IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19674 of 2011
M/S Milage Vanijya Pvt. Ltd., a Company incorporated under the
provisions of the Companies Act, 1956 having its Head Office at 408,
Ashiyana Tower, Exhibition Road, P.S. Gandhi Maidan, District Patna
through one of its Directors, Sumit Agrawal, S/o Shri Ashok Agrawal,
Resident of Flat No. 202, Amba Residency, East Boring Canal Road, P.S.
Buddha Colony, District Patna.
... Petitioner
Versus
1. The Bihar State Electricity Board, Vidhyut Bhawan, Bailey Road, Patna
through its Chairman
2. The Chairman, Bihar State Electricity Board, Vidhyut Bhawan, Bailey
Road, Patna
3. The Electric Superintending Engineer, Purchase, Vidhyut Bhawan,
Bailey Road, Patna.
... Respondents
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For the Petitioner : M/s S. D. Sanjay &
Gautam Kejriwal, Advocates
For the Respondents: Mr. Anand Kumar Ojha, Advocate
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02/ 14.11.2011 Let defect no.1 of the stamp report dated 08.11.2011 be
ignored.
2. Heard learned counsel for the petitioner and learned
counsel for the respondents.
3. This writ petition has been filed by the petitioner for
the following reliefs :-
(a) For quashing the Tender Notice NIT No.
174/PR/BSEB/2011 to be opened on 15.11.2011 for
purchase of 20 lacs number of Polycarbonate Seal
Bit with Stainless Steel Sealing Wire as the same has
been issued in contravention of statutory requirement
laid down in the Central Electricity Authority
(Installation and Operation of Meters) Regulation,
2006 and hence being wholly illegal and without
jurisdiction;
(b) For quashing the Tender Notice NIT No.
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174/PR/BSEB/2011 to be opened on 15.11.2011 for
purchase of 20 lacs number of Polycarbonate Seal
Bit with Stainless Steel Sealing Wire on the ground
that the Tender Notice by doing away with the
requirements of purchase of only Patented Seal Bids
from the manufacturers which have official right to
manufacture the Seal Bids is wholly arbitrary and
discriminatory; and
(c) For issuance of a writ of Mandamus directing the
Respondent Electricity Board to include the
requirement that the Manufacturer must have the
official right to manufacture Seal Bids as Patented
Seal Bids, and for any other relief(s) for which the
petitioner may legally be found entitled to in the
facts and circumstances of the present case.
4. The grievance of the petitioner is that the mandatory
requirements have not been fulfilled in the impugned notice inviting
tender as it requires that only Patented Seal Bids from the
manufacturers, who have official right to manufacture the Seal Bids,
shall be used, but doing away with the said clause in such NIT will
open flood gates for applicants, who were not qualified for the same
according to law. He further states that other States in the country as
well as this State of Bihar also, had earlier been regularly including the
said clause in their NITs as per law but only in the impugned NIT the
said mandatory clause had not been included with some ulterior
motives.
5. On the other hand, learned counsel for the
respondent-Bihar State Electricity Board ( hereinafter referred to as
`the BSEB’ for the sake of brevity) and its authorities files a counter
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affidavit and vehemently opposes the contention of learned counsel
for the petitioner and submitted that lacs of such meters are required
urgently for the consumers and they cannot be installed without
Polycarbonate Seals.
6. He further states that C.W.J.C. No. 15097 of 2011
had been filed by one of the applicants of the earlier NIT, namely, M/s
Power Centre, in which the said clause was included and this Court
passed an interim order dated 16.09.2011 restraining the authorities
from issuing any Letter of Intent in favour of any one of the tenderers
in accordance with the said NIT till further orders. Hence he submits
that in view of the aforesaid interim order, care has been taken in the
instant NIT.
7. Learned counsel for the respondents further avers
that this is a very nascent stage and it is premature for the petitioner to
approach this Court. He also argued that the petitioner is neither the
manufacturer nor an applicant to the impugned NIT and hence there is
no occasion for it to file this writ petition.
8. Considering the averments made by learned counsel
for the parties and the materials on record, it is quite apparent that
notification dated 17.03.2006 was published in the Gazette of India,
Extraordinary, Part III, Section IV by the Central Electricity
Authority, New Delhi in exercise of powers conferred by sub-section
(1) of section 55 and clause (e) of section 73 read with sub-section (2)
of section 177 of Electricity Act, 2003 (hereinafter referred to as `the
Act’ for the sake of brevity), under Clause 12 of which sealing
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arrangements have been provided, which reads as follows:-
(1) Sealing Arrangements
(a) All meters shall be sealed by the manufacturer at its
works. In addition to the seal provided by the
manufacturer at its works, the sealing of all meters
shall be done as follows at various sealing points as per
the standards given in the Schedule:
(i) Sealing of interface meters, shall also be done by
both the supplier and the buyer.
(ii) Sealing of consumer meters shall be done by the
licensee.
(iii) Sealing of energy accounting and audit meters
shall be done by the licensee or generating
company as the case may be.
(b) A tracking and recording software for all new seals
shall be provided by the manufacturer of the meter so
as to track total movement of seals starting from
manufacturing, procurement, storage, record keeping,
installation, series of inspections, removal and
disposal.
(c) Seal shall be unique for each utility and name or
logo of the utility shall be clearly visible on the seals.
(d) Only the patented seals (seal from the manufacture
who has official right to manufacture the seal) shall be
used.
(e) Polycarbonate or acrylic seals or plastic seals or
holographic seals or any other superior seal shall be
used.
(f) Leas seals shall not be used in the new meters. Old
lead seals shall be replaced by new seals in a phased
manner and the time frame of the same shall be
submitted by the licensee to the Appropriate
Commission for approval.
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9. Since the said notification was made by the
appropriate authority under sections 55, 73 and 177 of the Act, it has
statutory force and has to be followed by all the Boards and licensees
of the country including the BSEB. Sub-clause (d) of Clause 12 of the
said notification specifically provides that only the patented seals (seal
from the manufacturer, who has official right to manufacture the seal)
shall be used.
10. From Annexures 3 series to the writ petition, it is
quite apparent that the Boards and licensees of other States of the
country, namely, Punjab, Agartalla, Madhya Pradesh, Orissa, West
Bengal, Kerala, Rajasthan etc. have been issuing NITs with the
aforesaid provision. The BSEB had also issued NIT No. 160 of 2011
(Annexure 5) including the said requirement and even after the
issuance of the impugned NIT No. 174 of 2011 (Annexure 7) they had
issued another NIT No. 176 of 2011 (Annexure 9), in which again the
said requirement is included but only in the impugned NIT No. 174 of
2011 (Annexure 7) the said provision has not been included.
11. So far C.W.J.C. No. 15097 of 2011, in which
interim order dated 16.09.2011 was passed, is concerned, it is stated
by learned counsel for the parties that NIT No. 160 of 2011, which
was under challenge in that writ petition, was cancelled as none of the
parties were found to be qualified, whereafter, the said writ petition
has been withdrawn. Hence the interim order passed in the said case
cannot legally have any bearing on this case.
12. So far the point raised by the respondents that the
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petitioner was neither a manufacturer nor an applicant is concerned,
the petitioner has specifically stated in his writ petition and has also
annexed the relevant papers and certificates (Annexures 1 and 2),
which confirmed that the petitioner was the authorized
distributor/dealer/executing agent of M/s Safcon Seals Pvt. Ltd., 3-B,
Camac Street, Kolkata, which is, admittedly, the manufacturer of
Polycarbonate Meter Security Seals, and hence in the said capacity
and on behalf of the manufacturer, it has filed this writ petition.
13. Furthermore, the date of filing tender has not yet
expired as the last date of filing tender has been fixed by the impugned
NIT as 15.11.2011 by 03.00 PM and any interested manufacturer
including Safcon Seals Pvt. Limited is at liberty to respond to the
impugned NIT .
14. Considering the aforesaid facts and circumstances
as well as the arguments of learned counsel for the respective parties
in its entirety, this writ petition is disposed of with a direction to
respondent-authorities of the BSEB that while deciding the tender of
the applicants for the impugned NIT No. 174 of 2011 they must keep
in mind the statutory provisions as detailed in the notification of the
Central Electricity Authority dated 17.03.2006 (Annexure 2)
including the eligibility Clause 12(1)(d) thereof.
MPS/ (S.N.Hussain, J.)