Madras High Court
Overseas Infrastructure Alliance ... vs The Rural Electrification Corporation ... on 27 April, 2023
Author: D.Bharatha Chakravarthy
Bench: T.Raja, D.Bharatha Chakravarthy
W.P.No.13806 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.04.2023
CORAM :
THE HON'BLE MR.T.RAJA, ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.13806 of 2023
Overseas Infrastructure Alliance (India) Pvt. Ltd.,
rep. by its Authorized Representative
Vinod Chaturvedi,
501, OIA House,
470, Cardina Gracious Road,
Andheri East, Mumbai-400 069. .. Petitioner
Vs
1.The Rural Electrification Corporation Limited,
rep. by its Chairman cum Managing Director,
Plot No.I-4, Section 29,
Near IFFCO Chowk Metro Station,
Gurugram,
Haryana – 122 001.
2.The Chairman,
Tamil Nadu Generation and Distribution
Corporation Limited (TANGEDCO),
10th Floor, 144, Anna Salai,
Chennai – 600 002.
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W.P.No.13806 of 2023
3.O/o. The Chief Engineer/IT & RAPDRP/TANGEDCO,
6th Floor, Western Wing,
NPKRR Maaligai,
Anna Salai, Chennai,
Tamil Nadu – 600 002.
4.The Director/Distribution,
TANGEDCO,
144, Anna Salai,
Chennai – 600 002. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India
seeking issuance of a writ of certiorarified mandamus calling for the
records pertaining to the Notice Inviting Tender in NIT/RFB
No.CE/IT&RAPDRP No.09/2022-23 floated by the third respondent
dated 19.01.2023 and its Corrigendum dated 13.04.2023 and the
Lr.No: CE/IT&RAPDRP/SE/RDSS/EE1 RDSS/F. NIT/D No.15/23 dated
11.04.2023 issued by the fourth respondent preponing the tender bid
submission date and opening date and to quash the eligibility and
qualification requirements imposed in clause 2 of Section 2A and
clause 3.8.5 of section 2B in NIT/RFB No.CE/IT&RAPDRP No.09/2022-
23 dated 19.01.2023 which prescribes that work experience of the
bidders shall be considered only if the works have been executed in
India, and to quash the rejection of pre-bid queries for modification of
the experience clause raised in Sl.No.12 of the corrigendum dated
13.04.2023 holding the tender specification good, and to quash the
preponement of tender bid submission date and opening date as
arbitrary, irrational, unfair, and unreasonable and consequentially
direct the third respondent to modify the experience clause allowing
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W.P.No.13806 of 2023
the participation of petitioner and similarly placed tenderers with
outside India work experience satisfying all other eligibility criteria
based upon the representation dated 30.01.2023, 02.02.2023 and
13.02.2023 and to reschedule the bid submission – n7 and opening
date accordingly.
For the Petitioner : Mr.K.Sukumaran
for Mr.S.Senthil
For the Respondents : Mr.D.R.Arunkumar
Standing Counsel
for respondents 2 to 4
ORDER
(Order of the court was made by the Hon'ble Acting Chief Justice) Overseas Infrastructure Alliance (India) Private Limited, represented by its Authorised Representative, Vinod Chaturvedi, has filed this writ petition seeking issuance of a writ of certiorarified mandamus calling for the records pertaining to the Notice Inviting Tender in NIT/RFB No.CE/IT&RAPDRP No.09/2022-23 floated by the third respondent dated 19.01.2023 and its Corrigendum dated 13.04.2023 and the Lr.No: CE/IT&RAPDRP/SE/RDSS/EE1 RDSS/F. NIT/D No.15/23 dated 11.04.2023 issued by the fourth respondent preponing the tender bid submission date and opening date and to __________ Page 3 of 10 https://www.mhc.tn.gov.in/judis W.P.No.13806 of 2023 quash the eligibility and qualification requirements imposed in Clause 2 of Section 2A and Clause 3.8.5 of Section 2B in NIT/RFB No.CE/IT&RAPDRP No.09/2022-23 dated 19.01.2023 which prescribes that work experience of the bidders shall be considered only if the works have been executed in India, and to quash the rejection of pre-bid queries for modification of the experience clause raised in Sl.No.12 of the corrigendum dated 13.04.2023 holding the tender specification good, and to quash the preponement of tender bid submission date and opening date as arbitrary, irrational, unfair, and unreasonable and consequentially direct the third respondent to modify the experience clause allowing the participation of petitioner and similarly placed tenderers with outside India work experience satisfying all other eligibility criteria based upon the representation dated 30.01.2023, 02.02.2023 and 13.02.2023 and to reschedule the bid submission–n7 and opening date accordingly.
2. Mr.K.Sukumaran, learned counsel appearing on behalf of the petitioner, would submit that the petitioner company, which was previously known as “Soubhagya Finance Private Limited” was __________ Page 4 of 10 https://www.mhc.tn.gov.in/judis W.P.No.13806 of 2023 incorporated and registered under the Companies Act, 1956 as No.11-52900 of 1989 on 4.8.1989 before the Registrar of Companies, Maharashtra, and subsequently a fresh certificate of incorporation on change of name to “Overseas Infrastructure Alliance (India) Private Limited” was issued on 3.3.2004 by the Deputy Registrar of Companies, Maharashtra, Mumbai.
3. Learned counsel for the petitioner further submitted that the third respondent floated an e-tender on 19.1.2023 inviting bids for “Development of Distribution Infrastructure for loss reduction in Tiruvallur, Kanchipuram and Chengalpattu Districts in Tamil Nadu under Revamp Reforms-based and Results-linked, Distribution Sector Scheme vide NIT/RFB No.CE/IT&RAPDRP No.09/2022-23” and the tender conditions in respect of all the 15 packages of work are identical. The petitioner is aggrieved by Clause 2 of Section 2A and Clause 3.8.5 of Section 2B of the Eligibility and Qualification Requirements, by which the experience clause was restricted based upon territory. In Clause (2), it was specified that the works should have been executed during the past seven years in India and in __________ Page 5 of 10 https://www.mhc.tn.gov.in/judis W.P.No.13806 of 2023 Clause 3.8.5 it has been stated the “work experiences of the bidder as per above shall be considered only if the works have been executed under Government/ Semi-Government/autonomous body of Central/State Government/Electricity Power Utility/Power Department in India only.” According to learned counsel for the petitioner, by imposing such a restrictive clause in the tender conditions, the prospective bidders who have undertaken huge works abroad and gained experience in undertaking similar works are disqualified from participating. It is further submitted that such tender conditions are anathema to Articles 14 and 19(1)(g) of the Constitution of India.
4. Mr.D.R.Arunkumar, learned counsel taking notice on behalf of the respondents, submitted that the 28.4.2023 (tomorrow) is the last date for submission of the bids. He further submitted that the tender conditions specifically indicate that the prospective bidders should have executed the works previously in India and not abroad and, therefore, the petitioner having acquired the experience from abroad cannot be allowed to participate in the bidding process. __________ Page 6 of 10 https://www.mhc.tn.gov.in/judis W.P.No.13806 of 2023
5. Learned counsel for the respondents, however, submitted that if the petitioner has gained experience abroad in executing works which are equivalent to the one stipulated for companies which executed the works in India, the petitioner can also participate.
6. After hearing learned counsel on either side, we find merit in the submission made by learned counsel for the petitioner. The petitioner has produced sufficient material to prove that he has undertaken various works abroad and has rich experience in the same works for which tender has been floated by the respondents. If that be so, non consideration of the case of the petitioner solely on the ground that they have not executed the work in India has no rational basis and, in our considered opinion, the same runs contrary to the mandate of Articles 14 and 19(1)(g) of the Constitution of India. If one of the Indian companies, like the petitioner in the case on hand, has executed substantial work abroad and has gained rich experience there, it is not known why __________ Page 7 of 10 https://www.mhc.tn.gov.in/judis W.P.No.13806 of 2023 such experience cannot be reckoned in India for consideration of its bids for execution of the works. Of late, many Indian companies are executing works abroad and if the same yardstick, as indicated in the impugned tender conditions, is adopted by the foreign nations, then there will be no growth in our economy.
For the foregoing reasons, the writ petition is allowed and the respondents are directed to permit the petitioner to submit his bid. It is made clear that this order shall be applicable in respect of all the 15 packages of works. There will be no order as to costs. Consequently, W.M.P.Nos.13472 and 13473 of 2023 are closed.
(T.R., ACJ.) (D.B.C., J.)
27.04.2023
Note to Registry:
Issue order copy today (27.4.2023)
Index : No
Neutral Citation : No
sasi
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W.P.No.13806 of 2023
To:
1.The Chairman,
Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 10 Floor, 144, Anna Salai, th Chennai – 600 002.
2.The Chief Engineer/IT & RAPDRP/TANGEDCO, 6th Floor, Western Wing, NPKRR Maaligai, Anna Salai, Chennai, Tamil Nadu – 600 002.
3.The Director/Distribution, TANGEDCO, 144, Anna Salai, Chennai – 600 002.
__________ Page 9 of 10 https://www.mhc.tn.gov.in/judis W.P.No.13806 of 2023 THE HON'BLE ACTING CHIEF JUSTICE AND D.BHARATHA CHAKRAVARTHY, J.
(sasi) W.P.No.13806 of 2023 27.04.2023 __________ Page 10 of 10 https://www.mhc.tn.gov.in/judis