Rule 90 reads as under:
28. The directions contained in the letter dated 13.02.2018 issued by the Government of Delhi has now, therefore, be read in consonance with amended Rule 90 and, therefore, the stipulation of the State Government that only vehicles registered in Delhi can be hired for transport of food items in Delhi is well within the powers of the State Government and, therefore, the contention of the Petitioners cannot be accepted.
29. With these observations, the writ petitions are dismissed, along with pending application(s), if any.
SATISH CHANDRA SHARMA, C.J. SUBRAMONIUM PRASAD, J MARCH 03, 2023 hsk/shk