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. Odisha Coal and Power Limited (in short 'OCPL') is a joint venture of Odisha Power Generation Corporation (in short 'OPGC') and Odisha Hydro Power Corporation (in short 'OHPC'), both Government of Odisha undertakings. Therefore, the opposite party is a "Government Company" as defined under Section 2 (45) of the Companies Act, 2013. The opposite party was created to develop and operate coal mines to cater to the fuel requirements of the expansion of power plant of OPGC. OPGC is establishing the End Use Plant as part of its capacity addition.

3. The Ministry of Coal, Government of India has allotted two contiguous coal blocks, namely, Manoharpur Coal Mine and the dip side of Manoharpur Coal block, both located in Ib valley coalfields in Odisha, to the opposite party for supply of coal exclusively for use in the power plant (under construction) of OPGC. The NIT No.OCPL/33/2016 dated 12.12.2016 pertains to only Manoharpur Coal Mines. The opposite party intended to appoint a Mine Operator (MO) in respect of the Manoharpur coal mine. Accordingly, the opposite party issued Request For Qualification (RFQ) for the selection of MO for operation of Manoharpur coal mines project in the State of Odisha, India. Therefore, International Competitive Bidding (ICB) was issued on 12.12.2016. The said RFQ has been revised twice vide Corrigendum-1 dated 23.12.2016 and Corrigendum-2 dated 07.03.2017. The schedule date for submission and opening of qualification proposals was 31.01.2017. Consequence of issuance of Corrigendum, revised cut-off date and time for submission of proposals for qualification was fixed to 25.03.2017 at 14.00 hours. The qualification proposals were scheduled to be opened at 14.30 hours on 25.03.2017. Vide Corrigendum-1 dated 23.12.2016, the opposite party modified Section-5.2 of the RFQ and Appendix-5 relating to technical qualification requirement that in place of "financial year", it should be "calendar year". Subsequently, the opposite party modified Sections-5.2.2 (c) and 5.4.3 of the RFQ as well as Annexure-A to the RFQ vide Corrigendum-2 dated 17.03.2017. The said modifications incorporated certain clarification regarding technical qualification in case of bids submitted under the consortium route. The opposite party allotted with such coal mines for the End Use (power plant of OPGC) with 420 MW is being expanded by another 1320 MW and, as such, the opposite party has already invested around rupees 500 crores in the aforementioned coal blocks as the coal will be used to meet the captive requirement of OPGC for generation of electricity in the Thermal power plant established at Banaharpali in the district of Jharsuguda for the larger benefit of people of the State of Odisha.

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7. Mr. Sanjit Mohanty, learned Senior Counsel appearing along with Mr. R.R. Swain, learned counsel for opposite party refuted the argument advanced by Senior Counsel for the petitioners and justified the reasonable nexus of fixing of 7 MTPA in Section-5.2.1 and contended that such condition is wholly and fully justified. It is contended that the present RFQ having been issued to select an MO, which will produce coal from the Manoharpur coal mine to cater the End Use of the power plant of OPGC. The stipulation fixed in Section 5.2.1 of the RFQ dated 12.12.2016 states that the bidder must have been awarded a mining contract for development and operation of single coal/lignite mine having a reserve of at least 150 MT with annual capacity at least 7 MTPA and should have produced at least 3 MT of coal/lignite from such mine in any one calendar year during the last ten (10) calendar years preceding the date of opening of the qualification proposal, i.e., calendar year 2007-2016 has a rational nexus behind the object sought to be achieved, i.e., to meet the fuel requirement of OPGC. The annual capacity of at least 7 MTPA means, the annual production capacity of the mines should be at least 7 MTPA. The End Use plant coal requirement being 7.5 MTPA of coal, the stipulation of working of development and operation of a coal mine of at least 7 MTPA has a rational nexus behind the object sought to be achieved, i.e., to meet the End Use requirement of the power plant of OPGC. Therefore, Section 5.2.1 of RFQ cannot be termed as irrelevant, arbitrary, unreasonable or discriminatory. In response to the request made by the petitioners in letter dated 09.01.2017 to amend the requirement of annual capacity from 7 MTPA to 4-6 MTPA, opposite party has already clarified that the existing provisions of Section 5.2.1 of RFQ would prevail. There is justifiable reason for the said fixation, when as per mining plan, Manoharpur mining plan has got capacity of 8 MTPA and requirement of coal is 7.50 MTPA. Therefore, minimum requirement has been fixed as 7 MTPA under Section-5.2.1 as eligible criteria. Thereby, no illegality or irregularity has been committed by the authority concerned in fixation of such condition and, more so, the condition of the contract cannot be interfered with in exercise of power of judicial review. It is further contended that six bidders have participated in the process of selection and none of them have been made as parties to the proceeding, even though the said fact was brought to the notice of the petitioners by way of filing counter affidavit. Therefore, otherwise also, the writ petition suffers from non- joinder of proper parties and the same is liable to be dismissed.

14. The stipulation of Section 5.2.1 of RFQ dated 12.12.2016 has been amended vide issuance of Corrigendum dated 23.12.2016 and by another Corrigendum dated 06.03.2017. Section 4 of RFQ provides for two stage bidding process. Stage-I is for identification of qualified bidders and stage-II is for selection of the mine operator. Therefore, for the purpose of stage-I, i.e. for identification of qualified bidders, the RFQ has been issued. The opposite party is at the first stage of identifying the qualified bidders under the RFQ issued on 12.12.2016 which has been modified by Corrigendum dated 23.12.2016 and 06.03.2017. Section-5.4 of RFQ provides for submission of proposal in three different qualification routes, i.e., Route-A- Direct Route under Section 5.4.1; Route-B- Affiliate Route under Section 5.4.2; and Route-C- Consortium Route under Section 5.4.3. In terms of Section 4.2 of RFQ dated 12.12.2016 a pre-bid qualification meeting was held on 10.01.2017 and queries/clarifications/ suggestions/requests were received from various intending bidders including the present petitioners on various issues and the same were responded by the opposite party on 12.03.2017. On Section- 3.1, bidders requested to clarify the actual requirement of End Use of plant as at the top of the RFQ documents mentioned "Mahoharpur OCP-8 MTPA", but the End Use plant's requirement was 7.5 MTPA. The opposite party clarified that the peak rated capacity of the mine is 8 MTPA. The production expectation from Manoharpur mine is 8 MTPA +/- 10% based on requirement of End Use plant of OPGC. The petitioners had also requested vide Annexure-15 dated 09.01.2017 to amend the requirement of annual capacity from 7 MTP to 4-6 MTPA, but the opposite party clarified that the existing provisions of Section 5.2.1 of RFQ will prevail. Reason being any deviation regarding supply of coal from Manoharpur coal mine will ultimately affect the generation of electricity in the power plant of OPGC situated at Banharpali, Jharsuguda and will lead to initiation of proceeding by Ministry of Coal to cancel the coal block as the operation and supply of coal by OPCL to OPGC is a time bound programme and for End Use plant of OPGC. Therefore, the opposite party has prescribed the terms and conditions in notice inviting tender/RFQ documents keeping in consideration the nature and scope of the work and in such matter, the authority calling for the tender is the best judge to fix the conditions of the notice inviting tender/RFQ documents. In RFQ documents Section-5.2, which speaks of technical qualification requirement, contains two parts, namely Section 5.2.1, Section 5.2.2. Therefore, for a bidder to be technically qualified either he has to satisfy the Section 5.2.1 or Section 5.2.2. The choice has been given to the bidders to qualify technically either in Section 5.2.1 or in Section 5.2.2. Therefore, the scope is wide open to attract a large number of bidders so as to enable the opposite party to get best choice and best person to allocate the work in RFQ.