Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942 WP(C).No.9028 OF 2020(C) PETITIONER: DHARAM PAL, AGED 54 YEARS, S/O.SRIKRIPAL, DOOR NO.C.C.22/737, CHIRAYIL PARAMBU, MUNDEMVELI, KOCHI-682 507. BY ADVS. SRI.K.S.MADHUSOODANAN SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SRI.K.S.MIZVER SRI.M.J.KIRANKUMAR RESPONDENTS: 1 THE FLAG OFFICER COMMANDING IN CHIEF (FOR CHIEF OF STAFF) HEAD QUARTERS, SOUTHERN NAVAL COMMAND, NAVAL BASE, KOCHI-682 004. 2 THE COMMANDING OFFICER, INS VENDURUTHY, NAVAL BASE, KOCHI-682004. 3 M.D.SHARMA, S/O.NOT KNOWN, VENDURUTHY CAFETERIA, NAVAL BASE, KOCHI-682004. ADDL. 4 DEPUTY DIRECTOR, FOOD AND SAFETY AND STANDARDS AUTHORITY OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE OF INDIA, 2ND FLOOR, CENTRAL DOCUMENTATION COMPLEX, SOUTH WING, CHENNAI PORT MEET, RAJAJI SALAI, CHENNAI-600 001 ADDL. 5 THE ASSISTANT COMMISSIONER OF FOOD SAFETY, FSSAI, EROOR SOUTH P.O, THRIPUNITHURA, ERNAKULAM-682 306. ADDL R4 AND R5 ARE IMPLEADED AS PER ORDER DATED 20-08-2020 IN IA 5/2020 IN WP(C)9028/2020. R1-2 BY ADV. SRI.P.VIJAYAKUMAR, ASGI R3 BY ADV. SRI.P.T.JOSE ADV. SRI.SANTHAN V.NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: [CR]
JUDGMENT
Dated this the 8th day of October, 2020 This writ petition is an instance of how rules and regulations framed by governmental authorities forces a citizen to achieve the unachievable.
2. The writ petitioner, a retired Navy personnel,
responded to Ext.P1 notification inviting tenders from specified aspirants for running 'Venduruthy Cafeteria' under the 1 st and 2nd respondents. The bid of the petitioner has been rejected on the ground that the petitioner does not possess FSSAI license.
3. By Ext.P1 tender notification, the 2 nd respondent
invited sealed tenders for running Venduruthy Cafeteria at Naval base, Kochi for a period of 11 months with effect from 01.03.2020. The petitioner quoted an amount of ₹2,24,000/- as monthly rebate. The petitioner submitted a demand draft of ₹50,000/- towards EMD also. It emerges from the pleadings that the 3rd respondent, who is running the canteen at present , quoted an amount of ₹1,91,000/- only and a 3rd bid quoted ₹2,05,000/-.
4. Condition No.7 of the terms and condition of tender
for shops made it mandatory that the contractor should have necessary Food Safety certification. The petitioner approached the Food Safety Authority seeking for a license. The petitioner in turn was informed that he has to obtain a Trade Certificate from the local body for grant of FSSAI license.
5. The petitioner approached the local body, namely
Cochin Corporation and the petitioner was informed that a Trade Certificate cannot be granted in the absence of lease deed or proof of possession of the premises, where he has to start the canteen. Since the petitioner could not have produced any proof of possession of premises of respondents 1 and 2 prior to award of contract, the petitioner submitted a self attested certificate to respondents 1 and 2 undertaking that he will be conducting the canteen adhering to all the norms of the FSSAI. However the petitioner's request was rejected by respondents 1 and 2 and the contract was awarded to the 3rd respondent.
6. The writ petitioner thereupon filed this writ petition.
This Court passed an interim order on 26.05.2020 directing the 2nd respondent to consider Ext.P5 representation pending disposal of the writ petition. Pursuant to the said direction, the 2nd respondent passed Ext.P6 order on 19.06.2020, holding that there is no reason to interfere with the decision to award the contract to the 3rd respondent, who has submitted the mandatory FSSAI certificate. The petitioner challenges Ext.P6 communication of the 2nd respondent.
7. Heard the learned counsel for the petitioner, the
learned ASG appearing for the respondents 1 and 2, the counsel for the 3rd respondent and Standing Counsel appearing for Food Safety Authorities, the additional respondents 4 and 5.
8. On instructions the Standing Counsel for additional
respondents 4 and 5 submitted that since license is sought for running a canteen, necessarily it should be attached to a premises. In the absence of a Trade Certificate issued by the local body to conduct canteen in the said premises, the Food and Safety Authorities cannot grant a license.
9. The local bodies grant Trade Certificates for running
hotel or canteen only on production of proof of possession of the premises. Therefore, for conducting the cafeteria in question in the premises of respondents 1 and 2, as long as respondents 1 and 2 do not execute a lease deed or issue any certificate in proof of possession of the premises, the local body will not issue Trade Certificate and consequently the Food Safety Authority also will not be able to issue Food Safety license.
10. This would create a situation where only an existing
contractor who is running the canteen will be able to obtain a Food Safety license, since he is already holding proof in respect of the possession of the premises. If this situation is permitted to continue, it will result in a monopoly on contract for running the cafeteria or canteen.
11. It is true that allocation of government “largesse” are
subject to substantially different constitutional constraints than other governmental actions. It is also true that State has no obligation to provide such opportunities to every citizen. But when such opportunities are offered to public, those must be made available to all on equal terms. Therefore the authorities while offering such contracts, should not lay down such conditions, unachievable by large majority of the bidders, who are otherwise qualified. The governmental authorities while laying down conditions for grant of contract, have an obligation to ensure that such conditions are not impossible of compliance. Failure to discharge such obligation would not only deny a level playing field offending Article 14, but would also impinge upon the right of citizens guaranteed under Article 19(g) of the Constitution of India.
12. Respondents 1 and 2 have not taken into account
this position which would result in violation of rights guaranteed under article 14 and 19, of those persons who are desirous of bidding and running the cafeteria/canteen of respondents 1 and 2. This situation cannot be permitted to continue.
13. Accordingly Ext.P6 communication of the 2 nd
respondent is set aside. Respondents 1 and 2 are directed to reconsider the condition as to holding of Food Safety license prior to the grant of license to run the cafeteria. They may also consider feasibility of obtaining FSSAI license from successful bidder after giving possession of the cafeteria to the bidder or of issuing provisional certificates with conditions, in proof of possession of cafeteria premises to all prospective bidders so that prospective bidders can produce the same before local bodies to obtain Trade Certificates, which are required to apply for Food Safety Licence. After making necessary changes in the condition of tender, the respondents 1 and 2 shall proceed to review the award of tender to the 3rd respondent. The entire process as stated above shall be completed within a period of four weeks. Till a decision is taken by respondents 1 and 2 and fresh award of tender is made, the 3rd respondent shall be permitted to continue to run the cafeteria. The writ petition is disposed of as above.
Sd/- N. NAGARESH JUDGE SR
APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 PHOTOCOPY OF THE TENDER NOTIFICATION NO.36/20 DATED 18.02.2020. EXHIBIT P2 PHOTOCOPY OF THE QUOTATION DATED 26.02.2020. EXHIBIT P3 PHOTOCOPY OF THE REPLY GIVEN BY ASST.COMMISSIONER OF FOOD AND SAFETY, ERNAKULAM. EXHIBIT P4 PHOTOCOPY OF THE CERTIFICATE DATED 26.02.2020. EXHIBIT P5 PHOTOCOPY OF THE REPRESENTATION DATED 06.03.2020 TO THE 1ST RESPONDENT WITH COPY TO 2ND RESPONDENT. EXHIBIT P6 PHOTOCOPY OF THE ORDER BEARING NO.113/13/REG-14 DATED 19.6.2020. EXHIBIT P7 PHOTOCOPY OF THE EXPERIENCE CERTIFICATE IN CATERING IN FAVOUR OF THE PETITIONER. EXHIBIT P8 PHOTOCOPY OF ORDER BEARING NO.09/2005 SPECIFYING NORMS AND REGULATION DATED CONTRACT ISSUED BY 1ST RESPONDENT. EXHIBIT P9 PHOTOCOPY OF THE REPLY ISSUED BY 2ND RESPONDENT UNDER RIGHT TO INFORMATION ACT, 2005 DATED 30.7.2020. EXHIBIT P9(A) PHOTOCOPY OF THE TENDER FORM FOR THE PERIOD 2017-18.
RESPONDENTS' EXHIBITS ANNEXURE R1(A) TRUE COPY OF THE RELEVANT PAGES OF FOOD SAFETY AND STANDARDS ACT, 2006 ANNEXURE R1(B) TRUE COPY OF THE RELEVANT PAGES OF TENDER PERFORMA OF THE TENDERING PROCESS FOR RUNNING A FACILITY BY THE MINISTRY OF CORPORATE AFFAIRS, NEW DELHI. ANNEXURE R1(C) TRUE COPY OF THE RELEVANT PAGES OF FOOD SAFETY AND STANDARDS (LICENCING AND REGISTRATION OF FOOD BUSINESS) REGULATION 2011.