S. Panda, J.@mdashIn this writ application, the petitioners have challenged the tender notice inviting bids for Manufacture, Distribution and Affixation of High Security Registration Plates for motor vehicles in the State of Orissa. The tender notice inviting bids was published on the 6th of July, 2009.
2. The main contention of the petitioners is that the apex Court in the case of
3. To appreciate the contention of the parties, the following facts of the case are necessary to be stated.
The petitioners in this writ application specifically pleaded that the apex Court keeping in view the nature of the contract, the sophisticated technology involved and higher public interest coupled with magnitude and huge investment for infrastructure required has held that a manufacturer who is sound both technically and financially is to be selected. The experience, expertise and exposure in foreign countries and collaboration with foreign companies for the said technology are the essential conditions for manufacture of High Security Registration Plates (hereinafter referred to as "HSRP"). However, in the NIT published on 6.7.2009, the State Government has given a complete go-by to the said essential criteria of experience, expertise and exposure in foreign countries and collaboration with foreign companies. Further, the petitioners have pleaded that petitioner No. 1 company which is a joint venture company between J.H. Tonnjes EAST, Germany and Eastern Steel and Saw Pvt. Ltd., Mumbai is qualified to implement the HSRP project and it meets all the requirement for implementing the project as per the amended Rule 50 of the Rules and implementing the HSRP project in the State of Sikkim. The company has a valid Type Approval Certificate issued by the Central Road Research Institute, Delhi. During the period of 2002-03 nearly 18 States floated tenders for implementation of HSRP project to select suitable manufacturers. The said tenders strictly the following eligibility conditions :
(i) The tender document would specify whether the appointment of the vendor was for the whole State or for certain parts.
(ii) The tender document would specify the terms of the bank guarantee.
(iii) The tender document would require a report-back on certain aspects on "a periodic and regular basis".
(iv) The bidder must furnish proof of past experience/expertise in this area or proof of the same with a collaborator.
Those tender notices were challenged by the indigenous manufacturers in different High Courts who have not the technical collaboration and on being moved by the All India Motor Vehicles Security Association, all the petitions were transferred to the apex Court and the apex Court upheld the said conditions and dismissed the writ applications on the ground that the eligibility conditions for the tender cannot be held to be discriminatory and the tender procedure is not an act of creating monopoly as submitted by the petitioners therein and not deliberately fixed to exclude the domestic manufacturers or new entrepreneurs in the field and in absence of any indication from the record that the terms and conditions were tailor-made to promote parties with foreign collaborations and to exclude indigenous manufacturers, judicial interference was uncalled for.
Learned counsel for the petitioners submitted that in view of the decision of the apex Court in Association of Registration Plates case (supra), the NIT needs to be quashed.
4. Learned Advocate-General for the opposite parties submitted that it is open to the petitioners to participate in the tender process and if they fulfill the criteria fixed in the NIT, they may be selected. He further submitted that Rule 50 of the Rules was amended in the year 2001 and taking into consideration the amended rules, the State Government has floated the above NIT and since this NIT is in accordance with amended Rule 50 of the Rules and the petitioners have not alleged about the action of the authority as malicious or misuse of the statutory power, the NIT issued by the authority need not be interfered with. In support of his contention, he relied on the decisions of the apex Court in
5. Similar notice inviting tenders floated by the Government of West Bengal was challenged before the Calcutta High Court in Shlmnit Utsch India Pvt. Ltd. & Ant. v. W.B. Transport Infrastructure Development Corporation and Others W.P.(C) No. 2083 of 2005 where a learned Single Judge of the said Court held that the power of Government to review its administrative decision in greater public interest should never be seen limited by any representation held out by it in the past. Once the State Government felt the need after reviewing the situation in the context of the changed position after 2005 and the State made the field of competition larger, there is nothing wrong in it. The decision was challenged before the Division Bench which confirmed the same and the decision of the Division Bench was challenged before the Apex Court. The apex Court while hearing the case of Maninderjit Singh Bitta v. Union of India & ors. Writ Petition (Civil) No. 510 of 2005 with regard to the implementation of the judgment of the apex Court in Association of Registration Plates'' case (supra) also tagged up the decision of the Calcutta High Court in Shlmnit Utsch India Pvt. Ltd.''s case (supra) and the said case has been adjourned for further hearing.
A counter-affidavit has also been filed by the State of Orissa in Maninderjit Singh Bitta''s case (supra) on the 11th of December, 2006 stating that implementation of HSRP also requires knowledge and expertise of new technology as well as security related issues and there is lack of such experience at a scale suitable for Orissa which is essential for implementation of HSRP and as such it has taken considerable time for the State to decide the terms and conditions to be provided in the NIT.
6. The undisputed facts which emerge from the contentions of the learned counsel for the parties are that the NIT has been floated to implement the scheme of HSRP as per the newly amended Rule 50 of the Rules and there is no allegation by the petitioners regarding malice or misuse against the authorities. However, so far as the conditions of the tender are concerned, whether those conditions are as per the decision of the apex Court in Association of Registration Plate''s case (supra), is to be considered by this Court regarding technical expertise.
7. No doubt, the Central Government to eradicate theft of vehicles and their uses in commission of crimes and to ensure public safety and security felt it necessary to amend Rule 50 and the said Rule runs as follows :-
50. Form and manner of display of registration marks on the motor vehicles- (1) On or after commencement of this rule, the registration mark referred to in Sub-section (6) of Section 41 shall be displayed both at the front and at the rear of all motor vehicles clearly and legibly in the form of security license plate of the following specifications, namely :-
(i) the plate shall be a solid unit made of 1.0 mm aluminum conforming to DIN 17.45/DIN 1783 or ISO 7591. Border edges and corners of the plate shall be rounded to avoid injuries to the extent of approximately 10 mm and the plates must have an embossed border. The plate shall be suitable for hot stamping and reflective sheet as to be guaranteed for imperishable nature for minimum five years. The fast coloring of legend and border to be done by hot stamping;
(ii) the plate should bear the letters ''IND''. in blue color on the extreme left centre of the plate. The letters should be one-fourth of the size of letters mentioned in Rule 51 and should be buried into the foil or applied by hot stamping and should be an integral part of the plate;
(iii) each plate shall be protected against counterfeiting by applying chromium-based hologram, applied by hot stamping. Stickers and adhesive labels are not permitted. The plate shall bear a permanent consecutive identification number of minimum seven digits, to be laser-branded into a reflective sheeting and hot stamping film shall bear a verification inscription;
(iv) apart from the registration marks on the front and rear, the third registration mark in the form of self-destructive type, chromium-based hologram sticker shall be affixed on the left-hand top side of the windshield of the vehicle. The registration details such as registration number, registering authority, etc. shall be printed on the sticker. The third registration mark shall be issued by the registering authorities/approved dealers of the license plates manufacturer along with the regular registration marks, and thereafter if such sticker is destroyed it shall be issued by the license plate manufacturer or his dealer.
(v) the plate shall be fastened with non-removable/non-refusable snap-lock fitting system on rear of the vehicle at the premises of the registering authority.
The license plates with all the above specifications and the specified registrations for a vehicle shall be issued by the registering authority or approved license plates manufacturers or their dealers. The Central Road Research Institute, New Delhi or any of the agencies authorized by the Central Government shall approve the license plates manufacturers to the above specification;
(vi) the size of the plate for different categories of vehicles shall be as follows :
|
For two-and three-wheelers |
200 x 100 mm |
|
For light motor vehicles/passenger |
340 x 200 mm/ |
|
cars |
500 x 120 mm |
|
For medium commercial vehicles, Heavy commercial vehicles and Trailer/combination |
340 x 200 mm |
Provided that this sub-rule shall apply to already registered vehicles two years from the date of commencement :
Provided further that the size of the registration plates for agricultural tractors shall be as follows :
Front - 285 x 45 mm
Rear- 200 x 100 mm
As per the said rules, registration plates should be so manufactured as the same may not be reused or replaced. The technical specification of the registration plate should be such as the vehicle can be easily identified and traced out. The other requirements contained in Rule 50 are that apart from regulating the aspect of issuing registration mark with use of specific kinds of letters and numerals, it seeks to ensure its safety and security by regulating issuance and fixation of number plate from the premises of the Regional Transport Office of the area concerned. The RTO will issue the registration number and also issue the plate itself. Thus a high security number plate with specified technical features is to be issued under governmental control and supervision. The existing system of providing for registration of numbers given by the RTO in ordinary plates by obtaining from open market is substituted and implementation of amended rules requires co-operation and co-ordination of authorities of the State and the manufacturer of the plates.
8. The apex Court in Association of Registration Plates'' case (supra) observed as follows :-
10. The main features of the high security registration plates as provided in Rule 50 and the Order of 2001 are as follows :
1. It provides for a solid aluminum plate.
2. The plate should be suitable for hot stamping and would be a reflective sheet.
3. The plate should bear the letters "IND" in blue color.
4. It should have a chromium-based hologram which shall also be hot-stamped.
5. There would be a third registration marks which would be self-reflective being a chromium-based hologram sticker and which would be affixed on the windshield of the vehicle.
6. The plate on the rear shall be fastened with nonremovable/non-reusable snap-lock fitting system.
11. The above mentioned features to the high security registration plates have been insisted upon for the following reasons
1. Hot chromium-based hologram would prevent counter feitting.
2. The ingress letter "IND" on the plate would secure national identity and standardization.
3. The laser-etched seven-digit code to be given by the manufacturer to each plate is with a view that there should be a sequential identification of individual registration plates across the country. This would act as a watermark and would not be erasable by any mechanical or technical process.
4. Snap-lack to befitted on the rear portions of the vehicle would be tamper proof. Any attempt to remove the plate would break it.
5. The reflective sheet of superior grade would be visible from a minimum of 200 meters.
6. The alpha numeral would be easily readable and identifiable.
7. On alpha numeral border, ingress letters "IND" would prevent painting and screen printing which would act as protection against counterfeiting.
8. The sticker to be affixed on the windshield would have seven-digit laser code containing the engine number and the chassis number. This is so designed as to be self-destructive upon removal.
12. After Rule 50 was amended and the New High Security Registration Plates (Amendment) Order, 2001 was issued in purported exercise of power u/s 109(3) of the Act, the Ministry of Road Transport and Highways vide its letter dated 6.3.2002 circulated the minutes of the meeting of 4.3.2001 held between the representatives of all States and Union Territories on introduction of the new system of registration plates. A series of meetings were held by the Union with the States. Eventually, on 6.3.2002 the Union laid down guidelines for incorporating necessary conditions in the notices inviting tenders to be issued by the various States. In substance, the guidelines suggest as follows :
1. The tender document would specify whether the appointment of the vendor was for the whole State or for certain parts.
2. The tender document would specify the terms of the bank guarantee.
3. The tender document would require a report-back on certain aspects on "a periodic and regular basis".
4. The bidder must furnish proof of past experience/ expertise in this area or proof of the same with a collaborator.
9. In that case, the petitioners had challenged the impugned tender conditions which were summarized as under :-
Condition (a)
The tendered/bidder or the promoter or any of the members of joint venture should have sufficient experience in the field of registration plates and should be working at least in five countries for license plates and in a minimum of three countries with license plates having security features worldwide (necessary credentials from the Government of such country should be attached along with a pro forma as per Annexure XIII duly filled in). Apart from the above credentials the tendered/bidder should furnish "type approved certificate from testing agencies.
Condition (b)
The renderers/bidders of the joint-venture partners together must have had a minimum annual turnover equivalent to INR 30 crores in the immediately preceding last year. At least 25% of this turnover must be from the license plate business. Certificate confirming and the certification of this minimum 25% turnover being from license plate business will have to be provided duly attested by a chartered accountant/ any bank to be attached in support of fulfillment of this condition.
Condition (c)
The contract will be for a period of fifteen years commencing from the date of commencement of the scheme. A detailed agreement shall be entered into between the successful bidder and the Government for a period of fifteen years and the Government ensures that no second bidder will be approved during the currency of the contract in the State except in the case of termination of the contract in view of the strictest of adherence to high security features and to impose answerability on to the successful bidder.
Further, in paragraph 37 of the said judgment it was observed that "technical know-how" for the manufacturer of high security plates is presently available outside India. Technically and financially competent indigenous manufacturers are mostly those who are in collaborations with foreign companies engaged in such manufacturing activities. The scheme contemplated under Rule 50 for registration plates is a new experiment for India. In the initial stages of its implementation, tender conditions encouraging such manufacturers as are in foreign collaborations cannot be held to be discriminatory to indigenous manufacturers. Keeping in view the nature of the contract and job involved, particularly its magnitude and the huge investment for infrastructure required, attempt to select such manufacturer may be having collaboration with foreign companies and experience in foreign countries - cannot be held to be a deliberate attempt on the part of the State authorities to eliminate indigenous manufacturers.
10. It is also not disputed that in the aforesaid case it was held that at present registration plates with specified security features are in use only in some of the countries like Amenia, Colombia, Congo, Curacao, Ethiopia, Georgia, Iraq, Mali, Malta, Oman, Palestine, Sri Lanka, Tanzania, Uganda, Uruguay and Zambia.
The high security plate is a sophisticated article - new for a manufacturer in India. It is being introduced for the first time under the Scheme contained in Rule 50 of the Rules and the Act. At the time of issuance of notices of tender, technical know-how for manufacture of plates and its further development was undoubtedly outside the country. Only a few concerns in India having collaboration with foreign parties possessed the expertise and were available in the market. The terms of the notice inviting tenders were formulated after joint deliberations of Central and State authorities and the available-manufacturers in the field.
11. There is no doubt that in the Association of Registration Plates'' case (supra), the apex Court has taken into consideration the situations and the terms and conditions existed during that period, i.e. in the year 2005. We are at present in 2010 and in a state of globalization, profit and potential of Indian markets attract foreign investments which are essential for modernizing and improving the efficiency of India. Therefore, the Government allowed foreign entries to the manufacturing sector with an intention that initially joint venture between the domestic and the foreign manufacturers will be encouraged and the same will gradually improve the technical standard of the domestic manufacturers and ultimately there will be a perfect competition between the two bringing about a lower price and better quality of goods and service which will be for greater public interest. Keeping the same in view, in 2005 joint venture in collaboration with foreign company has been started regarding implementation of HSRP. Neither the petitioners nor the opposite parties have stated before this Court that the situation which existed in 2005 is still continuing today. Therefore, this Court is not inclined to interfere with the impugned NIT and leaves it open to the authorities to proceed with the tender process keeping in view the amended provisions of Rule 50 of the Rules and approval of those conditions framed by the apex Court in Association of Registration Plates" case (supra) for selection of bidders for HSRP.
12. With the above observation, the writ application is disposed of.
I.M. Quddusi, ACJ.
13. I agree.
