R. K. Transport And Company Ltd., ... vs Maha. State Power Generation Com. ...
2022 Latest Caselaw 866 Bom

WPs 5441 & 5444-21                            1             Common Judgment

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.
                   WRIT PETITION NO. 5441/2021
R.K. Transport & Company Limited,
a company duly incorporated under the Companies
Act, 1956 having its registered office at HIG-7, Behind
Madan Complex, Shankar Nagar, Sector -2 Raipur -
492001, Chhattisgarh through its Director Sushil Singhal.       PETITIONER
                                .....VERSUS.....
1.   Maharashtra State Power Generation Company Ltd.
     Through the Chairman cum Managing Director,
     Prakashgad, Plot No.G-9, Bandra (East), Mumbai-400 051.
     E-mail: [email protected]
2.   The Chief Engineer (Fuel Management),
     Maharashtra State Power Generation Company Limited,
     Prakashgad, 3rd Floor, Bandra (East),Mumbai - 400 051.
3.   The Chief Engineer (Stores),
     Maharashtra State Power Generation Company
     Limited, Prakashgad, 2nd Floor, Bandra (East),
     Mumbai - 400 051. Email: [email protected]
4.   The Deputy Chief Engineer (Fuel Management-III),
     Maharashtra State Power Generation Company
     Limited, Urja Bhawan, Administrative Building,
     Koradi, Nagpur - 441 111.
5.   Maheshwari Coal Benefication and Infrastructure
     Private Limited, Near Sirgitti Railway Overbridge,
     Hi-Tech Engineering Works, Parsada, Sirgitti,
     Bilaspur - 495 223, Chhattisgarh.                        RESPONDENTS
                                     WITH
                   WRIT PETITION NO. 5444/2021
Balaji Ventures Pvt. Ltd.
A company duly incorporated under the Indian
Companies Act, 1956, having its registered office
at 71/A, Krishna House, ST Bus Stand Road,
Ganeshpeth, Nagpur 440018. Through its Authorized
Signatory Kishor Himmatlal Agrawal.                             PETITIONER
                                .....VERSUS.....
1.   Maharashtra State Power Generation Company Ltd.
     A Government corporation incorporated under the
     Indian Companies Act, 1956, having its registered
     office at Prakashgad, Plot No.G-9, 3rd floor, Bandra
     (East) Mumbai-400 051, Through its Chief Engineer.
 WPs 5441 & 5444-21                               2              Common Judgment

2.   Maheshwari Coal Benefication and Infra Pvt.Ltd.
     Siding Near Sirgitti Railway Overbridge, Behind
     Hi-Tech Engineering Works, Parsada, Sirgitti,
     Bilaspur - 495 223.                                            RESPONDENTS

  Shri C.B. Dharmadhikari, counsel for the petitioner in W.P. No.5441/2021.
     Shri D.V. Chauhan, counsel for the petitioner in W.P. No. 5444/2021.
  Shri M.P. Khajanchi, counsel for the respondent no.1 in both the petitions.
 Shri S.P. Dharmadhikari, Senior Advocate with Ms Payal Bawankule, counsel
 for the respondent 5 in W.P. No.5441/2021 and for respondent no.2 in W.P.
                               No.5444/2021.

CORAM : A. S. CHANDURKAR AND SMT. M.S. JAWALKAR, JJ.

DATE : 24TH JANUARY, 2022.

ORAL JUDGMENT (PER : A.S. CHANDURKAR, J.)

RULE. Rule made returnable forthwith and heard the

learned counsel for the parties.

2. On 02.12.2021, the Maharashtra State Power Generation

Company Limited-Principal floated a tender inviting bids for

transportation of raw coal against Road-cum-Rail allocation from various

mines of South Eastern Coalfields Limited to various Thermal Power

Stations of the Principal. Clause 1.12(V) which is the contentious clause

that has given rise to these writ petitions reads as under:

"1.12(V) Railway Siding:-

Bidder should have permission / consent of Maheshwari Coal Benefication and Infra Pvt.Ltd. Siding (MMBD Siding) owner to operate the siding on SECR Bilaspur division for dispatch of coal to All TPS of Mahagenco.

Permission / consent of MMBD siding owner to operate the siding should be submitted along with the bid, failure WPs 5441 & 5444-21 3 Common Judgment

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 M.P. Khajanchi, learned counsel for the respondent no.1-

Principal has raised a preliminary objection to the maintainability of the

writ petition before this Court on the ground that no cause of action has

arisen within the territorial jurisdiction of this Court so as to enable the

petitioners to raise a challenge to the tender document. He submits that

the challenge raised to the tender document is in the context of Clause

1.12(V) by which a bidder is required to obtain permission/consent of a

Private Siding Agent while transporting the coal. Involvement of a third

party in the tender process has been objected to by the petitioners. The

aforesaid clause requiring permission of the Private Siding Agent who

operates from Bilaspur, Chhattisgarh is under challenge. The coal mines

in question are situated at Kusmunda/Gevra/Dipka mines of South

Eastern Coalfields Limited, Korba. The tender document has been

published at the head office of the Principal at Mumbai and no part of

cause of action has arisen at Nagpur so as to enable the petitioners to

approach this Court. There were no specific averments to indicate the

manner in which such cause of action has arisen before this Court.

Reliance is placed on the decision in VSP Acqua Mist Fire Pvt.Ltd., WPs 5441 & 5444-21 4 Common Judgment

Nagpur Versus Maharashtra State Electricity Transmission Company

Ltd., Mumbai & Others [2010(2) Mh.L.J. 575] in that regard.

Shri S.P. Dharmadhikari, learned Senior Advocate for the

respondent no.2 supports this objection.

4. Shri D.V. Chauhan and Shri C.B. Dharmadhikari, learned

counsel appearing for the petitioners opposed aforesaid submissions and

contended that since part of cause of action had arisen within the

jurisdiction of this Court, the writ petitions were rightly filed at Nagpur.

Referring to the provisions of Article 226(2) of the Constitution of India,

it was submitted that even if a part of cause of action arose within the

jurisdiction of this Court, the writ petition could be entertained

notwithstanding the fact that the tender was issued from Mumbai and the

Private Siding Agent was situated at Bilaspur, Chhattisgarh. The doctrine

of Forum Conveniens was sought to be invoked in this regard. Reliance

was also placed on various clauses in the tender document and especially

Clause XVIII wherein various definitions were given as well as Clause 2.7

to indicate that the Deputy Chief Engineer at Nagpur had a role to play in

the contract. The fact that coal was to be transported to all thermal

power stations was also relevant. Reliance was placed on the decision in

Kusum Ingots & Alloys Ltd. Versus Union of India & Another [(2004) 6

SCC 254] in that regard and it was submitted that since Writ Petition

No.5260 of 2021 was filed prior in time and was entertained wherein a WPs 5441 & 5444-21 5 Common Judgment

similar challenge was raised, these writ petitions also deserve to be

entertained on merits.

5. We have heard the learned counsel for the parties on the

aspect of maintainability of the writ petitions in the light of the objection

raised on the ground of territorial jurisdiction. It is undisputed that under

Article 226(2) of the Constitution of India even if part of cause of action

arises within the jurisdiction of this Court, the writ petition could be

entertained. The material aspect to be considered is the "cause of action"

for raising a challenge to the tender document dated 02.12.2021. For

considering this aspect, the challenge as raised by the petitioners in that

regard would have to be taken into consideration. The specific challenge

raised is to Clause 1.12(V) by which a bidder is required to obtain a

permission/consent of a Private Siding Agent while undertaking transport

of coal under the contract. In the present tender, the coal mines are

situated at Kusmunda/Gevra/Dipka with the South Eastern Coalfields

Limited, Korba. The Private Siding Agent is located at Bilaspur,

Chhattisgarh. The challenge as specifically raised is to the involvement of

a private party in the process of transportation vis-a-vis the Private Siding

Agent located at Bilaspur, Chhattisgarh. The petitioners contend that

introduction of such private party causes prejudice to the petitioners since

the rates at which services would be rendered by the Private Siding Agent WPs 5441 & 5444-21 6 Common Judgment

would govern the manner in which financial bids would be made by the

petitioners. In other words, the presence of the Private Siding Agent

located at Bilaspur, Chhattisgarh is the bone of contention according to

the petitioners that has resulted in challenging Clause 1.12(V). The

transportation in question in the context of the challenge raised would be

required to be executed at the siding where the respondent no.2 operates.

This is at Bilaspur, Chhattisgarh. But for the presence and involvement of

the respondent no.2, there was no other reason to challenge the tender

notice. The tender document was published from Mumbai and the bids

are also to be finalized at Mumbai. We find that no part of cause of

action arises within the jurisdiction of the Nagpur Bench of this Court to

enable the writ petitions to be entertained except the fact that the

petitioner in Writ Petition No.5444 of 2021 has its office at Nagpur. This

position has been considered in VSP Acqua Mist Fire Pvt.Ltd., Nagpur

(supra) while holding that such aspects would not confer territorial

jurisdiction.

6. Though it was sought to be urged that the Deputy Chief

Engineer (Fuel Management - III), Nagpur had a role to play in the

contract, it is seen that involvement of the said Authority is after issuance

of the work order and Clause 2.7 to which reference has been made finds

place in Section II of the tender conditions with regard to the scope of the WPs 5441 & 5444-21 7 Common Judgment

work and other terms and conditions. In other words, that Authority

would be involved only after a bid of a bidder is accepted and he is issued

the work order. At the present stage the bids are to be submitted and it is

thereafter that the aspect of issuance of work order would arise. Hence,

at this stage, there is no question of said Authority being involved. In this

regard reference can be made to the decision of the Hon'ble Supreme

Court in Union of India Versus Adani Exports Ltd. [(2002) 1 SCC 567]

wherein it was held that each and every fact pleaded does not ipso facto

lead to the conclusion that those facts give rise to a cause of action within

the Court's territorial jurisdiction unless those facts are such that have a

nexus or relevance with the lis that is involved in the case.

7. We therefore find that since no part of cause of action arises

within the jurisdiction of this Court, the writ petitions are not liable to be

entertained on merits. Accordingly, both the writ petitions are not

entertained on merits and they are disposed of with a liberty to the

petitioners to approach the Court having territorial jurisdiction to

entertain the challenges as raised. Needless to state that the points raised

in the writ petitions are kept open. Rule stands discharged. No costs.

         (SMT. M.S. JAWALKAR, J.)            (A.S. CHANDURKAR, J.)

                                                          Signed By: Digitally signed
                                                          byROHIT DATTATRAYA
                                                          APTE
APTE                                                      Signing Date:25.01.2022 16:52