Thdc India Ltd vs Voith Hydro Gmbh Co. & Anr

"REPORTABLE"

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO 2572 OF 2011

[Arising out of SLP (C) No. 4644 OF 2011)

THDC India Ltd. ... Appellant

Versus

Voith Hydro GMBH Co. & Anr. ... Respondents

J U D G M E N T

V.S. SIRPURKAR, J.

1. Leave granted.

2. This case is a classic example of the whole nation suffering on

account of the fight between two multi-national companies in respect of

each other's rights. There is no dispute that the Tehri Pump Storage Plant

project is of utmost importance to the State of Uttarakhand particularly, and

to the nation generally. Substantial electricity generation is the object of

that project. It is only with that objective that a dam was constructed on

river Bhagirathi involving crores of rupees for the construction as also for

the rehabilitation of the persons who were displaced on account of the

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construction of dam. Tehri Pump Storage Plant is a project within the

larger picture of Tehri Dam and would prove to be a boon for the additional

electricity generation. It is a project involving technical issues. The

appellant which is a corporation under the Government of India has been

at this project right from August, 2007. Considering the tremendous

importance of the project, it has yet not been able even to finalize the

tender. Three and a half years have rolled by and yet no progress has

been made, thanks to the legal battles in between the two giants called

Voith GMBH (respondent No.1) and Alstom (respondent No.2).

3. It is not for the first time that this Court has to deal with the matter.

Even about a year back, this Court was required to deal with the matter

extensively and while dealing with the matter, the Court, in its order dated

26.3.2010 observed:

"We are pained to note that a very important project like

the present one is being held up in a legal battle

between the two multinational companies. Till today,

even the contract has not been finalized. All this would

invariably cause loss to the nation. After all, contractual

rights of these companies are not more important than

the national interest."

4. In spite of these observations, we are extremely sorry to note that

the matter has not reached its finality as yet and, therefore, we are

constrained to interfere against an interim order passed by the High Court.

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The issue of national interest is our prime concern, the importance of

which cannot be undermined.

5. Before we take up the issue for consideration, a short resume

regarding the progress (?) would be worth seeing. The notice inviting

tender on the prime turn-key execution was issued on 31.8.2007. Bids

were received on 29.12.2007 in all from four companies, the respondents

being a part of them. After opening the pre-qualification bids, two of the

tendering parties were found to be dis-qualified leaving only the two

respondents in the fray. On 15.1.2009, financial bids were opened in

respect of the offers made by the two respondents. Obviously, on the

basis of the fact that offers of the two respondents were found to be

responsive, respondent No.2 approached the Court by way of a writ

petition challenging the validity of the two bids submitted by respondent

No.1. The High Court of Uttarakhand issued a stay order and ultimately on

29.6.2009 though it held that the objection raised by respondent No.2

against respondent No.1 regarding its lack of experience was not valid, the

bidding documents themselves were not clear as to the manner in which

the bids were to be made. It, therefore, directed the appellant to invite

fresh bids. Special Leave Petition No.15779 of 2009 came to be filed

before this Court and the respondent No.1 also filed an intra-court appeal

being Appeal No.131 of 2009 before the High Court of Uttarakhand. With

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the sole objective of giving quietus to the issues and to provide the motion

for the project, this Court transferred the said appeal filed by respondent

No.1 and tagged it along with the Special Leave Petition. Since the

Attorney General had offered to abide by the operative order of the High

Court, this Court directed the appellant herein to invite fresh price bids by

its order dated 11.09.2009. Thus, bids were examined by the appellant

and it was found that the bid filed by Alstom, respondent No.2 was

substantially lower. However, there were certain deviations in the fresh

bids offered by the respondent. Respondent No.2, therefore, objected to

the report dated 8.11.2009 and took exceptions to some of the

observations and insisted that there were no deviations in the techno-

commercial part of the bid. By their another letter dated 16.1.2010,

respondent No.2 again reiterated their objections and insisted upon the

grant of contract in their favour. In order to maintain transparency and

objectivity, the appellant offered to send the fresh bidding process for

consideration by a panel of experts of national repute. They were to

examine objections raised by the consortium of respondent No.2. They

submitted their report on 8.2.2010 and observed that the fresh bid of M/s

Alstom was non-responsive. In this backdrop, the Court heard both the

parties as also the appellants all over again and ultimately passed an order

on 26.03.2010.

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6. The Court considered the question framed by the panel of experts

which was to the following effect:

"whether the examination of report of THDC declaring

the bid of the consortium of M/s Alstom is OK or the

objections raised by the consortium of M/s Asltom are

justified with reference to the terms and conditions of

the tender, techno-commercial bid submitted in October,

2008 and fresh price bid submitted in October, 2009

and their bid can be considered as responsive."

The Court also noted the conclusion drawn by the panel of experts

which was to the following effect:

"based upon the views outlined, POE is of the opinion

that fresh price bid of consortium of M/s Alstom is not

non-responsive. Their quoted price of partnership basis

even though non-responsive is, however, lower by 84.5

crores (M/s Voith Rs. 21,551,245,304.00, M/s Alstom

Rs.20,705,840,090.00). Similarly, the quoted price on

assignee basis though non-responsive is lower by 108.7

crores (M/s Voith Rs.22,343,174,985.00 M/s Alstom

Rs.21,256,007,413.00). The unconditional offer of the

consortium of Alstom to take care of the THDC

observations without any extra costs was that the bid

becomes responsive and in accordance with the

employers' requirements is not acceptable as this is not

permissible under bidding document of this tender."

7. During the hearing, respondent No.2 had urged that panel of experts

had not given any fair deal to respondent No.2 and it prayed that the

matter should be sent to the Government of India. This was obviously

opposed by the Attorney General as well as M/s Voith and, therefore, this

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Court took note of the contentions that the nature of objections to the

report was of technical character and the bona fides of panel of experts

was not questioned. The Court further took note of the stand taken by the

Attorney General that the respondent No.1 could still address the panel of

experts and further hearing could be given to M/s Alstom. The Court found

the offer given by the Attorney General to be a fair offer and, therefore, one

more opportunity was directed to be given to the parties for appearing

before the panel of experts and, therefore, a report was directed from the

panel of experts. The Court fixed the end of April 2010 for this purpose. It

was observed in paragraph 11:

"the appellant herein would then, without loss of time, take

decision, considering the report of the panel of experts

regarding the award of contract."

(emphasis supplied)

In view of this, the Court disposed of all the pending matters

including the appeal filed by M/s Voith, respondent No.1 herein. The Court

observed:

"The exercise of bidding before this Court was ordered

with the sole objective of saving time and to give the

transparency to the whole exercise. Once the fresh bids

were allowed to be given the old controversies before the

High Court would naturally become extinct. In our

opinion it would be in the interest of the project which has

already been dragged by more than a year that the Panel

of Experts should be allowed to consider the objections

and express their opinion. That opinion shall then be

considered by the appellant which would take the final

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decision on that basis. We must reiterate here that it is

not for this Court to award the contracts by accepting or

rejecting the tender bids. It is exclusively for the

appellant herein to do that. Once all this exercise is over,

nothing would remain for us to decide in these appeals."

8. What followed thereafter is more interesting. On 17.4.2010, detailed

written submissions file by both the respondents before the panel of

experts wherein respondent No.2 pointed out that there were several

technical deviations in the bid of M/s Voith which were not considered so

far by the appellant. Several technical issues were raised and it was

pointed out that the bid of M/s Voith was not in accordance with the

technical requirements. It was stated that the bid of M/s Voith, respondent

No.1 had more than 40 commercial deviations and more than 90 technical

deviations. It was, therefore, requested that panel of experts should look

into the above referred matters and to look into all these aspects including

the deviations of the bidding on the part of the respondent No.1. This was

reiterated by subsequent letter dated 27.4.2010. On 29.4.2010 after going

into the details of the contentions raised by both respondent Nos. 1 and 2

the panel of experts went into the details regarding the deviations and non-

conformities in M/s Alstom, respondent No.2's fresh bids but did not give

any finding regarding the deviations pointed out by it in respect of

respondent No.1, M/s Voith. It, however, expressed in the following terms:

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"M/s Alstom during hearing have pointed some specific

issues relating to bid of M/s Voith Siemens regarding

sourcing and supply of Turbine Shaft and Rotor from

Germany/ Italy/ Czech/ Spain/ Korea. In respect of

Rotor they have also included Poland (Reference

written submissions dated 17.4.2010, Volume-II A).

they also pointed out regarding supply of Spherical

Valve from Voith, USA. M/s Alstom Consortium in their

rejoinder (15.4.2010) under "overall conclusions" (page

46) they also requested to enquire that both bids have

been evaluated at par and cross checked in details that

Voith's bid is not containing hidden deviations as was

the case for MIV. THDC will have to look into these

issues along with all other issues particularly with regard

to clause 9.4.4 of employer's requirements (amendment

No.9 at Annexure 17) before taking a decision if M/s

Voith's bid is responsive or non-responsive.

(emphasis supplied)

9. Again respondent No.2, M/s Alstom filed letters dated 12.7.2010 and

23.7.2010 to the appellant and to the Ministry of Power. The matter was

then taken up on the basis of the report of the panel of experts by tender

committee. Tender committed again went into the exercise and submitted

its report on 2.8.2010 wherein it was observed that the fresh price bids of

consortium of M/s Asltom both as the partner and as the assignee were

not responsive. It recommended further that negotiations would have to be

undertaken with the respondent No.1, M/s Voith for considering the

downward trend in prices and to much with the quoted prices of

respondent No.2. It was also observed that the deviations of bids of

respondent No.1 should be discussed with it. The matter then went the

higher level of Executive Director, Contracts. He observed in his note

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dated 8.9.2010 "if a minute scrutiny is carried out in respect of the bids of

both the bidders, both the bids cannot be said to be fully responsive to the

tender conditions". It was observed that even the bid of respondent No.1,

M/s Voith could not be said to be fully complying and it was observed:

If an impartial and independent scrutiny of tender is

carried out, it may appear that THDC has been too

stringent on M/s Alstom and quite lenient in case of M/s

Voith Siemens. In a true stricter sense, it appears that

there have been some non-conformities in the bid of M/s

Voith Siemens also."

It was then suggested in the note that the tender committee should

identify the non-conformities in respect of both the bidders and bidders

should be asked to submit their fresh price bids after fully complying with

the tender conditions without deviations. (emphasis supplied)

10. The competent authority, therefore, took a decision on 1.10.2010 to

call for the fresh bids after due identification of the non-conformities. Both

the bids were, therefore, scrutinized in great details. Even the

deliberations were held between 2.11.2010 and 14.12.2010 and ultimately

a report was submitted by the tender committee on 14.12.2010 in relation

to the non-conformities of both the bidders. The report contained two

annexures being annexures 1A and 1B detailing the non-conformities in

respect of respondent No.2 and respondent No.1, respectively. Therefore,

a communication dated 21.12.2010 was sent to both the respondents that

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it is only after the unqualified and unconditional compliance to the

employer's requirements in respect to the non-conformities pointed out in

annexures 1A and 1B and on the respondents agreeing to comply with the

objections raised as regards the non-confirmities that the respondents

would submit fresh price bids.

11. In this letter all the earlier correspondence and the techno-

commercial bids including all earlier letters sent by both the respondents

were referred to. The report of the panel of experts was also referred to. It

was stated that the techno-commercial offers of both the bidders were

reviewed at length and it was decided to invite fresh price bids from both

the bidders. The letter went on to clarify that these bids were invited in two

stages. In the first stage both the bidders were required to convey their

unqualified and unconditional compliance with the employer's

requirements with respect to the shortcomings observed in their respective

bids, so as to resolve all the inconsistencies and thereby ensuring

compliance with the tender conditions (In terms of the annexure 1A for

consortium of M/s Alstom and annexure 1B for the consortium of M/s

Voith). It was clarified that subsequent to such unqualified and

unconditional confirmation by the respective bidders, the bidders were to

put their fresh price bids in the second stage. Seven pre-conditions were

then put and it was clarified that the stage of price bidding i.e. regarding

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the un-conditional compliance the bidders were to submit the documents

latest by 7.1.2011, 4 p.m. IST. The validity of the bid was limited to 180

days from the date of submission of the fresh price bid.

12. This letter dated 21.12.2010 was challenged by the respondent No.1

by way of a writ petition No.212 of 2011. But before that respondent No.1

had addressed a letter to the compliance dated 24.12.2010 that inviting

fresh price bids was not in accordance with the bidding documents and

was contrary to the legal position. In that letter it was stated that it

reserved the right to challenge the decision to invite fresh price bids and

therein also sought time on any day after 18.01.2011 to seek certain

clarifications in respect to the THDC's letter dated 21.12.2010. It also

sought for extension of the compliance of first stage of price bidding. This

request of extension was acceded to by the appellant THDC and it fixed a

meeting on 19.1.2011. In the letter sent by THDC dated 4.1.2011 THDC

refuted the contention raised by respondent No.1 regarding the invitation of

fresh price bids. Yet another objection was raised by a letter on 15.1.2011

on behalf of respondent No.1. for inviting the fresh price bids. In addition

to this notice, fresh report of the panel of experts dated 29.4.2010 and

further recommendations/reports of the tender committee were also sought

for. The meeting took place on 19.1.2011 when in addition to the appellant

THDC officials, representatives of respondent Nos.1 and 2 were present

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wherein the same stand was allegedly reiterated by respondent No.1. A

further letter dated 20.1.2011 was sent by the respondent No.1 calling

upon THDC:

"1) to respond to the points raised in the letter dated

15.1.2011;

2) requesting for a copy of the fresh report of the

panel of experts dated 21.4.10;

3) requesting for the copy of the subsequent

report/recommendations of the tender committee."

13. This letter was responded to by THDC wherein it reiterated its stand

dated 21.12.2010 and further conveyed that it was not obliged to provide

fresh reports of the panel of experts or reports of the tender committee.

14. On this basis, respondent No.1 proceeded to file a Writ Petition in

the High Court of Uttarakhand challenging the letter dated 21.12.2010.

This Writ Petition seems to have been filed on 27.1.2011 and was placed

before the Learned Vacation Judge of the High Court of Uttarakhand. The

High Court then passed the following order:

"After hearing rival contentions of learned counsel for

the parties, this Court is of the view that the

opinion/recommendation made by panel of experts

should be placed on record along with the objections

raised by the parties and the report of the tender

committee and recommendations of the Executive

Director.

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Mr. Rawal learned Additional Solicitor General of India

stated at Bar that the petitioner must also comply with

the letter of respondent No.1 though annexure P-1. to

which learned counsel for the petitioner stated that

without prejudice to the rights of the petitioner, he shall

comply with the same within a week if the date of

compliance is so extended as the date has expired on

31.1.2011.

Mr. Rawal learned counsel for respondent No.1 prays

for and is granted time to file counter affidavit. The

counter affidavit may be filed by 8th February, 2011.

Respondent No.2 may also file counter affidavit, if any,

within the same period. Copy of the counter affidavit be

supplied to the petitioner well before the fixed, who shall

also file his reply to this Court on or before 11th

February, 2011.

Adjourned to 17.2.2011.

In the meanwhile, no further proceedings shall be

undertaken by respondent No.1."

15. It seems that by their letter dated 12.2.2011, respondent No.1 have

sent their compliance to annexure 1B of the letter dated 21.12.2010. It has

been stated in that letter at the outset, and as recorded in the aforesaid

order dated 1.2.2011, we have to state and emphasize that compliance by

the Voith Hydro Consortium with the order dated 1.2.2011 passed by the

High Court is strictly without prejudice to the rights and contentions of the

Voith Hydro Consortium as well as without prejudice to the contentions

and grounds raised in Writ Petition No.212 of 2011. Added to this is

annexure signifying compliance with the question raised by the THDC as

regards to the non-conformities.

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16. In the Writ Petition, amongst the other prayers, a direction was

sought against the appellant to award the contract in respect of Tehri

Pump Storage Plant. The main attack in the Writ Petition was on the letter

dated 21.12.2010 on the ground that the decision therein was ex-facie

illegal, unreasonable, arbitrary, unfair and biased and that the said

decision was taken with a sole and ulterior motive of benefiting Alstom

(respondent No.2) and giving Alstom (respondent No.2) yet another

opportunity to rectify or supplement its admittedly non-responsive fresh

price bids. It was further urged in the Writ Petition that such action on the

part of the appellant was contradictory to the tender conditions, more

particularly, Clause 25.3 of the Instructions to Bidders (ITB), which

prohibited a non-responsive bid from being made responsive at the

instance of the bidder by introducing corrections or withdrawing the non-

conforming deviation or reservation. It was also urged that in inviting the

fresh pricing bids, the provisions of the bidding documents were selectively

changed and had resulted in reopening techno commercial bids after the

price bids of both the respondents had been opened and evaluated. It was

further urged that after passing of the judgment dated 26.3.2010 by this

Court, the scope of the Panel of Experts was restricted, in the sense that it

could only examine the price bid by Alstom (respondent No.2) and could

not go into the merits of the bid given by Voith GMBH (respondent No. 1).

On that basis, it was urged in the Writ Petition that once the techno

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commercial bid of Voith GMBH (respondent No. 1) was finally accepted,

there was no question of introducing the subject of deviations and then

insisting upon the compliance with those deviations and thereafter, inviting

fresh price bids. Strong words like `bias', `discrimination', `nepotism' and

`fairness' have also been used in the Writ Petition. In short, the actions on

the part of the appellant have been interpreted to be with the sole objective

to confer benefit to Alstom (respondent No.2) to the detriment of Voith

GMBH (respondent No. 1). It was further urged in the Writ Petition that

once Envelope Nos. 3 and 4 were opened and evaluated, there was no

provision in any of the bidding documents permitting the appellant to revisit

or reopen or reconsider the technical bid contained in Envelope No. 3.

Referring to the earlier correspondence and various letters by the

appellant, as also the contents of various documents, it was contended

that the appellant was stopped from contending to the contrary. It was

suggested that after the judgment dated 26.3.2010 passed by this Court,

the only course left open to THDC (appellant herein) was to proceed

further and award contract to Voith GMBH (respondent No. 1 herein) in

view of Clause 28.1 of ITB. It was urged that THDC (appellant) ought to

have abided by the observations made by the Panel of Experts in their first

report dated 8.2.2010. Contentions were also raised about the bidding

process as also ITB.

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17. It is obvious that the High Court, on the basis of this plea, as also the

plea of non-supply of the necessary documents, chose to stay the whole

process after hearing both the sides.

18. We have intentionally chartered the whole course of this tender,

which began in August, 2007. When the matter came for the first time

after the final judgment of the High Court was passed, requiring the

appellant THDC to invite fresh price bids, it was felt by this Court that the

legal battle between these two multi-national companies was resulting in

delaying of the whole process. The importance of the project as also the

tremendous financial implications, were realized. The project undoubtedly

was going to cause very heavy expenditure on the part of THDC

(appellant). It was in that spirit that this Court proceeded to pass the

judgment and order dated 26.3.2010, and it was, therefore, that the price

bids were directed to be given before the officer of this Court. The

monetary implications were tremendous and, therefore, this Court felt the

need for transparency on the part of THDC (appellant) as also the

objectivity. It was, therefore, directed that the price bids should be got

examined by the Panel of Experts. This was done not only once but twice

to ensure that both the sides should get equal opportunities and treatment

of fairness.

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19. What strikes us initially is that all the arguments and the insistence

for award of contract in favour of Voith GMBH (respondent No. 1) could

have been argued before us in that very first round. That was not done

and even if that was haltingly done, it was not found feasible to

straightaway award a contract in favour of Voith GMBH (respondent No.

1). Considering the national interest, the matter was referred to the Panel

of Experts. Again, it was made very clear that the report of the Panel of

Experts was not going to be be all and end all of the matter. In the last

paragraph of the judgment, it was made very clear that the ultimate

decision regarding awarding of the contract would have to be given by

THDC (appellant) and not by this Court. Therefore, there was enough

discretion and play left in THDC (appellant) to act on the report of the

Panel of Experts and as such THDC could have adhered to its own

procedure and decide upon the award of contract.

20. It was argued before us by the Shri Vahanvati, learned Attorney

General that there are hierarchies in the working of THDC. The report of

the Panel of Experts had to be first analyzed by the Tender Committee and

even the decision of the Tender Committee was not final and the same

was subject to the decisions of the Executive Director and ultimately the

competent authority. It was pointed out by the learned Attorney General

that after the final report of the Panel of Experts came, it was heavily

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deliberated by the Tender Committee. The Tender Committee made a few

comments in terms of the report. The Panel of Experts had already, in

para 8 of its report, expressed what we have reproduced in para 8 of this

judgment. Therefore, even if the bid of Alstom (respondent No.2) was

found to be non-responsive by the Panel of Experts, it was clear that the

ultimate decision was to be taken by THDC after looking into number of

issues. When the matter was considered further by the Tender

Committee, the Tender Committee came to the conclusion which is to be

found in para 12 of the recommendations. This report of the Tender

Committee is dated 2.8.2010. The Tender Committee, under the working

pattern of THDC (appellant), could not have finalized the grant of award. It

could only make the recommendations. It held that the fresh price bids of

Alstom (respondent No.2) were non-responsive. However, it is clear from

the record that the report of the Tender Committee was to be considered at

various higher levels in the hierarchical structure of the decision making of

the appellant. In this report, as pointed out by the learned Attorney

General, the Tender Committee had pointed out certain deviations/non-

conformities in respect of the bid of Voith GMBH (respondent No. 1) also

and, therefore, it had suggested discussion for resolving certain deviations

and price negotiations and had also recommended the award of contract to

Alstom (respondent No.2). All these aspects were bound to be considered

and were actually considered at the higher levels and thereafter the report

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of the Executive Director came. We have already made a reference to the

decision of the Executive Director, who found, by his note dated 8.9.2010,

that the bid of Voith GMBH (respondent No. 1) was also not fully complied

with. It was found that on an impartial and independent scrutiny, the

attitude of THDC (appellant) was found to be too stringent to Alstom

(respondent No.2) and quite lenient to Voith GMBH (respondent No. 1).

The Executive Director had also noted the non-conformities of the bids.

The actual observations have been pointed out and mentioned in para 9 of

this judgment. It was in view of this that the decision was taken on

1.10.2010 by the competent authority to call for fresh bids. The matter was

again examined by the Tender Committee and by its report dated

14.12.2010, the Tender Committee fixed the deviations which were

reported in Annexure 1 A and Annexure 1 B to its report. It is these non-

conformities which were mentioned in the letter dated 21.12.2010. Now, it

was clear that these deviations or non-conformities, as the case may be,

were located and both the respondents were asked to comply with these

deviations/non-conformities with the sole objective of bringing them on the

same level playing field, so that thereafter there would be only one task to

decide as to whose price bid was lower and as such acceptable by THDC

(appellant).

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21. We do not find anything amiss in this whole exercise. Shri Desai,

learned senior counsel appearing on behalf of Voith GMBH (respondent

No. 1), invited our attention to the allegations of bias, discrimination etc. It

cannot be forgotten that at a point of time, the Executive Director felt that in

fact, THDC (appellant) was showing a tilt in favour of Voith GMBH

(respondent No. 1). When the documents and the correspondences are

examined, we do not find any tilt in favour of either party and in our

opinion, there is no scope to accept the allegation that THDC wanted to

favour Alstom (respondent No.2) and had, therefore, changed the rules of

the game. That contention is clearly without any merits. The allegations of

mala fides and bias are directed towards THDC as a whole without naming

any individual person. Such allegations are easy to be made but very

difficult to justify. Precisely that has happened here also. The extremely

general nature of allegations would desist us from accepting the same.

Particularly, when there is hardly any material justifying the same.

22. It has already been pointed out that it is only when all the exercise

was taken in pursuance of this Court's judgment dated 26.3.2010 that the

respondent No. 1 chose to raise the issue about the non-responsive bid of

Alstom (respondent No.2). It went on with the whole exercise including the

arguments before the Panel of Experts not once but twice and thereafter,

also took part in the negotiations. But its stance changed only after the

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final decision was taken by the competent authority on 1.10.2010 and

more particularly, after the Tender Committee had finalized the report on

14.12.2010.

23. In our opinion, since the whole process was absolutely transparent

and since these issues, which were raised by way of the Writ Petition,

were not even argued before the Court in the first round, there is no scope

to stall the whole process by finding fault with the tendering process and

insisting that THDC could not invite the fresh pricing bids. In our opinion,

in inviting the fresh pricing bids, particularly after conveying the

deficiencies or non-conformities to both the respondents and making it

clear to them that they would have to comply with the same as first stage,

we do not think that any change is being made in the bidding conditions.

We must note, at this juncture, that this Court had left discretion in THDC

to take the decision in the light of Panel of Experts' report. The Panel of

Experts had gone into the exercise not once but twice. However, the close

examination of the second report of the Panel of Experts would suggest

that everything was not alright even with the bid of Voith GMBH

(respondent No. 1) and there were in fact some non-conformities, which

were required to be considered by THDC before a final decision was

taken. We do not find anything wrong in that. It was earnestly urged by

Shri Desai, learned senior counsel that the unfairness was clear enough

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from the fact that even the documents were not supplied by THDC to Voith

GMBH (respondent No. 1) though they were insisted upon from time to

time. While the debate was going on before us, all the documents were

supplied. But, even otherwise, we do not think that any serious prejudice

would have been caused to Voith GMBH (respondent No. 1) on that

account.

24. We may reiterate at the cost of repetition that by judgment and order

dated 26.3.2010 passed by this Court, this Court had clearly expressed

that the contractual rights of the competing parties like Voith GMBH

(respondent No. 1) and Alstom (respondent No.2) were not more important

than the national interest. If we find that in pursuance of the national

interest, which was so explicitly mentioned in this Court's judgment dated

26.3.2010, the THDC by adopting a fair and transparent procedure,

provided a level playing field to both the parties to get a proper idea of

costs that it would have to pay to the party winning the contract, no

complaint could be made of the breach of the contractual rights. In our

opinion, firstly, there is no breach of the contractual rights or the terms of

ITB. After all, it could not be said that the rights of the parties were

crystallized. According to Shri Desai, learned senior counsel arguing on

behalf of Voith GMBH (respondent No. 1), the crystallization of the rights

was even prior to passing of the judgment of this Court dated 26.3.2010,

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as the bid of Alstom (respondent No.2) was found to be non-responsive

and the only bid which was found to be responsive was that of Voith

GMBH (respondent No. 1). Even accepting this, Voith GMBH (respondent

No. 1) could not insist upon the grant of contract in its favour on that

ground alone. In the light of peculiar facts of this case, it must be stated

that even if the bid of Voith GMBH (respondent No. 1) was found to be

responsive, that did not end the matter. After all, THDC, which was going

to come out with the huge expenditure running into thousands of crores of

rupees, was bound to safeguard the national interest. That was the tone of

this Court's judgment dated 26.3.2010 also. Otherwise, this Court could

have straightaway awarded the contract in favour of Voith GMBH

(respondent No. 1). But that was not found feasible in national interest.

Instead, it was found proper to give fair opportunities to both the parties

and it was only with that objective that the matters were referred to the

Panel of Experts. If the facts are viewed from this angle, then it will be

clear that there was nothing wrong in THDC treading its course with utmost

care and it must be said that the facts show that THDC appears to have

acted in favour of the national interest by trying to prevent the exorbitant

prices for the project and further trying to go to the realistic and minimum

price. That was the spirit of this Court's judgment dated 26.3.2010 too.

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25. In that view, we do not think that the High Court was right in passing

the stay order as it did. This was a clear effort on the part of Voith GMBH

(respondent No. 1) to put the spoke and to bring to halt the motion of the

process which was ordered by this Court in its judgment dated 26.3.2010.

26. Even at the beginning of this judgment, we had pointed out as to

why this Court is interfering against the interim order passed by the High

Court. It is only to save the precious time that we have entertained this

appeal and cleared the obstacles in the whole tendering process.

27. The appeal succeeds. The order of the Uttarakhand High Court

granting stay is set aside. The parties will now proceed to submit their

price bids in the light of the observations made by us. The said price bids

shall be submitted within three weeks from the date of this judgment.

THDC (appellant) shall take the decision in respect of the grant of the

contract within three weeks thereafter. With these observations, the

appeal is disposed of. No costs.

......................................J.

(V.S. Sirpurkar)

......................................J.

(T.S. Thakur)

New Delhi;

March 17, 2011.

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