Patna High Court
Onextel Media Pvt Ltd vs The State Of Bihar on 17 April, 2025
Author: Partha Sarthy
Bench: Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17348 of 2024
======================================================
Onextel Media Pvt Ltd. a Company Incorporated Under the Companies Act,
2013 through its Authorized Signatory, Mohd. Anish, S/o Md. Irshad, Male,
Aged-20 Years, having its registered office at C-802, ATS Bouquet, Sector-
132 Noida-201308.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Main Secretariat, Patna,
Bihar-800015.
2. South Bihar Power Distribution Company Limited through Chief Engineer
(Commercial) Regd. Office Second Floor, Vidyut Bhawan, Bailey Road,
Patna- 800001
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Y. V. Giri, Sr. Advocate
Ms. Archana Sinha @ Archana Shahi, Advocate
For the Respondent No. 2: Mr. Umesh Prasad Singh, Sr. Advocate
Mr. Kumar Manish, Advocate
Mr. Kumar Gaurav, Advocate
Mr. Vaibhav Veer Shankar, Advocate
Mr. Arun Kumar Prasad, Advocate
Ms. Aishwarya Shankar, Advocate
======================================================
CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE PARTHA SARTHY
ORAL JUDGMENT
(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
Date : 17-04-2025
Patna High Court CWJC No.17348 of 2024 dt.17-04-2025
We have heard Mr. Y. V. Giri, the learned
Senior Advocate for the petitioner and Mr. Umesh
Prasad Singh, the learned Senior Advocate assisted by
Mr. Kumar Manish, Advocate for the respondent No. 2.
2. The petitioner, who is a "non-telecom"
operator, but a leading business communication
solutions platform, enabling brands to build connected
consumer experiences with the core focus on integrated
telecommunications, has prayed for quashing of the
Request For Proposal (RFP) bearing NIT No.
40/PR/SBPDCL/2024 dated 10.04.2024 issued by
South Bihar Power Distribution Company Limited
(SBPDCL) for the reason of the RFP containing onerous
conditions for participating in the bid, which ousts most
of the participants as also for the reason that it is tailor-
made to accommodate a favoured company.
2. Be it noted that pursuant to the RFP,
the tender work stood allotted to a third party, viz., M/s
Pinnacle Teleservices Private Limited on 03.10.2024
Patna High Court CWJC No.17348 of 2024 dt.17-04-2025
i.e. before the filing of the instant writ petition, who was
never made a party; though an effort was made by the
petitioner to have the company impleaded as a party
respondent which was not necessary and, therefore,
was not allowed.
3. The SBPDCL (respondent No. 2), for
selecting and engaging an agency to provide SMS
gateway for Push SMS Services, Pull SMS Services,
Missed Call Services, Voice SMS Services and Voice Call
Services for itself and for its associate company, viz.,
North Bihar Power Distribution Company Limited
(NBPDCL) had floated RFP bearing NIT No.
40/PR/SBPDCL/2024 dated 10.04.2024.
4. The estimated cost of services was Rs.
42.52 Crores.
5. The proposal required an earnest
money deposit of Rs. 52,52,000/-. A bidder was
required to fulfil technical, financial and general criteria
set out in the bid papers and only successful bidders
Patna High Court CWJC No.17348 of 2024 dt.17-04-2025
were to be allowed to participate in the financial bid.
6. In the pre-qualification criteria of the
tender, a bidder was required to be an Official
WhatsApp Business Solution Provider and in support of
such a claim, a valid business/channel partner
certificate/agreement from WhatsApp, valid as on
bidding submission date, was to be filed. There was yet
another condition in the tender that at any time prior to
the deadline for bid submission, the tenderer could for
any reason, whether on its own or in response to a
clarification requested by a prospective bidder/proposer,
could modify/cancel the bidding document by issuing
amendments.
7. The petitioner attended the pre-bid
meeting convened by respondent No.2 and raised its
concern with respect to the necessity of qualifying the
condition of being an official WhatsApp Business
Solution Provider. It was flagged by the petitioner that
out of the five services for which the tender was floated,
Patna High Court CWJC No.17348 of 2024 dt.17-04-2025
three pertained to SMS, Voice SMS and OBD Services
constituting 90% of the estimated traffic volume,
whereas only two works related to WhatsApp services,
constituting only 10% of the estimated traffic volume. It
was, therefore, not in consonance with the public policy
to float a single tender for two separate kinds of
services, viz., Bulk SMS and WhatApp Services.
8. The queries and concern of the
petitioner were brushed aside and the conditions were
not changed.
9. Precisely for that reason, the petitioner
could not participate in the tender, but has challenged
the correctness of the policy of respondent No. 2 in
making the RFP restrictive by limiting it to Official
WhatsApp Business Solution Providers.
10. The contention of the petitioner is that
it is a non-telecom operator but has nine (9) years of
experience within the telecommunication sector and has
the capacity to deliver more than fifty crores SMS in a
Patna High Court CWJC No.17348 of 2024 dt.17-04-2025
day for PSU clients. The petitioner is directly connected
with leading telecom operators and has been able to
provide efficient and reliable communication solution for
its clients. It was also submitted that very recently, in
other States, tenders have been floated without such
onerous conditions.
11. Obviously therefore, it was argued that
such restrictive condition was kept in the RFP only for
the purposes of favouring few of the bidders, thereby
eliminating competition for them.
12. Since, in the assessment of the
petitioner, the conditions of the bid are in itself
arbitrary, not aligned to common industry practices and
overtly restrictive, the petitioner chose to challenge the
RFP without impleading the party which has been
awarded the contract under the RFP.
13. The petitioner is willing to offer
competitive prices and it is its assurance that the price
offered by it would be significantly lower than the third
Patna High Court CWJC No.17348 of 2024 dt.17-04-2025
party referred to above.
14. In support of the afore-noted
contentions, Mr. Giri has submitted that the terms of
the tender are not completely foreclosed for judicial
scrutiny if it is found that terms have been tailor-made
to benefit any particular tenderer or class of tenderers.
Even though, in matters of formulating condition of a
tender document and awarding a contract, latitude is
required to be conceded to the State but if the State
does not act validly, for a discernible reason, but
whimsically, for an ulterior purpose, then the same
could be questioned.
15. Contesting the aforenoted submissions
the tender floating authority / respondent No. 2
represented by Mr. Umesh Prasad Singh, learned Senior
Advocate has submitted that the petitioner would have
no locus to have this petition maintained without having
participated in the tender and knowing fully well that a
third party right has already been created, which party
Patna High Court CWJC No.17348 of 2024 dt.17-04-2025
was not impleaded as a respondent. The writ petition, it
has been contended, ought to be dismissed on this
score only.
16. Even otherwise, on merits, it has been
submitted that the scope of judicial review in these
matters have long been settled. A bidder, whether a
participant or a non-participant in a tender process,
cannot insist for any particular conditions of tender. All
that they are entitled to, is a fair, equal and
nondiscriminatory treatment in the matter of evaluation
of their tenders. The award of a contract is essentially a
commercial transaction, which must be determined on
the basis of consideration that are relevant to such
commercial decision.
17. In Maa Binda Express Carrier and
Another vs. North East Frontier Railway and Other;
2014 (3) SCC 760, it has clearly been held that the
terms, subject to which tenders are invited, are not
open to the judicial scrutiny, unless it is found that the
Patna High Court CWJC No.17348 of 2024 dt.17-04-2025
same have been tailor-made to benefit any particular
tenderer or class of tenderers.
18. In Michigan Rubber (India) Limited
vs. State of Karnataka and Others; 2012 (8) SCC
2016, it has clearly been held that an action of the
State in the field of commercial transaction would be
amenable to judicial review only to the extent that the
State must act validly for a discernible reason and not
whimsically for any ulterior purpose; fixation of value of
tender is entirely within the purview of the executive,
with no role attributed to the Courts except when the
action of the executive is proved to be arbitrary or
unreasonable; conditions of a tender document is in the
exclusive domain of the tenderer unless the exercise of
such power; is found to be malicious and a misuse of
statutory powers; pre-conditions or qualification for
tenderers only ensure the capacity and the resources of
a bidder to execute the work and the interference of the
Court must be minimum (also refer to Directorate of
Patna High Court CWJC No.17348 of 2024 dt.17-04-2025
Education v. Educomp Datamatics Ltd., (2004) 4
SCC 19; Meerut Development Authority vs.
Association of Management Studies and Another,
AIR 2009 SC 2894; and Airport Authority of India
vs. Centre for Aviation Policy, Safety and Research,
AIR 2022 SC 4749).
19. The requisite condition in the RFP for a
bidder to be an Official Business Service Provider of
WhatsApp, though may be onerous but not so
restrictive as to hold that the terms of the tender have
been made strict only for the benefit of a few.
20. The afore-noted condition does not
appear to be arbitrary, whimsical or by any standard
unattainable or impossible to qualify, which is clearly
reflected by a third party having obtained the contract.
21. It matters not whether such a
condition, according to the assessment of the petitioner
is not required, when 90% of the work is regarding SMS
and not WhatsApp. The conditions of a tender are
Patna High Court CWJC No.17348 of 2024 dt.17-04-2025
purely in the domain of the tenderer, who should be
given maximum latitude for framing the conditions for
the reason that it knows best about its requirements.
22. The long line of decisions which have
been referred to in the earlier paragraphs clearly
stipulate that unless the action of the
State/instrumentalities is proved to be arbitrary,
fanciful or malicious, the Courts must keep its hands
off.
23. That apart, we do not wish to interfere
in the matter also for the reason that the contract has
already awarded to a third party.
24. The petitioner has not been able to
prove that the pre-requisite qualification of being an
Official WhatsApp Business Service Provider for any
bidder to participate in the tender, is ultra-restrictive
and has been tailor-made for suiting others.
25. The petition, thus, has no merits and is,
therefore, dismissed.
Patna High Court CWJC No.17348 of 2024 dt.17-04-2025
26. Interlocutory application(s), if any, also
stands disposed off.
(Ashutosh Kumar, ACJ)
(Partha Sarthy, J)
Sunilkumar/
manoj-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22.04.2025
Transmission Date NA
