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2018 Supreme(Pat) 1448
IN THE HIGH COURT OF PATNA
Nilu Agrawal, J.
Larson And Toubro Limited - Appellant
Vs.
Bihar State Power Transmission Company Limited - Respondent
Civil Writ Jurisdiction Case No. 5533 of 2018
Decided On : 12-12-2018
Y.V. Giri, Adv., Suraj Samdarshi, Adv., Vinay Kirti Singh, Adv., Anand Kumar Ojha, Adv., Ashok Karna, Adv., Vijay Verma, Adv., Ardhendumauli Kumar Prasad, Adv., Shashi Shekhar Kumar Prasad, Adv., Rajani Kant Mishra, Adv., L.L. Pandey, Adv.
Headnote:
Government Contract – Scope of Judicial Review – Contract for procurement of Meter – Even a single tender cannot be said to be a creation of monopoly of business in favour of a private party by the State and is not in violation of Article 14 of Constitution or encroaches upon fundamental rights of a class of intending tenderers under Article 19 of Constitution – So far as selection of respondent no. 5 as a competent tenderer for assigning job of supply of sophisticated article through open tender procedure is concerned, it does not call for judicial scrutiny in such contractual matters – It is for utilities to adopt new technology in terms of CEA guidelines – Specification of meter in NIT has approval of CEA – Ordinarily, power of judicial review ought not to be exercised if authority proceeds reasonably and act is bonafide and in public interest – Dispute is a contractual dispute between two tenderers and in such matters Court ordinarily should exercise judicial restraint – Writ application does not come under purview of judicial review and held not maintainable – Writ application dismissed. (Paras 26 to 29)
Nilu Agrawal, J.
Heard Mr. Y.V. Giri, learned Senior Counsel assisted by Sri Suraj Samdarshi, for the petitioner, Mr. Vinay Kirti Singh, learned Senior Counsel assisted by Mr. Anand Kumar Ojha for the respondent nos. 1, 2 and 4 i.e. Bihar State Power Transmission Company Limited (hereinafter referred to as the Transmission Company), Mr. Rajani Kant Mishra, learned counsel for the Bihar Electricity Regulatory Commission (hereinafter referred to as the BERC) and Mr. Ardhendumauli Kumar Prasad assisted by Mr. Shashi Shekhar Kumar Prasad, learned counsels appearing on behalf of respondent no. 5.
2. Petitioner in the present writ application has sought the following relief’s :
(i) For a direction to the respondent authorities and in particular respondent no. 2 to 4, not to finalize the notice inviting tender bearing NIT No. 37/PR/BSPTCL/2017, till final adjudication of the application filed by the petitioner before the Bihar Electricity Regulatory Commission for clarification/amendment of the provisions contained in the Bihar Electricity Grid Code, 2010.
(ii) For a direction to the respondent authorities and in particular respondent no. 2 and 4 not to issue letter of intent or execute any agreement with the respondent no. 5 for supply and installation of energy meters, in furtherance of the N.I.T. No. 37/PR/BSPTCL/2017.
(iii) For a declaration that the specification of meter required to be procured through N.I.T. No. 37/PR/BSPTCL/2017 is tailor made so as to suit the convenience of the respondent no. 5 and with a view to eliminate the petitioner from participating in the bid process and thus, insertion of such specification is an arbitrary exercise of discretionary power conferred upon the respondent authorities.
(iv) For a declaration that the terms of invitation of tender and in particular the specification of the meter has been incorporated to favour the respondent no. 5 at the cost of public money, which is contrary to the law laid down by the Hon'ble Apex Court; and for any other relief or relief’s to which the petitioner is found entitled.
3. Petitioner has preferred I.A. No. 2802 of 2018 wherein he has sought amendment and addition in the pleading and prayer incorporated, as it has been stated that during pendency of the writ application 3rd party right in favour of respondent no. 5 has been created and Letter of Intent (LOI) has been issued on 28.03.2018, which is Annexure-11 and 11/A, as such, the following reliefs have been prayed :
"(v) For setting aside and quashing Letters of Intent bearing Nos. 9 and 10 both dated 28.03.2018 issued by the above Transmission Company in favour of respondent No. 5 pursuant to NIT No. 37/PR/BSPTCL/2017.
(vi) For staying the operation of Letters of Intent bearing Nos. 9 and 10 both dated 28.03.2018 issued by the above Transmission Company in favour of respondent No. 5 pursuant to NIT No. 37/PR/BSPTCL/2017 during pendency of the present writ petition."
4. I.A. No. 6255 of 2018 has also been filed by the petitioner on 14.08.2018 wherein the prayer before the Commission to amend the Clause 15.7(2)(v) of the Bihar Electricity Grid Code, 2010 (hereinafter referred to as the Code, 2010) has been rejected by order dated 27.07.2018 and additional relief has been claimed by the petitioner, which is as follows :
"(vii) For quashing of the order dated 27.07.2018 passed by the respondent no. 3 in Case No. 8/2018 and 9/2018."
5. I.A. No. 6859 of 2018 was filed on 31.08.2018 by the respondent no. 5 wherein he has alleged that the petitioner has commercial relations with M/s NE Energy Solutions Private Ltd. and has authorised the M/s NE Energy Solutions Pvt. Ltd. to perform its commercial transactions and the MTE India (P) Ltd. has relations with M/s NE Energy Solutions Pvt. Ltd. whereby MTE India (P) Ltd. has also been authorised to submit bid on its discretion.
6. Considering the nature of prayer made in the Interlocutory Applications, which would have a bearing on the merit of the writ application, IA No
