O.P.Garg, V.K.Chaturvedi, JJ. - (1.) Over the confluence of the rivers Bhagirathi and Bhilangana in Tehri district, a mega project named as Tehri Dam, which is supposed to be the biggest of its kind in Asia is being constructed. It is proposed to be 260.5 metres high earth and rock fill dam. Its width at the bottom will be 1125 metres and at the top it will be 20 meters. It is a multi-purpose project as it will generate and produce the electricity of around 2400 mega watt and the discharge water is to be used for irrigation purpose. The approximate expenditure on this project is likely to be Rs. 5,000 crores. The implementation of this gigantic power project has been entrusted to Tehri Hydro Development Corporation Ltd. a joint venture of Government of India and Government of U. P. respondent No. 1 (hereinafter referred to as 'THDC'). It issued notice inviting scaled bids under international competitive bidding from the prequalified bidders for the work of design, manufacture, supply, transportation, erection, testing and commissioning of over 420 KV SF 6 Gas Insulated Switch Gear 420 KV CGI Bus Duct for first Phase (1.000 MW.) The cost of this work is said to be Rs. 200 crores approximately. Obviously, since G.I. (Gas Insulated) Switch Gear and G.I. Bus Duct are highly technical and specialized items, tailor-made against the specific technical requirements of the tender, certain pre-qualification requirements were fixed for the bidders to qualify for submission of bid for the desired equipment. The interested parties were invited to submit proof of their fulfilment of the pre-qualification criteria so fixed. The information submitted by the parties was verified and evaluated and, thereafter all those parties who fulfilled the pre-qualification criteria were short listed and M/s. Asia Brown Bover High Voltage Tech Ltd. respondent No. 6 (for short 'M/s. A.B.B.') Switzerland. M/s. G.E.C. Alstom, France (for short 'M/s. Alstom')-respondent No. 5, M/s. Siemens, Germany (for short M/s. Siemens) respondent No. 7, M/s. Mitsubishi Corporation Japan. M/s. Mitsui and Company Ltd.. Japan and M/s. Sumitomo Corporation, Japan were approved by the Board of Directors of THDC. The bidders were required to submit their bids in two parts. Part 1 of the bid was to contain the techno commercial aspect and the financial package details without the actual numerical data while part II pertained to the price bid and also the numerical details of the financing package. Out of the six pre-qualified parties, who had got the tender documents issued, the bids were submitted by only three pre-qualified parties. Bids of the first part techno commercial aspect were opened and M/s. Alstom Ltd., M/s. A.B.B. and M/s. Siemens-respondent Nos. 5, 6 and 7 respectively became successful and qualified themselves to bid for part II, i.e., price bid. The price bids submitted by them on 20th November, 1998 were valid upto 19.5.1999, i.e., for 180 days. THDC could not finalise the contract after opening the bids and on its request, the validity period of the price bids came to be extended from time to time, now upto the period 31.3.2000.
(2.) On 6.12.1999, M/s. A.B.B. addressed a letter to THDC intimating that the prices have gone down on account of subsequent development and ft may be possible to substantially reduce/lower the prices as offered in November, 1998. To be precise and accurate, the contents of the letter of M/s. A.B.B. are reproduced as below (Annexure-10 to the counter-affidavit of Dhirup Chowdhary on behalf of M/s. A.B.B.). "The price bids for the subject tender were submitted in November, 1998, i.e., over one year ago and they are to be opened. As previously conveyed to your goodselves there have been changes and developments that make it possible for us to offer substantially lower prices today as compared to an year back due to the following reasons : The technical and commercial clarification process resulted in price advantage to client. At the time of submission of the price bids the risk perception about India was not favourable due to the aftermath of the nuclear tests. Over the past one year, however, the risk perception has changed dramatically in India's favour. World over the GIS prices have gone down steeply in the last one year period for a variety of reasons. We want this advantage of lower price passed on to our customers. We once again confirm our intention to submit a revised price and financing offer on receiving your request which will result in the following : This will be beneficial to THDC in terms of substantially lower prices. Our new price will have the same price adjustment basis as the prices submitted in November, 1998. We can submit the new price and financing offer in 2 weeks from your request." Similarly, on 9.12.1999, M/s. Alstom wrote to THDC as follows (Annexure-II to the counter-affidavit of R.D. Pandey on behalf of M/s. Alstom). "It is also to be mentioned that we had quoted for this equipment more than a year back and at that point of time, since India had conducted the nuclear explosion, the financial Institutions, world over, were reluctant to finance this Project in India. However, the French Government was more lenient and did allow us to quote for your esteemed project and also allowed for the financing of the equipment. In view of the changed scenario, the international market have a changed outlook and are more keen to invest in India. As a result the prices of the equipment for which we had quoted to you more than a year back have been substantially reduced that would benefit THDC and the Government of India tremendously. Since the reduction in price is substantial and cannot be covered by any price variation formula etc., we are, Therefore, very keen to submit our revised price bid and would request you to kindly let us have a date by which we can submit the revised price bid." M/s. Siemens, respondent No. 7 resisted the move of M/s. Alstom and M/s. A.B.B. pointing out that unnecessary confusion is being created by them in order to cause delay in taking the decision in the matter. What Siemens wrote to THDC through their letter dated 15th December, 1999, runs as follows : "You may kindly appreciate that as per the provision of the specification clause 2.18.2 (Section III, Instructions to bidders, pages 1-15) modification on the bid is not permitted. Further, as per provision of Government of India/CVC guidelines, re-bid as being suggested by other bidders at this stage, will be a violation of established contract norms. This further raises certain questions as to how does one know that the re-bid will lead to better prices and advantages to the Corporation unless the original bids are opened and the position is known. It is very apparent from the tactics of the other bidders that their intent at this stage is only to improve their own position or change their position. "We are sure that you will appreciate our concern and not allow such moves and intentions which may harm the credentials of such a prestigious Corporation like yours and be against the norms of International Competitive Bidding besides denting credibility of transparency." It appears that the suggestion made by M/s. Alstom and M/s. A.B.B. did not find favour with THDC and steps were taken to open the original price bids on 24th January, 2000.
(3.) The present Public Interest Litigation (for short 'PIL') under Article 226 of the Constitution of India has come to be initiated by one Nand Kishore Nautiyal, claiming himself to be a Journalist and a social activist, to espouse and protect the cause of public interest. He is alleged to have received startling information with regard to the rampant corruption amongst high officials of the THDC inasmuch as, on account of repeated extensions of the validity of the price bids and undue delay caused by THDC in opening the bids, the original bids have lost relevance and it has become possible to lower the price of the said bids due to drastic global changes in the market all over the world and the liberal economic policy pursued by India. According to him, the lowering of prices has been made possible due to lifting of the sanctions, which were earlier imposed on India by the world community due to Pokhran atomic blast. The case of the petitioner, in short, is that there is nothing to bar THDC from accepting the lower bids which are in keeping with present market trends and conditions and if it is done, there may be a saving of about 40 crores which otherwise would be a colossal loss to the nation, if the contract is finalised on the basis of the original bids submitted in November, 1998. The following reliefs have been claimed by the petitioner : (a) issue a writ, direction or order in the nature of mandamus or any other appropriate writ like order or direction calling upon the respondent No. 1 THDC to place the entire records pertaining to the Rs. 200 crore transmission line tender before this Hon'ble Court. (b) Issue a writ, direction or order in the nature of prohibition or any other appropriate writ, like order or direction restraining the respondent No. 1 THDC from opening financial bids submitted by the respondent Nos. 5 to 7 (wrongly mentioned 6 to 8). (c) issue a writ, direction or order in the nature of mandamus or any other appropriate writ like order or direction directing the respondent No. 1 THDC to permit the prospective bidders, respondent Nos. 5 to 7 (wrongly mentioned 6 to 8) to modify their financial bids for awarding of the proposed contract. (d) issue a writ, direction or order in the nature of certiorari quashing and cancelling the tenders received by the respondent No. 2 THDC and call for the fresh bids. (e) issue a writ, direction or order which may be necessary to meet the ends of justice and public interest.";