TaxTMI 
TaxTMI 
2022 (1) TMI 1453
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....a private siding owner to operate the siding should be submitted along with the bid, failure which the bid will not be considered. The siding should be available for the entire period of the contract." This clause has been challenged 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 f....
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....submitted that in view of the ad-interim order passed by this Court on 14.12.2021 a Corrigendum came to be issued on 20.12.2021 as a result of which Clause 1.12(V) of the tender conditions came to be modified and the necessary permission/consent/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 ....
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....ad to liaison with all concerned agencies to ensure efficient and uninterrupted supply of coal. On instructions it was submitted that the service charges as charged by the Private Siding Agent were identical qua each bidder. There were various heads 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 gr....
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....ther 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 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 m....