W.P.(C) 9662/2022

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 13^thJULY, 2022

IN THE MATTER OF:

+

W.P.(C) 9662/2022

DELHI

ELECTRICAL

CONTRACTOR

WELFARE

ASSOCIATION

..... Petitioner

Through:

Mr. Jayant Mehta, Senior Advocate

with Ms. Rashmi Singh and Mr.

Raghav Bhatia, Advocates.

versus

BSES YAMUNA POWER LTD AND ANR

..... Respondents

Through:

Mr. Sandeep Sethi, Sr. Advocate, Mr.

Meet Malhotra, Sr. Advocate with

Mr. Ravi SS Chauhan, Mr. Anupam

Varma, Mr. Nikhil Sharma, Mr.

Aditya Gupta, Advocates for R-1 and

R-2.

CORAM:

HON’BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

JUDGMENT

SUBRAMONIUM PRASAD, J

1.

The instant Writ Petition has been filed by the Delhi Electrical

Contractor Welfare Association (“Petitioner/Petitioner Association”) under

Article 226 of the Constitution of India seeking issuance of a necessary writ,

order or direction to quash the Notice Inviting Tender (hereinafter referred

to as „the NIT‟) dated 11.06.2022 bearing NIT No.CMC/BY/22-

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002567

W.P.(C) 9662/2022

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23/RS/SVS/AS/17 issued by BSES Yamuna Power Limited (“Respondent

No.1/BYPL”), and the NIT dated 11.06.2022 bearing NIT No.CMC/BR/22-

23/RB/CR/DG/1036 issued by BSES Rajdhani Power Limited (“Respondent

No.2/BRPL”) for “award of AMC of Electricity Distribution Network

installation” (hereinafter collectively referred to as the „Impugned NITs‟).

2.

Prior to the NIT, which is the subject matter of challenge, between

2017 to 2021, the Respondent Nos. 1 and 2, issued NITs in various

categories. The commercial requirement, under these NITs, was that the

bidders must have a minimum average annual turnover ranging from Rs.2 to

6 Crores in the last three financial years. During this period, members of the

Petitioner Association provided services to the Respondents in varying

capacities to ensure uninterrupted power supply to consumers by executing

various installation schemes and annual maintenance contracts (both routine

& specific) of installed assets in Delhi NCR.

3.

On 11.06.2022, the Respondents issued the Impugned NITs which

imposed a more onerous commercial requirement on bidders by increasing

the minimum annual average turnover to Rs.70 Crores or above in the

preceding three financial years, in order for them to participate in the

Impugned NITs (“said Condition”).The said Condition imposed by the

Respondents in the Impugned NITs reads as under,

“QUALIFYING REQUIREMENTS (QR)

4.2. Financial QR:

(ii) The average annual turnover of the Bidder, in the

preceding three (3) financial years (i.e., FY22, FY21 &

FY20) should not be less than Rs 70 Crore. The bidder

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/002567

W.P.(C) 9662/2022

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Turnover certificate must have UDIN Number.”

4.

As the imposition of the said Condition has rendered all the members

of the Petitioner Association ineligible to participate in the Impugned NITs,

the Petitioner was constrained to file the instant Writ Petition.

5.

Mr. Jayant Mehta, Ld. Senior Counsel appearing for the Petitioner,

submitted that the range for the financial qualifying criteria for the tenders

issued from 2017 to 2021 was Rs.2 to 5 Crores. He submitted that now the

Respondents, vide the Impugned NITs, have increased the financial

qualifying criteria to Rs.70 Crores, in the preceding three financial years. It

is the contention of the Petitioner that this manifold increase is irrational,

and arbitrary. Mr. Mehta submits that the Respondents have failed to

provide any rational justification for this multi-fold increase in the

qualification criterion. In light of this, it has been argued that said Condition

is arbitrary, irrational, discriminatory and hence, violative of Article 14 of

the Constitution of India.

6.

The Ld. Senior Counsel further contends that the revised criterion

res