VICTORIA ENGINEETING WORKS Vs. UNION OF INDIA

JUDGEMENT

(1.) These two petitions raise a common question and can be disposed of by this judgment. In both these petitions the petitioners challenge limited tender for supply of 52000 numbers of 15 Meters Tubular Self Supporting Masts/Towers issued by the Department of Telecommunications, Telecom Commission, Ministry of Communication, Government of India. Limited tender documents have been issued to 24 parties who have been made respondents 5 to 27 in writ petition No. 4091/94. In writ petition No. 4353/94, however, there are only two respondents, and the names of the parties to whom limited tender documents had been issued have been separately mentioned in Annexure-I to the petition. We do not think for the purpose of the issues involved in these petitions those parties are either proper or necessary parties. We will, therefore, strike out their names in Civil Writ Petition No. 4091/94. We in fact limited the notice of this petition only to respondents 1 to 4. These petitioners seek appropriate writ, order of direction quashing the Tender No. 11-14/94-MMT(RN) in so far as the same has been issued to limited participants and the petitioners seek a further direction by issuing a writ of mandamus commanding the respondents to allow the petitioners as well to participate in the said tender.

(2.) To understand the issues involved in these two petitions we will concentrate on the facts in Civil Writ Petition No. 4091/94 (Victoria Engineering Works). Telecom- Policy of the Government- of India envisages that every village in the country will have a public telephone by 31 March 1997. The respondents say that this implies provision of 4,37,166 village public telephones (VPTs) in the next three years, i.e. 1994-97 and about one lakh village public telephones are to be provided during the year 1994- 95. It is stated that for this purpose it was estimated that 99,630 masts of height of 15 meters will be required. In 1992 the respondents invited a public tender for supply of 66,000 numbers of 15 Meters Masts (Tubular Self Supporting Towers). Fifty three offers were received highest of which was Rs.65,750.00 and lowest Rs.8,940.00 per tower. The respondents gave a counter offer of Rs.8,649.00 per tower to 17 parties (to whom as well as some others limited tenders are now sought to be issued) and an order of 30,000 numbers of towers was given to these 17 parties at Rs.8,649.00 per tower. A repeat order was placed on these 17 parties for supply of 19.400 masts/towers in June 1994 at the same rate of Rs.8,649.00 per tower. Respondents say 80,000 masts/towers still remain to be procured for the year 1994- 95. Out of these numbers it is stated that there is a reservation of 30% (24,000) for departmental public sector and 5% (4,000) for telecom factories, the net requirement for procurement of these masts/towers from the public number 52,000. To justify the issue of limited tender enquiry and keeping the petitioners out of that the respondents give the following reasoning :-

(3.) Petitioners are challenging this action of the respondents being arbitrary and discriminatory. They say they are fully qualified to supply the masts/towers to the respondents and their names should have been included for the limited tender enquiry. The petitioner Victoria Engineering Works says that it is a small scale industrial unit having permanent registration certificate of the National Small Industries Corporation Ltd. (NSIC) and has a factory located in Howrah in West Bengal. It says it has all the infrastructure and has been manufacturing various items since 1963 such as line materials for telecom stores, track items and wagon components for Railways and various engineering items for DGS&D inclusive of steel trunks and barbed wire. It says its staff is competent and has got qualified engineers. Then the petitioner says that it added an additional line for the manufacture of 15 meters self supporting towers and also obtained the NSIC's registration certificate under single point registration and also got infrastructure assessment done by the Director (QA), Telecorn, Calcutta, for this item. It is then stated that the design for the above 15 meters tower was approved by the Structural Engineering Research Centre, Madras, under the Council of Scientific and Industrial Research, and further approval of welded joints, plates, flanges, nut bolts, was also approved by the Structural Engineering Research Centre. It is stated that this was done as per the instructions of the Director (QA), Telecom Department, Calcutta. On 25 July 1994 Victoria wrote to the Chairman, Department of Telecommunications (DOT) that it was an established supplier of Telecom Stores for the last two decades and had also manufactured and supplied Hamilton Tubes to the DOT besides other line materials. Victoria informed the DOT that it had recently designed and developed the manufacturing of 15 meters towers required by the DOT for its stores and that its design had already been approved by the Structural Engineering Research Centre, Madras. A zerox copy of the approval was attached with the letter. A request was made that Victoria may be given opportunity to supply some 15 meters towers. This was replied to by the DOT by its letter dated 16 August 1994. Victoria was informed that its case had been considered carefully in the Directorate and that it was informed that a tender for procurement of 15 meters self supporting masts was going to be issued shortly and Victoria was requested to participate and complete in the tender. On 30 August 1994 Victoria complained to the Chairman, Telecom Commission, that though it was informed that a tender was going to be issued shortly but it came to know that repeat orders for 20,000 numbers of 15 meters towers were being issued to the existing parties only and an appeal was made that Victoria may be given opportunity to supply at least 500 numbers of 15 meters towers. A similar request was made by letter dated 9 September 1994 to the Minister Incharge of DOT. On 12 September 1994 Victoria again wrote to the Chairman, DOT, that it had come to know that existing parties had been given orders for supply of 19,400 numbers of 15 meters masts/towers, and that the order was released on 7 September 1994. Again appeal was made to place an order for supply of 500 numbers of these towers. Yet another letter was written by Victoria on 16 September 1994 drawing the attention of the Department to its letter dated 16 August 1994 wherein Victoria had been advised to participate in the tender which was going to be issued. Victoria said that it had come to know that limited tender was being issued amongst existing parties only which was to be opened on 27 September 1994. Victoria, therefore, complained that it would be contrary to the assurance given by the Department to it and that it had been denied opportunity to participate in the limited tender. A representation was also made by Victoria to the Minister Incharge of DOT on 21 September 1994. Since there was no response from the department, this petition (CWP No. 4091/94) came to be filed on 24 September 1994. With this petition bid documents respecting the tender for supply of 15 meters tubular self supporting tower have also been filed which limited tender is under challenge. These documents run into 50 pages and the only condition which bars the petitioners to participate in the tender enquiry is that :