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2006 DIGILAW 6 (MP)

Electrosteel Castings Limited v. State of M. P.

2006-01-02

SHANTANU KEMKAR

body2006
ORDER Kemkar, J. -- 1. By filing this petition under Article 226/227 of the Constitution of India the petitioner company has challenged the Tender No. K 5105-A of Tender Notice No. 11-A/05-06 by which the second respondent invited tenders for purchase of Centrifugally Cast (Spun) Ductile Iron Pressure Pipes (for short DI Pipes). 2. Initially tender No. K 3205-A NIT was issued by the respondents for supply of DI pipes on 20th February 2004. As per the said NIT, the requirement of DI Pipes was that they must be conforming to IS 8329:2000 (with upto-date amendment) and should be of indigenous material only. The petitioner submitted its offer on 20.4.2004 vide Annexure P-5. The tenders received were opened on 23.4.2004 in the presence of intending bidders. The respondents accepted the bid of suppliers for pipe manufactured in China. The said action of the respondents was challenged by the petitioner in WP No. 3481/2004. In the said writ petition, an interim relief was granted in favour of the petitioner restraining the respondents from purchasing the pipes of Chinese origin. Thereafter the respondents moved an application seeking permission for issuance of fresh Notice Inviting Tender (for short "NIT") for the supply of indigenous material. The said application was considered by this Court and the Writ Petition No. 3481/2004 was disposed of by order dated 15.3.2005 with following directions: "1. The respondents No.2 and 3 are permitted to issue fresh NIT for the purchase of DI Pipes of indigenous material as prayed by them in the application. 2. Petitioner and respondents No.4 and 5 if advised so may participate in the bid by submitting their offers in accordance with law. 3. In case no offer is received lower than the offer made by respondents No.4 and 5, the respondents No.2 and 3 shall be free to accept the offer made by respondents No.4 and 5 today before this Court." 3. After disposal of the said writ petition, on 24.3.2005 the respondents issued NIT No. K-4243. In the said NIT, the respondents included a further condition that the pipe should be of ISI mark as per IS 8329:2000. However, the said condition of requirement of ISI mark was deleted by the respondents vide tender notice circulated by letter Annexure P-9 dated 31.3.2005 and instead the specification for DI Pipes conforming to IS 8239:2000 of indigenous material was made. However, the said condition of requirement of ISI mark was deleted by the respondents vide tender notice circulated by letter Annexure P-9 dated 31.3.2005 and instead the specification for DI Pipes conforming to IS 8239:2000 of indigenous material was made. Feeling aggrieved by the deletion of condition of ISI mark, the petitioner filed WP No. 1945/2005 before this Court seeking a direction against the respondents to purchase DI Pipes as per tender notice dated 24.3.2005 No. K-4243-A having ISI marking only. When the said WP No. 1945/2005 came up for hearing, a statement was made by learned counsel appearing for the respondents that the respondent Corporation has no objection to float fresh tender. On this, the Writ Petition No. 1945/2005 was disposed of by this Court observing that the floating of fresh tender by the respondents would be in consonance with order passed by this Court in WP No. 348112004. 4. Thereafter fresh NIT No. ll-A/05-06 was issued by the respondents for purchase of DI Pipes conforming to IS 8329:2000 with upto-date amendment through single bid system vide tender No. K-5105-A. Feeling aggrieved, the petitioner has filed this writ petition. 5. Shri S.C. Sharma, learned senior counsel appearing for the petitioner contended that the respondents have acted in excess of their jurisdiction in issuing fresh NIT by deleting the condition of ISI marking from the tender notice. He contended that the action on the part of the respondents is contrary to the undertaking given by them before this Court in WP No. 1945/2005 and also violative of the order passed by this Court in WP No. 3481/2004. It is contended that by deleting the said condition the respondents are intending to purchase sub-standard goods which will cause injustice to the public interest and is an attempt to benefit certain blue-eyed persons. 6. Shri R.N. Singh. learned Advocate General appearing for the respondents has contended that the petitioner is guilty of suppression of material facts inasmuch as against the order dated 15.3.2005 passed in WP No. 348112004 the petitioner approached to the Supreme Court in SLP No. 8231/2005. The said SLP was disposed of by the Supreme Court by order dated 19.5.2005 (Annexure R-2/l) upholding the order passed by this Court in WP No. 348112004. The said SLP was disposed of by the Supreme Court by order dated 19.5.2005 (Annexure R-2/l) upholding the order passed by this Court in WP No. 348112004. However, neither in this Writ Petition nor in the Writ Petition No. 1945/2005 this fact was disclosed by the petitioner, in the circumstances he submitted that the petition is liable to be dismissed. He denied the contention of the petitioner that the products which conformed to IS 8329:2000 unless having ISI mark are sub-standard or of low quality. It is stated that Indian Bureau of Standards prescribes quality standards for products and for 01 Pipes. The quality standard has been prescribed which is known as IS 8329:2000. As per IS 8329:2000 it is not a mandatory requirement that the products should be of ISI mark. It is further stated that there is no difference in quality of a product which conforms to IS 8329:2000 and does not bear an ISI mark and the product which conforms to IS 8239:2000 and bears ISI marks. It is urged that in the initial tender notice also which was subject matter of WP No. 3481/2004. there was no condition that the pipes should bear ISI mark but the condition was Identical of the present NIT that the DI Pipes must conform to IS 8239:2000 specifications. He urged that the petitioner participated in the said tender and when order was placed for the purchases of Chinese DI Pipes he tiled WP No. 3481/2004 alleging that only indigenous material can be purchased. In the aforesaid background and on the basis of application submitted by the respondents seeking permission for issuance of fresh NIT for the supply of indigenous material the said writ petition was disposed of by this Court vide order dated 15.3.2005 permitting the respondents to issue flesh NIT for purchase of 01 Pipes of indigenous material. Against this order the petitioner filed SLP before the Supreme Court which was disposed of upholding the order dated 15.3.2005 passed by this Court. Subsequently, the respondents issued fresh NIT in which inadvertently It was mentioned that the DI Pipes should be of ISI mark. When this mistake was revealed the respondents immediately issued a clarificatory order on 31.3.2005 deleting the condition with regard to ISI mark and mentioned that the same is to he read as conforming to IS 8239:2000 instead of ISI mark. When this mistake was revealed the respondents immediately issued a clarificatory order on 31.3.2005 deleting the condition with regard to ISI mark and mentioned that the same is to he read as conforming to IS 8239:2000 instead of ISI mark. When this deletion of ISI marks was challenged by the petitioner in WP No. 1945/2005, in view of some confusion arising out of aforesaid inadvertent mention of ISI mark in the NIT the respondents agreed for issuance of fresh NIT and the said Writ Petition No. 1945/2005 was disposed of by this Court on 4.7.2005 emphasising that the floating of fresh tender would he in consonance with the order passed by this Court in WP No. 34X 1/2004. The respondents further contended that in compliance of the order of this Court they issued tender No. K-5l05-A prescribing quality standard for DI Pipes to conform to IS 8239:2000 specifying further that the DI Pipes manufactured from indigenous material alone shall be purchased. He also contended that the order passed by this Court in WP No. 3481/2004 having attained finality and the respondents having complied with the said order. this petition is not maintainable. The respondents denied the allegation that the deletion of condition of ISI marks is to favour some blue-eyed purchasers. It is stated that there is no illegality warranting any interference on the ground that the said purchases are to be made through single bid system instead of double bid system. It is stated that in the single bid system both technical and price bid arc open to ascertain the technical soundness and the supply price quoted by the tender in one go. It is also stated that the initial tender which was challenged in WP No. 3481/2004 was also on single bid system. The conditions having approved by this Court and the Supreme Court cannot he challenged by the petitioner in this petition. It is also stated that on earlier occasion L1K' petitioner itself supplied DI Pipes of IS 8239:2000 specification without ISI marks and in the circumstances the petitioner cannot be allowed to say that it is of sub-standard. In support of this contention the respondents have tiled agreement for supply between the petitioner and the respondents and the supply order as Annexure R-2/3. 7. In support of this contention the respondents have tiled agreement for supply between the petitioner and the respondents and the supply order as Annexure R-2/3. 7. In the aforesaid background it has to be seen as to whether the impugned NIT pertaining to tender No. K-5105-A contravenes the order dated 15.3.2005 passed in WP No. 3481/2004 and as to whether deletion of condition of ISI mark and the method of single bid system which is adopted is arbitrary and is made only to favour some blue-eyed purchasers warranting interference by this Court. 8. The initial NIT No. K 5105-A was issued requiring Centrifugally cast (spun) DI Pipes confirming to IS 8239:2000 with up to date amendment of indigenous material only. In the said NIT various other conditions were also incorporated about tolerances, coating, quality assurance, testing, marking and pre-delivery inspection. Though there was no requirement of ISI marking, the petitioner participated without any protest or objection in the said tender. Only when the order was placed to purchase Chinese pipes he filed WP No. 3481/2004 claiming that only indigenous material can be purchased. The said writ petition was disposed of on 15.3.2004 permitting the respondents to issue fresh NIT for purchase of DI Pipe of indigenous material. The said order dated 15.3.2004 was confirmed by the Supreme Court in SLP No. 8231/2005. Thereafter the respondents due to inadvertence apart from all these conditions which existed in the initial NIT No. K 3205-A incorporated a further condition that the 01 Pipes should be of ISI mark. However, immediately on 31.3.2005, the said condition was deleted. When this deletion of condition that the pipes should be of ISI mark was challenged in WP No. 1945/ 2005, a statement was made by counsel appearing for the respondents that the Corporation has no objection to float fresh tenders. The WP No. 194512005 was disposed of by this Court on 4.7.2005 emphasising that the floating of fresh dates would be in consonance with order passed by this Court in WP No. 3481/2004. Thereafter a fresh NIT was issued in which the conditions of specifications were exactly as it were in initial tender No. K 3205- A. 9. Perusal of petitioner's letter (Annexure P-5) makes it clear that in the initial NIT the petitioner participated without any objection. In the said NIT there was no condition that 01 pipes should be of ISI mark. Perusal of petitioner's letter (Annexure P-5) makes it clear that in the initial NIT the petitioner participated without any objection. In the said NIT there was no condition that 01 pipes should be of ISI mark. The said NIT was also by way of single bid system. After the bids were opened and orders were placed for the purchases of Chinese pipes the petitioner filed a writ petition. The said Writ Petition No. 348112004 was disposed of by permitting the respondents to issue fresh NIT for the purchase of DI Pipes of indigenous material. The said order having attained finality throughout it is not open for the petitioner to come forward and contend that the respondents should purchase DI Pipes which bears ISI mark and should not be allowed to purchase DI Pipes with IS 8239:2000. Merely because of deletion of condition of ISI mark it cannot be said that the respondents are purchasing sub-standard material. The petitioner cannot be allowed to take any advantage if by inadvertence the respondents have incorporated necessity of ISI mark in their NIT. In fact, on earlier occasions, as reflected in Annexure R-2/3, the petitioner itself supplied the DI Pipes 'without ISI mark. The respondents having realised that the NIT issued by them is containing the additional condition of ISI mark which was not there in the initial tender and the direction in WP No. 3481/2004 was to float tender of purchase of DI Pipes of indigenous material, the mistake was rectified and the NIT was made in consonance with the first NIT. The action of the respondents being perfectly in consonance with the direction given by this Court on 15.3.2005 in W.P. No. 3481/2004 which was affirmed by the Supreme Court. In the order dated 4.7.2005 passed in WP No. 1945/2005 also emphasis was made that floating of fresh tender would be in consonance with order passed in WP No. 3481/2004, therefore, the petitioner cannot be permitted to insist upon incorporation of condition of ISI mark. The contention about not adopting double bid system and adopting single bid system also cannot be accepted as it was not challenged by the petitioner on the earlier occasion when the NIT was issued on the other hand he participated in the said tender process and when the respondents placed order for Chinese material, he filed WP No. 3481/ 2004. The contention about not adopting double bid system and adopting single bid system also cannot be accepted as it was not challenged by the petitioner on the earlier occasion when the NIT was issued on the other hand he participated in the said tender process and when the respondents placed order for Chinese material, he filed WP No. 3481/ 2004. Even otherwise it is for the respondents to fix its own terms for the NIT and it is not open for judicial scrutiny, in the absence of any proof of mala tides. unreasonableness and arbitrariness. Therefore, this contention is also not tenable. 10. It is now well settled that the Courts would not interfere with the matter of administrative action unless action is arbitrary, discriminatory or is mala fide. The terms of NIT are not open to judicial scrutiny being in the realm of contract: The Government must have a free hand in setting the terms of the tender. It must have a reasonable play in its joints as necessary concomitant for an administrative body in an administrative sphere. The Courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The Courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. It is for the authorities to set the terms of the tender. While exercising the power of judicial review of the terms of the tender notice, Court cannot say that the terms of the earlier tender notice would serve the purpose sought to be achieved bet to than the tender notice under consideration and order change in them unless it is of the opinion that the terms were either arbitrary or discriminatory or actuated with malice. [See Directorate of Education and others v. Educomp Datamatics Ltd. and others ( AIR 2004 SC 1962 )] 11. In view of the aforesaid, I find no merit in this petition. Accordingly, the writ petition is dismissed with no order as to costs.