Premier Energies Ltd vs Assam Power Distribution Company ...
2021 Latest Caselaw 3263 Gua

                                                                   Page No.# 1/6

GAHC010204972021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/6417/2021

            PREMIER ENERGIES LTD.
            A PUBLIC LIMITED COMPANY HAVING ITS REGISTERED OFFICE AT SY.
            NO. 54/PART, ABOVE G PULLA REDDY SWEETS, VIKRAMPURI,
            KARKHANA MAIN ROAD, SECUNDEABAD 500009, TELENGANA INDIA,
            REPRESENTED BY ITS AUTHORISED REPRESENTATIVES SRI RAVI
            PRAKASH KHADRIA,



            VERSUS

            ASSAM POWER DISTRIBUTION COMPANY LIMITED AND 2 ORS
            HAVING ITS REGISTERED OFFICE AT BIJULI BHAWAN, PALTAN BAZAR,
            GUWAHATI 1, REPRESENTED BY ITS MANAGING DIRECTOR

            2:THE MANAGING DIRECTOR

             ASSAM POWER DISTRIBUTION CO. LTD.
             BIJULI BHAWAN
             PALTAN BAZAR
             GUWAHATI 1

            3:THE CHIEF MANAGER (RE)
            ASSAM POWER DISTRIBUTION CO. LTD.
             BIJULI BHAWAN (ANNEX BUILDING)
             PALTAN BAZAR
             GUWAHATI

Advocate for the Petitioner   : MR. R DUBEY

Advocate for the Respondent : SC, APDCL

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BEFORE HON'BLE MR. JUSTICE MANASH RANJAN PATHAK

02.12.2021

Heard Mr. R. Dubey, learned counsel for the petitioner and Mr. K.P. Pathak, learned Standing Counsel, APDCL for the respondent Nos. 1 to 3.

The respondent APDCL vide NIT No.APDCL/CGM(NER)NER-36/2021-22/182 dated 08.09.2021 issued an e-Tender notice for off grid rural electrification works in the districts of Assam through standalone Solar PV System on turnkey mode under Deen Dayal Upadhay Gram Jyoti Yojana (DDUGJY) New Scheme for 17 different packages.

The petitioner herein participated in the said e-Tender process by submitting his bid and finding his bid responsive and accepting the offer, the respondent APDCL on 12.11.2021 issued Letter of Award (LOA) to the petitioner for the Package No.11 specifying that the contract price for the entire scope of work under the contract shall not exceed Rs.7,15,50,000/-specifying the Terms and Procedures of Payment at Annexure-A of the said LOA.

Note 1 of the said Annexure-A relates to the Terms and Procedures of Payment of the said LOA dated 12.11.2021 appended to it reads as under-

"1. As the project completion (in all respect) date is 31/12/2021, release of the installment of 60% Progressive payment will be based on the physical progress of work as on date. In this connection a certificate of actual physical progress of work from AGM (Projects), APDCL of concerned district shall have to be submitted by the Contractor. Total 4 (four) nos. of progressive bills against Supply shall be allowed subject to the condition as given."

The petitioner stated that the respondent APDCL changed the terms and conditions in its said LOA as it was not in the original terms and conditions of the NIT dated 08.09.2021. To that extent the petitioner has placed Appendix-1 relating to the Terms and Procedures of Payment stipulated in the NIT dated 08.09.2021 that relates to First Installment (60%) wherein it was provided that-

1.1 First Installment (60%): Sixty percent (60%) payment against supply of various items of price schedule 1 (Complete items of individual Solar Home Lighting System) including 100% GST shall be paid on receipt and acceptance Page No.# 3/6

of Materials on submission of documents indicated herein under:

a. Copy of unconditional acceptance of the Letter of Award (LOA) and signing of contract agreement by the Contractor. b. Copy of submitted unconditional & irrevocable Bank Guarantee for three percent (3%) of the total Contract price towards Contract Performance Guarantee (CPG) in accordance with the provisions of bid document. c. Copy of Detailed Project Execution Play/PERT chart. d. Contractor's detailed invoice & packing list identifying contents of each shipment.

e. Copies of Certificate to the effect of payments of SGST/CGST, duties, levies etc have been made by the bidder against supply of materials under the contract.

f. Certified copy of Insurance policy/Insurance Certificate. g. Manufacture's/Contractor's guarantee certificate of Quality h. Copy of Guaranteed Technical Particulars (GTP) and drawing approved by the Employer.

i. Material Dispatch Clearance Certificate (MDCC)/Dispatch Instructions (DI) for dispatch of materials from the manufacturer's works. MDCC/DI shall be issued by authorized officer of Employer j. manufacturer's copy of challan k. Submission of the certificate by the employer's representative that 100% billable item(s) have been verified & delivered to site. MICC (Material Inspection & Clearance Certificate) to be issued by the AGM (Project), APDCL and countersigned by concerned CEO, APDCL.

Though the petitioner communicated with the respondent APDCL, it did not sign the agreement with the respondent APDCL due to said change of the clause of First Installment in the original NIT dated 08.09.2021 and that stipulated in the LOA dated 12.11.2021 for which the respondent APDCL on 25.11.2021, through Email, informed the petitioner regarding the termination of Package No.11 with it because of non-furnishing of unconditional acceptance of said LOA dated 12.11.2021 within the time specified therein.

Subsequent to that, the respondent APDCL on 26.11.2021, issued a fresh e-Tender for the same purpose and the same Package No.11 wherein at Clause-3 of the NB it is indicated as follows:

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"3. The bidder who have not submitted unconditional acceptance of the LOA/rejected the LOA as issued by APDCL against the NIT No.APDCL/CGM (NER)/NRE-36/2021-22/182 dated 08/09/2021 & APDCL/CGM (NER/NRE- 36/2021-22/310 dated 03/11/2021 would not be eligible to participate in this tender either individually as a Bidder or as a partner of JV/Consortium."

Being aggrieved with such action of the respondent APDCL, the petitioner has preferred this writ petition. The petitioner stated that without giving any opportunity of hearing to it, the respondent APDCL debarred it from participating in the fresh e-Tender process dated 26.11.2021 with regard to said Package No.11.

The petitioner relied on the judgment of the Hon'ble Apex Court in the case of Dresser Rand S.A. Vs. Bindal Agro Chem Ltd. and K.G. Khoosla Commissioners Ltd ., reported in (2006) 1 SCC 751 in support of his submission.

Mr. K.P. Pathak, learned Standing Counsel, APDCL admitted the fact that there is a change of terms and conditions of the NIT dated 08.09.2021 with that of the LOA dated 12.11.2021 pertaining to Package No.11 issued to the petitioner. It is also submitted by the APDCL that no agreement has been signed by the parties, where the petitioner was offered with those conditions noted in the said LOA, which the petitioner did not accept.

It is also placed before the Court by Mr. K. P. Pathak, learned Standing Counsel, APDCL that the petitioner by its communication dated 26.11.2021 informed the respondent APDCL accepting its decision of terminating his LOA. To that extent, Mr. Pathak, learned Standing Counsel, APDCL has placed the said communication dated 26.11.2021 submitted by the petitioner before the respondent APDCL through Email annexed by the petitioner in this petition at page 179.

Mr. K.P. Pathak, learned Standing Counsel, APDCL further states that the Note 1 of the Annexure-A that pertains to the terms and procedures of payment annexed to the LOA, noted above, has been incorporated as terms and conditions in the fresh e-Tender dated 26.11.2021 issued by the respondent APDCL with regard to same Package No.11.

It is also placed before the Court by Mr. K.P. Pathak, on behalf of the APDCL that since the petitioner did not accept the conditions and did not enter into the contract Page No.# 5/6

unconditionally in spite of the issuance of the LOA dated 12.11.2021 to him with regard to the Package No.11, therefore in the said e-Tender dated 26.11.2021, the petitioner was barred from participating in it with regard to same Package No.11, wherein the new clauses have been incorporated as that of the said LOA dated 12.11.2021, which the petitioner did not accept earlier.

It is also placed before the Court by Mr. Pathak, learned Standing Counsel, APDCL that today, i.e. on 02.12.2021 at 02.00 PM is the last date and time for submission of bid with regard to new e-Tender dated 26.11.2021 pertaining to the same Package No.11 issued by the respondent APDCL.

Mr. K.P. Pathak, learned Standing Counsel, APDCL further states that as only one time measure, the petitioner has been barred from participating in such tender of the APDCL that relates to Package No.11 as he did not accept the LOA that was issued to him.

In this regard, Mr. K.P. Pathak, learned Standing Counsel, APDCL relied on the observation made by the Hon'ble Apex Court in the case of Bharat Coking Coal Limited and Others Vs. AMR Dev Prabha and Others , reported in (2020) 16 SCC 759 and stated that as public interest is involved regarding supply of Solar Panel in rural areas of the State, this writ petition should not be entertained.

Issue notice, returnable by 10.01.2022.

As Mr. K.P. Pathak, learned Standing Counsel, APDCL has accepted notice for the respondent APDCL, no formal notice need be issued to respondent Nos. 1 to 3.

The petitioners shall serve requisite extra copies of this petition along with the annexures appended thereto to Mr. K.P. Pathak, learned Standing Counsel, APDCL by tomorrow (i.e. 03.12.2021), obtaining necessary acknowledgment from him in that regard.

Any such contract with regard to the said e-Tender notice dated 26.11.2021, shall be subject to the outcome of this writ petition.

It is made clear that the observation made in the said e-Tender notice dated 26.11.2021 shall not bar for the petitioner to participate in any other tender process of the respondent APDCL.

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It is further made clear that any such forfeiture of the amount deposited by the petitioner with regard to his bid document of Package No.11 pertaining to the said e- Tender notice dated 08.09.2021, shall also be subject to the outcome of this writ petition.

List accordingly.

JUDGE

Comparing Assistant