Bhaskar Bhattacharya, J. - (1.) These two mandamus appeals were heard together as those are interlinked and are directed against the self-same order dated June 22, 2007 passed by a learned Single Judge by which His Lordship refused to extend the interim order earlier granted on April 18, 2007 on the writ application filed by the respondent No. 1 wherein the selection of National Small Industries Corporation Limited (NSIC) as a supplier of materials was challenged.
(2.) Being dissatisfied, Hindustan Copper Limited, the Government company, who floated the process of tender, has preferred MAT No. 2400 of 2007 whereas the other appeal being MAT No. 2422 of 2007 has been filed by the NSIC.
(3.) We propose to take up the appeal preferred by the Hindustan Copper Ltd. at the first instance. The following facts are not in dispute: (a) The appellant is the company wholly owned by the Government of India. It is a buyer of various items including grinding media balls from small- scale industries. On January 22, 2007, the appellant advertised a tender for supply of 80/65 mm diameter C.I. Grinding Media Balls for its Malanjkhand Copper Project, M.P. and Khetri Copper Complex, Rajasthan respectively. The notice of the tender was issued from the office of the appellant at Kolkata. (b) Utkal Mouldings Private Limited, the writ petitioner, participated in the said tender offering supply of 2000 MT of 65 mm Balls for Malanjkhand Project and 500 MT of 65 mm Balls to Khetri Project. The NSIC also participated in the process of tender and submitted its bids. (c) The NSIC is admittedly not a manufacturer of any goods and it submitted its bid on behalf of a consortium of manufacturers but none of those manufacturers was individually qualified to participate in the process of tender. (d) The condition of tender specified that the following criteria should be fulfilled by bidders: (i) Should be a manufacturer of C.I. (Alloyed) Grinding Media Balls, 80 mm/ 65 mm dia. (ii) Should have minimum annual turnover of Rs. 2.0 crore in any consecutive 12 months during preceding 60 months period (to provide documentary evidence) (ii) Should have supplied minimum quantity of 1000 MT of Grinding Media Balls in any consecutive 12 months during preceding 60 months period (to provide documentary evidence). (e) On the basis of the bids submitted by the parties, it appeared that the Utkal Moulders, the writ petitioner, became L-3 for both the projects whereas the NSIC was L-4 for the project in M.P. and L-5 for the project in Rajasthan. One Siddhi Vinayak Casting Pvt. Ltd., the respondent No. 3 in the writ application was the L-l for the project in M.P. while one Siva Metal Industries, the respondent No.4 in the writ application was found to be L-1 for the project of Rajasthan. (f) The writ petitioner on being invited to match the lowest bid agreed to offer its price matching with L-l in respect of both the projects. The Hindustan Copper Ltd., however, extended the benefit of Purchase Preference Policy in favour of the NSIC and placed the following order for procurement of 6000 MTs and 1300 MTs of the goods by passing the following order: For 6000 MTs of 80 mm diameter On the respondent No. 3.........4000 MT (L-1) On the NSIC, the respondent No.2......2000 MT (L-4) For 1300 MTs of 65 mm diameter On the respondent No.4.........800 MTs (L-1) On the NSIC, the respondent No.2......500 MTs (L-4) (g) The Purchase Preference Policy is promulgated by the Government of India to give preference to the Government organisation but a joint-venture by a Government undertaking and a private undertaking is not eligible to have the benefit of the policy and paragraph (iii) of the office memorandum dated July 18, 2005 clearly indicates that the Purchase Preference Policy would be applicable only to public sector enterprises and not to any joint- venture with private sector partner. Further, the Purchase Preference Policy of the Government of India could be extended to a Government owned company when maximum value in addition of 20 per cent on the goods supplied is done by the Central Public Sector Enterprise by way of manufacturing and/or service. It is further provided therein that the other conditions are also required to be fulfilled by the Central Public Sector Enterprise. It is also indicated in the policy that if the Public Sector Enterprise does not to meet the minimum qualification, it would be subject to disqualification. (h) As the NSIC is not in the business of dealing in goods and it had no occasion to make any value addition as it only provides services and consideration of service charges of one per cent, it does not meet with the requirement of three conditions for invoking Purchase Preference Policy.;