M/S Sultan Ahmed v. Sk Abidul Hussain and 22 Ors

ORDER

14.03.2023

¶1Heard Shri P.J. Saikia, learned Senior Counsel assisted by Shri A.K. Gupta, learned counsel for the applicant - respondent no. 4, who by means of this application has prayed for modification / vacation / alteration of the ex-parte interim order dated 09.12.2022 passed in the connected WP(C)/6839/2022. Also heard Shri S. Islam, learned counsel for the opposite party / writ petitioner. Shri M.K. Choudhury, learned Senior Counsel assisted by Shri A. Barkataki, learned counsel is present for the IOCL - the Tendering authority whereas the Transport Department is represented by Ms. M.D. Bora, learned Standing Counsel. Shri B. Chakraborty, learned counsel is present for the respondent no. 6 in the writ petition. Page No.# 9/12

¶2Before coming to the interim order dated 09.12.2022 which has been sought to be modified, a brief background of the facts may be necessary.

¶3A Notice Inviting Tender was issued by the IOCL on 26.02.2022 for hiring of Oil Tankers (70 in numbers). Amongst different categories, there were categories of above 12.00 KL and above 18.00 KL and the vehicles concerning these two categories are the subject matter of this writ petition. There was a stipulation in the contract that new vehicles will get priority and the pattern of offering the vehicles was in the ratio of 2:1 with regard to 12.00 KL and 18.00 KL. It is the case of the applicant - respondent no. 4 that in February, 2022 he had purchased 6 nos. of vehicles and got those fitted with tanks and subsequently registered. It is the further case of the applicant that on

10.03.2022, the Explosive License was granted.

¶4Pursuant to the aforesaid NIT dated 26.02.2022, the bid was submitted by the applicant for 6 vehicles on 19.03.2022 in the ratio 4:2. Shri Saikia, the learned Senior Counsel submits that the tender condition also indicated preference in the manner that LoT -1 would be those vehicles meeting the ratio, LoT-2 of those vehicles which do not meet the ratio and LoT-3 of those vehicles only where Chassis of the vehicles have been offered. A further priority would be given to a bidder who offers the maximum numbers of vehicles. It is the case of the applicant -respondent no. 4 that on 31.08.2022, having the offer of the applicant found suitable, it was issued the LoA.

¶5It appears that an FIR was lodged in the Digboi Police Station alleging that Page No.# 10/12 so far as Vehicles Nos. AS-01 NC 8865 and AS-01 NC 8861, the Explosive License was issued even before the tank was fitted. On such allegation, the police had seized 3 nos. of vehicles including Vehicle No. AS-01 NC 8864.

¶6Shri Saikia, the learned Senior Counsel has submitted that so far as the third vehicle is concerned, at the time of seizure, the authorities were informed by the Fabricator that the tank was not properly fitted for which a Crane had to be utilized to remove the tank and the vehicle was seized thereafter. All these facts were made known by the applicant-respondent no. 4 by way of a complaint whereafter the Court had released all the vehicles and the same were placed with the IOCL and on 11.11.2022, the work order was issued. On

08.12.2022, however, the vehicles of the applicant were not engaged on the ground of pendency of a case and on 09.12.2022 the present interim order has been passed.

¶7Shri Saikia, the learned Senior Counsel has submitted that the primary allegations made in the writ petition is that tanks were fitted after issuance of the LoA and so far as the allegation against the respondent no. 6 is concerned, the same was with regard to that the vehicle was not a Oil Tanker but a lorry. In the present writ petition, an order was passed on 25.11.2022 by this Court directing the IOCL to give the details including the copy of the Explosive License, pertaining to the allegations against the respondent nos. 4 & 6 in the writ petition. From the information given by the IOCL, it appears that the allegation against the respondent no. 6 was more or less substantiated only in respect of Oil Tanker bearing Registration No. AS-09 AC 9075. However, based on an observation made by this Court in the interim order dated 09.12.2022, Page No.# 11/12 none of the vehicles of the applicant have been utilized. For ready reference, the observation made in paragraph 7 of the said order dated 09.12.2022 is extracted herein below:

¶7"As regards the IOCL for engaging the tanker lorries, we reiterate that apart from the offending vehicles and the contractors who have offered the offending vehicles, all other vehicles as may be permissible under the contract process may be utilized by the IOC for furtherance of their cause, including the vehicles as may be offered by such contractors who are in the waiting list pursuant to the tender process, as well as any other vehicle as may be permissible under the law."

¶8It is the submission made on behalf of the applicant that the restriction imposed was only against the offending vehicles and only because use of the expression "contractors", all the vehicles of the applicant have been put outside the purview of utilization by the IOCL. The learned Senior Counsel submits that such interpretation would be an incorrect one as the allegation is against the vehicles and not against any individual.

¶9Shri S. Islam, learned counsel for the opposite party / writ petitioner however submits that instead of modifying the interim order, the entire writ petition may be heard as the work in question is hazardous in nature and the allegations which have been made are of serious nature.

¶10Shri M.K. Choudhury, learned Senior Counsel appearing on behalf of the IOCL has submitted that the present measure has been taken by the IOCL as an Page No.# 12/12 abundant caution in compliance with the observation made by this Court as extracted above.

¶11Having heard the learned counsel for the parties, this Court is of the opinion that while the restraint / embargo put by this Court vide the order dated

09.12.2022 is not interfered with, it is clarified that the said restraint is only with respect to the offending vehicle namely vehicle no. AS-01 NC 8864 which finds mention in paragraph 5 of the aforesaid order. This Court has also been informed that so far as the respondent no. 6 is concerned, the allegation is with respect of Vehicle No. AS-09 AC 9075.

¶12In view of the above, the aforesaid order dated 09.12.2022 stands modified by giving liberty to the IOCL to utilize the other vehicles of the applicant-respondent no. 4 as well as the respondent no. 6 in accordance with law.

¶13Interlocutory Application accordingly stands disposed of.

JUDGE Comparing Assistant

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