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TMI Blog2022 (1) TMI 1453X X X X Extracts X X X X X X X X Extracts X X X X ..... it the convenience of any particular person with a view to eliminate all others from participating in the bidding process. In Michigan Rubber (India) Limited [ 2012 (3) TMI 512 - SUPREME COURT ], it was observed that it would not be permissible for the Courts to interfere with the terms of the tender merely because the Court feels that some other terms in the tender document would have been fair, wiser or logical. The Principal inviting tender must have a free hand in stating the terms of the tender and it is only if any term is found to be arbitrary, discriminatory, mala fide or actuated by bias that the Court would interfere. The grievance of the petitioner is that the involvement of a private party in the form of the Private Siding Agent in the tender process has resulted in the tender no more being a public tender. It is apprehended that the rates for rendering services by a Private Siding Agent could differ from bidder to bidder thus making it unfeasible for a bidder to competitively submit its financial bid. The rates to be quoted by the petitioner would be governed by the service charges to be levied by the respondent no.2 over which the Principal had no control. This result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged as being arbitrary, capricious and violative of Articles 14 and 19(1)(g) of the Constitution of India. 3. Shri D.V. Chauhan, learned counsel for the petitioner-Bidder submits that by introducing a private party in the matter of transportation of raw coal there is uncertainty in the manner in which the prospective bidders would be required to submit their bids, especially the financial aspect thereof. Considering the nature of the work under the tender which pertained to transportation of raw coal, given the fact that there were various private siding entities available for unloading and transportation of the coal there was no reason to restrict such operation to be undertaken only through the respondent no.2 a Private Siding Agent. It was submitted that despite being eligible for participation in the tender process, introduction of a private entity in the work of transportation resulted in such private party playing a crucial role as regards the financial rates to be quoted by the bidders. The tender document did not indicate the manner in which the Private Siding Agent would provide its services and therefore a bidder even if technically qualified would be prejudiced while sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent/no objection certificate that was required at the time of submission of the bid was now required to be submitted before opening of the price bid. He further submitted that the due date for submission of bids was extended till today by having the requisite notice published on the website. This was in accordance with Clause 1.10 of the tender notice. The learned counsel then submitted that the petitioner having participated in the tender floated by the Principal pursuant to the Corrigendum as issued, it was now estopped from challenging that condition. Such participation without reserving the rights sought to be agitated in the present proceedings precluded the petitioner from raising a challenge to Clause 1.12(V). It was then submitted that considering the nature of work offered under the tender notice and as the Principal was interested in uninterrupted transportation of coal, a convenient Private Siding Agent in the form of the respondent no.2 was identified. The said agent was to provide a dedicated siding for the Principal and this was found to be logistically feasible. Considering the scope of the work as per Clause 2.1 of the tender document, the Principal was justified i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds under which the Private Siding Agent was required to provide service. However if a contractor undertook to carry out a particular work itself the same would result in reduction of the total service charges of the Private Siding Agent. It was thus submitted that by no stretch of imagination could it be said that the role of the Private Siding Agent or the rates cited by it could be considered as a guiding/ governing factor in submitting the financial bid. It was then submitted that despite the Private Siding Agent informing the petitioner that it was willing to issue the requisite no objection certificate subject to fulfillment of general terms and conditions for rake handling as applicable for all siding users, there was no further response from the petitioner. The petitioner could have got necessary clarification from the Private Siding Agent if it so desired. In absence of any allegation of mala fides or arbitrariness there was no ground made out to interfere with the tender document, the scope for interference being limited. The learned Senior Advocate placed reliance on the decisions in Tata Cellular Versus Union of India [(1994) 6 SCC 651] and Uflex Limited (supra) and subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by bias that the Court would interfere. The proposition that the Court does not make a contract for the parties and the Court would not improve the contract which the parties have made for themselves however desirable improvements might be, has been reiterated in Uflex Limited (supra). Keeping the aforesaid position in mind, when the challenge to Clause 1.12(V) of the tender document is concerned, we do not find the said Clause to be so arbitrary or irrational warranting interference under Article 226 of the Constitution of India. 8. The tender in question is for transportation of raw coal from the mines owned by the Western Coalfields Limited to railway sidings and then loading the same in the railway wagons for onward transportation through end to end road and rail mode to Khaperkheda Thermal Power Station. The uninterrupted supply of coal to the power plant is undisputedly the priority of the Principal. It is with that object in mind that the Principal has sought to justify its selection of a Private Siding Agent for assistance in the dispatch of coal to the Thermal Power Station. The Private Siding Agent is stated to have a dedicated siding for the Principal and the said privat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bidder would have definitely enquired about such general terms and conditions that were applicable so as to take further steps but the same has not been done by the petitioner herein. It would have been a different matter had the petitioner come up with instances of different rates being applied by the Private Siding Agent to different bidders. That is not the case on record. The statement that such similar rates ought to have been indicated by the Principal in the tender notice cannot take the case of the petitioner any further. The fact remains that the Private Siding Agent has clearly stated that similar rates have been applied for its services to all bidders. 9. We have also considered the grounds of challenge as proposed by the petitioner in the amendment application. We are however not persuaded to accept the challenge as raised to Clause 1.12(V) by the petitioner. Presence of such clause does not render the tender document to be either arbitrary, unreasonable or resulting in violating the provisions of Articles 14 and 19(1)(g) of the Constitution of India. The Private Siding Agent having stated that all bidders would be treated equally while quoting the rates for the service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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