The main legal point established in the judgment is that the involvement of a private party in a tender process can be justified if it aims to ensure the uninterrupted supply of essential goods, and if the terms are applied uniformly to all bidders.

JUDGMENT

A.S. Chandurkar, J. - RULE. Rule made returnable forthwith and heard the learned counsel for the parties.

2. On 02.12.2021, the Maharashtra State Power Generation Company Limited-Principal floated a tender inviting bids for transportation of raw coal against Road-cum-Rail allocation from various mines of Western Coalfields Limited to the Thermal Power Station of the Principal. Clause 1.12(V) which is the contentious clause that has given rise to this writ petition reads as under:

''1.12(V) Railway Siding:-

Bidder should have permission/consent of private siding owner to operate the Vimla siding for dispatch of coal to TPS of Mahagenco.

Permission/consent of Vimla private siding owner to operate the siding should be submitted along with the bid, failure which the bid will not be considered. The siding should be available for the entire period of the contract.''

This clause has been challenged as being arbitrary, capricious and violative of Articles 14 and 19(1)(g) of the Constitution of India.

3. Shri D.V. Chauhan, learned counsel for the petitioner-Bidder submits that by introducing a private party in the matter of transportation of raw coal there is uncertainty in the manner in which the prospective bidders would be required to submit their bids, especially the financial aspect thereof. Considering the nature of the work under the tender which pertained to transportation of raw coal, given the fact that there were various private siding entities available for unloading and transportation of the coal there was no reason to restrict such operation to be undertaken only through the respondent no. 2-a Private Siding Agent. It was submitted that despite being eligible for participation in the tender process, introduction of a private entity in the work of transportation resulted in such private party playing a crucial role as regards the financial rates to be quoted by the bidders. The tender document did not indicate the manner in which the Private Siding Agent would provide its services and therefore a bidder even if technically qualified would be prejudiced while submitting the financial bid. The learned counsel invited attention to various clauses of the tender document to urge that prospective bidders could not be directed or compelled to have the transportation work completed with the aid of such Private Siding Agent. It was emphasized that the petitioner was not challenging the basic qualification criteria that was prescribed by the Principal in the tender notice but the involvement of a private party in the transportation process resulted in uncertainty in the nature of the price to be offered by the bidders. The fate of a bidder was dependent on the terms offered by the Private Siding Agent. It was likely that in absence of any uniformity in the rates that were to be charged by the Private Siding Agent, the rates charged by it could differ from bidder to bidder. Thus despite a bidder being competent and technically qualified for succeeding in the tender process it was likely that for the rates to be paid by the bidder to the Private Siding Agent the financial bid to be submitted would not be competitive.

During pendency of the writ petition, the petitioner filed C.A.W. No. 167 of 2022 seeking to raise additional grounds of challenge and also striking down of revised tender Clause 1.12(V) through Corrigendum II dated 20.12.2021. In effect the entire tender process initiated by the Principal was sought to be challenged as being arbitrary. It was thus submitted that since the bids were to be submitted by today and the price bids were to be opened on 25.01.2022 appropriate reliefs as prayed for in the writ petition be granted to the petitioner. In support of aforesaid submissions, the learned counsel for the petitioner placed reliance on the decisions in Ramana Dayaram Shetty Versus International Airport Authority of India & Others [(1979) 3 SCC 489], Electrical Contractors Association of Maharashtra Versus City and Industri