Chattisgarh High Court
M/S Rajesh Kumar Agrawal vs N.T.P.C. Limited on 12 December, 2022
Author: Arup Kumar Goswami
Bench: Arup Kumar Goswami
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPC No. 5476 of 2022
M/s Rajesh Kumar Agrawal A Partnership Firm Duly Registered Under The
Partnership Act, 1932- Through Its Partner Rishabh Agrawal S/o Late Shri
Rajesh Kumar Agrawal, Aged About 30 Years, R/o T.I.T. Colony Kharsiya,
District : Raigarh, Chhattisgarh
---- Petitioner
Versus
1. N.T.P.C. Limited Through Its Chief Managing Director, Ntpc Bhawan,
Scope Complex, 7 Institutional Area, Lodhi Road, New Delhi- 110003.
2. N.T.P.C. Limited Through Its Senior Manager (C And M) / Agm (C And
M) Coal Mining Headquarter, Ntpc Limited Ginni Plaza, Opposite
Chutia Police Station, District Ranchi (Jharkhand) 834001.
3. N.T.P.C. Limited Through Its Chief General Manager Talaipali
Gharghoda, Tahsil Gharghoda, District : Raigarh, Chhattisgarh
4. Tirupati Road Carriers Through Its Proprietor / Owner Mr. Rajat
Agrawal, Jindal - Urdana Bypass Road, Raigarh, Chhattisgarh
496001.
---- Respondents
(Cause-title taken from Case Information System) For Petitioner : Mr. Sourabh Sharma, Advocate. For Respondents No. 1 to 3 : Mr. Anand Shukla, Advocate.
Hon'ble Shri Arup Kumar Goswami, Chief Justice Hon'ble Shri Arvind Singh Chandel, Judge Order on Board Per Arup Kumar Goswami, Chief Justice 12.12.2022 Heard Mr. Sourabh Sharma, learned counsel for the petitioner. Also heard Mr. Anand Shukla, learned counsel, appearing for respondents No. 1 to 3.
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2. The petitioner, which is a registered partnership firm, had responded to a Notice Inviting Tender (NIT) No.NTPC/SSC-Coal Mining (Ranchi/ 9900248494), inviting tenders for loading of coal onto wagons and associated work as wharf wall / railway siding loading point of TLCMP, Raigarh. C.G.
3. Qualifying requirements is spelt out in Annexure-1 at Clause 1.0. The technical criteria reads as follows:
"1.0 Technical Criteria:
The bidder must have experience of having successfully executed work of similar nature (Loading or Loading & Transportation of coal/overburden/rock/any other mineral) during last seven (07) years as on date of Techno-Commercial bid opening with either of the following:
(I) Single order of value not less than Rs.878 Lakhs, or
(ii) Two orders of value not less than Rs.549 Lakhs, or
(iii) Three orders of value not less than Rs.439 Lakhs each.
Note:-
1. The word "executed" means the bidder should have achieved the criteria including the value as mentioned in the above QR within the preceding seven (7) years as on date of Techno Commercial bid opening 3 period even if the contract has been started earlier and/or is not completed/closed.
2. Word "Loading" means loading of coal/overburden/ rock/any other mineral by mechanical means only onto wagons/trippers.
3. The reference works executed by the bidder's group company / subsidiary company shall not be considered for meeting the qualifying requirement by the bidder.
4. Reference work executed by a bidder as a sub-
contractor may also be considered provided the certificate issued by a main contractor is duly certified by Project Authority specifying the scope and value of work executed by the sub-contractor in support of qualifying requirements.
5. Necessary documentary evidence including client certificate in support of execution of the work to be submitted along with Techno - Commercial bid."
4. The technical bid was opened on 18.11.2022 and it is an admitted position that the financial bid was also opened on that very same date i.e. 18.11.2022.
5. At the outset, Mr. Anand Shukla, learned counsel, appearing for respondents No. 1 to 3 submits that Letter of Intent (for short, LoI) was 4 issued in favour of respondent No. 4 on 19.11.2022 and the Service Purchase Order had been issued to respondent No. 4 on 23.11.2022.
6. The present writ petition was filed on 23.11.2022. However, neither the LoI nor Service Purchase Order have been assailed in the present petition.
7. By an e-mail dated 08.11.2022, it was communicated to the petitioner that its bid was rejected stating as follows :
"All the submitted reference works either are of building works or of road works. There is no component of "Loading of Loading & Transportation of coal/ overburden/ rock/ any other mineral" in all the submitted reference works."
8. Subsequently, the petitioner responded on 08.11.2022 to the said e-mail communicating grounds of rejection as follows:
"Dear Sir, In Roadworks there are items of Subgrade, hard morrum sholder, GSB, WMM and Metal Stone which all are limestone and limestone is a mineral. In road which all these items are loaded and unloaded at the respective site. For all the limestone used in the road work, royalty is being paid to the government and as far as our knowledge anything for which royalty is paid to the government is considered as mineral. So kindly resolve the matter as soon as possible." 5
9. Mr. Sourabh Sharma submits that the nature of work completed by the petitioner pertains to supply of materials for construction of Lemaru - Badgaon Raod, as well as Hati-Kharsiay-Dabhra-Chandrapur road, and in this connection he has drawn our attention to the tabular chart at page 66 of the writ petition. He contends that the amount indicated therein goes to show that the petitioner fulfills the eligibility criteria of two years of value not less than Rs. 549 lakhs as laid down in Clause 1.0 (ii). He has also drawn our attention to the work order issued for construction of the aforesaid roads as well as to Page 79 to show that petitioner has done work of similar nature as laid down in the NIT.
10. Mr. Shukla submits that the petitioner was awarded construction of road and not work of loading or unloading and transportation of coal/overburden/rock/any other mineral, and therefore, on the face of it, the petitioner has not executed any work of similar nature as indicated in the technical criteria. Furthermore, the materials on record do not demonstrate that orders of value not less than Rs. 549 lakhs have been placed on the petitioner and tabular chart and the other documents to which Mr. Sharma has drawn attention to, do not in any manner satisfy the technical criteria.
11. That apart, he has submitted that no challenge is made to the LoI as well as to the Service Purchase Order. It is also submitted by him that in a case of present nature, it was expected that the petitioner would have approached the Court at a much earlier point of time, if he had really any legitimate grievance.
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12. We have considered the submissions of learned counsel for the parties and have perused the materials on record.
13. The tabular chart at page 66, to which our attention is drawn, is reproduced herein below:
PWD Road work Lemru PWD Road Kharsia By pass Qty. Rate Amount Qty. Rate Amount Soil 23704.27 223 5286051.095 19424.1 250 4856025 Soil GSB 12350.88 460 5681406.64 4870.95 1423 6931361.85 GSB 4509.95 1372 6187514 WMM 5244.519 1434 7520640.246 4207.5 1434 6033555 DLC 1487.03 2332 3467753.96 DBM 1045.401 7916 8275394.316 1051.03 8148 8563792.44 PCC BC 636.268 9812 6243061.616 646.72 10092 6526698.24 Total 33006553.91 Total 42566700.49 Below 28.11% 9278142.305 Below 25.11% 10688498.49 Total 23728411.61 Total 31878202 Add CC Dt. 17-06-2018 1.46 CC Dt. 31/12/2020 1.33 Factor 34643480.95 42398008.66 PWD Road Work Ranisagar RKA JV SECL Qty. Rate Amount Qty. Rate Amount Soil 25017.8 223 5578969.4 35816 95 3402520 Soil 29443.59 250 7360897.5 GSB 14798.06 1372 20302938.32 12564 900 11307600 GSB WMM 10064.56 1434 14432579.04 80298.12 1200 96357744 DLC DBM 4209.06 74888 31517441.28 9868.34 6300 62170542 PCC 269.12 5432 1461859.84 BC 1901.84 10092 19193369.28 5700 7000 39900000 Total 99848054.66 Total 213138406 Below 18.51% 18481874.92 Share RKA JV 55% 117226123.3 Total 81366179.74 Total 117226123.3 7 Add CC Dt. 05-06-2022 1.21 CC Dt. 15-02-2017 1.61 Factor 984533077.49 188734058.5"
14. From perusal of the same, it is evident that the same relates to construction of road. There is no indication whatsoever that the petitioner had loaded any materials as indicated in the technical criteria for the stipulated amount.
15. Relevant portion of Page 79 to which our attention is drawn reads as follows :
P-11/3.2 : Excavation in soil (by mechanical means) excavation for roadway in soil using mechanical means including loading in tipper to carrying of cut earth to embankment site and unloading with all lifts and lead upto 1000 meters as per relevant clauses of section 300. P-16/4.10 : Wet Mix Mecadam (Providing, laying, spreading and compacting graded, stone aggregate to wet mix macadam specification including premixing the Material with water at OMC in mechanical mix plant carriage of mixed materials by tipper to site, laying in uniform layers with paver in sub-base / base course on well prepared surface and compacting with vibratory roller to achieve the desired density as per clause 406).
16. May be, for the purpose of construction of the road, the petitioner was required to excavate and transport soil, which is incidental in nature and not 8 the primary work, which is envisaged under the technical criteria. The royalty certificate also does not demonstrate any value. It is not understood on what basis the petitioner is saying that it meets the technical criteria at Clause 1.0(ii).
17. Since we are of the opinion that the petitioner does not meet the technical criteria as held by respondents No. 1 to 3, we do not consider it appropriate to go into the question as to whether the petition suffers from delay.
18. In view of the above discussion, the writ petition is dismissed. No cost.
Sd/- Sd/-
(Arup Kumar Goswami) (Arvind Singh Chandel)
Chief Justice Judge
Hem