- (1.) THIS contempt proceeding has been initiated against respondent Nos. 1 and 2 for alleged wilful disobedience of this Court's order dated 31. 10. 2006, the operative portion whereof reads as under: ". . . We, therefore, intend to give another opportunity to MAHAGENCO. It shall consider the offer of Appellant upon consideration of the matter afresh, as to whether it even now fulfils the essential tender conditions. If it satisfies the terms of the tender conditions, the contract may be awarded in its favour for a period of one year; but such contract shall take effect after one month from the date of the said agreement so as to enable the private Respondents herein to wind up their business. This order is being passed in the interest of MAHAGENCO as also the private Respondents herein. "
(2.) THE Maharashtra State Power Generation Co. Ltd. (for short "mahagenco") issued a notice inviting tender, inter alia, for coal liaisoning, quality and quantity supervision of its thermal power station. One of the conditions laid down therefor is as under: " (ii) The Bidder should have executed the work of total minimum quantity of 5 (Five) Million Metric Tons per year for preceding 5 years. Besides this bidder should have executed the work of total quantity of 10 (ten) Million MT's in any of the preceding 5 (Five) years. Above execution of work should be on behalf of State Electricity board and/or NTPC and/or other State or Central undertaking and/or the private Power Generating companies as their liaison agent/coal agent, with regard to receipt and supply of the coal including supervision on dispatch, loading, movement of the coal upto destination by Railway only. " The term "year" occurring therein is said to be the financial year. Petitioner along with various others submitted its tender, inter alia, on the premise that the petitioner did not fulfill the essential conditions of having transported the quantity of minimum five lakh tonnes of coal for the preceding five years, its offer was not accepted. A writ petition was filed before the Madhya Pradesh High Court, which having been dismissed, Civil Appeal bearing No. 4613 of 2006 was preferred by the petitioner upon obtaining special leave. One of the questions which arose for consideration before this Court was as to whether MAHAGENCO committed a serious error in not taking into account the quantity of coal supplied by the petitioner to the Andhra pradesh Power Generation Corporation Limited; as it appears from its letter dated 15. 06. 2005 that the petitioner had supplied the following quantity of coal: JUDGEMENT_2117_TLPRE0_2008Html1.htm By a judgment and order dated 31. 10. 2006, this Court held: "it is, therefore, evident that total quantity of 62,64,135 metric tones of coal had been handled by Appellant for them. The intention of introduction of the said clause becomes self-evident from the aforementioned note. It may be true, as was observed by the High Court, that the Respondents in the tender documents did not categorically state that the block of 365 days in respect of handling of coal by the tenderes shall be taken into consideration. It is also true that the Corporation must be held to be aware as to what was the true intent and purport of the said term. " It was, however, found that other tenderers, viz. , M/s. Nair Coal services Ltd. , Nagpur, M/s. Nareshkumar and Co. Ltd. , Nagpur and M/s. Karamchand Thapar and Brs. Ltd. , Mumbai had formed a cartel. Alleged contemnor Shri Ajoy Mehta, Managing Director of mahagenco (Respondent No. 1 herein) in a note dated 19. 08. 2005 stated as under: "on perusal of rates of M/s Nair Coal Services ltd. , Nagpur, M/s Nareshkumar and Co Ltd. , nagpur and M/s Karamchand Thapar and Brs. Ltd. , mumbai, it is apparent that they have formed a cartel. The rates quoted by these firms are nearly 51 crs. to 52 crs. more than that quoted by LT. As a goodwill gesture the above parties were called for negotiations. However, they have refused to match the L1 rates. In view of above it is in public interest and in the interest of MAHAGENCO a Govt. owned, public utility that the work is allocated to the lowest qualified bidder namely M/s B. S. N. Joshi and Co. " Ultimately, however, the said proposal was not accepted.
(3.) DESPITE the fact that a cartel was formed, the contract was awarded to the members thereof. In the aforementioned context, this Court observed: "while saying so, however, we would like to observe that that having regard to the fact that a huge public money is involved, a public sector undertaking in view of the principles of good corporate governance may accept such tender which is economically beneficial to it. It may be true that essential terms of the contract were required to be fulfilled. If a party failed and/or neglected to comply with the requisite conditions which were essential for consideration of its case by the employer, it cannot supply the details at a later stage or quote a lower rate upon ascertaining the rate quoted by others. Whether an employer has power of relaxation must be found out not only from the terms of the notice inviting tender but also the general practice prevailing in India. For the said purpose, the court may consider the practice prevailing in the past. Keeping in view a particular object, if in effect and substance it is found that the offer made by one of the bidders substantially satisfies the requirements of the conditions of notice inviting tender, the employer may be said to have a general power of relaxation in that behalf. Once such a power is exercised, one of the questions which would arise for consideration by the superior courts would be as to whether exercise of such power was fair, reasonable and bona fide. If the answer thereto is not in the negative, save and except for sufficient and cogent reasons, the writ courts would be well advised to refrain themselves in exercise of their discretionary jurisdiction. " It was on the aforementioned premise, the Civil Appeal was allowed by this Court. Mr. Vikas Mehta, learned counsel appearing on behalf of the petitioner, in support of the contempt petition, would argue: (i) Alleged contemnors had from the very beginning gave a twist to the said order insofar as it proceeded on the basis that the five years period should be calculated from the date of the order of this Courts. (ii) MAHAGENCO refused to grant a contract in favour of the petitioner relying on or on the basis of the interim order passed by this Court. (iii) A different stand is being taken now that the petitioner should not be allotted any contract in view of a subsequent event, viz. , the letter dated 20. 02. 2007 issued by the Sanjay Gandhi Thermal Power Station. On the aforementioned premise, the learned counsel would submit that the alleged contemnors must be held to have committed gross contempt of this Court.;