•-^^. fi • '•". IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. No. 3^ 5 2-/2005 PETITIONER ..••'('..-' •.A\?^^ ..'• ^•y^' €^-'' ^'\^\'v" .^' ^^ ' RESPONDENTS 3. Niranjan Lal Agrawal, S/o. Late C.R. Agrawal, Aged about 64 years, Proprfetor ofM/s. Niranjan Lal Agrawal, Tulsi Marg, Korba • (C.G.) VERSUS South Eastem Coalfields Limited, (Subsidiary of Coal India Limited) Contract Management CeU, S.E.C.L. Bhawan, Seepat Road, Bilaspur (C.G.) Chairman-cum-Managing Director, S.E.C.L. BUaspur (C.G.) Chief General Manager (C.M.C.) S.E.C.L. Bilaspur (C.G.) WRIT PETITION UNDER ARTICLE 226/227 OFTHE CONSTITUTION OF INDIA XI-HC-22 3II^?T?iT R-li*3fI^T Stiliti ?l1?(T Stllltl ^-•. 3's? "MI'illct'M, ®Tn*ris,Riciitiy 3fl^l ^^vh LJ.yste 28 *<I*ICTI sn<4ith 'W]; 200±? R'tl.d 311^1 ^+dlWfffScT prefeted 8-8-2005 Heard Mr. Kishore Bhadi|ri The petitioner has the Constitution of India, questi( 2005 (Annexure P-1) issued b^ Goalfields Limited, Bilaspur, from eligible contractors for tr^r siding from (a) Gevra CHP/F^ bunker, lead 13 Kms. "as anc| bunker chute and cleaning st?i handling required: 13,700 separately for each sub work. tota! value of work. Experiencj under: - SlDII tonrtes "To qualify for aw^rd its name) should hjave a. Achieved a mi nature of worHs value of estimbte b. Satisfactorily at least one 60%ofthees c. Evidence of (at least 20% access to lin< otherfinanciall d. Ownership ofj tipping trucksif the work." *i*itci'iTI-< ><i>iciTffte^l'<Ri«]< ^sil^Tsn^r ji|ri> counsel forthe petitioner, on admission. this writ petition under Article 226/227 of ^ning the propriety of tender notice dated 8-6- the Chief General Manager, South Eastern w|hereby the C.G.M. has invited applications (nsportation of coal to Gevra Road Railway bunker, lead 10 Kms., (b) Dipka CHP/FE when required basis" including opening of s^illage coal below the bunker. Minimum per day. Tenderei-s are to quote rates L-1 tenderer wi!l be arrived on the basis of criteria specified in the tender notice is as of the contract, each bidder (in in-the last five years: inimum financiat turnover (in similar s only) of 2 (two) times the updated of this work. ;ompleted as a prime contractor of .imilar work of vaiue not less than Imated value of this work. pjsssessing adequate working capital t>fthe value of this work) inclusive of of credit and avai!abi!ity of the Iresources to meet the requirement. PT ines a fleet of mlnimum 1/3 of the trucks and equipments required for A^-&. iWI'IFT XI-HC-22 3n^?T^r R-fi+an^r ^s aiqwa 3^ '<11<IICT<<, »Tn<1'IS, is|Cll<Hy 311^1 ^ach _.^:.^S6S^_ ___. •"•••""•••"•"•/H^ 200 ^r *fm<fTa»*<i<ft '?Q fct <-.• fe^ 3TI^T6«i|i$re^f?(T The petitioner in this petiticjn a, b & c above on the groun|J incorporated in a transparent arrived at in fixing the above exp^rience < he is engaged in coal transport'f^ tender for the last 33 years Fh t|i| respofidents Pridr and also for wagon loading. At p^ vide Annexure P-1. The joined transportation i.e. one frorfi Gevra Road Railway siding. tender for transportation of coal combination of clubbing of too s| of the contractors, because of siding at a time cannot fuifiil th^ ciause therefore, may help and coal outside the local limits and the criteria of turnover. Mr. Kishore Bhaduri, learnj experience criteria ctauses (a), (^ not been arrived at in a transparje coa! from Gevra and Dipka m| tenders were being invited. clubbed both the mines and incrfe vvhich the petitioner is not able tcj namely, (a), (b) & (c), and that h^s be achieved, therefore, same are| °hi<<t(i<fl-i 4i>i(iTfr'te^t<Ri't<ii<. ^isri^irsn^T had particuiarly questioned the conditions that same are arbitrary and not been n|ianner as to Jiow the respondents have criteria. The petitioner's case is that Jf the last 33 years and he used to bid in the i^ SECL, Bilaspur, for transportation of coal tesent, the respondents have invited tender Company while floating the tender Gevra and one from Dipka coal siding to to this there had been always a separate From each railway siding individua!!y. This jdes adversely affected the turnover ciause (he fact that the contractors handiing one turnover clause to tf/o club siding. This |will help the tenderers who have handled |ndirectly wiit repulse the iocal tenderers on i^d counsel for the petitioner argued that the (t?) and (c) are arbitrary and the same have arjent manner. Prior to this, transportation of |nes were always separate and separate f-|owever, this year, the respondents have r^ased the experience criteria on account of satisfy the conditions of experience criteria i^s no reasonable nexus with the objective to |liabtetobequashed. pe' XI-HC-22 an^TECT f^ri^sn^T stiHitiHfetr 3^ ^MW^, »Tfl<H416, RlCII+iy 11KWI Shlich 311^1 ^l^ch ^.Cs^t?.^j63.^ Wi; 200 ^T fa^a afl^KWIWHficT •sbwf<-i4)-f *iwd1'fftecfl<Ri'tdi< ^arf^UTan^r In this connection, in the mlatter of Tata Cellular vs. Union of reported in AIR 1998 SC 11, th^ Hon'ble Apex Court has held that "the principles ofjudicial review would ^ by Government bodies In order to been further held that "the terms ol ipply to the exescise of contractual powers prevent arbitrariness or favoritism". It has the invitation to tender cannot be open to judicial scrutiny because the invita|on to tender is in the reaim of contracf. Again, in the matter of Commissioner, Ulhasnagar Mur] in (2000) 5 SCC 287, it has been| judge to prescribe the terms and considerations were better than invitations. Again, in the matter of Di Educomp Datamatics Ltd. and Monarch infrastructure (P) Ltd. vs. |icipal Corporation and others reported he!d that the terms and conditions in the tender are prescribed by the Go|vernment bearing in mind the nature of contract and in such matters the ^uthority calling for the tender is the best bonditions of the tender. it is not for the Courts to say whether the cor|ditions prescribed in the tender under he one prescribed in the eariier tender rectorate of Education and others vs. >thers reported in 2004 AIRSCW 1505, the Court held that the terms of iitivitation to tender are not open to judicial scrutiny the same being in the r^alm of contract. The Government must have a free hand in setting the teri|ns of the tender. It must have reasonab!e play in its joints as a necessary cc|ncomitant for an administrative body in an administrative sphere. The Coui|ts would interfere with the adminisfrative policy decision only if it is arbitrar^, discriminatory, mala fide or actuated by bias, It is entitied to pragmatic ac(justments, which may be called for by the particular circumstances. The Cejurts cannot strike down the terms of the tender prescribed by the Governm^nt because it feels that some other terms XI-HC-22 3II^?TgiT R-< 3II^T Shliti df^tT 3^ "ill'lllri'M, B-rfly'IS, Rltll+iy 3ll^?l ^aeh ^U,.T-.^.^^/., Nl*<dl *t|i* •-"••'••'•-"""••••yg^ 200^ fd^ "•••••• ail^l^WIWS1^(T -^ ma rgunlient *^ j in the tender would have been faiil, only ifthe poiicy decision is arbitra|ry, Therefore, in view of the Court, the terms of tender i.e. the| if it is arbitrary, discriminatory or On this ground, the arg^unjient petitioner is that prior to the tend^r to invite separate tenders for mines. But, without disclosing both the mines, invited tenders been increased, on accountof wjhich said criteria. As has been menticjned bring on record showing the arbi) fide of the respondents, the automatically being high value together can be said to be arbitrart?. During the course of account of insertion of this the petitioner and two other Ex-]Seru tenders. From the terms it seem4 those two companies. Merety, grounds have been clubbsd in without placing any material on reijsord it can be inferred that the clubbed both the mines for Ex-Sen/icemen companies, it canfiot expen^nce order qii'iiFti'n-1 Hiici)'ffteI^t<Ri^i< ^iSrf^ITSn^T fl, wiser or logical. The Courts can interfere ', discriminatory or mala fide. ^bove settle^ iaw laid down by the Apex |experience criteria can be challenged only la fide. advanced by learned counsel for the notice in question, the respondents used tra(isportation of coa! from Gevra and Dipka reasons the respondents have clubbed ^nd thereafter, the experience criteria has the petitioner is not able to fulfill the above, unless the petitioner is able to (rariness, discriminatory treatment or mala ^xperience criteria cannot be interfered (?r elubbing two mines for transportation 6) argpments, learned counsel argued that on criteria, only three tenderers including ^Sen/icemen companies have put jn their that this has been done in order to favour a<(vancing arguments by saying that the two to favour the Ex-Servicemen companies or showing any circumstance by which have. increased the criteria and trans[30rtationtogether in order to favour those be held thatthe said clubbing has been resrfondents XI-HC-22 3^ •<ii<iici<<, aiiflo'Ko, fsi<ni+iy 311^1 4^eh lltlrtl sh*<l* •••••••••••••••••••y gqr 200 ^~ Rl'b.d 32 sii^rqiT f^lN'W^T StltfitKllgtl T Soma 3n^rswiiW(rf5(T ^> corriDanies. ohe done in order to favour those Servicemen personnel. There is have thought in dealing with one instead of dealing with more than Therefore, 1 am of the opini(|>n make out a prima facie case show| or mala fide of the respondents ifi such, 1 am of the opinion that dismissed, and it is accordingly, di; Consequently, M.(W.)P.No.pO disposed of. Those companies belong to Ex- ^very chance that the respondents might Fjerson in transportation of both the mines person. that the petitioner has not been able to |ng arbitrariness, discriminatory behaviour fixing the said experience criteria. As |the petitioner's petition is liable to be jmissed, at the admission stage itself. 358/2005 and I.A.No.6875/2005 stand Itl +i'!)Ici41-f xitlcil'ffrs'<3 <R|^|< ^;3T^IT3II^T Sd/- L.C. Bhadoo Judge m"i: