LexM/S. S.S. & COMPANY versus ORISSA MINING CORPORATION LIMITED
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[2008] 5 S.C.R. 598 A MIS. S.S. & COMPANY ')--. v. ORISSA MINING CORPORATION LIMITED (Civil Appeal No. 2227 of 2008) B MARCH 28, 2008 (H.K. SEMA AND AFTAB ALAM, JJ.) Contract - For raising, calibration and transport of. iron ores from Iron Ore Mines - Notice inviting tenders (NIT) ~ c Amendment in Certain clauses - Exclusion of experience· in raising of minor minerals by sub-clause (i) - By sub clause (vii) the overlapping margin of 6 months permissible tC? the agencies already engaged in the same work in the mine for applying for the tender, was done away with - Companies hit D by the amendments challenging the amended clauses alleging malafide - High Court dismissing their writ petitions - On appeal, held : There was no malafide in introducing the • amendments - Doing away with the six months margin, in the facts of the case is not arbitrary or unreasonable -Amendment E of experience clause also, is not arbitrary - It is only a clarification - Since in the facts of the case, the company concerned is not affected by the experience clause, cannot challenge the amendment - Mines and Minerals. Tender- Notice Inviting Tender- Interpretation of - Held F : It should be read and understood for what it is, and not to be seen in highly pedantic and legalistic manner. Respondent-Corporation issued Notice Inviting ).. < Tender (NIT) No. 16 in November 2004 for grant of contract for raising, calibration and transport of iron ore at a G particular time for a period of one year. The contract was further extended for second year. The Corporation, pursuant to request of FGM for extention for third year, granted the same by letter dated 21.2.2008 and the period -<-- was to subsist till 24.2.2008. While the contract awarded H 598 MIS. S.S. & COMPANY v. ORISSA MINING 599 CORPORATION LIMITED ·~ to FGM was subsisting Corporation issued NIT No. 65 for A grant of another similar contract. On cancellation of thereof, NIT No. 75 was issued which was also later withdrawn. Appellant-FGM did not participate in the tender process as it was barred in view of the fact it was already executing similar and identical work. Appellant-SSC had B ..J.. participated in the process in respect of both the· NITS, but its tenders were not accepted. The non-acceptance were challenged, but ultimately withdrawn as infructuous in view of cancellation of the Nils. Thereafter, Corporation issued NIT No. 85 dated 25.5.2007. The eligibility clauses c therein for the tenderers were amended. In clause 8(i) raising of minor mineral was not to be acceptable as experience for the work. By amendment in clause 8 (vii) tenderer was required not to have any pre-existing work in that mine on the last date for submission of the tender D (11.6.2008) and the overlapping margin of six moths was done away with. Appellant-SSC was hit by sub clause (i) and appellant-FGM was hit by sub-clause (vii). They challenged the amendment to the sub-clauses alleging malafide. High Court dismissed the writ petitions. Hence E the present appeals. Dismissing the appeals, the Court HELD: 1.1 Doing away with the six months. margin in clause 8 (vii) of Notice Inviting Tender 85 (NIT-85) was not arbitrary or unreasonable, nor it had any ma/a fide F ·~ intent. Appellant was hugely in default in respect of its previous contract and yet it was insisting on taking part in NIT No.85/2007. In the aforesaid circumstances the consequences of the appellant getting the contract under NIT 85/2007 would have been two-fold : one, that it would· G operate the same mine at the same time under two different contracts with widely different rates and the other, that it ' would be charging much higher rates for extraction of ")-- ores that it was obliged to extract at much lower rates under the previous contract. The Corporation can hardly H 600 SUPREME COURT REPORTS [2008] 5 S.C.R. A be faulted for protecting itself against entering into such ~ · a bargain with anyone. [Paras 24 and 25] [614-C, D, E] 1.2 Sub-clause (vii) of clause 8 of the tender is aimed at preventing the same party from executing two different works in the same mine at the same time. The clause does B not even refer to a formal contract and if someone should be working the mine, may be on the basis of a work order issued by the Corporation, that in itself might be sufficient, in certain circumstances to attract clause 8(vii), even in the absence of a
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