M.Y.EQBAL, J. - (1.) HEARD Mr. Biren Poddar, learned Senior Counsel for the petitioners, Mr. Delip Jerath, learned counsel for the respondent Tenughat Vidyut Nigam Ltd and the learned counsel appearing for the intervener.
(2.) IN these two writ petitions the petitioners have prayed for quashing Clause (2) of the tender notice bearing No. 7/Coal Trans. TVNL/RAN/04 dated 27.5.2004 issued by respondent No. 1 Tenughat Vidyut Nigam Ltd (in short TVNL) for transportation of coal of on road from the collieries of West Bokaro of Central Coalfiled Ltd. to Tenughat Thermal Power Station, Lalpania and further for a direction to the respondents to issue tender papers to the petitioners as they fulfill all the eligible criteria laid down in the tender notice except the conditions contained in the aforesaid clause. Mr. Biren Poddar, learned Senior Counsel assailed the impugned tender notice particularly Clause (2) as being illegal, arbitrary, discriminatory and malafide and amounts to depriving many of the eligible bidder from participating in tender process with sole object to accommodate the persons of their choice. Learned counsel submitted that the terms and conditions provided in the tender notice should have reasonable nexus with the objection sought to be achieved. According to learned counsel the condition put in the tender notice that the bidders should have experience of transportation by road in the power house located in the State of Jharkhand have no reasonable nexus with the work to be completed. Learned counsel submitted that the action of the respondents/Tenughat Vidyut Nigam Ltd in putting such conditions and thereby not allowing large number of participants in the aforesaid tender notice amounts to an arbitrary and illegal act which is also detrimental to the interest of the respondents. Learned counsel drawn my attention to the decision of the Supreme Court in the case of "Sterling Computers Ltd. V/s. M & N Publications Limited and Ors." (1993) 1 SCC 445, and in the case of "Tata Cellular V/s. Union of India, (1994) 6 SCC 651, and submitted that if the process of selection is malafide inasmuch as the notice inviting tender excludes all the contractors then this Court can issue appropriate direction for the rectification of the tender notice.
(3.) MR . P.K. Prasad, learned counsel for the Tenughat Vidyut Nigam Ltd. on the other hand firstly contended that the conditions contained in the notice inviting tender cannot be a subject matter of judicial review. According to the learned counsel only decision making process and not the merit of the decision can be the subject matter of judicial review. Learned counsel then drawn my attention to the counter affidavit filed by the Tenughat Vidyut Nigam Ltd. and submitted that relief sought for by the petitioner is not tenable since the petitioner on earlier occasion while undertaking contract work of the respondents failed to lift the coal and transport it to Tenughat Thermal Power Station being work order No. 14, dated 23.11.2000. Even petitioner did not fulfill his contract so far CCL is concerned on their Rajrappa Project. It is contended that as per Clause (2) of the tender notice the contractor should have experience of transportation of coal to power house because it is a specialised work and the transportation has also to identify and lift the appropriate quantity of the coal.;