Kerala High Court
Hindustan Construction Company ... vs Kerala State Electricity Board on 1 January, 2008
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 31044 of 2007(U)
1. HINDUSTAN CONSTRUCTION COMPANY LIMITED,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,
... Respondent
2. THE STATE OF KERALA, REPRESENTED BY
3. BHARAT HEAVY ELECTRICALS LIMITED,
For Petitioner :SRI.DAIRUS KHAMBATTA (SR)
For Respondent :SRI.C.K.KARUNAKARAN, SC FOR KSEB
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :01/01/2008
O R D E R
S. Siri Jagan, J.
=-=-=-=-=-=-=-=-=-=-=-=-=-=
W. P (C) No.31044 of 2007
=-=-=-=-=--=-=-=-=-=-=-=-=-=
Dated this, the 1st January, 2008.
J U D G M E N T
An important issue of considerable public importance in the matter of award of contract for construction of a hydro-electric project in the State of Kerala arises in this case. The issue involved is the sustainability of the decision of the Kerala State Electricity Board to re-tender the contract of execution of the Athirapally Hydro-Electric Project of the KSEB, reversing their earlier decision to award the contract to the Consortium consisting of the petitioner and the 3rd respondent, who was earlier selected six years ago in a global tender, after giving price escalation computed in accordance with the formula suggested by the Government of India Undertaking, Water and Power Consultancy Services (India) Ltd., (WAPCOS) taking into account the rise in costs from 2001, even at the risk of the likelihood of the bid price in a fresh global tender going substantially higher than the escalated price as per the formula suggested by the WAPCOS. The facts necessary for the disposal of the writ petition may be summarised below:
W.P.C. No.31044/07 -: 2 :-
2. The 1st respondent Kerala State Electricity Board invited global tenders for the project work of Design, Build and Turnkey execution with financial package of Athirappally Hydro-
Electric Project, by notification inviting tenders dated 6.6.1998. 117 sets of pre-qualification bids were issued globally. The pre- qualification committee appointed by the KSEB pre-qualified 4 tenderers including the Consortium consisting of the petitioner and the 3rd respondent, (hereinafter referred to as 'the Consortium') out of the 8 tenderers who submitted tenders on 3.11.1998. Bid proposals were invited from the 4 pre-qualified bidders by tender notice dated 4.12.1999. The Consortium submitted their bid on 15.4.2000. Out of the four pre-qualified bidders, only two submitted price bids, namely the Consortium and the Chinese joint venture of CWAEC-CMFE. The bid of the Consortium was the lowest and the Consortium was declared the lowest bidder. On 27.4.2000 a scrutiny committee of the KSEB appointed a Technical Committee to study the technical aspects of the bid. The financial aspects of the price bid were separately examined by a Financial Scrutiny Committee headed by the W.P.C. No.31044/07 -: 3 :- Financial Adviser and Chief Internal Auditor of KSEB. On 17.10.2000, the tender evaluation committee, after evaluating the reports of all committees, decided to have further discussions with the Consortium on reducing the rates and other aspects. In the meeting dated 25.10.2000 of the Full Time Members of the KSEB, detailed discussions were held on the report of the Tender Evaluation Committee and it was decided to recommend to the Full Board to award the work to the Consortium. The Full Board in the meeting held on 25.10.2000 itself decided to form a committee nominated by the Board to put up specific proposals regarding the rates with reference to the bill of quantities for each item of work after asking the Consortium to withdraw all deviations from tender conditions. The Committee was constituted on 3.11.2000, who submitted their report on 27.11.2000. The committee held discussions with the Board pursuant to which the Consortium agreed to extend the validity period of the offer up to 31.1.2001, with a discount of Rs.50 lakhs and to withdraw deviations from the tender conditions. On 2.1.2001 the Full Time members of the Board placed the matter before the Full Board of the KSEB. The W.P.C. No.31044/07 -: 4 :- Full Board met on 3.1.2001 and decided to award the work to the Consortium at the price of Rs.414,22,04,500/-. By order dated 6.1.2001, the KSEB accorded sanction to award the work to the Consortium without financial package at the said price.
3. Three Public Interest writ petitions, namely, O.P.Nos.1774/01, 3581/01 and 7713/01 were filed before this court against the project on the ground of want of proper environmental clearance, in which the award of the contract to the Consortium was also challenged. At the request of the KSEB, the Consortium agreed to extend the validity period of the bid and the bank guarantees furnished. On 17.11.2001 by Ext.P7 judgment a Division Bench of this court set aside the environmental clearance granted by the Central Government for the project. However in that decision the Division Bench inter alia held that there was no justification for this court, to interfere with the decision of the Board to award the contract to the Consortium. On 10.2.2005 the Central Government granted fresh environmental clearance for the project. That environmental clearance was challenged before this court in W.P(C). W.P.C. No.31044/07 -: 5 :- Nos.9542/2005 and 11254/2005. On 9.5.2005, the KSEB issued Ext.P28 letter to the Consortium informing that the work is awarded to the Consortium for Rs.4,14,22,04,500/-, without financial package less a discount of Rs.50 lakhs and requested them to execute the agreement at the earliest and to start the work within 30 days of receipt of the letter. The Consortium issued Ext.P29 letter dated 10.5.2005 drawing attention of the KSEB to the various correspondence between them over the past five years, mentioned therein, which emphasised the need for refixing the original bid price of Rs.4,14,22,04,500/- after clearing environmental issues. The Chief Engineer (Civil Construction) of the KSEB, on 18.5.2005 reported to the Board the suggestion of the Consortium for a revised price of Rs.585.62 crores, taking into account escalation upto March 2005. By Ext.P30 letter dated 1.6.2005, the KSEB requested the Consortium to attend a meeting with the Full Board on 6.6.2005 to consider their request. In the said meeting the Consortium made a presentation on the escalation and their request for revision of the bid price was discussed. Another writ petition, W.P W.P.C. No.31044/07 -: 6 :- (C).No.26073/2005 was filed before this court on 9.9.2005 challenging the environmental clearance for the project. By Exts. P32 and P33 letters dated 27.6.2005 and 28.9.2005, the Consortium agreed to extend the period of validity of their bid and bank guarantees on the understanding that the impact of the economic changes which had taken place since the tender was submitted and the issues regarding completion date of the project and dispute resolution mechanism would be discussed and agreed upon before implementing the contract.
4. The Board referred the matter to the WAPCOS to ascertain the reasonableness of the request for price escalation put forward by the Consortium. In the meanwhile, the Consortium had suggested a revised price of Rs.612.84 crores taking into account the price escalation upto October, 2005. WAPCOS submitted their report computing the price of the project at Rs.570 crores taking into account escalation up to September, 2005, with a formula for calculating escalation beyond September 2005. By Ext.P34 letter dated 22.12.2005, the KSEB requested the Consortium to attend a meeting on W.P.C. No.31044/07 -: 7 :- 26.12.2005 to discuss the matter further. After discussion the KSEB agreed to place a revised price of Rs.570 crores, before the Full Board. The Full Board in its meeting on 30.12.2005 decided to issue revised letter of award to the Consortium at the negotiated price of Rs.570 crores without financial package, after obtaining Government sanction and approval by Kerala State Electricity Regulatory Commission. Accordingly, the KSEB by Ext.P36 letter dated 11.1.2006 requested the Government to approve the Board decision dated 30.12.2005. While so, by Ext.P37 judgment dated 23.3.2006 in W.P(C).Nos.11254/05, 9542/05 and 26073/05, a Division Bench of this Court quashed the environmental clearance granted on 10.2.2005 and directed the KSEB to apply for fresh environmental clearance after publishing the Environmental Impact Assessment Report and conducting a public hearing after publishing the report. By Ext.P40 letter dated 18.5.2005 the KSEB requested the Consortium to extend the validity period of their offer for a further period of 6 months from 31.6.2007, since the revised clearance from the Government of India for the project is W.P.C. No.31044/07 -: 8 :- pending, which the Consortium agreed on the understanding that the agreed project cost would be suitably discussed and mutually agreed upon before the implementation of the work. By Ext.P39 dated 18.7.2007, the Government of India granted fresh Environmental clearance for the project. On 10.8.2007, the Government again wrote to the Government of Kerala requesting to communicate orders on the approval of the decision of the Board dated 30.12.2005 as requested in Ext.P36 letter dated 11.1.2006. By Ext.P50 letter dated 20.8.2007, the Consortium requested the Board for implementation of the project work after taking into consideration price adjustment updated to the date of commencement of work, copy of which was forwarded to the Government of Kerala also. By Ext.P51 letter dated 5.9.2007, the Government informed the Consortium that Ext.P50 has been forwarded to the KSEB for necessary action. In the meanwhile the Consortium extended the period of validity of its offer and the bank guarantees upto 31.12.2007, at the request of the KSEB. While so, on coming across Ext.P52 news item in the New Indian Express dated 5.9.2007, to the effect that the KSEB has decided W.P.C. No.31044/07 -: 9 :- to re-tender the work, the petitioner filed this writ petition on 29.9.2007 challenging the decision to re-tender the work. Apparently on the same day, by Ext.P55 letter dated 29.9.2007, the Board cancelled Ext.P28 order dated 9.5.2005 and by Ext.P56 tender notice dated 8.10.2007, fresh tenders were invited for the project. The petitioner therefore amended the writ petition incorporating additional facts, averments and reliefs. The petitioner, accordingly, seeks the following reliefs as per the amended writ petition:
a) It is therefore humbly prayed that this Hon'ble Court be pleased to issue a Writ of Prohibition or any other appropriate writ, order or direction in the nature of prohibition to prohibit the Respondent Nos. 1 and /or 2 from re-tendering the Project Work (i.e. the work of Design-Build and Turnkey execution of Athirappilly Hydro Electric Project (163 MW) which includes the construction of a dam at Athirappally, in the State of Kerala, across the Chalakudy River);
(a1) this Hon'ble Court be pleased to issue a Writ of Certiorari or any other appropriate writ, order or direction in the nature of certiorari to call for the records of the case and after going into the same to strike down and set aside the said letter dated 29th September, 2007 (being Exhibit P55 to the Petition) and the said Re-Tender Notice dated 8th October, 2007 (being Exhibit P56 to the Petition), as also the said decision dated 22nd August, 2007 and the said letter dated 23rd August 2007 (being Exhibits P50A and P50B respectively to the Petition) and quash and cancel the same.
b) this Hon'ble Court be pleased to issue a Writ of Mandamus or any other appropriate writ, order or direction in the nature of W.P.C. No.31044/07 -: 10 :- mandamus to direct the Respondent Nos.1 and /or 2 to forthwith permit the Consortium (i.e. the Petitioner and the Respondent No.3) to effectually implement the Project Work, after price adjustment updated to the date of commencement of the Project Work and to direct the Respondent No.1 to accordingly issue instructions to the Consortium for commencing the Project Work;
c) issue a writ of mandamus or any other appropriate writ order or direction, directing the Respondent Nos. 1 and 2 to take appropriate steps:
i) to appoint Water And Power Consultancy Services (India) Limited (WAPCOS), or such other agency as this Hon'ble Court may deem fit, to arrive at the price of the Project Work, updated to the date of commencement of the Project Work;
ii) to permit the Consortium to effectually implement the Project Work, after price adjustment updated to the date of commencement of the Project Work and to direct eh Respondent No.1 to accordingly issue instructions to the Consortium for commencing the Project work;"
5. The petitioner raises four contentions. The first is that the reversal of the well considered decision of the statutory body, which the KSEB is, to accept the negotiated price offered by the Consortium for execution of the work, by directing re-tender is arbitrary, unreasonable and violative of Article 14 of the Constitution of India. The second is that since admittedly on re- tender the bid amount is likely to go substantially higher than the negotiated price offered by the the Consortium, and since the W.P.C. No.31044/07 -: 11 :- Consortium alone can start the work before the expiry of the Techno-economic clearance on 31.3.2008, in the event of expiry of which fresh clearance has to be obtained forcing postponing of the work and resulting in further loss to the exchequer, public interest demands that the earlier decision taken by the Board to award the contract to the Consortium at the negotiated price be implemented. The third is that since the Consortium has altered its position to its prejudice relying on the promise held out by the KSEB, the action of the KSEB is hit by promissory estoppel. The last is that the principles of legitimate expectation require the KSEB to act in accordance with its original decision to award the contract to the Consortium for the negotiated price as per the formula suggested by the WAPCOS.
6. In answer, the KSEB and the Government of Kerala in their counter affidavits raise the following contentions:
Being a contractual matter involving interpretation of the terms of a contract, this Court shall not interfere with the decision of the Board, in exercise of powers under Article 226 of the Constitution of India by entertaining the writ petition which is W.P.C. No.31044/07 -: 12 :- not maintainable in law. Secondly, the earlier offer was cancelled invoking the terms of the tender conditions, because of the failure on the part of the Consortium to comply with the stipulations in the order dated 9.5.2005. Thirdly, the earlier decision of the Board was cancelled and re-tender was ordered for valid reasons. Fourthly, in the matter of award of contract of such magnitude it is necessary to have transparency in public interest and therefore re-tender serves public interest. There was no promise held out by the Board to the Consortium at any time which would give rise to any claim of promissory estoppel or legitimate expectation in the Consortium so as to bind the Board by such principles and to force the Board to award the contract to the Consortium on any terms. The Consortium having submitted their bid for Rs.414 crores they are not entitled to alter that bid price, which is prohibited by the tender conditions and they having sought escalation of price contrary to the tender conditions, the Board is perfectly within their rights to cancel the bid and to go for re-tender, as has been done by them.
7. Since, in view of the facts disclosed, an early disposal W.P.C. No.31044/07 -: 13 :- of this writ petition is of vital importance to this power starved State, this writ petition was given priority of hearing and was heard at length. I have considered the rival contentions in great detail with reference to the pleadings, documents and the case law cited on the subject, with the anxiety the subject matter demands.
8. The broad facts as stated in the writ petition reproduced as above are not disputed by respondents 1 and 2. In fact the same are corroborated by Ext.P36 letter of the Board themselves written to the Government of Kerala seeking approval of the decision of the KSEB to award the contract to the Consortium at the price suggested by WAPCOS. They only justify their action as it is, on alleged legal principles. Since respondents 1 and 2 contest the maintainability of this writ petition itself, I shall first deal with that issue.
9. According to the respondents 1 and 2, the Board was forced to cancel the order dated 9.5.2005 (Ext.P28) by which the contract was awarded to the Consortium, because the Consortium failed to execute the agreement and start work within W.P.C. No.31044/07 -: 14 :- the 30 days stipulated therein in accordance with clause 15 of Ext.P1 tender conditions. They further submit that as per the tender conditions, the bidder is not permitted to modify his bid under any circumstances, which the Consortium had done by demanding price escalation which also justifies cancellation of the award of contract to the Consortium. Since, for granting the prayers in the writ petition, it would be necessary to interpret the clauses in the bid documents and inter-se rights between the parties in relation to such clauses, in view of the decision of the Supreme Court in KSEB v. Kurien E. Kalathil [(2006) 6 SCC 293], this writ petition is not maintainable, as the disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to usual principles of Contract Act in a suit, especially since the present contract is not a statutory contract, is the contention of the 1st respondent in this regard.
10. According to the petitioner, they are not seeking enforcement of terms of any contract. They would submit that the KSEB being a statutory body, there is a public law element in all their actions and such actions shall be free from arbitrariness W.P.C. No.31044/07 -: 15 :- and unreasonableness. Their contention is that since the KSEB had taken a well considered decision on 30.12.2005 to accept the negotiated price suggested by the Consortium as verified by the WAPCOS and sought approval of the Government for the same, the sudden turn around to decide to re-tender and cancel the award of contract to the Consortium, is arbitrary and unreasonable and violates the mandates of Article 14 of the Constitution of India and such arbitrary action is amenable to the writ jurisdiction of this Court. In support of their contention, they rely on the decision of the Supreme Court in Shrilekha Vidyarthi v. State of U.P (AIR 1991 SC 537) and a Division Bench decision of this Court in Hindustan Construction Co. LTD v. K.S.E.B. [1999 (2) KLT 30] which was confirmed by the Supreme Court in K.S.E.B v. Hindustan Construction Co. LTD. (AIR 2007 SC 425) as also other decisions of the Supreme Court.
11. At the outset I note that the KSEB is taking an inconsistent stand in this case. In their counter affidavit, the KSEB categorically and repeatedly admits that there is no W.P.C. No.31044/07 -: 16 :- concluded contract between the parties. At the same time they contend that since the case involves interpretation of covenants in a contract, the writ petition is not maintainable. Since admittedly there is no concluded contract, the question of interpretation and implementation of a clause in a contract does not arise in this case. That is what is frowned upon by the Supreme Court in Kurien Kalthils' case (supra) relied on by the respondents, as is clear from the following passage in paragraphs 10 and 11 of that decision:
"10. We find that there is a merit in the first contention of Mr. Raval. Learned counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If the term of a contract is isolated ordinarily the remedy is not the writ petition under the Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature.
11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law contract. The fact that one of the parties to the agreement is a W.P.C. No.31044/07 -: 17 :- statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not rise any issue of public law. In the present case, it has not been shown how the contract is statutory. The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The contractor should have relegated to other remedies."
Therefore, in the absence of any necessity of interpretation and implementation of a clause in a contract, I am of opinion that Kurien Kalathil's case (supra) has no application to the case at hand.
12. In Shrilekha Vidyarthi's case (supra) a Larger Bench of the Supreme Court defined the parameters of the powers of this Court under Article 226 of the Constitution in the matter of interfering with contractual matters involving the State or an instrumentality of the State thus, in paragraphs 21, 22, 28 and 29 thereof.
"21. The Preamble of the Constitution of India resolves W.P.C. No.31044/07 -: 18 :- to secure to all its citizens justice, social, economic and political; and Equality of status and opportunity. Every State action must be aimed at achieving this goal. Part IV of the Constitution contains 'Directive Principles of State Policy' which are fundamental in the governance of the country and are aimed at securing social and economic freedoms by appropriate State action which is complementary to individual fundamental rights guaranteed in Part III for protection against excesses of State action, to realise the vision in the preamble. This being the philosophy of the Constitution, can it be said that it contemplates exclusion of Art.14 - non-arbitrariness which is basic to rule of law- from State actions in contractual field when all actions of the State are meant for public good and expected to be fair and just? We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the Constitutional Scheme to accept the argument of exclusion of Art.14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequals.
22. There is an obvious difference in the contracts between private parties and contracts to which the State is party. Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions, acts indubitably, as is expected of it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases W.P.C. No.31044/07 -: 19 :- the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Art.14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Art.14. To this extent, the obligation is of a public character invariably in every cases irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Art.14 of non-arbitrariness at the hands of the State in any of its actions.
xxx xxx xxx xxx
xxx xxx xxx xxx
28. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Art.14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore find it difficult and unrealisitc to exclude the State actions in contractual matters, after the contract has been made, from the purview of judicial review to test its validity on the anvil of Art.14.
29. It can no longer be doubted at this point of time that Art.14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. (See Ramana Dayaram Shetty V. The International Airport Authority of India (1979) 3 SCR 1014: (AIR 1979 Supreme Court 1628) and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kshmir (1980) 3 SCR 1338: (AIR 1980 Supreme Court 1992)). In Col. A. S. Sangwan v.W.P.C. No.31044/07 -: 20 :-
Union of India, 1980 (Supp) SCC 599: (AIR 1981 Supreme Court 1545), while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasised as imperative and implicit in Art.14 of the Constitution of that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Art.14 and the requirement of every State action qualifying for its validity on this touch-stone, irrespective of the field of activity of the State, has long been settled.................."
(Emphasis supplied)
13. Further contrary to Kurien E. Kalathil's case (supra), after analysing the various decisions of the Supreme Court and quoting extensively from Shrilekha Vidyarthi's case, the Supreme Court in a later decision of ABL International Ltd. and another v. Export Credit Guarantee Corporation of India Ltd. and others [(2004) 3 SCC 553] held that in an appropriate case a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable and that merely because some disputed questions of fact arise for consideration, the same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. In that case a contention was raised to the effect that for the W.P.C. No.31044/07 -: 21 :- correct interpretation of certain clauses in the contract involved in that case, oral evidence is necessary and therefore the parties should be relegated to a suit. However, the court itself interpreted the clauses in the contract to find in favour of the appellant therein, which leads to the conclusion that even where disputed questions of fact pertaining to the interpretation/meaning of documents are involved, courts can, in appropriate cases go into the same and decide the sustainability of the action of the State or an instrumentality of the State. After quoting from the decision of K.N.Guruswamy v. State of Mysore ( AIR 1954 SC 592), the Court said thus:
'10. It is clear from the observations of this Court in the said case, though a writ was not issued on the facts of that case, this Court has held that on a given set of facts if a State acts in an arbitrary manner, even in a matter of contract, an aggrieved party can approach the Court by way of Writ under Article 226 of the Constitution and the Court depending on facts of the said case is empowered to grant the relief -------".
(Emphasis supplied) Again after quoting from Shrilekha Vidyarthi's case the Court again held thus:
"23. It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly W.P.C. No.31044/07 -: 22 :- and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants, the first respondent, as an instrumentality of the State has acted in contravention of the above said requirement of Article 14, then we have no hesitation in holding that a writ court can issue suitable directions to set right the arbitrary actions of the first respondent ........"' (Emphasis supplied)
14. Tested on the anvil of the above legal principles, I shall examine whether this case qualifies as one coming within the parameters laid down by the Supreme Court in those cases. After a very elaborate process of evaluating the global tenders received, spanning a period of 2 = years from 6.6.1998 (date of pre-qualification tender notice) to 6.1.2001 (date of according sanction to award the project work to the Consortium), the KSEB found that the Consortium was qualified for award of the contract. From then onwards, the Consortium was waiting for the execution of the formal contract to start the work. However, because of various reasons, none of which can be attributed to the Consortium, the matter dragged on, without execution of the formal contract and issue of work order. In the meantime, as evidenced by Exts. P4, P5 and P6, the Consortium was repeatedly W.P.C. No.31044/07 -: 23 :- reminding the KSEB of the adverse impact of the delay on the cost of the project and the necessity to discuss the need for compensating the Consortium for the additional costs they may incur because of the delay. Still the KSEB, perhaps because of circumstances beyond their control also, could not finally award the contract to the Consortium. In the meanwhile at the request of the KSEB, the Consortium was, from time to time, extending the period of validity of their offer and the bank guarantees furnished by them. The KSEB was able to obtain the revised environmental clearance from the Government of India after the earlier one was quashed by this court, only on 10.2.2005 by Ext.P27. That environmental clearance was challenged before this court and was set aside, although in the meanwhile Ext.P28 dated 9.5.2005 awarding the contract to the Consortium for Rs.4,14,22,04,500/- and requesting them to execute the agreement and to start work within 30 days was issued. (The petitioner disputes that this is the letter of acceptance constituting the formation of the contract about which I shall refer to later on). Thereafter also, the Consortium repeatedly W.P.C. No.31044/07 -: 24 :- impressed upon the KSEB of the need for re-fixing the lump sum price of Rs.414 crores after the environmental issues were cleared. The Consortium suggested an increased price of Rs.585.62 crores. Apparently the KSEB also tacitly accepted the need for price escalation on account of the long delay in awarding the contract and issuing work order and invited the Consortium for a meeting with the Full Board. Again at the request of the KSEB the validity period of the offer and the bank guarantees were extended by the Consortium. By Exts.P32 and P33 the Consortium intimated the KSEB that the extension of validity of their offer was on the understanding that the impact of the economic changes which had taken place after the submission of their bid and other points raised would be discussed and agreed upon before the award of the contract. The fact that the KSEB had no doubt at least about the necessity to revise the contract price is clear from the fact that they had invited the Consortium for discussion on the subject, during which, they never insisted that the Consortium should stick on to the original bid price accepted. On the other hand the Board referred the W.P.C. No.31044/07 -: 25 :- reasonableness of the increased price suggested by the Consortium to compensate the rise in cost for opinion to the WAPCOS, a Government of India undertaking, who themselves had earlier conducted the Comprehensive Environmental Impact Assessment Study, which was a mandatory requirement for obtaining environmental clearance from the Government of India. On 24.10.2005, the Chief Engineer of Civil Constructions of the Board issued a work order to the WAPCOS for studying the reasonableness of the demand for revision of bid price. WAPCOS submitted their report computing the escalated Price as Rs.570 crores taking escalation up to September 2005 with a formula for calculation of escalation beyond September, 2005 (apparently expecting further delay in award of the contract beyond September 2005). Further deliberations followed and the Full Board of the KSEB decided to accept the negotiated price and to revise the letter of award in favour of the Consortium at the negotiated price of Rs.570 crores, without financial package and to seek the approval of the Government of Kerala and the Kerala State Electricity Regulatory Commission. Ext.P36 letter was W.P.C. No.31044/07 -: 26 :- addressed by the KSEB to the Government narrating the entire history of the issue and requesting the Government to approve the Board decision dated 30.12.2005 and issue orders,
(i) to accept the negotiated price of Rs.375 crores for civil and hydro mechanical works as offered by the Consortium partner M/s. HCC Ltd.
(ii) to make available the power to M/s. HCC - BHEL Consortium at IIT industrial tariff for the Consortium of the project and to keep it firm at the present level throughout the contract period of 48 months.
(iii) to fix interest rate on mobilisation advance to 12%.
(iv) to accept the negotiated price of Rs.195 crores offered by M/s. BHEL for electromechanical equipments and works of the project.
(v) to issue revised letter of award to M/s. HCC - BHEL Consortium at the negotiated price of Rs.570 cores for the turnkey execution of the work of Athirapally Hydro Electric Project (163 MW) without financial package and after obtaining government sanction and approval by KSERC.
A reading of Ext.P36 would make it abundantly clear that on 11.1.2006 the KSEB had no doubt whatsoever in their mind that "it would be advantageous for the Board to fix up the contract at a cost of Rs.570 crores and to complete the implementation as W.P.C. No.31044/07 -: 27 :- early as possible" and that "a re-tender process may take many months and in the present trend of rates received for other projects, the re-tender is likely to result only in a higher rate"
and "further M/s. HCC - BHEL Consortium having kept their offer valid till date is likely to approach court of law against cancellation of tender which may further delay the implementation of the project". Yet after a still further delay of more than 2 = years, on 22.8.2007, by Ext.P50A, in a sudden volte face, even without waiting for the response from the government to Ext.P36, despite requesting repeatedly for such response on 29.6.2007 and 10.8.2007 by Exts. R1(d) and R1(e), immediately after obtaining environmental clearance on 18.7.2007 [Ext.P39], the Board unilaterally accorded sanction to re-tender the work subject to approval by the Government. This decision of the KSEB only is challenged by the petitioner as arbitrary, unreasonable and against the mandate of Article 14 of the Constitution of India.
15. For deciding this question, it is not necessary for me to go into the interpretation of any of the tender conditions, W.P.C. No.31044/07 -: 28 :- much less that of any contract. Therefore none of the disabilities sought to be made out by the respondents stands in my way in considering the matter under Article 226 of the Constitution of India. Therefore, at least on the question as to whether the action of the KSEB in reversing their earlier decision is arbitrary and unreasonable, this writ petition is perfectly maintainable.
16. Yet another question may arise in this case as to whether administrative decisions taken and orders issued by KSE Board in reference to contractual works, are amenable to writ jurisdiction and are liable to be tested under Article 14 in so far as those decisions and orders are taken and issued by the Board as a public statutory body. I am spared of the task of examining on first principles or wading through precedents to find an answer to this question since, on very similar facts, a Division Bench of this Court had, in a matter between the very same parties, in Hindustan Construction Co. Ltd V. KSEB, [1999 (2) KLT 30), as affirmed by the Supreme Court in KSEB V HCC Ltd. (AIR 2007 SC 425), answered the question in the affirmative. It would be useful to refer to the facts of that case briefly to show W.P.C. No.31044/07 -: 29 :- the similarity of the facts of the two cases, which I shall presently do.
17. HCC claimed compensation for delay in execution of a contract undertaken by them on behalf of the Board. The Board constituted an ad-hoc committee to go into this claim, which committee recommended payment of Rs.808.26 lakhs as against a claim of Rs.1688.08 lakhs made by the HCC. Another sub committee appointed by the Board also considered the matter.
The Board took a unanimous decision to pay a sum of Rs.808.26 lakhs to the HCC as recommended by the ad-hoc committee.
However the amount was not paid. A writ petition seeking mandamus to pay was admitted on 14.5.96. On 17.5.96 the Board decided to have their earlier decision reviewed, since the then Minister, on the floor of the Assembly, had declared that the decision would be reviewed. Ultimately the Board on 25.1.97 decided to cancel the earlier decision, which was challenged by HCC by amending the writ petition. A learned Single Judge dismissed the writ petition, which was taken in appeal by HCC before the Division Bench. While allowing the appeal the W.P.C. No.31044/07 -: 30 :- Division Bench held thus:
"9. ............... Though the decision taken by the Board and the orders issued by the Board are in reference to the contractual work, in so far as the decision and the orders are concerned, they are taken by the Board as a public statutory body. Those orders are amenable to and are liable to be tested under Article 14 of the Constitution of India ..............".
After referring to decisions of the Supreme Court on the subject, the Division Bench further held:
"12. The Kerala State Electricity Board is a Board constituted in exercise of the powers conferred by Section 79B of the Electricity Supply Act, 1948, by the State of Kerala. The decision and the orders taken by the Board have to satisfy the test of fairness and reasonableness envisaged under Article 14 of the Constitution of India. The action of the Board has got a public law element in it. The action of the Board bears public character with public interest and their's is administrative decision and are impeached on the ground of arbitrariness and violation of Article 14 of the Constitution of India, and therefore, writ petition under Article 226 of the Constitution is clearly maintainable. The claim of the HCC satisfies the tests laid down in various decisions of the Supreme Court. As held by the Supreme Court in Air India Statutory Corporation's case referred above, there is no limitation under Article 226 of the Constitution except self imposed limitations. The arm of the court is long enough to reach injustice wherever it is found. The Court is empowered to give proper relief and grant the same in accordance with law. Since the public law remedy given by Article 226 of the Constitution is not only to issue prerogative writs but also to issue any order or direction to enforce any of the fundamental rights or for any other purpose."
In that decision the Division Bench went into the correctness of W.P.C. No.31044/07 -: 31 :- the decision of the Board to cancel the earlier decision of the Board to accept the recommendation of the ad-hoc committee and held that the decision of the Board dated 29-03-1997 is arbitrary and illegal and quashed that order. Consequently the Board was directed to pass orders on the basis of the earlier decision and to make payment to HCC accordingly.
18. The Division Bench decision was challenged by the KSEB before the Supreme court and in the decision of KSEB v. HCC ( AIR 2007 SC 425) the Division Bench decision was upheld.
19. The facts of that case are very similar to this case; perhaps "more similar" in the sense that in that decision the KSEB had at least advanced several reasons to deviate from the earlier decision, whereas in this case no plausible reasons are advanced for deviating from the earlier decision of the Board taken on 30-12-2005. That being so I am more than satisfied that this writ petition challenging the decision of the Board to deviate from the earlier decision on 30-12-2005 as arbitrary and unreasonable is perfectly maintainable.
20. Now, I shall proceed to examine the justifiability of the W.P.C. No.31044/07 -: 32 :- decision of the KSEB to accord sanction to re-tender the work subject to approval of the Government deviating from the earlier decision to award the contract to the Consortium at the revised bid price as suggested by the WAPCOS. The initial decision to award the contract to the Consortium itself was after a long drawn out tender process of examining both the technical and financial credentials putting the same through a series of evaluation processes at various levels which have been summarised while narrating the facts of the case, at the beginning of this judgment. The credentials of the Consortium are still not questioned by the KSEB or the Government. The only dispute is as to whether the contract price is to be refixed commensurate with the rise in costs over a period of almost seven years, after the initial acceptance of the bid of the Consortium on 3-1-2001. Nobody even alleges that the delay in finalisation of the contract is on account of anything attributable to the Consortium. May be the delay was due to reasons beyond the control of everybody. The fact that the Consortium would not be able to undertake the work at the bid price of 3-1-2001 is also W.P.C. No.31044/07 -: 33 :- beyond doubt. The KSEB was only too aware of that fact and that is why they went about holding discussions with the Consortium on their request for refixation of the bid amount. They also appointed an independent Central Government Agency viz. WAPCOS, who was very conversant with the project, they having earlier conducted the Comprehensive Environmental Impact Assessment study of the project for the purpose of environmental clearance, to ascertain the reasonableness of the revised bid price suggested by the Consortium. The WAPCOS suggested a revised bid price, which was subjected to further evaluation and discussion by the Board, which ultimately took a very well considered decision on 30-12-2005 to award the contract to the Consortium at the revised bid price. The justifiability of that decision is more than clear from the very elaborate letter dated 11-1-2006 (Ext.P36), which runs into 30 typed pages detailing the entire history leading up to the decision of the Board dated 30-12-2005 seeking Government approval for that decision. Therefore it would require very strong reasons to reverse that decision, which should be apparent on the face of W.P.C. No.31044/07 -: 34 :- the record. But strangely, even without waiting for a response either way from the Government, the KSEB, by Ext.P50A decision dated 22-08-2007, in one sentence ordered thus:
" Decided to accord sanction to retender the work subject to approval of the Government."
Although the learned counsel for the KSEB, in the course of his arguments would assure this Court that he has been instructed to submit that the said decision is supported by sufficient reasons available in the files, no reasons are mentioned in the counter affidavits filed by the Board before this Court, nor have they chosen to produce the files containing those alleged reasons before this Court. Therefore even if there are reasons, the petitioner and this Court are kept in the dark about those reasons or they do not want to divulge those reasons.
21. The reason put forward by the KSEB in their counter affidavit is the one contained in Ext.P55 letter dated 29-09-2007 communicated to the Consortium after the filing of the writ petition on 29-09-2007. The same reads thus:
"You had offered a bid price of Rs.414,22,04,300/- (rupees four hundred and fourteen crores twenty two lakhs four thousand and five W.P.C. No.31044/07 -: 35 :- hundred only) for the work vide ref 2 cited. As per this office order No.CEN/DB-39/90/817 dated 08.05.2005, the contract for execution of 163 MW Athirappally Hydro Electric Project was awarded to you on turnkey basis at your quoted price of Rs.414,22,04,500 (Rupees four hundred and fourteen crores twenty two lakhs four thousand and five hundred only) less the discount of Rs.50,00,000/- (Rupees Fifty lakhs only) offered by you on the basis of conditions of contract and other tender conditions of KSE Board. You were also requested to execute the agreement at the earliest and start the work within 30 (thirty) days on receipt of the letter. But instead of executing the agreement and starting the work, you, vide letter under reference (5) demanded escalation for the work. Your request for escalation has been examined and it is found that escalation cannot be granted since the contract is for a fixed amount with no provision for escalation. Therefore, this office order No.CECN/DB 39/90/817 dated 09.05.2005 stands cancelled invoking the tender conditions.
22. The Government responded to the request of the KSEB for award of the contract to the Consortium at the revised contract price of Rs. 570 crores by Ext.P50B dated 23-08-2007, i.e. the next day after the Board issued Ext.P50A order directing re-tender. Strangely in that letter the references are to the letters dated 29-06-2007 and 10-08-2007, which are only reminders to Ext.P36 dated 11-1-2006 and not Ext.P36. The same reads thus:
"I am to invite your attention to the reference cited and to inform you that the proposals is to enhance the value of the contract from the earlier agreed figure of Rs.413.2 cr. by Rs.156.28 cr. To a finally negotiated figure of Rs.570 crores. This is when the contract is a fixed one, containing no provision for escalation is also noteworthy that the successful contractor HCC-BHEL Consortium had agreed to extend the validity of their total quote of Rs.413.72 crores up to W.P.C. No.31044/07 -: 36 :- 31.1.2005. After this count down the review by the MoEF and the change in design, KSEB issued work order to the consortium on 9-06- 2005 at a cost Rs.413.72 crores. The consortium accepted this though with a demand for escalation in quoted price.
The increase in cost is sought to be justified on the ground that if tenders were invited afresh, the rates would be higher. This is however not a valid argument because there is really no transparency in giving an escalation of Rs.156.28 crores to the contractor, even before the work has started. If the work is retendered and the rate goes up beyond Rs.570 crores quoted now, the increase can only be treated as the cost to ensure transparency in government contracts.
The fact that the new rates have been certified to be reasonable by M/s. WAPCOS a Government of India undertaking is not really an acceptable one.
I am therefore directed to request you to retender the work of Athirappilly Hydro Electric Project urgently and take necessary steps for the commencement of the project strictly adhereing to the specific and general conditions stipulated by the Ministry of Environment & Forests, Government of India in its Environmental Clearance for the project vide reference 3rd cited."
23. Let me examine the sustainability of the reasons stated in Exts.P55 and P50B. First of all it is interesting to note that after issuing Ext.P50B on 23.8.2007, on 5.9.2007 the very same government replied to Ext.P50 letter of the Consortium for reassessment of the bid price till commencement of the work, stating that, that letter was forwarded to the Secretary of the KSEB for further necessary action without even mentioning about Ext.P50B. The reasons stated in Ext.P55 is that the contract was W.P.C. No.31044/07 -: 37 :- awarded to the Consortium for Rs. 414 crores and the Consortium was requested to execute the agreement at the earliest and to start the work within 30 days, without complying with which the Consortium demanded escalation for the work, which could not be granted since the contract is for a fixed amount with no provision for escalation. This reason is put forward without taking into account all what had happened from 6-1-2001, the date when the Board accorded sanction to award the project work to the Consortium for Rs. 414 crores onwards. No contractor can do such enormous work in August 2007 at the rate quoted by them in the year 2000, i.e. almost 8 years ago, for knowing which no technical expertise is necessary, but only pure common sense. That the Full Board had both technical expertise and common sense in abundance is clear from their decision dated 30.12.2005, by which they decided to award the contract to the Consortium at the revised bid price of Rs.570 crores. Therefore, Ext.P55 is a negation of the Board's own technical expertise and common sense, to say the least. Further, the statement in Ext.P55 that the request of the Consortium for W.P.C. No.31044/07 -: 38 :- escalation was examined and rejected is not true to facts since the Board had on 30.12.2005 decided to award the contract to the Consortium at the revised price of Rs.570 Crores, for which approval was sought for from the Government by Ext.P36 letter dated 11.1.2006. Therefore, Ext.P55 is a contradiction in terms and in fact an attempt to deceive themselves and therefore cannot be accepted as a reason, much less an acceptable reason, at all.
24. Further, on 9.5.2005, when Ext.P28, which is the letter referred to in Ext.P55 as not having been complied with was issued, the work of the project was not being capable of being started within 30 days thereof at all, if for no other reason, for the reason that even assuming that Ext.P28 is a letter of acceptance contemplated in clause 15.2. of Ext.P1 tender conditions (which itself is disputed by the petitioner), clause 15.4 and 15.5. of Ext.P1 grants minimum 35 days for the successful bidder to complete their part of the contract. Further, after the letter of acceptance, the Board is required to forward two unsigned originals of the agreement to be executed by the W.P.C. No.31044/07 -: 39 :- successful bidder, which has not been done by the Board in this case. At no point of time, the Board had requested the Consortium to execute the agreement for the contract. Still further, at that time the contract could not have been finalised since the environmental clearance granted by the Government of India was set aside by this Court by Ext.P37 judgment, which was finally granted by Ext.P39 only on 18.7.2007. Therefore, the work could not have been started any time before 18.7.2007. It is not as if the Board was not aware of these ground realities. They in fact had got the Consortium to renew the validity of their bid and the Bank guarantees from time to time, even as late as on 18.5.2007 by Ext.P40. If the bid of the Consortium for Rs.414 crores was finally accepted by Ext.P28 on 9.5.2005, it was not necessary for the Board to request the Consortium to keep the validity of their bid open as late as on 18.5.2007. Further as per clause 15.3.2, the letter of acceptance of the KSEB will constitute the formation of the contract, but the KSEB in their counter affidavit repeatedly states that there is no concluded contract. In fact in paragraph 43 of the counter affidavit of the 1st respondent, W.P.C. No.31044/07 -: 40 :- it is stated thus:
"Therefore in law there has not been any acceptance as envisaged under the bid documents"
As such, there is considerable merit in the contention of the petitioner that Ext.P28 was not a letter of acceptance as contemplated as per clause 15.3.2 of Ext.P1 tender conditions.
25. Again, if there is no provision in the tender conditions for escalation, why did the Board go about discussing the revised price with the Consortium and refer the reasonableness of the revised price suggested by the Consortium, to WAPCOS for their opinion? On the other hand, as is evident from Ext.P36, the Board had in fact decided to accept the revised price suggested by the WAPCOS. Therefore, Ext.P55 does not make any sense at all.
26. Further, in Ext.P1 tender conditions and Ext.R1(a) general conditions, the prohibition is only against escalation after the contract is concluded. Here, in the counter affidavit of the KSEB, they repeatedly contend that there is no concluded contract between the parties in this case. The contention of the W.P.C. No.31044/07 -: 41 :- petitioner is that, and rightly so, theirs was not a request for escalation of price after the contract has been entered into but a request to up date their original price taking into account the delay in awarding the work and rise in cost over the years on account of the delay, which cannot be attributed to the Consortium. As I have repeatedly said, when the delay is not attributable to the Consortium, they cannot be pinned down to their original bid price of 2000, in 2007, since as is evident from Ext.P36, the Board itself accepted in 2005 that the work could not have been executed by anybody for a price less than Rs.570 crores. On the other hand the Board itself accepts the fact that, if re-tendered, the bid price is likely to be much higher than Rs.570 crores even in 2005. By Ext.P55, the Board has been trying to deceive themselves, if not others, to say the least.
27. It is crystal clear that even as late as on 10.8.2007, when they issued Ext.R1(e) letter to the Government, the Board was still sticking to their decision dated 30.12.2005 and was requesting the Government for approval of that decision. Then barely 12 days thereafter, without any ostensible reason, without W.P.C. No.31044/07 -: 42 :- even waiting for the response of the Government, Ext.P50A was issued on 22.8.2007 according sanction for re-tender. No remotely plausible reason has been pleaded by the Board in their counter affidavits for their sudden turn around and change of mind. What happened between 10.8.2007 and 22.8.2007 is a mystery and no explanation is forthcoming from the Board, who is the only person in the know of that reason, if there is one. Therefore, I have no hesitation whatsoever to hold that the action of the KSEB is arbitrary and unreasonable, which would not stand the test of Article 14 of the Constitution of India, by any stretch of imagination.
28. Now let us turn to the stand of the Government as contained in Ext.P50B. For 2 = years from 11.1.2006 (Ext.P36), in spite of reminders the Government did not find it expedient to respond to the request of the KSEB for approval of their decision to award the contract at the revised price of Rs.570 crores. While echoing the stand of the KSEB that there is no provision for escalation of price in the contract which is a fixed one, the Government advocates re-tender for the sake of transparency, W.P.C. No.31044/07 -: 43 :- although they, as admitted by themselves, were aware of the fact that on re-tender the rates would go still higher. The argument of lack of provision for escalation in the tender conditions has already been considered and rejected by me hereinbefore. Regarding the other reason, I am of opinion that the lack of transparency is in the present action of the KSEB and the Government. It is no secret that the State is starved of funds even for day to day activities, not to speak of developmental activities. They are finding it difficult to find funds for repair of roads which have been practically destroyed during the last monsoon. They have no funds for providing drinking water facility to people of various parts of the State, who have been clamouring for the same, for years. The Board is clamouring for upward revision of electricity tariff for quite some time on the ground that they are incurring heavy losses. It has been reported in the press that the Government has accorded sanction to the KSEB to impose load shedding in the State for half an hour between 6 and 10 p.m. from 1.1.2008 onwards. Both are aware that a re-tender would result in the rates going up still higher, how higher nobody W.P.C. No.31044/07 -: 44 :- knows. Perhaps the fact that in 1998 the bid security prescribed in the notification inviting tenders and the bid security furnished by the Consortium was only Rs.1 crore, whereas the bid security stipulated in Ext.P56 tender notification is Rs.4.41 crores is some indication as to how high it can be. The Board after thorough evaluation is satisfied that the rate of Rs.570 crores (as on 30.12.2005) is reasonable. The State is willing to sacrifice a few crores of rupees which the people of this State can ill afford for the sake of imaginary transparency in their decision. The State is in dire need of additional power resources as fast as possible which is clear from the decision to impose load shedding. The techno-economic clearance for the project is valid only up to 31.3.2008. If the work is not started before that date, the KSEB has to go through the cumbersome and time consuming process of getting the clearance all over again resulting in further delay of the start of the work of the project. Going by the earlier experience, the tender process which started on 6.6.1998 (date of issue of tender notification) culminated in acceptance of tender only on 6.1.2001. Therefore, a re-tender would certainly result W.P.C. No.31044/07 -: 45 :- in further delay.
29. In this connection it is worthwhile to note the importance of completing the project for the State in the words of the 2nd respondent itself, as contained in paragraphs 34 and 37 of their counter affidavit, which reads thus:-
"34. Athirappilly Hydro Electric Project is a prestigious major hydel project which should be implemented without any more delay in order to improve the power position of the State of Kerala. The project is all the more inevitable because it is a peak load station. In the State, the peak load has crossed 2500 MW wheres off peak load remains 1400-1800 MW. In view of the introduction of Availability Based Tariff (ABT) any overdrawal during peak hours would cost heavily to the Board. Therefore, every effort should be made to improve the peak load generation. In the above context, the implementation of this hydel project, which would give 163 MW during peak hours has become inevitable and most desirable.
xx xx xx
37. Government have taken all sincere endeavours to implement the project as proposed, in time, as Athirappilly Hydro Electric Project which, if implemented can add up 233 MU of energy annually. Therefore, the implementation of the project assumes greater significance in the present power scenario and worsening power shortage of the state especially in the peak hours."
Paragraph 34 of the counter affidavit of the 2nd respondent is in fact a verbatim reproduction of paragraph 46 of the counter affidavit of the 1st respondent.
30. In such circumstances it defies logic as to why the KSEB and the Government would opt for a re-tender, when an W.P.C. No.31044/07 -: 46 :- admittedly cheaper and speedier option is available to them in awarding the contract to the Consortium at the negotiated price. I am of opinion that the lack of transparency is certainly in the present action of the KSEB and the Government in opting for re- tender on the face of all adverse circumstances, which would admittedly result in delay and loss to the KSEB and the State. Hence the justification put forward by the State in Ext.P50B sounds hollow. That leads to the irresistible conclusion that the action of respondents 1 and 2 cannot be justified on the ground of transparency also.
31. In view of the above discussion, I have no hesitation to hold that the action of respondents 1 and 2 in reversing the earlier decision dated 30.12.2005 of the KSEB to award the tender to the Consortium at the revised negotiated bid price and opting for re-tender is clearly arbitrary and unreasonable and liable to be interfered with by this Court under Article 226 of the Constitution of India.
32. I am further satisfied that public interest also supports this view, some aspects of which I have already adverted to in W.P.C. No.31044/07 -: 47 :- paragraph 26 above. In Ext.P36, the KSEB had elaborately stated as to why it is in the public interest and advantageous to KSEB to award the contract at the revised contract price of Rs.570 crores as computed in 2005. Even at the risk of being too elaborate and sacrificing the virtue of brevity, I deem it necessary to reproduce the same here. Ten reasons, the last one of which is the conclusion, have been stated, which are :
"The above facts were evaluated by the Full Time Members and other negotiating officers and it was found that the total price of the project offered after negotiation by M/s. HCC/BHEL Consortium at Rs.570 crores would be advantageous to the Board in view of the following grounds:
(a) The Athirappilly Hydro Electric Project is a prestigious major hydel project, which should be implemented without any more delay in order to improve our power position. The project is all the more inevitable because it is a peak load station. In our State, the peak load has crossed 2500 MW whereas off peak load remains between 1100 to 1400 MW. In view of the introduction of Availability Based Tariff, any over drawal during peak hours would cost heavily to the Board. Therefore every effort should be made to improve the peak load generation. In State like Tamil Nadu (Kadampara - 400 MW), West Bengal (Puruliyu - 900 MW), Andhra Pradesh (Sreesailam - 700 MW) etc, pumped storage projects are implemented to meet peak load.
In pumped storage projects, water is pumped back into the reservoir during off peak hours when cost of power is comparatively lesser and that water is utilized during peak hours to generate energy to meet peak load demands. In that context, implementation of this hydel project, which would give 163 MW during peak hours, has become inevitable and most desirable.
W.P.C. No.31044/07 -: 48 :-
(b) Though the project was envisaged as early as in 1982, techno economic clearance environmental clearance and forest clearance could be obtained only on 13.5.96, 20.1.98 and 16.12.99 respectively. Yet the project could not be implemented due to various litigations and such other factors. Though tender was invited as early as on 6.6.98 and a decision was taken on 3.1.2001 by the Full board, the work could not be awarded due to interference of the Hon'ble Court and consequent procedural formalities like Comprehensive Environmental Impact Assessment, environmental public hearing, renewal of techno economic clearance revitalization of environmental clearance etc. It is after much difficulty, the Board could clear all such problems and get the techno-economic clearance and environmental clearance revalidated on 31.3.05 and 10.2.05 respectively. The techno- economic clearance is valid only for a period of 3 = years . Further, after 1980, the Board could not start any major hydel project forcing the board to implement Naphtha/I.SIIS based thermal power stations. In view of the exorbitant rate of Naphtha/USIIS, these thermal power stations remain shut down on majority of the days and the board is forced to pay their fixed charges though we are not utilizing the capacity. This situation is likely to continue till LNG is made available and the power stations are suitably transformed. Any further delay in awarding the project will only increase the cost of the project and delay the benefits there from.
(c ) This project has been included in the One Year Action Plan of Government of Kerala and in the list of projects to be completed during 11th Five Year Plan. Government of India and Central Electricity Authority are monitoring the project. It is also pertinent to note that Government of India have launched a national initiative for capacity addition of 100000 MW through thermal projects and 50000 MW through hydel projects before 2012. As far as Kerala is concerned, the hydel capacity addition in this national initiative is only to the tune of 508 MW, in which Athirappilly Hydro Electric Project contributes 163 MW. There will not be any capacity addition in our State through thermal projects till LNG terminal is nationalized. Therefore speedy implementation of this project is very crucial and inevitable. W.P.C. No.31044/07 -: 49 :-
(d) The cost of labour and cost of materials are spiraling up especially during last two years as could be seen from the whole-sale price index for cement, steel, POL etc. The cost of labour is also increasing steadily. There is no likelihood of reversal of the trend. M/s. WAPCOS has worked out the cost escalation of the project considering all these facts.
(e) The Board recently invited tenders for Pallivasal Extension Scheme. The average cost per MW based on the lowest tenderer works out to Rs. 4.467 crores. Similarly, the rates for recently completed Small Hydro Projects were also compared. It is found that the present rate offered by M/s. HCC-BHEL at Rs.3.497 per MW is very reasonable.
(f) at the time of inviting tenders, the rate for loans availed by Electricity Board were bearing interest in the range of 14 to 17%. Since the rate of interest has fallen to a rate of 10% and below, the rate of interest of 12% on mobilization advance agreed to by M/s. HCC-BHEL Corporation is quite reasonable. Since the Board is presently getting loans at interest rate of and below 10%, granting of mobilization advance at 12% interest rate will not have any adverse financial impact on the Board.
(g) In the original tender, the electricity required for the project was offered at the following rates.
Demand charge - Rs. 230 per KVA per month Energy charge - Rs. 2.15 per unit.
It was also proposed to have an increase of 10% per annum. If we work out the electricity charge as per tender condition, the demand charge and energy charge at the end of construction period (after 48 months) would be Rs. 306 per KVA per month and Rs. 2.86 per unit respectively. Considering the average of these two values the demand charge and the energy charge would be Rs. 268 per KVA per month and Rs. 2.51 per unit respectively. The rate of energy now offered to M/s. HCC-BHEL Consortium by the Board is present HT-Industrial tariff which shall be firm for the construction period of 48 months. The present HT-Industrial tariff is as follows:
W.P.C. No.31044/07 -: 50 :-
Demand charge - Rs. 270 per month Energy charge - Rs. 3.00 per unit.
From the above, it is clear that there is no additional financial commitment by agreeing to maintain the present HT-Industrial tariff firm for the project construction period and in fact it is advantageous to the Board.
(h) Though M/s. HCC-BHEL has requested for a special amount of Rs. 5 crores for the Dam Toe Power House, they ultimately agreed to include Damtoc Power House and its machinery and equipments in the over all cost of Rs. 570 crores agreed to by them.
Similarly, an amount of Rs. 69 lakhs which was omitted to be included for energy dissipating devices is also included in the amount of Rs. 570 crores agreed to by them.
(i) M/s. HCC-BHEL has also offered a package to give the following without any additional cost over and above Rs. 570 crores:
(1) To supply Max DNA based controls instead of Pro controlled controls offered earlier. The system now offered will cover all the functions as desired in the tender documents and is the latest state-
of-the-art equipment.
(2) To supply Digital Governer Panel in place of the Analog governer.
(3) To supply Digital State Excitation Equipment. (4) To supply butterfly type main inlet valve in place of spherical valve.
(5) The Protection Relays shall be numeric type except the bus bar protection relay which shall be static type.
(j) If the present offer is not accepted, the only option for the Board would be to cancel this tender and to go in for a re-tender. A re-tender process may take many months and in the present trend of W.P.C. No.31044/07 -: 51 :- rates received for other projects the re-tender is likely to result only in a higher rate. Further, M/s. HCC-BHEL Consortium having kept their offer valid till date, is likely to approach court of law against cancellation of tender which may further delay the implementation of project."
33. In paragraph 48 of their first counter affidavit, the Board has again stated, (probably intended as an argument against granting stay of the process of re-tender,) thus:
48. I respectfully submit that it is after much difficulty, the Board could get the Techno economic clearance on 31-3-2005 with a validity period of 3 years, which will expire by 31-3-2008. While according TEC, the Central Electricity Authority (CEA) had stipulated that if the actual time gap between TEC and actual start of work is three years or more, a fresh TEC shall be obtained before start of the actual work. In view of the above condition, if the actual work could not be commenced before 31-3-
2008, fresh TEC has to obtained by the Board from CEA, which will further delay the implementation of the project"
This paragraph has been reproduced verbatim by the State Government in paragraph 36 of their counter affidavit.
34. At paragraph 67 of Ext.P36, it is stated thus:
"The probable result of an attempt to re-tender has been explained in para 61(j). In view of the facts mentioned therein it is found that the project cost would definitely increase in a retender at the present trend of prices of materials and labour. At the same time energy to the tune of 233 million units per annum will be lost to the Board. The State has a peak deficit of nearly 700 MW and it is likely to increase further. Therefore implementation of this project would definitely contribute to meet the peak demands of the State and of the nation at large. It is pertinent to note that we were now selling peak energy at a rate of Rs.3.70 per unit and off peak energy at a rate of Rs.3.05. At a moderate rate of Rs.3.00 per unit W.P.C. No.31044/07 -: 52 :- the 233 million units anticipated from this project would cost about Rs.70 crores per annum. Any delay in completion of project would result in loss to the above extent. Therefore the earlier the project is completed the better it would be in terms of generation of energy, meeting peak demand and financial gains.
(Underlining supplied)
35. From paragraph 27 of the counter affidavit of the 2nd respondent it is clear that the Central Electricity Authority has also instructed the KSEB to revise the project cost of the Athirapally Hydro Electric Project.
36. It is a mystery as to how these logical and well considered reasons based on public interest which held good for more than 2 = years from 30.12.2005 suddenly turned 'no reasons' on 22.8.2007 so as to compel the KSEB to decide to re- tender the project. A decision arrived at after evaluation at various levels and long discussions taking into account all aspects of the matter has been reversed, apparently, without any deliberations whatsoever by an order in one sentence citing no reasons for arriving at such a mementous decision, which would result in the KSEB shelling out several crores of rupees additionally, and causing further delay in implementing the W.P.C. No.31044/07 -: 53 :- project, which this state can ill afford. That would certainly be not in public interest by any stretch of imagination.
37. Weighing this overwhelming public interest, with the reasons advanced by the Board in support of reversing their earlier decision, which themselves are against their own reasoning in Ext.P36 and those of the Government (which revolves round 'transparency' and which according to me is not at all transparent), I am satisfied that public interest should prevail over those reasons (if they can be considered as reasons at all) advanced post facto by respondents 1 and 2.
38. Although the Board claims that the tender proceedings can be concluded within the dead line of 31.3.2008 as admitted in Ext.P36, the earlier experience has proved that the process of finalising of the tender involves a time consuming process (last time it took 2= years) and in all probability the same is not likely to be completed before 31-03-2008. If it is rushed through there is every likelihood of the decision being faulty also. Further admittedly, on retender, the price is likely to go higher. On account of the delay likely to be caused on re-tender, the State W.P.C. No.31044/07 -: 54 :- would be losing a further Rs.70 cores per annum by way of power lost not to mention the inconvenience caused to the public. As of now the only person capable of starting the work before 31-03- 2008, is the Consortium, who asserts that they can start the work within 30 days of award of the contract to them.
39. The above are more than sufficient reasons for returning a verdict in favour of the petitioner in this case. Therefore I am not going into the grounds of promissory estoppel and legitimate expectation pleaded by the petitioner, and they are left open. Needless to say, it follows as a necessary consequence that Ext.P56 notification inviting fresh tenders for the Athirapally Hydro Electric Project is also liable to be quashed.
40. In fact the absolute lack of reasons or the hollowness of the reasons put forward now by respondents 1 and 2 for their bizarre action leaves me with the vague feeling that the respondents 1 and 2 actually want to award the contract to the Consortium and they only want the stamp of approval of this court for doing the same, as an insurance against apprehended adverse public opinion.
W.P.C. No.31044/07 -: 55 :-
In the result,
a) Exhibits P50A, P50B, P55 and P56 are hereby
quashed;
b) the respondents, particularly the Board, are directed
to implement the decision of the Board dated
30-12-2005, approval of the Government for which is sought for in Ext.P36 with further escalation as per the formula suggested by WAPCOS;
c) the first respondent Board is directed to revise the contract price as per the formula suggested by the WAPCOS, either by doing it themselves or by referring it to WAPCOS, if necessary and implement the decision dated 30-12-2005 by awarding the contract to the Consortium, for the contract price so fixed;
d) the Board is directed to take all steps necessary for the above purposes and to issue consequential orders, to award the contract to the HCC-BHEL Consortium at least by 25-02-2008, so that the Consortium can commence the work of the project before 31-03-2008 W.P.C. No.31044/07 -: 56 :- to obviate the necessity of obtaining fresh Techno- Economic clearance; and
e) the writ petition is allowed as above with no order as to costs;
S.SIRI JAGAN, JUDGE sdk+