The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 2865 of 2023 ISSM Consortium, having its registered office at Plot No. 283/A, C1 to C5, Incor9, First Floor, B-Block, Kavuri Hills, Madhapur, P.O. & P.S. Madhapur, District Hyderabad, a Consortium of M/s Indukuri Mining Pvt. Ltd. having its registered office at Plot No. 8-2-293/82/A/973/A, Road No. 49, Jubilee Hills, P.O., P.S. & District Hyderabad, M/s S.S. Railworks Pvt. Ltd. having its registered office at H.No. 8-3-833/272, Second Floor, Kamalapuri Colony, Yellareddyguda, P.O., P.S. & District Hyderabad and Mundane Ore Management Service Pvt. Ltd. having its registered office at Kashalpur Road, 2nd floor, Punjabi Mohalla, Panchgarhi Bazar, Katragarh, P.O. & P.S. Katragarh, District Dhanbad, represented by Mintu Roy Nandi, son of Amar Roy Nandi, aged about 47 years, resident of Tundoo, P.O. Tundoo, P.S. Barora, District Dhanbad, the authorized signatory of the aforesaid Consortium. … Petitioner -Versus- 1. Bharat Coking Coal Ltd., through its Chief Managing Director, having its registered office at Koyla Bhawan, Koyla Nagar, P.O., P.S. & District Dhanbad. 2. The General Manager, Contracts Management Cell, Bharat Coking Coal Ltd., Koyla Bhawan, Koyla Nagar, P.O., P.S. & District Dhanbad. 3. M/s Hilltop Hirise Pvt. Ltd., having its registered office at PS Continental 83/2/1 Topsia Road, 4th Floor, Suite No. 405, P.O., P.S. & District Kolkata, West Bengal. …. Respondents CORAM: SRI SANJAYA KUMAR MISHRA, C.J. --------- SRI ANANDA SEN, J. --------- For the Petitioner: Mr. Ranjan Bachawat, Sr. Advocate Mr. Rudraman Bhattacharya, Advocate Mr. Vibhor Mayank, Advocate Mr. Rohitashya Roy, Advocate For Resp.1&2/BCCL: Mr. K.M. Nagraj, Sr. Advocate Mr. Anupam Lal Das, Advocate Mr. Amit Kumar Das, Advocate Mr. Amit Sharma, Advocate Mr. Shivam Utkarsh Sahay, Advocate Mr. Kanishka Deo, Advocate Mr. Sankalp Goswami, Advocate Mr. Sumeet Gadodia, Advocate Mr. Ankit Kumar, Advocate For Resp. No.3: 10/Dated: 21.12.2023 --------- Upon hearing the learned counsel for the parties, this Court passed the following, (Per, Sanjaya Kumar Mishra, C.J.) 2 JUDGMENT 1) By filing this writ petition, the petitioner has prayed for issuance of a writ of certiorari for quashing the Letter of Award dated 25.04.2023 (Annexure 5) contained in Reference No. BCCL/CMC/MDO/RS/LOA/ KHARKHAREE/GOVINDPUR AREA/2023/189 issued by respondent No.2, whereby and whereunder the work of Re-open salvage, rehabilitate, develop, construct and operate for excavation/extraction of coal from Kharkharee Coal Mine and delivery thereof to the Authority of Govindpur Area of BCCL has been awarded to the respondent No.3. The petitioner also prays for issuance of writ in the nature of mandamus commanding upon the concerned respondents to immediately and forthwith declare the petitioner as L-1 and award the work to the petitioner. Some other consequential relief has also been prayed for. 2) At this stage, after conclusion of hearing and examination of the record, this Court is of the opinion that most of facts in this case are not disputed and they can be narrated in a chronological manner as follows:- The respondent Nos.1 and 2 invited tender by issuing Notice Inviting Tender vide NIT No. BCCL/CMC/MDO-REV.SHARING/ Kharkharee/2022/495 dated 28.10.2022 for the work of Re-open salvage, rehabilitate, develop, construct and operate for excavation/extraction of coal from Kharkharee Coal Mine and delivery thereof to the Authority at Govindpur Area of BCCL. The respondent submitted its bid and the petitioner also submitted its bid. However, it is claimed by the petitioner that from the
Facts
Bidder’s Confirmatory Documents Summary issued by respondent Nos.1 and 2, the bid of respondent No.3 was not in accordance with Appendix-IX of the NIT, which provides that a bid has to be submitted for keeping the duration of contract to 25 years or less. 3 On 22.04.2023, the price bids were opened and it appeared from the price bids that the percentage of revenue sharing of the petitioner was the highest. On 25.04.2023, the respondents, allegedly, without taking into consideration the aforesaid facts and circumstances, issued the Letter of Award dated 25.04.2023 in favour of respondent No.3. Hence, this writ petition. 3) The main contention of the learned Senior Counsel appearing for the petitioner is that the tender was floated by respondent Nos.1 and 2 for extraction of coal and the highest tenderer was to be determined on the basis of the quantum of extraction of coal in 25 years’ time and the percentage of revenue share with the authorities. The case of the petitioner is that respondent No.3 submitted its Tender Document calculating the extraction spread over 45 years of time, though the requirement was for 25 years’ calculation. The second contention of the learned Senior Counsel appearing for the petitioner is that the percentage of revenue share by this petitioner is 12.75%, whereas, that of the respondent No.3 i.e. Hilltop Hirise Pvt Ltd, is 12.02% and, therefore, it is the appropriate party to be awarded with the contract of mining and extraction of coal from the coalfields as narrated above. The next contention of the learned Senior Counsel for the petitioner is that the authorities during process of the tender, before finalizing the same has changed the terms of the game and sought certain clarification from respondent No.3 regarding the extraction of coal for 25 years and the respondent No.3 replied to the same stating that the extraction rate given in their Tender Document for 45 years be taken as it is with the stipulation that the first 25 years should be taken for consideration of the tender and the process should be continued. 4 4) In fact, the learned counsel appearing for the parties argued the case over several days. The learned counsel appearing for the respondents, both the successful tenderer and the tendering authorities, would submit that a clarification was called for as per the provisions contained in the NIT and there is no change of rules in this case. It is also brought to our notice that the Authorities took into consideration the rate of extraction over 25 years in case of both the respondent No.3 as well as the petitioner and they could find that from the rate of extraction multiplied by revenue share percentage, the respondent No.3 is offering Rs.83.00 Crores more than what the petitioner would be sharing with the respondents-authorities. 5) Thus, from the aforementioned submissions and the summary of pleadings raised in this case, the following mixed question of facts and law arise for determination in this case:- (i) Whether the Authorities have jurisdiction to seek any clarification from any bidders regarding the tender floated by them and the bids submitted by the players? (ii) Whether the clarification given in response to the questionnaire sent by respondent No.2 is, in fact, changing the rules of the game in the midst of the proceedings? (iii) Who is the highest bidder in terms of revenue sharing? Who should be held to be the successful bidder in this case? 6) Without entering into an elaborate and threadbare discussion of the various provisions as also the number of citations submitted by both the parties, we, in a simplistic manner, decide the matter as under. 7) There is no dispute that the respondent No.3 did submit the bid document calculating the total extraction and the revenue sharing percentage by spreading the entire mining activity for 45 years. It is also 5 not disputed at this stage that the mining life of the mine concerned is 45 years, but the Authorities have called for quotations/bids spreading out for 25 years. In this connection, Clause 3.7 of Annexure 2, Standard Bid Document, is relevant which provides for clarification by the Authorities. We take the exact words used by the Authorities which read as follows:- “3.7 Clarifications by Authority 3.7.1 To facilitate evaluation of Bids, the Authority may, at its sole discretion, seek clarifications from any Bidder regarding its Bid. Such clarification(s) shall be provided within the time specified by the Authority for this purpose. Any request for clarification(s) and all clarification(s) in response thereto shall be in writing. 3.7.2 If a Bidder does not provide clarifications sought under Clause 3.7.1 within the prescribed time, its Bid shall be liable to be rejected. In case the Bid is not rejected, the Authority may proceed to evaluate the bid by construing the particulars requiring clarification to the best of its understanding, and the Bidder shall be barred from subsequently questioning such interpretation of the Authority.” 8) Thus, it is clear from the aforesaid provision in the Standard Bid Document that the Authority has the jurisdiction, at its own sole discretion, to call for clarification from any of the bidders. In this case, the clarification has been called for from the successful tenderer, i.e., the respondent No.3. Respondent Nos.3 in its clarification has not changed the rate of extraction over the Year No.1 to Year No.25, rather, it has stated that the rate of extraction that already been submitted for 45 years be reduced and the first 25 years be taken to be the rate of extraction. On the basis of the said extraction, the calculation has been made and it is found that it is the respondent No.3 who is the highest bidder so far as the total contribution percentage is concerned. In this
Legal Reasoning
connection, we are of the opinion that there is no change of rules during 6 the pendency of the tender proceedings and that no major modification was allowed. It is also the view of this Court that the respondent No.2 has not acted illegally in awarding the work in favour of respondent No.3. In this connection, we take into consideration the several judgments of the Hon’ble Supreme Court, viz., Tata Cellular Vs. Union of India, (1994) 6 SCC 651; Raunaq International Ltd. Vs. I.V.R Construction Ltd., (1999) 1 SCC 492; Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617; Association of Registration Plates v. Union of India, (2005) 1 SCC 679; Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517; Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818; Tata Motors Limited Vs. Brihan Mumbai Electric Supply & Transport Undertaking (BEST) and Others; 2023 SCC OnLine SC 671; wherein it has been held that the Courts should refrain from interfering in contractual matters. 9) These authoritative pronouncements of Hon’ble Supreme Court leave no doubt in our mind that tender matters arising out of contracts should be left with discretion of the employer and the Courts in exercise of its powers of judicial review under Article 226 of the Constitution of India should give appropriate respect and independence to the State instrumentalities to take appropriate decisions. 10) It is also not disputed that if a document is issued by the employer and there is a question to be decided by the Court regarding its interpretation, then it is best to adopt the interpretation given by the employer himself as it is the best authority to interpret the same. 11) In that view of the matter, we find no merit in the writ application, especially in view of the fact that the respondent No.3 is providing of about Rs.83.00 Crores more than the petitioner as revenue sharing 7 percentage. Hence, this writ application is dismissed being devoid of any merit. 12) However, there shall be no orders as to costs. 13) Interim order dated 07.08.2023, which has been extended on different dates, stands vacated.
Decision
14) Pending Interlocutory Applications, if any, stand disposed of. 15) Urgent Certified copies as per Rules. (Sanjaya Kumar Mishra, C.J.) Manoj/MM (Ananda Sen, J.)