IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19674 of 2011 M/S Milage Vanijya Pvt. Ltd., a Company incorporated under the provisions of the Companies Act, 1956 having its Head Office at 408, Ashiyana Tower, Exhibition Road, P.S. Gandhi Maidan, District Patna through one of its Directors, Sumit Agrawal, S/o Shri Ashok Agrawal, Resident of Flat No. 202, Amba Residency, East Boring Canal Road, P.S. Buddha Colony, District Patna. … Petitioner Versus 1. The Bihar State Electricity Board, Vidhyut Bhawan, Bailey Road, Patna through its Chairman 2. The Chairman, Bihar State Electricity Board, Vidhyut Bhawan, Bailey Road, Patna 3. The Electric Superintending Engineer, Purchase, Vidhyut Bhawan, Bailey Road, Patna. … Respondents -------- For the Petitioner : M/s S. D. Sanjay & Gautam Kejriwal, Advocates For the Respondents: Mr. Anand Kumar Ojha, Advocate -------- 02/ 14.11.2011 Let defect no.1 of the stamp report dated 08.11.2011 be ignored. 2. Heard learned counsel for the petitioner and learned counsel for the respondents. 3. This writ petition has been filed by the petitioner for the following reliefs :- (a) For quashing the Tender Notice NIT No. 174/PR/BSEB/2011 to be opened on 15.11.2011 for purchase of 20 lacs number of Polycarbonate Seal Bit with Stainless Steel Sealing Wire as the same has been issued in contravention of statutory requirement laid down in the Central Electricity Authority (Installation and Operation of Meters) Regulation, 2006 and hence being wholly illegal and without jurisdiction; (b) For quashing the Tender Notice NIT No. - 2 - 174/PR/BSEB/2011 to be opened on 15.11.2011 for purchase of 20 lacs number of Polycarbonate Seal Bit with Stainless Steel Sealing Wire on the ground that the Tender Notice by doing away with the requirements of purchase of only Patented Seal Bids from the manufacturers which have official right to manufacture the Seal Bids is wholly arbitrary and discriminatory; and (c) For issuance of a writ of Mandamus directing the Respondent Electricity Board to include the requirement that the Manufacturer must have the official right to manufacture Seal Bids as Patented Seal Bids, and for any other relief(s) for which the petitioner may legally be found entitled to in the facts and circumstances of the present case. 4. The grievance of the petitioner is that the mandatory requirements have not been fulfilled in the impugned notice inviting tender as it requires that only Patented Seal Bids from the manufacturers, who have official right to manufacture the Seal Bids, shall be used, but doing away with the said clause in such NIT will open flood gates for applicants, who were not qualified for the same according to law. He further states that other States in the country as well as this State of Bihar also, had earlier been regularly including the said clause in their NITs as per law but only in the impugned NIT the said mandatory clause had not been included with some ulterior motives. 5. On the other hand, learned counsel for the respondent-Bihar State Electricity Board ( hereinafter referred to as `the BSEB’ for the sake of brevity) and its authorities files a counter - 3 - affidavit and vehemently opposes the contention of learned counsel for the petitioner and submitted that lacs of such meters are required urgently for the consumers and they cannot be installed without Polycarbonate Seals. 6. He further states that C.W.J.C. No. 15097 of 2011 had been filed by one of the applicants of the earlier NIT, namely, M/s Power Centre, in which the said clause was included and this Court passed an interim order dated 16.09.2011 restraining the authorities from issuing any Letter of Intent in favour of any one of the tenderers in accordance with the said NIT till further orders. Hence he submits that in view of the aforesaid interim order, care has been taken in the instant NIT. 7. Learned counsel for the respondents further avers that this is a very nascent stage and it is premature for the petitioner to approach this Court. He also argued that the petitioner is neither the manufacturer nor an applicant to the impugned NIT and hence there is no occasion for it to file this writ petition. 8. Considering the averments made by learned counsel for the parties and the materials on record, it is quite apparent that notification dated 17.03.2006 was published in the Gazette of India, Extraordinary, Part III, Section IV by the Central Electricity Authority, New Delhi in exercise of powers conferred by sub-section (1) of section 55 and clause (e) of section 73 read with sub-section (2) of section 177 of Electricity Act, 2003 (hereinafter referred to as `the Act’ for the sake of brevity), under Clause 12 of which sealing - 4 - arrangements have been provided, which reads as follows:- (1) Sealing Arrangements (a) All meters shall be sealed by the manufacturer at its works. In addition to the seal provided by the manufacturer at its works, the sealing of all meters shall be done as follows at various sealing points as per the standards given in the Schedule: (i) Sealing of interface meters, shall also be done by both the supplier and the buyer. (ii) Sealing of consumer meters shall be done by the licensee. (iii) Sealing of energy accounting and audit meters shall be done by the licensee or generating company as the case may be. (b) A tracking and recording software for all new seals shall be provided by the manufacturer of the meter so as to track total movement of seals starting from manufacturing, procurement, storage, record keeping, installation, series of inspections, removal and disposal. (c) Seal shall be unique for each utility and name or logo of the utility shall be clearly visible on the seals. (d) Only the patented seals (seal from the manufacture who has official right to manufacture the seal) shall be used. (e) Polycarbonate or acrylic seals or plastic seals or holographic seals or any other superior seal shall be used. (f) Leas seals shall not be used in the new meters. Old lead seals shall be replaced by new seals in a phased manner and the time frame of the same shall be submitted by the licensee to the Appropriate Commission for approval. - 5 - 9. Since the said notification was made by the appropriate authority under sections 55, 73 and 177 of the Act, it has statutory force and has to be followed by all the Boards and licensees of the country including the BSEB. Sub-clause (d) of Clause 12 of the said notification specifically provides that only the patented seals (seal from the manufacturer, who has official right to manufacture the seal) shall be used. 10. From Annexures 3 series to the writ petition, it is quite apparent that the Boards and licensees of other States of the country, namely, Punjab, Agartalla, Madhya Pradesh, Orissa, West Bengal, Kerala, Rajasthan etc. have been issuing NITs with the aforesaid provision. The BSEB had also issued NIT No. 160 of 2011 (Annexure 5) including the said requirement and even after the issuance of the impugned NIT No. 174 of 2011 (Annexure 7) they had issued another NIT No. 176 of 2011 (Annexure 9), in which again the said requirement is included but only in the impugned NIT No. 174 of 2011 (Annexure 7) the said provision has not been included. 11. So far C.W.J.C. No. 15097 of 2011, in which interim order dated 16.09.2011 was passed, is concerned, it is stated by learned counsel for the parties that NIT No. 160 of 2011, which was under challenge in that writ petition, was cancelled as none of the parties were found to be qualified, whereafter, the said writ petition has been withdrawn. Hence the interim order passed in the said case cannot legally have any bearing on this case. 12. So far the point raised by the respondents that the - 6 - petitioner was neither a manufacturer nor an applicant is concerned, the petitioner has specifically stated in his writ petition and has also annexed the relevant papers and certificates (Annexures 1 and 2), which confirmed that the petitioner was the authorized distributor/dealer/executing agent of M/s Safcon Seals Pvt. Ltd., 3-B, Camac Street, Kolkata, which is, admittedly, the manufacturer of Polycarbonate Meter Security Seals, and hence in the said capacity and on behalf of the manufacturer, it has filed this writ petition. 13. Furthermore, the date of filing tender has not yet expired as the last date of filing tender has been fixed by the impugned NIT as 15.11.2011 by 03.00 PM and any interested manufacturer including Safcon Seals Pvt. Limited is at liberty to respond to the impugned NIT . 14. Considering the aforesaid facts and circumstances as well as the arguments of learned counsel for the respective parties in its entirety, this writ petition is disposed of with a direction to respondent-authorities of the BSEB that while deciding the tender of the applicants for the impugned NIT No. 174 of 2011 they must keep in mind the statutory provisions as detailed in the notification of the Central Electricity Authority dated 17.03.2006 (Annexure 2) including the eligibility Clause 12(1)(d) thereof. MPS/ (S.N.Hussain, J.)