8.3. : HON’BLE SHRI JUSTICE VIJAY KUMAR SHEVASTAVA WRIT PETITION N0. 185812004 PETITIONER : M/s. Waidhan Enyneering 85 Industries Pvt. Ltd., Regstered Qfiicg at Plot No.54 8a 56, Udyog Deep, Industrial Estate, Post omce: Waidhan, Dist. Sidhi (MP). Rgspondents Verg‘l‘ls : 1) Chhattlsgarh state ‘ Electricity Board through its Secretaxy, chhattisgarh State Electricity Board, Dagania, Raipur {CG}. 2) Supérintending Engneer _ (Purchase & Works). HTPS, Ghhattisgaxh State Elec- tricity Baard, Korba (West) Dist. Korba (CG). 3i M/s. Thejo Engineering & Servicw Pvt. Ltd., Chennai (Tamil Nada). Pmsmw : Mr. N‘S. Kale, $r. Caunscl with Mr. Kapil Patwardhan Counsel for the pe’u'tioncr, ’ Mr. Prashant Misln‘a. Sr. Counsel with Shri H.S. Patel. Counsel for the reepondents No. 1 an& 2. Mr. N.K. Agrawal, Sr. Counsel with Shri Kamrul Aziz, Counsel for respondent No.3. ‘& ORDER )Passea on 15th JuneLzaosg By this petition under Article 2261227 of the Constitution of India, petitioner has pmygq to issue a writ of HIGH COURT OF ¢HHATTISGARH AT BILASPUR ccrtiorari quashing thc (incision of respondent No.1 Board for rc- tendering the Work of conveyor belt joining, replacement of belta, rubber lagging on conveyor pulleys, longitudinal jointing of belts and spot patch repairing and other conveyor work (by cold vulcanizing process) in respect of Korba West and East Thermal Power Stations of CSEB (henceforth “the impugned work”) for a period of three years and for issuance of a writ of mandamus commanding respondents 1 and 2 to consider the offer/price bid and to awaxd the impugned work to the pet'm'oner. 2} It 13 averted in the petition that the petitioner—M/ s. Waidhan Engineen'ng and Industries Private Limited is a Private Limited Company which is engaged in the work of conveyor belt joining, replacement of belt, rubber lagging ete, and 1’s undertaking such activities in Power Plants of M/s. National Thermal Power Corporation Ltd., Korba; Saku’ Nagar, Vindhya Nagar; Rihand Nagar, ATPS Anapara (UP); Northern Coalnelds Limited, Singmuli and also in some other big organizaiions as also in Bhilai Steel Plant, Bhilai. Respondent No. 1 is a State Electricity Board constituted in the State of Chhattisgarh under the provisions of Eiectricity Supply Act and engaged in the generation and supply of electricity in the State of Chhattisgarh. Respondent No.2 is the Supelintendent Ene'nee‘r Kof respondent No.1. Respondent No. 1 floated notice inviting tender dated 08/09] 2003 inviting sealed tenders from experienced connectors against tender specification dated 08/ 09/ 2003 to award the impugned work and due date for submission of the tender was 14/ 10/ 2003. Petitioner in order to participate in the tender, maggwmr gent of tcndcr documcnts and dcpositcd Rs. 1,000] -. Pctitioucr obtaincd tender forms after satisfying the requitements of qualiiying condih‘ons. Clause 3 of the tender conditions provides for submission of bids on the tender/bids in three parts i.e, Part 1, EarneSt Money Deposit, Part 2 Techno Commercial bid and Part 3 Price bid, Petitioner succeaded clearing Part 1 and Q, themfore, tho date of opening of part III was notified to the petitioner by fax message intimating that price bid of the said tender shall be opened on 20/02I2004 and on 20/02I2004 the price bid was opened m presence of lepiesentatives of the petitioner as well as respondent No.8. The total contract amount as per the pn'ce bid quoted by respondent No.3 is Rs.224.13 lacs wheleas the total contract amount, as per price bid of the petin'oner was Rs. 181.83 lacs, Respondent No.2 prepared a comparative chart on the basis. of lowest price and race ended the yetitioner’s oEer for acceptance to respondent. No.1/Chhattisgarh State Electxicity Boarti. 3) Respondent No.1 who ie the competent authority to take a decision to award the contract to a suitable tenderer without assigning any reason for not accepting the lowest bid returned that proposal with a direction to re-tender the impugned work. Although the right to refuse the lowest orgny other tender is aiways available to the competent authority, but the principle laid down in Art‘w‘le 14 of the Constitution of India, cannot be ignored and the power cannot be exercised arbitrarily, despite that reepondent Biol/Board directed for re~tendering without considering the fact that by re-tendering, “the public exchequer I9? wvuld su§cr a 1053 of Rs.42 lacs. It appcaxs that rcsyondcnt No3 is presen‘iy executhxg tha similar kind of work with m3pondent No.1 and respondent No.1 Wanted to awaxd the said confract to mgponclcnt No.3, but looking to fhe suitability of the petitioner and the diifexence 1'11 price to favour respondent No.3 directed for re- mnder of the impugnad work. 4) Respondents No. 1 and '2 raised preliminaxy objaction regarding tenability of the petition and also stat€d that though tht: petitioner's; pricg bid was opsnad but 0n closa scrutiny by the high€st decision making authority at m6 ApEx level it was found that the petiu'oner does not possess requisite expen‘ence as per the gym-qualification requjmment aud also not submitted proof of having undermken work of conveyor belt joining, mplacement‘of belt, rubber lagging can, by cold vulcanizing proccss whereas the notice inviting tondcr was for tho work of conveyor bolt joining, replacement of belt, rubber lagging eto., by cold vulcanizing process and not by hot vulcanizing process, as also from the listfcletails form'shod by the petitioner during last three years in respect of scope of work speei§ed in the instant tender is for Rs.63,41,996f- only against desired pre—qualiiying requirement of worth Rs.1.50 clones. On the scrutiny of' the copy of letter of intent for rate contract on item rate oasis for reconditioning/ reoair ‘& of belts with M/s. Northem Coalfields Limited. vide their order dated 22/01/2003 submitted by the petitioner it was found that the ottlei‘ placed by M/ s. Northern Coalfields Limited for various works is for repairing/reconditioning of steel cord belts with through out, repairing of damaged 11371313 iegnveyor belt bV hot [98 vulcaniz'mg with through cut ctc., which involvcs hot proccssing whereas the disputed Ender waa cahed for the work of conveyor belt joining, replacement of belt, rubber lagging on pulleys, patching, longitmiinal joining eta, by cold vulcanizing process. On the aforesaid facts, it was found that the petitioner was not eligible for paru‘cipating in the instant case as such the offer of the petitioner was liable for 1ejection. 5) It has been further submitted that the work of conveyor belt joining, replacement of belt, rubber lagging etc” in a thermal power station is a very sensitive nature of work and for uninterrupted and smooth operaiion of conveyor belt, regular maintenance by procesg of joining, replacement and rubber lagging < g: isrof utmost necessity at site itself and that can be done only by cold Vulcanizing process. in hot .vulcaniziug process, on site repairing is of more time coneuming and requires compulaory shut down for thrice the time period then applicable to cold vulcanizing process, therefore, a person who does not have requite experience in 001d vulcanizing process may not render eervicee as required in the NIT. 6) Theiefore, the Board which comprise of experts, in its wisdom, thought it pmper in the interest of its power generating re units to drop the tender and accordingly at the Apex level of Board nnal decision to re—tender was taken on 12f 08/ 2004, therefore, by no stretch of imagination the decision taken by the rehpondent; can be said to be arbinaiy, illegal or mala nde so as to favour the respondent No.3. The Board never wanterLtg award the contract to mapondcnt No3. Thu Board baa right to accept or rcjcct wholly or partly any or all the mnder$ Without assigning any reason. In the instant case the Boaxd has taken the decision to re—tender with masons which are logical, justi£able and borne out of the tender conditions relating to pre—qmafion. 7) Respondent No.3 aiso med his return in which .hE vehemently mfutcd the allegations leveled by the petitioner against him. 8) Petitioner med rejoinder and averted that the respondents No. 1 and 2 took the decision to rte—tender the contract to benem the respondent No.3. Petitioner has experience of executing the work of stipulations as mentioned in the tender noin'ce by cold a5 well as by hot vulcanizing and has executed total work order of R335 crores. It has been further averted that if for any reason, ihe Board is insieting upon experience of exeoun'on of similar type of work of cold vulcanizing, then aleo the petitioner fully possessed the said experience and qualification anri the worke conoucted by it were detailed in Annexure P] 10. 9) Petitioner’s contention is that respondent No.1 hem no power to reject the tender and price bid .Eubmitted by the petitioner arbin‘ary and the Court has ample power to review the same. to support this contention, counsel for the petiiioner relied upon the judgments delivered by Hon’ble Apex Court in Tate Cellular Vs. Union o! India, reported in AIR 1996 8C 11 and Kumari shrilekha Vidyarthl Vs. state of llgland others, reported in AIR. 1991 SO 537. In Tata Gellular Va. Union of India, Hon’blc the Apex Court has laid down that; 206 "The duty of the court is to confine itself t0 the question of legality. Its oonoem should be, 1. Whether a decisiort—making mtlwrity exceeded its powers? committed an errar of law 3. committed a breach of the rules of namraljustioe; 4, reached a decision which no reaaonable Tribunal would have reached; or S. abused its powers. Therefore, it is not for the court to determine whether particular palicy of particular decision taken in the jitlfz'llment of that policy is fair It is only concerned with the manner in which. those decisions have been taken The extent of the duty to ad fairly will oary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under. (i) Illegality: This means the decision-maker muct understand correctly the law that regulates his decision- making power and must give effectto it. (ii) Irrationality, namely Wednesbury unreasonableness, (iii) Prooeduralimprobn'ety. The above are only the broad grounds but it does not rule out addition ofhtrther grounds in course of time. @aras 93; 94: 95). The piinciples deductible relating to scope of judicial review of administrative decisions and exercise of contractual powers by govemment bodies are: (1) The modem trendscpwciaz restraint in administrative acticm. (2) The Court doea not sit as a. court of appeal but merely reviews the manner in which the decision was made. (3} The Court does n01 have the emertise to correct the administrative decision, If a' review of the administraiive decision is permitted it will be substituting its own decision, without, the newssmy eJQJeriise which itself may befaltible. (4) The terms of the inviiation to tender cannot be open to judicial scrutiny because the invitation to tender is in the nealm of contract Normally speaking the decision to accept ihe fender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitativety by enqaerts. (5) The Government must have freedom of comma In other words, a faiiplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi- administrative sphere. However, the decision must not only be tested by the application of Wednesbuty principle of reasonabteness (including its other facts but must be free from arbitrariness not affeded by bias or actuated by malafides. (6} Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure”. Hon’blc thc Apcx Court in ‘thc Sass of Ku. ahrilckha Vidhyatthi (supra) held that: "State actions in contractual matters can be reviewed under Art. 1 4 of the Constitution " Petitioner further mlied on the decision rendered by the Apex Court in Ramana Dayamm Shetty Vs. The International (9/ . 202“ Airport Authority of India and otheta, in support of his claim regarding eligibility. Hon’ble the Apex Court has laid down thus; “the Tender Notice siated in clear terms that “sealed lenders in the prescn'bedfonn are hereby invited from Registered End Cfass Hoteliers having at lea3§ 5 years’ experienae for putting up wad running a Hnd Class Restauram and two Snack: Bars at this Airport for a period of three years. " Held, ihat on a proper constmction what the notiae required was that only a person running a registered End Class hotel 0r restaurant and having ai leasi 5 years’ experience as such should be eligible to submii a tender. This was a condition of eligibility and it is difficult to see how this oondiiion could be said to be eatisfied by any person who did not have jive year’s emerience of running a End Ciass hate? or restaurant. Tim test 0f eligibility laid down was an objective and not a subjective one. " 10) Annexum F12 filed by rhe petitioner is the tender notice No.26/ 2003. Clause 1 envisages the qualifying condition for obtaining the tender documents. The same is reproduced bcluw: “1. QUALIFYING CONDHYONS FOR OBTAINING TENDER DOCUMENTS- The tender form will be isSued to only those bidders who- 1‘ will submit documentary evidence for successful execution of similar work worth Rs,1.5 Crores during last three years, which should include at least one single order of Rs‘50 ia(s. AND will submit the proof of sumessful execution of order for ‘similar twe’ of work from larder placing authority/organizatioii, which must be any of thefollowing: (i) Thermal Power Plant of State Electricity“ Board/Conan, (izy NTPC. ’ . 20% (iii) Thermal Pawer owned by Companies, (iv) Other Gaut/Semi Govt. Organization having material handling systems using conveyor bel! of width 800 mm & above.” 1 1} R€spondents No. 1 and 2 stated that the list/details of order 6xecuted by the fnm i.e.. petitioner during last three yeam in reepect of scope of work speciiied in the tender is for Rs.63,41,996/— against desired pre—qualifying requirement of worth Rs.1.50 crores‘and also stated that on the scrutiny of the order submitted by the pet'm'oner, it has been noted that the omer placed by M/ s. Northern Coamelds Limited for various works is for repairing/reconditioning of steel‘cord belts with through cut, rcpain'ng of damaged Nylon conveyor belt by hot vulcanjzing with through out etc. , which involves hot processing whereas our tender is for the work of conveyor belt joining, replacement of belt, rubber lagging on pulleys, patching, longitudinal joining etc., by cold vulcanizing process. 12) Petitioésr has mentioned in its nejoinder that the petitioner has experience of executing the works of all ‘& stipulations by cold and hot vulcanjzing and also stated that if for any reason, the Board is msiedng for experience of similar type of work of cold vulcanizing, then also the petitioner possessed the said experience and to support the same it gave details in Annexuxe P/ 10. In Annexure P] 10 except at page 5 the work ordm amounting Rs; 5,43,000/ - no other orders have bccn shown to be the work order relating to cold vulcanjzing. 13) It is apparent that when tsnder form was obtained by the petitioner, whatgver documents it haS submitted. at that time for satisfying it$ eligibility to thsa respondents No. 1 and 2 in those docummlts nothing was there to substantiate that it has Successfully axecuted the work by cold vulcanizing proceSs work worth Rs.1.50 croreo during last threo years which include at laast 0116 single work ordor of Rs. 50 lacs. Therefonc, petitioner was not qualiiied to obtain and submit tendcr form. 14) Tha contentiou of the pelitioncr is that the condition tequixt3 thc similar work and according to it, hot vulcanizing proccos is 111:; similar work. In vary opc‘cific words mspondcnts ND. 1 mid 2 inthcir return have madc diatinction betwccnf ' [and coki vulcanizixlg process. It is alao apparent that hot and cold are opposite ends and if ény work is required to be done in cold condition, the some cannot be equatod with the work to be done in hot condition, therefore, tho contention of the petitioner that it was doing the work of joining conveyor belt by hot vulcanizing process is similarof cold vulcaniziug process, cannot be accepted. More emphasis has been g'ven by the .pen‘tiqner during argument that nonvacceptance of its tender may lead to corruption in public sector and public exchequer may suEer the loss of R342 lacs. This contention has no leg to stand as no other tender has been accepted, but re-tender hasjiwly ordered. (12/ 205 15) It is manifest that the supply of coal through convcyar belt. is a sensitive nature of work and any fault may aexiously affect the produch'vity, merefore, it is for the experts to take decision as to by which process in Themal Plant they prefer joining conveyor belt and it is for the experts to choose and select the proper anti suimhle tenderer. If they had chosen the cold vuleanizing and accordingly invited tenders then, it is for the competitor to have necessary qualiiication and experience as required by the Board“ 16) Admittedly on the date of mjng of the tender, the petitioner submitted various documents, however, on the basis of those documents the petiiioner failed to establish that the petitioner had successfully executed the work of conveyor belt. ‘: e joining, mplaccment of belt, rubber lagging on pulleys, patching, longitudinal joining etc., by cold vulcanizing process worth Rs. 1.5 crores dining last three year, which includes at least one single order of Rs.50 lace. Therefore, when the petinoner was not entitled to get the tender form it cannot be said that it was qualified to bid and file tender and when it was apparent that on the date of nling the tender, according to the documents of the petitioner itself, the petitioner having no Iequisite qualincation was not entitled to participate, it cannot be said that the B‘oaid on that count refusing to accept the bid. has acted arbitmiy. 17) Petitioner has an opportunity to participate when notice inviting tender will be issued afresh by the Board, if it possesses requisite qualincation. 18) Taking into account all the facts, material on recoxd and the aforesaid discussions, I am of the opinion that the respondent No. 1 has not acted arbi‘traxy in taking decision to re- tender the work, hence neither the tlecision taken by reepondexlt No.1 can be quashed by issuance of any writ of cer1iorai‘i nor respondents No. 1 and 2 can be asked to award the impugned work to the petitioner. Therefore, the petiiion filed by the petitioner desewes to be dismissed and is accordingly dismissed. ConSequcntly, M.W.P.Nos. 1658/ 2004, 142/ 2005, 1284/ 2005 and . ‘ Sd/- 1.A.No.6153/ 2004 stand disposed of. “may Kumar Shrivastava Judge i715] 06] 2065’ ”