2013 Supreme(Del) 407

High Court of Delhi
PRADEEP NANDRAJOG & PRATIBHA RANI JJ.
RDS Project Ltd.
Versus
Ratangiri Gas & Power Pvt. Ltd. & Others
W.P.(C) 534 of 2011
Decided on : 18-04-2013.

Headnote:

Writ Petition (C) No.534/2011 filed by RDS Project Ltd. (RDS) was disposed of by this Court on 17.10.2011 moulding prayer (A) and declaring that the amended clause 8.1.1.1 (inserted in the 2nd tender) in the given facts and circumstances of the case is bad in law. Further decision taken by the RGPPL in the meeting held on 04.10.2010 rejecting the bid of RDS and annulling the process of first tender was quashed. While observing that the Court cannot issue any direction to RGPPL to formalize award of contract in favour of RDS in respect of DPP, a hope was expressed that the State and its instrumentalities would have interest of the republic in mind and having erred once would correct its course, thus leaving the decision to the conscious of the superior officers and members of the Board of Directors of RGPPL, GAIL and EIL to take a decision in accordance with fairness, equity and justice. Feeling aggrieved by the observations and decision of this Court in the above writ petition, Ratnagiri Gas Power Pvt. Ltd. (RGPPL) sought redressal of its grievances before Supreme Court. Civil Appeal No.7593/2012 arising out of SLP No.3571/2012 was heard along with Civil Appeal No.7594/2012 arising out of SLP No.5554/2012 and Civil Appeal No.7595/2012 arising out of SLP No.6180/2012 and the Supreme Court framed four questions falling for determination in the above appeals. While answering question No.1, Supreme Court was of the opinion that scope of W.P.(C) No.534/2011 had to be limited to the validity of the amendments in the conditions of the eligibility introduced by RGPPL in the second tender notice issued by it. Question No.2 was answered with observation that the final decision to reject the tender submitted by RDS and the decision to annul the entire tender process was required to be taken by RGPPL in its capacity as owner of the project, GAIL and EIL being assigned only advisory role and give opinion which was recommendatory in nature to facilitate the owner to take final decision on the subject, held that there was no allegation of malice in fact and there was no material to establish malice in law while taking decision to scrap the entire process pertaining to tender No.6724/T-138/08-09/SPL/24. Supreme Court took note of the observations by this Court in respect of malice being attributed to RGPPL without there being any assertion of malice against the officers named in the judgment followed by a finding recorded attributing mala fide behind the decision to scrap the tender process, though neither mala fide was pleaded nor the officers against whom mala fide could be inferred were parties to the writ petition in their individual capacities. While answering the third question whether the amendment in Clause 8.1.1.1 at the time of issuance of second tender thereby inserting the word ‘single contract’, which as per RDS was just for the sole purpose to eliminate RDS from the scene, concession was given by Mr.Nariman after taking instructions which has been incorporated in paragraph-39 of the judgment by the Apex Court. The concession given by Mr.Nariman to RDS was as under: “Having said that we must say to the credit of Mr.Nariman that he made a statement on instructions that in order to show its bona fides and to prove that it had no intention to deliberately target or exclude RDS, RGPPL would not apply the modified Clause 8.1.1.1 of the second tender notice to fresh tenders while evaluating them for techno commercial purposes. RGPPL would, according to Mr.Nariman, treat Clause 8.1.1.1 in the first tender notice as the applicable clause and the second tender process shall be carried forward on the Clause 8.1.1.1 as it stood in the first tender document. The statement of Mr.Nariman makes it unnecessary for us to examine whether or not RGPPL was justified in amending the BQC and whether such amendment was meant to exclude RDS or any other similarly situated tenderers from competing for the works”. Now the fourth question requires determination by us for the reason that the appeal has been remanded by the Supreme Court for factual determination of BQC/eligibility criteria as per unamended Clause 8.1.1.1 to examine and decide afresh the limited issue whether RDS was eligible to compete for the works in question in terms of the first tender notice based on the works which RDS claims to have executed at Mus in Car Nicobar. If the conclusion arrived at is that RDS was not eligible in terms of Clause 8.1.1.1 of first tender as it had not executed a breakwater of the requisite length then to dismiss the writ petition in toto, otherwise to proceed in terms of direction given in paragraph 49(3) of the judgment of the Apex Court.

Fact of the Case:

RDS filed a writ petition challenging the rejection of its tender and annulment of the entire tender process. The petition was allowed by the High Court, which held that the amended clause 8.1.1.1 (inserted in the 2nd tender) was bad in law. RGPPL appealed to the Supreme Court, which framed four questions for determination. The Supreme Court held that the scope of the writ petition was limited to the validity of the amendments in the eligibility conditions introduced by RGPPL in the second tender notice. It also held that there was no allegation of malice in fact or law in the decision to scrap the tender process. The Supreme Court further held that RGPPL would not apply the modified Clause 8.1.1.1 of the second tender notice to fresh tenders while evaluating them for techno commercial purposes. The Supreme Court remanded the matter back to the High Court to examine and decide afresh the limited issue whether RDS was eligible to compete for the works in question in terms of the first tender notice based on the works which RDS claims to have executed at Mus in Car Nicobar.

Finding of the Court:

The High Court held that RDS did not meet the BQC even as per un-amended Clause 8.1.1.1. The Court found that RDS did not satisfy any of the criteria laid down in Clause 8.1.1.1, even at the time of first tender, dragged RGGPL into litigation and till date this project could not be revived.

Issues: 1. Whether RDS was eligible to compete for the works in question in terms of the first tender notice based on the works which RDS claims to have executed at Mus in Car Nicobar? 2. Whether the amended clause 8.1.1.1 (inserted in the 2nd tender) was bad in law?

Ratio Decidendi: 1. The Court held that RDS did not meet the BQC even as per un-amended Clause 8.1.1.1. The Court found that RDS did not satisfy any of the criteria laid down in Clause 8.1.1.1, even at the time of first tender, dragged RGGPL into litigation and till date this project could not be revived. 2. The Court held that the scope of the writ petition was limited to the validity of the amendments in the eligibility conditions introduced by RGPPL in the second tender notice. It also held that there was no allegation of malice in fact or law in the decision to scrap the tender process.

Final Decision: The petition is dismissed with costs.