Karnataka High Court
Maha Mineral Mining And Benefication ... vs Karnataka Power Corporation Ltd on 21 July, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 04.07.2025
Pronounced on : 21.07.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.15325 OF 2025 (GM - TEN)
C/W
WRIT PETITION No.15274 OF 2025 (GM - TEN)
WRIT PETITION No.15797 OF 2025 (GM - TEN)
IN WRIT PETITION No.15325 OF 2025
BETWEEN:
RUKHMAI INFRASTRUCTURES PVT. LTD.,
HAVING ITS OFFICE AT PLOT NO.163
"SUGANDH" 1ST FLOOR, NEAR LENDRA PARK
RAMDASPETH, NAGPUR - 440 010
THROUTH ITS AUTHORIZED SIGNATORY
MANAGER (CO-ORDINATION)
MR. PRASHANT JAYNARAYAN SHUKLA
REGISTERED UNDER COMPANIES ACT, 1956
... PETITIONER
(BY SRI DHYAN CHINNAPPA, SENIOR ADVOCATE A/W.,
SRI RAKSHITH PAI, AND MS. DEEPA SHRISHA, ADVOCATES)
2
AND:
KARNATAKA POWER CORPORATION LTD.,
COMPANY REGISTERED UNDER
THE COMPANIES ACT, 1956
THROUGH SUPERINTENDING ENGINEER (MINES)
HAVING OFFICE AT NO.82, SHAKTI BHAVAN
3RD FLOOR, RACE COURSE ROAD
BENGALURU - 560 001.
... RESPONDENT
(BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SRI AJAY NANDALIKE, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO WITHDRAW THE TENDER NOTIFICATION DATED 29.04.2025 BEARING NO. KPCL/2024-25/OW/WORK_INDENT 2302/CALL-2 (ANNEXURE -A) AND ETC., IN WRIT PETITION No.15274 OF 2025 BETWEEN:
RUKHMAI INFRASTRUCTURES PVT. LTD., HAVING ITS OFFICE AT PLOT NO. 163 "SUGANDH", 1ST FLOOR, NEAR LENDRA PARK RAMDASPETH, NAGPUR - 440 010 THROUGH ITS AUTHORIZED SIGNATORY MANAGER (CO-ORDINATION) MR. PRASHANTH JAYNARAYAN SHUKLA.
... PETITIONER (BY SRI DHYAN CHINNAPPA, SENIOR ADVOCATE A/W., SRI RAKSHITH PAI, AND MS. DEEPA SHRISHA, ADVOCATES) 3 AND:
THE STATE OF KARNATAKA THROUGH ITS THE PRINCIPAL SECRETARY FINANCE DEPARTMENT GOVERNMENT OF KARNATAKA VIDHANA SOUDHA, BENGALURU - 560 001.
... RESPONDENT (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SRI SPOORTHY HEGDE N., ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECTING RESPONDENTS TO IMMEDIATELY RECONSTITUTE THE STATE PRE-TENDER SCRUTINY COMMITTEE IN ACCORDANCE WITH GOVERNMENT ORDER NO. FD 522 EXP-12/2021, DATED 13.12.2021 (ANNEXURE B) AND ETC., IN WRIT PETITION No.15797 OF 2025 BETWEEN:
MAHA MINERAL MINING AND BENEFICATION PRIVATE LIMITED REPRESENTED BY ITS AUTHORISED SIGNATORY MR. ABHISHEK VERMA HAVING ITS OFFICE AT 7TH FLOOR B-WING, SHRIRAM SHYAM TOWER NEAR NIT, KINGSWAY, NAGPUR - 440 001 ... PETITIONER (BY SRI UDAYA HOLLA, SENIOR ADVOCATE A/W. SRI KASHYAP N.NAIK, ADVOCATE) 4 AND:
KARNATAKA POWER CORPORATION LTD., THROUGH SUPERINTENDING ENGINEER (MINES) HAVING OFFICE AT NO. 82, SHAKTI BHAVAN 3RD FLOOR, RACE COURSE ROAD, BENGALURU - 560 001 ... RESPONDENT (BY SRI K.SHASHIKIRAN SHETTY, ADVOCATE GENERAL A/W., SRI AJAY NANDALIKE, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO HOLD AND DECLARE THAT THE REDUCTION OF EXPERIENCE REQUIREMENT TO 12.37 LAKH MT UNDER CLAUSE 3.2.1(B) OF THE TENDER DOCUMENT IS IN DIRECT VIOLATION OF KW-4 FORMAT WHICH MANDATES MINIMUM EXPERIENCE OF 19.80 LAKH MT (BEING 80 % OF ANNUAL REQUIREMENT) (ANNEXURE B) AND ETC., THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 04.07.2025, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA CAV ORDER The petitioners are before this Court seeking a declaration that certain conditions in the notice inviting tender dated 29-04-2025 are arbitrary and unreasonable.
2. Heard Sri Udaya Holla, learned senior counsel appearing for the petitioner in Writ Petition No.15797 of 2025; Sri Dhyan 5 Chinnappa, learned senior counsel appearing for the petitioners in Writ Petition Nos. 15274 and 15325 of 2025 and Sri K.Shashi Kiran Shetty, learned Advocate General appearing for the respondent.
3. Facts, in brief, germane are as follows: -
On 13-12-2021 the Government of Karnataka has established a Pre-Tender Scrutiny Committee for scrutinizing draft tender documents and estimates of procurement of goods and services including construction work, all to be done prior to publication of the notice inviting tender. On 02-03-2024, the respondent/Karnataka Power Corporation Limited ('the Corporation' for short) issues a notice inviting tender for the purpose of beneficiation (washing) of coal of 24.75 lakh MT per year of raw coal from WCL Collieries and transportation to Raichur Thermal Power Plant by rail route. This is challenged before this Court in Writ Petition No.9298 of 2024 and connected cases. This Court grants an interim order of stay of all further proceedings. during subsistence of the petition, it is said that the learned Advocate General appearing for the Corporation assured that no further 6 proceedings will be taken in respect of the tender. Later, on 19-10-2024, the Corporation cancels the tender. The writ petitions that were challenging the said notice inviting tender were disposed of as having become infructuous on account of cancellation of tender.
4. After the said cancellation, another tender notification is issued on 25-11-2024 for the same purpose. This again comes to be challenged before this Court in Writ Petition No.34794 of 2024 and connected cases. A coordinate Bench of this Court rejects the writ petitions in terms of its order dated 07-04-2025. The said order comes to be challenged before the Division Bench and during the pendency of the writ appeal, the said tender is also withdrawn.
After the said withdrawal, it appears, that a third tender notification is issued for the same purpose on 29-04-2025. It is this that forms the subject matter of challenge in all these cases.
5. The learned senior counsel Sri Udaya Holla appearing for the petitioner in one of the writ petitions taking this Court through the documents appended to the petition would seek to demonstrate 7 that conditions so notified in the tender would virtually make every other tenderer to sit out of the tender and would only make a particular tenderer eligible and is, therefore, arbitrary. It is his submission that experience gained by the petitioners in coal washing in other States will have to be taken note of, as that is the experience one would gain of similar work. The petitioner having all infrastructure is now sought to be non-suited on a particular clause which is, on the face of it, arbitrary.
6. The learned senior counsel Sri Dhyan Chinnappa representing the petitioners in other cases would also allege that the action of the respondent/Corporation suffers from want of bona fides. The Pre-Tender Scrutiny Committee which completed its term is not deliberately extended, so that the respondent/Corporation can at its whim and fancy call for tenders and take those tenders to their logical conclusion, by incorporating clauses that are on the face of them arbitrary. He would toe the lines of the learned senior counsel Sri Udaya Holla on all other aspects.
87. Per contra, the learned Advocate General takes this Court through the earlier orders passed by the coordinate Bench to contend that identical clauses were challenged in the earlier writ petitions, which come to be dismissed. Notwithstanding the fact that the tender being withdrawn, the finding rendered by the coordinate Bench would become applicable to the facts of the case.
The learned Advocate General would submit that clauses in the tender cannot be tailor made for the petitioners. The condition that is imposed is a condition that is now fulfilled by four tenderers. The condition is that they should have experience in coal washing. The experience that the petitioners produced is not a certificate issued by the competent authority or the tender scrutiny committee. It is by the Maharashtra State Mining Corporation and the experience certificate of allotment of coal washing completed or otherwise is not what is found in the said document. He would submit that this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, cannot sit in appeal over the condition of tender, unless it is so arbitrary that there would no option but to quash it.
98. I have given my anxious consideration to the submissions made by the respective learned senior counsel and have perused the material on record.
9. The afore-narrated facts are not in dispute. The dates and link in the chain of events are that, a notice inviting tender is issued by the Corporation on 02-03-2024. The purpose for which the tender is notified is "Beneficiation (Washing) of 24.75 lakh MT per year of raw coal from WCL Collieries and supply of Beneficiated Coal (Washed Coal) to Raichur Thermal Power Station by Rail Route".
This become the subject matter of challenge in Writ Petition No.9298 of 2024 and connected cases. During the subsistence of the petitions, the tender is cancelled. Owing to cancellation of tender, the petitions that raised a challenge to the aforesaid notice inviting tender are disposed of as having become infructuous in the following manner:
"Learned counsel for respondents has filed a memo stating that the Tender Inviting Authority has taken a decision to cancel the tender on 19-10-2024 and the notification is annexed to the memo.
Memo is placed on record.10
In view of the above, the relief sought for in these writ petitions do not survive for consideration. Accordingly, petitions are dismissed as having become infructuous.
It is needless to state that the tender Inviting Authority is at liberty to issue tender notification afresh in accordance with law."
A memo is filed by the respondent/Corporation that the tender so notified is cancelled in terms of an order dated 19-10-2024 and the petitions be dismissed as infructuous. They were disposed of as having become infructuous reserving liberty to issue a fresh tender notification.
10. Accordingly, a fresh tender notification is issued on 25-11-2024. This again becomes the subject matter of challenge in three petitions viz., Writ Petition Nos. 35167 of 2024 and connected cases. A coordinate Bench of this Court rejects the petitions by the following order:
".... .... ....
4.3. The learned counsel for the petitioner in W.P. No. 35279/2024 submitted that the petitioner has one coal washery, of capacity of 2.4 MTPA, located at MIDC Wani, and has executed beneficiation works of around 20 lakhs MTPA of raw coal in the last nine years.
The learned counsels have commonly contended as follows:
11i. The present tender dated 25.11.2024 was invited after canceling the earlier tender from March 2024 for similar works. Unlike the earlier tender, this tender was not uploaded on the Karnataka Public Procurement Portal, stakeholders were not given an opportunity to provide suggestions, and the Pre Tender Scrutiny Committee was not consulted. This process is arbitrary and violates the Government Order (G.O.) dated 13.12.2021.
ii. Shri Arun Kumar, learned counsel, argued that sub-clause (a) of Clause 3.2.1(i), which outlines the technical criteria, requires bidders to directly own, or own through wholly-owned subsidiaries, a single beneficiation plant located in the WCL area with a spare capacity of 1.237 MTPA. This condition contradicts Clause 1.03 of the tender document, which allows the use of leased washeries after the tender is awarded, creating an inconsistency.
iii. Additionally, the learned counsel for the petitioner in W.P. No. 35279/2024 contended in respect of the stipulated quantity requirement that the impugned tender has been issued in violation of clause 6(viii) of the Government Order dated 13.12.2021 as the quantity requirement of beneficiated coal has been increased to only 12.37 MT instead of the recommended 19.80 lakh Mt. Therefore, any deviation from the recommendations of the advisory of Pre-Tender Scrutiny Committee, dated - 25.08.2024, without recording reasons in writing or communicating the same to the committee is arbitrary. Such selective implementation of the recommendations is without justification and designed to favour certain pre-identified entities.
iv. The learned senior counsels further argued that sub-clause (b) of Clause 3.2.1(i), which requires that the tenderer (on its own or through its 12 100% owned subsidiaries) must have executed work involving the lifting or beneficiation of at least 12.37 lakh MTPA of raw coal, unfairly disregards experience gained through legitimate business arrangements. This criterion is unreasonably restrictive and arbitrary. Additionally, as per the KW4 tender format, bidders are required to have handled a minimum quantity of 80% of the estimated tender contract, which is 19.80 lakh MTPA. Any reduction in this quantity requirement, without providing written justification, violates Clause 6(viii) of the G.O. dated 13.12.2021 and is patently unreasonable.
v. Clause 3.2.2 pertains to the financial criteria, and sub-clause (i) requires bidders to have a minimum turnover of INR 123.62 crores in at least two of the last five financial years (2019- 20, 2020-21, 2021-22, 2022-23, and 2023-24).
The learned counsel argued that this requirement is excessively high, constituting 66% of the estimated tender value of INR 185.43 crores. Such a condition is overly restrictive, limiting participation by otherwise eligible operators, and is therefore arbitrary.
vi. The learned counsel also challenged the experience requirements under Clause 3.2.3. Specifically, Note 3 states that only experience gained directly by the bidder through contracts with the utility for which the coal is transported or handled will be considered for pre-
qualification. This requirement disregards the significant experience of the petitioner in similar tender works awarded by the Maharashtra State Mining Corporation Limited, which acts as the nodal agency for Mahagenco's thermal power stations.
vii. The counsels further argued that no power utility in the WCL areas has directly issued tenders for similar works in the past five years, as such 13 contracts have been processed only through nodal agencies. This makes the condition impossible to fulfill and therefore, it is arbitrary and should be quashed.
viii. The learned counsels also challenge Note 4 under Clause 3.2.3, which requires that a bidder's experience as part of a consortium or joint venture will not be considered unless the bidder provides declarations from all consortium members. These declarations must specify the exact scope and value of work completed by the bidder and confirm that the other consortium members will not lay a claim to the same scope and value of work as part of their experience in future tenders. The counsels argue that this requirement is overly restrictive and impractical.
5. In response, Shri Shashikiran Shetty, the learned senior counsel appearing for the respondent's counsel, argued that it is within the exclusive domain of the respondent to set out tender conditions which deem to be appropriate. He made the following submissions:
5.1. The present tender involves multiple tasks, including coordinating with collieries and railways, arranging to lift 2 lakh metric tonnes of coal per month (or more) by road, using tippers, weighing coal on electronic weighbridges to prevent diversion, delivering coal to a specific washery, beneficiating it, transporting it to a railway siding, and ensuring delivery to KPCL's power station by rail.
5.1.2. The learned counsel argued that these tasks require multiple points of contact and close coordination. Allowing multiple service providers could lead to chaos, shortages in coal supply, and power generation disruptions. Past instances of grade slippage further justify the decision to limit participation to single bidders.14
Furthermore, the tender is a single, indivisible contract with four components, and that dividing responsibilities is impractical.
5.1.3. He also stated that KPCL has consistently prohibited joint ventures in similar tenders for coal transportation, and the Kw4 tender format explicitly disallows consortium or joint venture bidders, making the petitioners' contention unsustainable.
5.2. The learned counsel submitted that Clause 1.03 of the tender document has been amended through an addendum, which has removed the clause permitting the leasing of washeries. As such, there is no conflict with the requirement for bidders to own a single beneficiation plant with a 2.475 MTPA capacity. This capacity aligns with the annual supply requirement under the fuel supply agreement.
5.3. The learned counsel clarified that the requirement for bidders to have contracts with utilities does not limit them to the WCL area. It can include subsidiaries of Coal India Limited and SCCL. The clause ensures that bidders have independently executed the exact scope of work required under this tender. Subcontracting experience is excluded to avoid ambiguity about the bidder's actual scope of work and to ensure that bidders can independently complete the tender work without risking coal supply shortfalls to KPCL.
5.3.1. He emphasized that this is a standard business practice and similar tenders have been issued in states like Gujarat, Rajasthan, Andhra Pradesh, and Madhya Pradesh. The reliance on nodal agencies, 15 as argued by the petitioners, is an exception rather than the norm.
5.4. Addressing the challenge to the reduction in minimum work quantity requirements, the learned counsel argued that the reduction to 50% of the estimated tender work (12.37 lakh MTPA) complies with the Government Order dated 19.07.2024, issued pursuant to the Procurement Reforms Standing Committee meeting on 20.05.2014.
5.5. The learned senior counsel defended Note 4, which requires consortium members to declare the scope and value of past work performed individually. This ensures no overlapping claims over the same work are made in future tenders. He clarified that bidders only need to declare the work they wish to count as prior experience for this tender. The requirement does not force consortium members to give up their credentials but ensures a clear assessment of experience and prevents duplicate claims.
5.6. In response to the challenge that the stipulated annual financial turnover of INR 123.62 crores is arbitrarily high, the learned counsel explained that tenders in the KW4 format require bidders to meet specific turnover criteria. As per the Government Order dated 14.10.2008, bidders must have achieved an annual turnover of at least twice the estimated annual payments under the tender contract in the last two of the preceding five years.
5.6.1. In this case, the total estimated value of the tender works is INR 185.43 crores for three years. This amounts to an annual payment of INR 61.81 crores. Accordingly, the minimum financial turnover 16 requirement of INR 123.62 crores is justified and in line with the prescribed criteria.
5.7. Regarding the claim that the draft tender was not uploaded on the Karnataka Public Procurement Portal and was not scrutinized by the State Pre-Tender Scrutiny Committee (SPTSC), the learned counsel clarified that the SPTSC had completed its tenure and was no longer functional. Moreover, tender proposals were exempted from submission to the SPTSC as per the Office Memorandum dated 11.06.2024.
5.7.1. The learned senior counsel concluded by stating that the petitioners have failed to establish any mala fides on the part of respondents. As such, the tender document is valid and should not be interfered with.
Issues:
6. After reviewing the arguments of the learned counsel for the parties, the sole issue that arises for consideration is whether any interference with the impugned tender is warranted by this Court in the exercise of its writ jurisdiction under Article 226 of the Constitution.
Discussion/Analysis:
7. The submissions of the learned counsels recorded above adequately captures the facts of the matter at hand and requires no further elaboration.
8. The respondent-KPCL invited the impugned tender on 25.11.2024 for the beneficiation (washing) of 24.75 lakh MT of raw coal per year from WCL Collieries and its transportation to the Raichur Thermal Power Station by rail. The last date for submitting bids was 24.12.2024, and the technical bids were scheduled to be opened on 26.12.2024. The approximate value of the tender works is INR 185.43 crores, and the contract 17 duration is three years. The tender was invited in the Kw4 format.
9. The respondent had previously invited a similar tender in March 2024, bearing No. A1 M1 B3 /WCL/ - BENEFICIATION (WASHING) of COAL/MARCH 2024/KPCL/2023-24/OW/ WORK/_INDENT1302, dated 02.03.2024. The Pre-Tender Scrutiny Committee recommended, in its advisory dated 25.08.2024, that the experience criteria be increased to bidders who have previously performed similar tender works of up to 19.80 lakh MT, i.e., 80% of the annual requirement of 24.75 lakh MT, in accordance with the KW4 standard. However, the respondent issued the earlier tender without providing any written justification as required under Clause 6(viii) of the Government Order dated 13.12.2021. The earlier tender was subsequently withdrawn, and the present tender was issued on 25.11.2024 after the cancellation of the first tender.
10. The impugned clauses of the tender document are as follows:
Clause 3.2.1(b) The tenderer on its own and/or its subsidiaries (100%) wholly owned by the tenderer) shall have satisfactorily executed the work of lifting and beneficiation of at least 12.37 lakh MT of raw Coal & contract value not less than Rs.30.92 crore, from subsidiaries of Coal India Limited and/or Singareni Collieries Company Limited (SCCL), to any thermal power station in any one (1) financial year during the preceding five (5) financial years (i.e., 2019-
2020, 2020-2021, 2021-2022 and 2022-23, 2023-24) and also the work executed in the last 12 months from the date of NIT shall also be considered.
Note 3 to Clause 3.2.3.
3) Experience in the main contract shall only be considered for satisfying the experience criteria specified in PQR. The contracts should have been bagged from the Utility for whom the Washed Coal is transported/handled and executed by the agency in its own name.
18Note 4 to Clause 3.2.3
4) Experience as Consortium member/Joint Venture shall not be considered for qualifying the experience criteria specified in Pre-Qualification Requirement unless the following conditions are satisfied:
i) The bidder shall obtain a certificate from the Utility clearly indicating the exact scope of work and value of work done by such a bidder and the scope of work and value of work done by Other Members of the Consortium/Joint Venture under the Contract.
ii) The bidder shall also obtain a declaration from Other Members of the Consortium/Joint Venture (if more than one member of the Consortium/Joint Venture, then, from all the members) confirming the exact scope of work done and value of work done in the past by such a bidder and that Other Members of the Consortium/Joint Venture are not claiming the scope of work and the value of work done by the said bidder as part of their own experience certificate in any other Tender in the future.
Challenge to Clause 3.2.1(b)
11. The respondent has filed a statement of objections asserting that the tender document issued complies with the KW-4 Format. The petitioners contend that this Clause violates the KW-4 Standard Tender Terms mandated by the Government. Clause 3.2(c) of the KW-4 Format explicitly stipulates that the minimum quantity of work executed in any given year must not be less than 80% of the annual requirement for such projects. Therefore, 80% of the annual requirement of 24.75 MT under the tender document amounts to 19.80 Lakh MT. However, the impugned Clause requires the tenderer to have satisfactorily executed the work of lifting and beneficiation of at least 12.37 Lakh MT, with a contract value of less than 30.92 Crore, which constitutes about 50% of the annual requirement for the project. This, therefore, violates the KW-4 Standard Tender Terms.
1912. The earlier KW-4 Standard Tender Terms were modified following a Government Order dated 19.07.2014, as per Annexure-R3 to the Statement of Objections. This modification altered Clause 3.2.1(b) of the KW-4 Format, reducing the eligibility criteria for satisfactorily executing the work from 80% of the estimated contract value to 50%. Consequently, the petitioners' contention that Clause 3.2.1(b) violates the KW-4 Standard Tender Terms is without merit.
Challenge to Note 3 of Clause 3.2.3
13. The petitioners contend that the condition is restrictive and has an adverse effect on the elimination of the competition by rendering any valuable experience acquired by the petitioners in carrying out similar tender works and services for various other thermal power station viz. MAHAGENCO TPS, which however contracts with another government entity viz. Maharashtra State Mining Corporation (MSMC) to serve as the nodal agency to facilitate the entire process of coal beneficiation, handling, transportation, etc. to the power stations. The lack of contractual privity between the bidders and the end user utility is essentially an outcome of the policy framework adopted by the government itself by designating government nodal agencies for such projects. Therefore, any stipulation invalidating bona fide experience acquired by tender participants in pursuance thereto, is unfair and reasonable.
14. However, it is settled law that tender inviting authority is the competent authority equipped with proper expertise to appraise the terms and conditions of the invited tender and the bids submitted by the participants. The courts are not empowered to substitute in judicial review the decisions of administrative or tender inviting authorities, when the impugned decisions cut muster with the Wednesbury's principles of reasonableness, and are free from arbitrariness, bias, or mala fides (See, Tata Cellular v. Union of India, (1994) 6 SCC 651).
15. Admittedly, the experience acquired in servicing coal beneficiation and transportation thereof, as by the petitioner in W.P. No. 34794/2024 is in relation to the tenders invited in pursuance of the policy of another state viz. Maharashtra and not by the respondent herein. Therefore, although the 20 petitioners herein may have acquired the technical expertise and financial qualifications, and practical experience of the core nature of work of the tender impugned, the respondent-KPCL cannot be estopped from inviting tenders with conditions negating any experience acquired by the bidders with specialised or nodal agencies, merely on the grounds of conflicting government policies. The respondent-KPCL cannot be mandated to invite tenders in pursuance with the government policy of its neighboring states, particularly, when the impugned change in the tender condition is supported with cogent reasoning.
16. The learned senior counsel for the respondent has submitted that Note 3 was inserted in the tender document with a view to ensure that bidders have independently executed the exact scope of work required under this tender and that any subcontracting experience is excluded so to avoid any ambiguity about the bidder's actual scope of work-experience, and to ensure that bidders can independently complete the tender work without risking a shortfall in the supply of coal to KPCL. Furthermore, the learned counsel emphasised that Note 3 was not an aberrational change in the policy but that has been commonplace in the tenders invited in by the States of Gujarat, Rajasthan, Andhra Pradesh, and Madhya Pradesh.
17. As such, the challenge posed by the petitioners to allegedly restrictive conditions contained in Note 3 of the impugned tender cannot be sustained.
Challenge to Note 4 of Clause 3.2.3
18. The petitioners express concern that a restriction is imposed on consortium members or joint venture partners from claiming the same experience in any future tender. They argue that such a provision is ultra vires and beyond the legitimate scope of the tender conditions. Clause (ii) of Note 4 of the tender document stipulates that members of the consortium or joint venture shall not claim the scope of work and value of the work done by the bidder in the past as part of their own experience certificate in any other tender in the future. However, this Clause does not prevent the members of the consortium or joint venture from claiming the scope of work and value of the work done in their individual capacity in any future 21 tender. It merely precludes them from claiming the work done by the bidder as part of their own experience. Therefore, the petitioners' apprehension is unfounded and without any merit. Such a restriction cannot be deemed to be arbitrary or discriminatory, and cannot be interfered with unless it suffers from gross illegality, irrationality, or procedural irregularity.
19. Furthermore, the petitioners argue that the estimated value of the tender exceeds INR 10 Crores, and therefore, the issuance of the tender document as per the KW-4 Standard Tender Terms lacks authority, as KW-4 is applicable only to procurement involving amounts less than INR 10 Crore. However, the Government Order dated 14.10.2008, annexed to the Statement of Objections at Annexure-R4, modified the earlier Government Order dated 6.8.2005 by stipulating that KW-4 Standard Tender Terms apply to works costing Rs. 10 Crore and above. The modification does not pertain to Clause 4 of the Government Order dated 6.8.2005, as contended by the petitioners.
20. The petitioners further argue that the Pre-Tender Scrutiny Committee had recommended that the tenderer must have satisfactorily executed 90% of the contract value. In accordance with this recommendation, the respondent initially issued a tender document, which was subsequently withdrawn. The present tender document, however, requires the tenderer to have completed 50% of the contract value. The petitioners claim that this deviation, without prior approval from the State Pre Tender Scrutiny Committee, vitiates the entire tender process. However, the official memorandum dated 11.06.2024, issued by the Secretary, Finance Department, Government of Karnataka, and annexed to the Statement of Objections at Annexure-R5, indicates that the term of the State Pre-Tender Scrutiny Committee had expired, and that exemption from submitting proposals to the Committee and uploading the draft tender was granted.
21. It is well-settled law that tender conditions can only be altered or interfered with if they violate statutory provisions, Government guidelines, or are arbitrary, discriminatory, or designed to favour a particular entity. Tender conditions may also be interfered with if they are ambiguous, lack transparency, or are detrimental to public interest, or breach fundamental 22 rights. In the present case, the petitioners have not established any of the above grounds to interfere with the impugned tender conditions. Therefore, the petitions lack merit and ought to be dismissed.
Accordingly, the petitions are dismissed."
(Emphasis supplied) The coordinate Bench analyses the submissions clause by clause and holds that this Court would not sit in appeal over the decision of the Tender Scrutiny Committee or Tender Inviting Authority qua the experience or qualification in the tender.
11. The afore-quoted order is said to have been challenged before the Division Bench by filing a writ appeal, which is yet to be taken up for consideration. During the subsistence of the said writ appeal the said tender also is cancelled. Much is alleged about cancellation of the tender by the petitioners. The justification of the learned Advocate General is that there was only a single tenderer who was found eligible and, therefore, the tender had to be cancelled. The justification of the learned Advocate General becomes acceptable, as emergence of a single tenderer in the technical qualification, cannot become a tender that can be taken to 23 its logical conclusion. Now comes the impugned tender notified on 29-04-2025. Again comes the challenge before this Court in the batch of these petitions. The challenge is to the clauses that had fallen for interpretation at the hands of the coordinate Bench.
Notwithstanding the same, I deem it appropriate to notice the alleged offending clause, which reads as follows:
"3.2.3 For the Technical Criteria and Financial criteria set out in Clause 3.2.1 and 3.2.3 the Bidder should submit the following evidence.
(a) The tenderer should have executed the contracts successfully to the satisfaction of the Utility without any default. The tenderer shall have to submit the experience performance certificate(s) in original in this regard. The experience/performance certificate(s) should reflect minimum quantities as stated above for minimum qualifying criteria.
(b) Tenderers shall have to submit all the statutory clearances/approvals from the respective statutory authorities in their favour for operation of their washery.
(c) The tenderer shall furnish documentary evidence in the form of certificates issued by the General Manager/Chief Engineer/Head of the Company/Electricity Board/KPCL/thermal power station as proof of satisfactorily fulfilling the requirements indicated in 3.2.1 and 3.2.2 above along with the copies of the relevant work orders. In case of certificates issued by any person other than the above authorities, the head of the Company/Utility shall certify 24 that the person issuing certificate is the authorized authority to issue such certificate.
Note: 1. Above mentioned terms and conditions shall be considered in totality and tenders received without supporting documents for complying the above conditions shall be summarily rejected.
2. The tenderer should have executed the contracts successfully to the satisfaction of the Utility without any default. The tenderer shall have to submit the experience/performance certificate(s) in original in this regard. The experience/performance certificate(s) should reflect minimum quantities as stated above for minimum qualifying criteria.
3. Experience in the main contract shall only be considered for satisfying the experience criteria specified in PQR. The contracts should have been bagged from the Utility for whom the washed Coal is transported/handled and executed by the agency in its own name.
4. Experience as consortium member/Joint Venture shall not be considered for qualifying the experience criteria specified in Pre-Qualification Requirement unless the following conditions are satisfied:
(i) The bidder shall obtain a certificate from the Utility clearly indicating the exact scope of work and value of work done by such a bidder and the scope of work and value of work done by Other Members of the Consortium/Joint Venture under the Contract.
(ii) The bidder shall also obtain a declaration from Other Members of the Consortium/Joint Venture (if more than one member of the Consortium/Joint 25 Venture, then, from all the members) confirming the exact scope of work done and value of work done by such a bidder and that the Other Members of the Consortium/Joint Venture are not claiming the scope of work and the value of work done by the said bidder as part of their own experience certificate in any other Tender in the future.
5. KPCL also reserves the right to seek such additional information as it may deem fit to satisfy itself of the eligibility of the Tenderer.
6. The tenderer cannot submit multiple bids."
The bone of contention is that experience in the main contract will only be considered for satisfying the experience specified in the tender. The contract should have been bagged from the utility for whom the washed coal is transported/handled and executed by the agency in its own name which would mean that the experience gained outside will not become applicable. Heavy reliance is placed by the learned senior counsel to the experience gained on coal washing in terms of a communication dated 18-12-2024 issued by the Maharashtra State Mining Corporation. The communication reads as follows:
26"TO WHOMSOEVER IT MAY CONCERN EXPERIENCE/PERFORMANCE CERTIFICATE This is to certify that, Maharashtra State Mining Corporation Limited (MSMC) has published a Tender bearing specification in No. MSMC/MINING/2019/07 for the work of lifting and beneficiation of RoM coal and supply of beneficiated coal to Chandrapur, Koradi, Khaperkheda, Nasik, Bhusawal, Parli & Paras TPSs of MAHAGENCO, MSME has awarded the work to 'M/s. Hind Maha Mineral LLP' a Joint Venture Consortium vide Letter of Intent bearing No. MSMC/MAHAGENCO/2019/835 dated 05-11-2019 and executed a Contract Agreement with M/s. Hind Maha Mineral LLP (HMMLLP) on dated 17-12-2020. As per the records submitted by M/s. HMMLLP, the details of Consortium Members of M/s. Hind Maha Mineral LLP are as follows:
(a) M/s. Hind Energy and Coal Beneficiation (India) Ltd. (HECBIL) - 51% share;
(b) M/s. Maha Mineral Mining &Beneficiation Pvt.
Ltd. (MMMBPL) - 45% share;
(c) M/s. Clean Coal Enterprises Pvt. Ltd. (CCEPL) -
04% share.
That the scope of work distribution amongst the Joint Venture/Consortium Members has been defined under Clause 3.2 of the Joint Venture Agreement of M/s. HMMLLP dated 02-12-2019 which provides that Hind Energy and Coal Beneficiation (India) Ltd. (HECBIL); Clean Coal Enterprises Pvt. Ltd. (CCEPL) and/or any entity forming a part of the HECB Group shall be responsible to carry out the Project works at areas at/under South Eastern Coalfields Limited "SECL") AND Mahanadi Coalfields Limited ("MCL"). Whereas, it shall be MMMBPL's responsibility to carry out the Project works at areas at/under Western Coalfields Limited ("WCL").
That M/s. Hind Energy & Coal Beneficiation (India) Limited being 51% Joint Venture/Consortium Member has executed the contracted work of lifting and beneficiation of RoM coal and supply of beneficiated coal to Chandrapur, Koradi, Khaperkheda, Nasik, Bhusawal, Parli & Paras TPSs of 27 MAHAGENCO from South Eastern Coalfields Limited ("SECL") area from March-2021 to March-2024 for the below mentioned quantity and value.
(a) Quantity of RoM Coal Lifted: 38,06,979.90 M.T.
(b) Quantity of RoM Coal washed: 30,04,359.64 MT
(c) Quantity of washed coal supplied to Mahagenco TPSs :
29,47,782.25 M.T.
(d) Approximate value of the work executed: ₹183.94 Crores.
That 'M/s Maha Mineral Mining & Beneficiation Private Limited' being 45% joint venture/Consortium member has executed the contracted work of lifting and beneficiation of RoM coal and supply of beneficiated coal to Chandrapur, Koradi, Khaperkheda, Nasik, Bhusawal, Parli & Paras TPSs of MAHAGENCO from Western Coalfields Limited ("WCL") area from March-2021 to March-2024 for the below mentioned quantity and value:
(a) Quantity of RoM Coal Lifted: 1,44,38,349.32 M.T.
(b) Quantity of RoM Coal washed: 1,21,76,240.53 MT
(c) Quantity of washed coal supplied to Mahagenco TPSs :1,19,11,726.63 M.T.
(d) Approximate value of the work executed: ₹474.29 Crores.
That M/s Clean Coal Enterprises Private Limited being 4% joint venture/Consortium Member has executed the contracted work of lifting and beneficiation of RoM coal and supply of beneficiated coal to Chandrapur, Koradi, Khaperkheda, Nasik, Bhusawal, Parli & Paras TPSs of MAHAGENCO from Mahanadi Coalfields Limited ("MCL") area from March-2021 to March-2024 for the below mentioned quantity and value.
(a) Quantity of RoM Coal Lifted: 9,14,387.58 M.T.
(b) Quantity of RoM Coal washed: 6,37,882.01 MT
(c) Quantity of washed coal supplied to Mahagenco TPSs:
6,10,129.48 M.T.
(d) Approximate value of the work executed: ₹29.09 Crores.
The certificate is issued on the specific request of M/s HMMLLP for tender participation Sd/- (VILAS V.JOGI) 28 General Manager (Operations) M.S.M.C.Ltd., Nagpur."
The said document would ostensibly does not indicate completion of work or to whom the work is entrusted. Be that as it may, if the Tender Inviting Authority is wanting a particular experience for the purpose of coal washing, this Court would not sit in the arm chair of the said Tender Inviting Authority and direct the Tender Inviting Authority to include it as an experience gained. It is for the Tender Inviting Authority to impose all conditions that are necessary for the work to be completed. As rightly pointed by the learned Advocate General the present conditions were identical to the conditions that were found in the tender which was the subject matter of writ petitions in W.P.No.35167 of 2024 and connected cases. It is trite law that this Court should be loathe in interfering with contracts and tender, unless this Court finds the action is arbitrary.
12. The Apex Court in the case of MICHIGAN RUBBER (INDIA) LIMITED v. STATE OF KARNATAKA1, has held as follows:
1(2012) 8 SCC 216 29 ".... .... ....
23. From the above decisions, the following principles emerge:
(a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play.
These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;
(b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited;
(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted;
(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can 30 claim a fundamental right to carry on business with the Government.
24. Therefore, a court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"?
and
(ii) Whether the public interest is affected?
If the answers to the above questions are in the negative, then there should be no interference under Article 226."
(Emphasis supplied) Later, the Apex Court in the case of AFCONS INFRASTRUCTURE LIMITED v. NAGPUR METRO RAIL CORPORATION LIMITED2 has held as follows:
".... .... ....
11. Recently, in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium) [Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 : (2016) 4 SCC (Civ) 106 : (2016) 8 Scale 99] it was held by this Court, relying on a host of decisions that the decision-making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision-making process is mala fide or is intended to favour someone. Similarly, the decision should not 2 (2016) 16 SCC 818 31 be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us.
12. In Dwarkadas Marfatia and Sons v. Port of Bombay [Dwarkadas Marfatia and Sons v. Port of Bombay, (1989) 3 SCC 293] it was held that the constitutional courts are concerned with the decision-making process. Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651] went a step further and held that a decision if challenged (the decision having been arrived at through a valid process), the constitutional courts can interfere if the decision is perverse. However, the constitutional courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute its view for that of the administrative authority. This was confirmed in Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517] as mentioned in Central Coalfields [Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622 : (2016) 4 SCC (Civ) 106 : (2016) 8 Scale 99] .
13. In other words, a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision.
... .... ....
15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the 32 tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given."
(Emphasis supplied) Again, the Apex Court in the case of N.G.PROJECTS LIMITED v.
VINOD KUMAR JAIN3, has held as follows:
".... .... ....
22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e. not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was mala fide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.
23. In view of the above judgments of this Court, the writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts 3 (2022) 6 SCC 127 33 involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present day Governments are expected to work.
... ... ...
26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone."
(Emphasis supplied) It is further germane to notice a judgment rendered by a learned single Judge of the High Court of Rajasthan in identical circumstances; identical circumstance would be tender for coal washing. The High Court of Rajasthan in the case of 34 CHHATISGARH POWER & COAL BENEFICIATION LIMITED V. STATE OF RAJASTHAN4, holds as follows:
".... .... ....
57. On the touch stone of the observation made by the Supreme Court, one has to find whether three conditions assailed and defended forming part of the Notice Inviting Tender, depict any mala fide intention on the part of the respondents 'RVUN' or they have been included to ensure better working of the Thermal Plant. The court has to ponder whether conditions severely criticized and zealously defended have been included in the Notice Inviting Tender (Annexure-17) to favour someone or not. This Court has also to find whether the three conditions assailed are irrational and arbitrary and have been introduced only for some ulterior purpose; and Whether the three conditions which have been made subject matter of the writ petition are within the bounds of reasonableness or have been incorporated to promote monopoly or cartel.
58. The first condition, that a bidder should own beneficiation Plant/Washery (Wet Technology) of 2 million tonnes capacity per annum and if bid is made by consortium with a maximum of two numbers than the leader of the consortium itself should fulfill technical qualification mentioned in clause (ii) of 1.7.1, is justifiable or not?
59. A thoughtful consideration has been extended to the rival submissions advanced by the learned counsel for the parties. The respondents to unveil their decision making process have relied upon Annexure-R/2, minutes of meeting of the Committee held on 5th - 6th, May, 2016. The Committee consisted of six senior most officers of 'RVUN' who are experts in their field. They considered threadbare submissions made by the prospective bidders in a pre-bid meeting held to examine eligibility criteria. The Committee was concerned with the scope of the tender. The experts of the respondents 'RVUN', in the various meetings held in order to prescribe eligibility criteria, were swayed by the fact that the scope of work under the 4 2016 SCC OnLine Raj 6563 35 tender covers washing/beneficiation of 2 Lac MT per month of Raw Coal and supply thereof by the Washeries. Thus, taking into consideration per month requirement, the Committee prescribed that the bidders should have own beneficiation Plant/Washery (Wet Technology) of minimum 2 MT of capacity. The members of the Committee laid specific condition that the leader of the consortium alone, itself should fulfill technical qualification for the reason that earlier attempt made by Gujarat State Electricity Corporation to include the capacity of members of the consortium had not paid the dividends. The experts constituted a team of two responsible officers and said officers visited the Gujarat State Electricity Corporation at Vadodara and Punjab State Power Corporation Limited (PSPCL). The engineers informed the Committee that the Gujarat State Electricity Corporation, Vadodara had to terminate the contract and encash bank guarantee of Rs. 3.43 crores and no work was carried against the order given to a consortium. The Committee to lay the eligibility criteria for determination of capability and capacity took two main factors i.e. duration of the contract mentioned in the document inviting tender and past experience of the bidder. As per the Committee, the period of contract for which the instant tender was to be floated was for five years. Thus, relying upon the past experience, the Committee came to conclusion that for such a long period members of the consortium may not be able to keep its commitment and thus, according to the Committee, it was advised that the leader of the consortium alone should have the required capacity. The stand of the Committee cannot be termed unreasonable or illogical. The members of the consortium can pool their resources, infrastructure, equipment, experience and man power for supply of coal, but so far capacity and capability is concerned, same should be of the leader of the consortium alone, because same is commensurate to the requirement of the Chhabra Thermal Power Plant. Scope of the contract as described in Notice Inviting Tender (Annexure-17) specifically state in clause 2.1.1 that requirement of Chhabra Thermal Power Plant is 2 Lac MT.
60. Mr. Gopal Subramanium, the learned Senior Counsel appearing for the respondents, during the course of arguments had laid much emphasis on the inputs received from the officers of RVUN to come to the conclusion that leader alone should have required capacity to serve the needs of the Thermal Plant. It was disclosed to the court that experts have observed that 36 where tender is of long duration, members of the consortium create their own individual contractual obligations and therefore, they are unable to bind themselves to the bid made by the consortium and the leader alone is left to fend for himself.
61. The above arguments advanced by Mr. Gopal Subramanium cannot be discarded by this Court, as it has been specifically said that first condition assailed was prescribed only to ensure continuous uninterrupted supply of coal to Thermal Plant for long period of five years i.e. duration of the contract. Courts have neither expertise nor technical experience to reject the argument advanced by counsel for the respondents. To fortify the submission that leader of consortium should alone have the capacity and capability, example of Gujarat State Electricity Corporation has been pressed into service to say that where member of consortium were made jointly and severally liable that arrangement had not proved workable. Example of Gujarat State Electricity Corporation relied is sufficient for this Court to lend credence to the argument raised by the learned counsel for the respondent.
62. The condition to determine capacity and capability of the bidder cannot be appraised by this Court. The view formulated by experts of RVUN cannot be termed arbitrary or illogical. The view on basis of experience of officers can be termed reasonable and merely because another view, which court may suppose to be better cannot be insisted upon by the court while exercising powers of judicial review in the matters of contract. Hence, the condition no. (i) that bidder should have a capacity of minimum 2 million tonnes and the same should alone be the capacity and capability of the leader of consortium, is upheld by this Court. The example of conditions imposed in Notice Inviting Tender for year 2010-2011 shall also pale into insignificance, as neither petitioner nor respondent have brought to the notice of this Court that Chhabra Thermal Power Plant has increased its capacity to generate power in last five years. A perusal of Wikipedia on internet reveal that at stage 1, in October, 2009 installed capacity was 250 Megawatt. Another 250 Megawatt was added in May 2010, another addition of 250 Megawatt was made in December, 2013 followed by further increase of capacity of 250 Megawatt in July, 2014. Proposed addition of 660 × 2 Megawatt is likely to commence in year 2016. Multiple increase in capacity to generate power and 37 introduction of energy saving technologies in changing times can be no ground to tie the respondents with tender floated in the past.
63. Tender floated in year 2010 - 2011 cannot be relied to bind respondents with their past requirement. Not only capacity of the plant of respondents to generate electricity has increased or will increase in future, but technology to wash coal by advent of time has also changed. Energy saving devices and technologies in past five years have also been introduced. Wet technology was introduced to reduce fly ash. Railways also kept pace with time and changed itself to accord priority to freight to be transported. Priority 'A', 'B' and 'C' assigned to goods has been mentioned in earlier part of the judgment. Respondents cannot be asked by the court to remain static and not introduce dynamic approach with change of times.
64. Counter argument that this condition has been introduced for the reason that the petitioner and other members who are having less capacity shall be ousted to make bid and it shall deny fair competition at best is another view, but this Court cannot lower the bench mark prescribed for successful operation of Thermal Plant to make petitioner eligible to meet qualifying criteria. It is for the petitioner to raise their capacity and capability by striving high then to say lower the bench mark to make petitioner company eligible. That in itself will be unreasonable.
65. Having found no infirmity in the condition no. (i), the court has to consider the condition no. (ii) introduced regarding experience of the bidder, demanding that bidder should have washed at least 1.2 million tonnes of Raw Coal per annum or 1.0 lac MT per month at least one year during last three years for Govt. Power House (s)/NTPC or State Power Utilities or reputed private power utilities, insisting further that out of the experience of washing 1.0 lac MT per month, a minimum of 50,000 MT per month should be for Govt. Power House
(s)/NTPC or State Power Utilities.
66. This Court cannot ignore the deliberations of the Committee of experts of the respondents. The Committee considered Notice Inviting Tenders floated by Punjab State Power Corporation Limited (PSPCL) on 38 4.12.2014 for beneficiation of 0.60 Lac MT and also tender floated by Madhya Pradesh Power Generation Corporation. Madhya Pradesh Power Generation Corporation had floated tender for beneficiation of 49.9 Lac MT Raw Coal. They had inserted a condition that a bidder should have executed work for any State Electricity Board or its Generation companies/NTPC or reputed private power utilities, State or Central undertakings. The Committee noted that in case of Madhya Pradesh Power Generation required experience was of three years, whereas experience required by the respondent 'RVUN' was for one year only. The Committee came to conclusion that the condition laid in the tender floated by 'RVUN' is liberal. As per the Committee, the condition qua experience that the bidder should have supplied requisite minimum quantity to the Government Power House(s)/NTPC or State Power Utilities was introduced because of long duration of contract of five years.
67. The respondents have taken a stand that experience requirement was introduced with the object of providing assurance of proper continuous delivery of the requisite amount of coal. According to the respondents, it is utmost important that bidder who is allotted tender is able to supply requisite amount of coal throughout the period of contract, as the contract for supply of coal to private power utilities in most of cases is for short term.
68. This Court cannot discount the argument that the contract to Government Power Utilities is always for a long duration, hence, supply to private power utilities cannot be a yardstick to lay the criteria. It has not been specifically denied by the petitioner that contract entered with the private sectors are not for a short term duration. It is the stand of the respondents that experience of supply to Government Power Utility provide the requisite assurance regarding the ability of the bidder to fulfill the term of the tender throughout the duration of five years.
69. Since regarding the incorporation of above condition, counsel were at variance qua its interpretation, Mr. Kajod Lal 39 Meena, Additional Chief Engineer (Fuel), Rajasthan Rajya Vidyut Utpadan Nigam Ltd., Jaipur filed an affidavit dated 16.9.2016 along with written submissions to clarify the stand of the respondents. In Para-10 of the additional affidavit, Mr. Kajod Lal Meena has stated as under:-
"That the clause in effect implies that a bidder should have supplied 1.2 Million MT per annum or 1 lakh MT per month for one year out of the previous three years. Out of the said requirement, the experience of supplying to reputed private power utilities shall be limited to 50,000 MT per month for evaluation purposes while the experience for supplying to government power houses/NTPC/State power utilities shall be minimum 50,000 MT per month. When the experience is calculated on per annum basis, it shall be averaged for calculation on monthly basis and therefore out of 1.2 million MT per annum, at least 6 lakh has to be supplied to Govt. Power House (s)/NTPC or State Power Utilities, while the remaining may be aggregated by taking into account the supplies made to reputed private power entities."
70. Taking totality of circumstances, it cannot be said that the condition regarding experience was introduced to oust a particular bidder.
71. So far third condition that the bidder should have own private railway siding, or railway siding should be approved for coal dispatch with 'C'-Priority, is concerned, no fault can be found with the same also.
72. This Court perused the copy of Preferential Traffic Order, General Order No. 89 (For Allotment of Wagons) issued by the Railway Board, which has been placed on record.
73. In the said order, accepting authority for grant of Priority-'C' has been defined. For extending Priority-C, certain conditions have been specified. One of the condition as per general instructions, qualifying for grant of Priority-C is that Washery or goods shed should have siding workable round the clock. Since Priority-C is assigned to a Washery, who is having its own siding, the condition has been introduced by the respondents to ensure and promote timely delivery of coal so that the work of the Thermal Plant because of delay is not 40 affected. It has been rightly said that a bidder should own a railway siding with railways approval then only it is granted Priority-C by the Railways for quick movement of wagons filled with coal to the destination. Thus, this Court is in agreement with learned counsel for the respondents that the condition no.
(iii) has been specified not to oust the petitioner but to ensure quick timely uninterrupted supply of coal necessary for working of a Thermal Plant."
(Emphasis supplied)
13. In the light of the facts narrated hereinabove and the order passed by the coordinate Bench, as also the judgments rendered by the Apex Court supra, the petitions that call in question the notice inviting tender would undoubtedly tumble down.
14. Insofar as additional challenge to the act of the respondent in not placing it before the Pre-Tender Scrutiny Committee is concerned, it is to be noticed that the Committee is no longer in existence. It had completed its term in terms of the Notification of its appointment and it appears that Government of Karnataka has issued an order on 11-06-2024 exempting submission of proposals to the Committee, as the Committee was not in existence at all. Merely because the term of the Committee is not extended, it does not make the notice inviting tender illegal.
41Again, this Court would not scrutinize every aspect of tender to hold that it is made to suit a particular tenderer. The petitioners cannot make a hue and cry, time and again, calling in question the tenders before this Court. I am in respectful agreement with the reasons so rendered by the coordinate Bench in rejecting the identical challenge to the very clauses of tender in the earlier petitions.
While it is besides the point that the Corporation has withdrawn the tender, the withdrawal of the tender would not take away the findings rendered in the challenge to the very same clauses between the very same parties.
15. The learned senior counsel for the petitioners have placed reliance upon several judgments rendered by this Court and that of the Apex Court all, of which would not become applicable to the facts obtaining in the case at hand, as interference at the hands of this Court in those cases was on peculiar facts obtaining therein or the Apex Court rendering those judgments all of which bear consideration in the subsequent judgments quoted supra.
4216. Finding no merit in these petitions, the petitions stand rejected.
Pending applications, if any, also stand disposed.
Sd/-
(M.NAGAPRASANNA) JUDGE Bkp CT:SS