TELEPHONE CABLES LIMITED Vs. BHARAT SANCHAR NIGAM LIMITED

JUDGEMENT

(1.) This is an application for interim relief in a writ petition in which the petitioner has challenged the award of a part tender to respondent No.4, M/s NICCO Corporation Ltd. (hereinafter referred to as the 'NICCO') by the Bharat Sanchar Nigam Ltd (hereinafter referred to as BSNL) which is a public sector undertaking and indisputably amenable to writ jurisdiction. The petitioner is M/s Telephone Cables Ltd., the respondent No.l is Bharat Sanchar Nigam Ltd., the respondent No.2 is the Director (MMT), BSNL, the respondent No.3 is the CGM (QA), BSNL & respondent No.4 is the NICCO Corporation Ltd. The writ petition avers as under: On 27.3.01, the respondent No.1 invited tenders for supply of 441 LC KM (expand) of Polythene Insulated Jelly Filled (PIJF) cables. Different shares of the tendered quantity is awarded to the bidders in accordance with their Vendor Rating (VR) consisting of 3 components namely Delivery Rating (DR) having a weightage of 30%, Price Rating (PR) having a weightage of 60% and Quality Rating (QR) having a weightage of 10%. The bidders are evaluated and allocated the shares in the tendereed quantity as per their Vendor Rating which is based upon Price Rating, Delivery Rating and Quality Rating and the DR was arbitrarily altered at the request of respondent No.4 thereby en-titling it to a higher amount which the petitioners claim that it is not entitled to get. The petitioner challenges the unilateral alteration of the delivery rating in favour of respondent No.4. The Delivery Rating depends upon the past performance generally over a period of two years which is considered the window period as per clause 19.3.1 and representations can be made by those seeking to get their Delivery Rating altered within the period specified. The petitioner's claim is that if it had emerged as V-1 vendor it would have been awarded the quantity of 15.2 LCKM as V-1 vendor gets 30 percent of the tendered quantity in the particular Cable Size. The petition challenges the order in favour of M/s NICCO Corporation, the respondent No.4, which was said to be given the benefit of an arbitrary method of altering and enhancing its DR which has had the effect of displacing the petitioner from its V-1 position in 10 x 0.5 (UA) Cable Size, and increase in 5.37 LCKM in the quantity awardable to respondent No.4 at the cost of the petitioner, while seeking alteration of the Delivery Rating the respondent No.4 claimed that during the window period it was affected by floods in their factory in Kalyani at west Bengal and accordingly invoked Force Majeure clause and initially the relief on this score was granted by respondent Nos.1 to 3 extending the delivery period by 30 days only and further enhancement of this already, extended period of 30 days was made only after the opening of the tender. The petitioner challenges the latter and the second extension of the delivery period in favour of respondent No.4. The relief given to the respondent No.4 was illegal and such relief given in May/June 2001 ought not to have been taken into account for revising the Delivery Rating in respect of a tender for which the date of NIT is 27/03/2001 and the date of bid of opening is 22/05/2001. The Learned Senior Counsel for the petitioner, Shri Amarjit Singh Chandhiok, has also relied upon clause 22(d) of the Tender Conditions of the Bid Document to contend that any modifications obtained by the supplier on his request made after the date of NIT which affects the existing Delivery Rating will not be taken into account. It was also contended that there was no scope, reason or occasion to revaluate respondent No.4's DR particularly after the opening of the tender on 22/05/2001. The petitioner thus averred that respondent No.4 was being unduly favoured and at the expense of the petitioner.

(2.) Mr. Mukul Rohtagi, the learned Addl. Solicitor General raised the plea that the writ petition is not maintainable in view of the arbitration clause 20.1 which reads as follows; 20.1 In the event of any question, dispute or difference arising under this agreement or in connection therewith (except as to the matters, the decision to which is specially provided under this agreement), the same shall be referred to the sole arbitration of the CMD, BSNL, New Delhi or in case his designation is changed or his office is abolished, than, in such cases to the sole arbitration of the officer for the time being entrusted (whether in addition to his own duties or otherwise) with the functions of the CMD, BSNL or by whatever designation such an officer may be called (hereinafter referred to as the said officer), and if the CMD, BSNL or the said officer is unable or unwilling to act as such, then to the sole arbitration of some other person appointed by the CMD, BSNL or the said officer. The agreement toll appoint an arbitrator will be in accordance with the Arbitration and Conciliation Act 1996. There will be no objection to any such appointment on the ground that the arbitrator is a BSNL Servant or that he has to deal with the matter to which the agreement relates or that in the course of his duties as a BSNL Servant he has expressed his views on all or any of the matters in dispute. The award of the arbitrator shall be final and binding on both the parties to the agreement in the event of such an arbitrator to whom the matter is originally referred, being transferred or vacating his office or being unable to act for any reason whatsoever, the CMD, BSNL or the said officer shall appoint another person to act as an arbitrator in accordance with terms of the agreement and the person so appointed shall be entitled to proceed from the stage at which it was left out by his predecessors.

(3.) It was further submitted that the impugned extension sought by respondent No.4 was in respect of a past contract where the petitioner was not a party and in this petition such an extension cannot be collaterally challenged. He further relied upon the judgments reported as 1994(4)JT (SC) 532, JT 2000(1) SC and JT 1998(8) SC 411. He further submitted that in so far as respondent No.1 is concerned, it has been held that there must be some element of public interest involved before the interference by way of an interim order can be granted. He further submitted that both the petitioner and the respondent No.4 had got orders worth Rs.70 crores each and thus there was no element of public interest involved as sought to be canvassed by this writ petition.