- (1.) THESE two mandamus appeals were heard together as these are preferred against the self-same order dated 6th August, 2007 passed by a learned Single Judge of this Court by which His Lordship allowed a writ application filed by the Universal Cable Ltd. , the private respondent in these appeals, by setting aside the decision of the Metro Railway authority to award contract in favour of NICCO Corporation Limited ("nicco"), the appellant, in one of these appeals with the observation that whatever amount of work had already been executed by NICCO should not be undone and it would be entitled to the payment as per its entitlement for the work done till the date of delivery of judgment. His Lordship, however, directed the Metro railway Authority to proceed to award the contract for the balance work to the next eligible tenderer or to initiate fresh process for execution of the balance work with further direction that in such a case, NICCO would not be entitled to participate in the process of fresh tender.
(2.) BEING dissatisfied, both the NICCO and the Metro Railway Authority have preferred these two separate appeals.
(3.) THE Universal Cable Limited, the private respondent before us in these two appeals, filed a writ application before the learned Single Judge thereby praying for the following relief: " (a) A writ in the nature of Mandamus commanding the respondent Nos. 1 and 2 to complete the tendering process in term of the notice of tender no. ELECT/c/garia/2/r for supply erection/laying and commissioning of 33kv and 11 KV Feeder Cables from Shayam Bazar RSS to New garia TSS for power supply arrangement in Tollygunge-Garia Section and the price bids submitted by successfully awarding the work contract in favour of the consortium of the petitioners being the only eligible bidder; (b) A writ in the nature of Mandamus commanding the respondent Nos. 1 to 2 to strictly act in terms of the terms and conditions of the tender advertisement published in April, 2006 and in terms of the General condition of tender and conditions of contract of the Electrical engineering Department, Metro Railway, Calcutta; (c) A writ in the nature of Certiorari commanding the respondent authorities to transmit all records in respect of the said tendering process and upon failure to show cause and/or reasonable cause to quash the same; (d) Rule NISI in terms of prayers (a), (b) and (c) above; (e) Interim order restraining the respondent authorities from awarding the work contract and/or cancelling the tendering process without leave of this Hon'ble Court and/or until disposal of the writ petition; (f) Ad interim prayers in terms of prayer (e) above; (g) Any other or further order or orders as to Your Lordships may deem fit and proper. " 3a. The case made out by the writ petitioner may be summed up thus: (1) The writ petitioner entered into a consortium agreement for the purpose of making consortium bid and entering into a contract for supplying, laying, erection, testing and commissioning of 11kv and 33kv power cables in Tollygunge and Garia Section against the tender issued by the Metro Railway Authority. (2) In the month of October, 2005, the respondent No. 2, on behalf of the president of India, issued a notice of tender inviting open tender in sealed cover from the reputed licensed contractors for the work of supply of erection/laying and commissioning of 33kv and 11kv feeder cables from Shyam Bazar RSS to New Garia TSS for power supply arrangement in Tollygunge-Garia section with a period of completion of 24 months from the date of issue of letter of agreement. The total estimated value of the work was Rs. 23,15,80,178/ -. (3) In response to the above tender notice, the writ petitioners submitted their Techno Commercial Bid and the Price Bid along with other contractors. Although, the Techno Commercial Bids of the bidders were opened, the Metro Railway Authority, for the reason best known to them, cancelled the tender notice and the tender evaluation process. The Deputy Chief Electrical Engineer, on behalf of the respondent No. 2, intimated the writ petitioner No. 1 that the subject tender had been discharged by the competent authority; however, no reason was assigned, in the said letter. (4) After a gap of six months, the respondent authorities issued a fresh notice of tender in the month of April, 2006 for the self-same work, which was the subject-matter of the former tender issued in the month of October, 2005. (5) The estimated value, eligibility criteria and other terms and conditions of the subsequent tender were the same as that of the earlier tender. (6) The writ petitioners in response to the above notice of tender issued in the month of April, 2006 again submitted its price bid within the due date on August 4, 2006. (7) There were six bidders for the subsequent tender and after evaluation of the Techno Commercial Bids, which were opened on August 4, 2006, three bidders namely, Yamuna Gases and Chemicals Limited, NICCO corporation Limited and the writ petitioners were shortlisted for evaluation of price bids, which were opened on 10th October, 2006. The yamuna Gases and Chemicals Ltd. submitted only variable price bid and therefore, became ineligible in view of the withdrawal of the variable price by the respondent authorities and, thus, effectively the other two bidders submitted firm price bid and were within the zone of consideration. (8) NICCO Corporation Ltd. quoted for 81. 215% increase on the estimated tender value of Rs. 23,15,80,178/- whereas the writ petitioners quoted for 120. 824% increase on the estimated tender value. (9) On cancellation of the first tender, on 18th April, 2006, it was intimated by the Metro Railway Authorities that the job should be retendered. After about five months, the subsequent tender was floated. In the meantime, there was unprecedented rise in the price of copper all over the world, which is the main raw material for manufacturing the cables involved in the tender and it constituted approximately 75% of the raw material cost. Surprisingly enough, the Metro Railway Authorities while retendering the work in April, 2006 did not at all take into consideration the increased copper-price and did not re-estimate the value of the revised tender and thereby, diluting the eligibility criteria of the subsequent tender. (10) NICCO Corporation Ltd. was ineligible for participation in the tendering process vide notice of tender published in the month of October, 2005 in view of the fact that it was one of the essential eligibility criteria that the intending tenderer should have completed in the last three financial years from 2002-03, 2003-04, 2004-05 and 2005-06 till the date of opening of the tender at least one similar single work involving supply, erection, testing and commissioning work of power cables/ traction sub-station/power supply sub-station/power supply transmission including its protection scheme for system voltage of 11kv/ 33kv and/or above for a minimum value of 35% of the advertised tender value of work. (11) The respondent authorities cancelled the previous notice of tender published in the month of October, 2005 and a fresh tender in the month of May, 2006 on the self-same terms and conditions was issued only to give work order in favour of NICCO Corporation Ltd. , which in the meantime, managed to gather the experience in terms of clause (b) of the eligibility criteria for the purported completion of work contract in january, 2006. (12) The memo dated 22nd May, 2006 issued by the Karnataka Power transmission Corporation Ltd. in favour of NICCO Corporation Ltd. , which was commissioned only in January, 2006, was invalid and on the basis of such certificate no work order could be given. (13) The said Karnataka Power Transmission Corporation Ltd. had de-listed nicco Corporation Ltd. from its approved list of companies involving 66kv underground cables but in spite of such fact, Metro Railway authorities selected the NICCO Corporation Ltd. being the lowest bidder. Hence, the writ application. ;