BAKATAWAR SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) By this petition under Art. 226 of the Constitution, the petitioner has made a prayer for directing the respondent No. 2 the Madhya Pradesh Electricity Board, (in short, the "Board"), to reconsider the tenders, including that of the petitioner, but excluding the one submitted by the respondent No. 4 M/s. D. C. Industrial Plants Services Ltd., (in short, the "DCIPS "), "for complete Design, Manufacture, Assembly, Testing at Manufacturer's work, Supply, Handling all along, Erection, Testing and Commissioning etc. of Ash Handling System for Sanjay Gandhi Thermal Power Station (2 x 210 MW) at Birsinghpur Pali-P.O., Distt. Shahdol (M.P.) as fully described in Tender Specification" in response to its tender notice dated 23-5-1990 (Annexure D), as amended by Addendum dated 4-9-1990 (Annexure F); after quashing its decision dated 14-6-1991 (Board's Annexure 5) for awarding the contract to the respondent No. 4 DCIPS and the Letter of Intent dated 21-6-1991 (Annexure J) issued in its favour.

(2.) It is not in dispute that the Board is a statutory body and an "authority" within the meaning of Art. 12 of the Constitution. The respondent No. 3 M/s. Development Consultants Limited, (in short, the "Consultant"), was appointed by the Board as its, "Consulting Engineer in connection with the setting up of the said Sanjay Gandhi Thermal Power Station, Birsinghpur by agreement dated 9-5-1981 (Board's Annexure 1). Accordingly the tender in question dated 23-5-1990 was processed and issued by the Board in consultation with its Consultant the respondent No. 3 and as per specifications drawn by it. These initial specifications contemplated multistage fly ash system comprising of three stages. First stage required evacuation of dry ash from hoppers by adopting vacuum technology and transportation to surge hoppers within boiler area. The second stage consisted of disposal of fly ash from surge hoppers to main ash pit through a pressure conveying system. The last stage was of further transportation of fly ash "either by pneumatic pressure conveying or after conditioning or as a concentrated slurry." In short, the initial tender specifications postulated vacuum extraction method for the first stage and the pneumatic pressure conveying method for the remaining two stages. The petitioner was accustomed to and believed in applying the pneumatic pressure system even at the first stage of the work and, therefore, made representation to the Board by its letter dated 27-8-1990 (Annexure E) for making amendments in the tender specifications and thereby to give it an opportunity to compete with others for obtaining the work in question. The representation was favourably considered and by Addendum dated 4-9-1990 (Annexure F), the earlier specifications were modified by providing for "Pneumatic vacuum or pressure fly ash conveying system with capacity not less than 45 T/hr per stream for ash conveying from fly ash hoppers." It may be mentioned that "initially, the tender was a single stage tender but subsequently as per amended tender conditions issued by the Respondent No. 2 vide letter dated 13-11-90 the tender was to be submitted in 3 parts, i.e., technical details, commercial terms and conditions and the price bids with a proviso that the first two parts, i.e., technical bids and commercial bids shall be opened first and the price bids would be opened only after the technical and commercial matters have been examined and discussed in the light of such clarifications of matters as may be called for by the Respondent No. 22" (Petition para 12). Accordingly in pursuance of its tender notice with revised specifications, the Board received four tenders; one from the petitioner, the other from the respondent No. 4 DCIPS and the third and fourth from M/s. Indure Ltd. and M/s. L.andT. Limited. The board decided to accept the tender of the respondent No. 4, though that of the petitioner was the lowest, because it thought that "the offer of M/s. DCIPS, Calcutta, is technologically more suitable for the system" and further because the "collaboration and collaborator's experience also is superior." (Board's Annxure 5, item No. 10.14). Being aggrieved, the petitioner has approached this Court with its present petition for the said relief.

(3.) It may also be mentioned here that the respondent No. 4 is a subsidiary of the third respondent as admitted by its Manager Legal, Shri Sandip Kumar Ghose by necessary implication in paragraph 5 of his Counter Statement dated 4-10-1991 on solemn affirmation. He also admitted the contents of Annexures A, B and C to the petition to be true. Annexure A is an extract of declaration made to the Union of India by the respondent No. 4 on 24-12-1990, wherein it is mentioned that the respondent No. 3 Development Consultants Limited is holding 100% shares of the respondent No. 4 DCIPS. Annexure B is another declaration made in writing on 3-2-1989 by Shri Sandip Ghosh, Manager Finance of the respondent No. 3. It says that "DC Industrial Plant Services Ltd. is a wholly owned subsidiary of our company" and declares that "We will extend all necessary technical and financial support to our aforesaid wholly owned subsidiary for its achieving projected growth." Annexure C is a document showing that the registered office of the respondent No. 4 is one and the same as that of the respondent No. 3.