Dismissed

Dhirendra Krishna v. Delhi Metro Rail Corporation and Anr.

Delhi HC9 Oct 2018W.P.(C)/5842/2018

Case brief

AI extract

What is this about?

This order dismisses a PIL challenging the award of a rail procurement contract for alleged non-compliance with hydrogen content specifications. The court held the petition was filed after a three-year delay and found the plea lacking merit as hydrogen content is verified during manufacturing, making post-facto analysis impossible.

What did the court decide?

Petition dismissed as without merit; interim directions order dismissed as infructuous.

Dhirendra Krishna Vs Delhi Metro Rail… — Public Procurement and Tenders | Delhi HC (2018)

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$~24

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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- W.P.(C) 5842/2018 & CM. No. 22695/2018 DHIRENDRA KRISHNA

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..... Petitioner Through: Mr. Amit Prasad, Adv. and Ms. Arzu Paul, Adv.

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versus

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DELHI METRO RAIL CORPORATION AND ANR

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..... Respondents Through: Mr. Sandeep Sethi, Sr. Adv. with Mr. Tarun Johri and Mr. Ankur Gupta, Advs. for DMRC

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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE V. KAMESWAR RAO

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O R D E R % 09.10.2018

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W.P.(C) 5842/2018

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The present petition has been filed by the petition in public interest

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with the following prayers:

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“It is therefore, most respectfully prayed that this Hon’ble Court may be pleased to:

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I. Issue a writ, order or direction in the nature of mandamus directing an in-depth inquiry by appropriate authority relating to the legality and validity of award of contract under Letter of Acceptance No.DMRC/20/III256/2015 and No. DMRC/20/III-259/2015 and dated

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02.11.2015 and consequent purchase of Head Hardened Rails from M/s. EVRAZ ZSMK through M/s. East Metal AG against the impugned purchase orders of Delhi Metro Rail Corporation, the respondent No.1 herein.

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II. Issue a writ, order or direction in the nature of mandamus directing the respondent No.1 not to install the Rails so procured under the impugned purchase orders till conclusion of the inquiry initiated by this Hon’ble Court or without leave of this Hon’ble Court or without leave of this Hon’ble Court;

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III. Pass ex-parte orders in terms of prayer (II) above; IV. Pass any other / further order(s) as this Hon’ble Court may deem fit and proper in the facts of the present case.”

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It is the case of the petitioner and contended by his counsel that the

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Delhi Metro Rail Corporation (in short ‘DMRC’) respondent No.1 was procuring the Rails on a limited tender basis from selected and approved vendors only. In the year 2015, this was changed to procurement via Global Tendering Process. On August 05, 2015, the DMRC inter alia floated Tender Nos.CT-13 and CT-22 for procurement of the Rails which were to be supplied as per IRS-T-12-2009 specifications according to which, for determination of Hydrogen content, there are two methods i.e. On-line / Instantaneous Method i.e., HYDRIS and Pin Sample Method. The level of

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Hydrogen acceptable under the two methods are HYDRIS-1.6 ppm (max) and Pin Sample Method-2.0 ppm (max).

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It is his case that the respondent No.2 was declared the successful bidder and was awarded the contract for supply of the Rails. According to him, the supplies have been concluded but the laying down of the Rails are yet to take place. It is his case that after December 07, 2015, he along with another RTI Activist filed various applications under the Right to Information Act seeking documents regarding fulfilment of qualification criteria by the respondent No.2 against the above tender but to no avail. In 2018, the petitioner has learnt that M/s. EVRAZ ZSMK, from whom the respondent No.2 has claimed to have taken the supplies, had participated in the bidding process of an Indian Railways tender wherein on a specific query in the standard format, M/s. EVRAZ ZSMK has disclosed that it has so far achieved a minimum Hydrogen content of 2.0 ppm (max) using HYDRIS technology.

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It is his case, that this disclosure makes it clear that till 2017, M/s. EVRAZ ZSMK had not achieved Hydrogen content by HYDRIS Technology at 1.6 ppm (max). His case as contended by his counsel, is that this Court must pass appropriate direction for getting inquiry conducted to

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verify the validity and legality of the contract. He submits that the award and consequent purchase and supply of Rails from M/s. EVRAZ ZSMK by DMRC is in violation of prescribed parameters and a matter of grave concern. In other words, when the Hydrogen content is higher than the prescribed limit, the Rails supplied are prone to fracture when put to use and Delhi Metro would become absolutely unsafe for use. He submits that the DMRC is conscious of the laxity in purchase and procurement of the Rails from the respondent No.2 and it is for this reason the DMRC is not revealing the complete information about the qualification of the respondent No.2.

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During the course of his submission, the counsel for the petitioner has drawn our attention to the inspection reports filed by the DMRC to contend that the Rails that have been inspected by the concerned Inspector before the same, were sent to the country does not reveal, the specifications have been met. His submission is that the inspection report as submitted by the DMRC be sent to any organisation for analysis of the same only to ensure that the Rails sent to this country, to DMRC meets the Specifications.

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On the other hand, Mr. Sandeep Sethi, learned Senior Counsel appearing for the DMRC would contend that the present petition is an abuse of the process of law, and is without any substance. According to him, the

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tenders were issued for supply of 5940 MT and 7592 MT Head Hardened Rails by the DMRC. For the first contract six agencies had downloaded the tender documents. Out of the six, two agencies had neither submitted tender cost nor tender security within the due date and time, remaining four agencies had submitted tender cost and tender security, along with their bid, within the prescribed time. The tender committee, after considering and examining all the financial and technical aspects, issued the letter of acceptance in favour of the respondent No.2 for a total amount of Euro 48,70,800/-. Similarly, for the second contract, the same was awarded to the respondent No.2 for an amount of Euro 62,25,440/-. The supplies were scheduled to be completed by 8 months from the establishment of LC.

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It is stated that the respondent No.2 has already supplied entire quantity of HH rails for both contracts to the DMRC and entire quality of rails have already been laid / installed in the Metro Corridors of Phase-III of Mass Rapid Transit Project. The DMRC has also released the complete cost of supply in terms of the relevant conditions of the contract in favour of the respondent No.2. It is also stated, the trial runs of the metro rails on the above corridors have already been undertaken. He submits that the DMRC and the respondent No.2 having altered their position since the award of the

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contract, and having executed the same, the petitioner cannot therefore be allowed to challenge the legality and validity of the award of the contract to the respondent No.2.

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Mr. Sandeep Sethi would submit that the petition has been filed with surmises and conjectures. As regard the allegations that alleged agency i.e. M/s. EVRAZ ZSMK through whom the respondent No.2 would procure the Rails, has only achieved a minimum Hydrogen content of 2.0 ppm(max) using HYDRIS technology as against 1.6 ppm(max) required as per IRS-T12-2009 specifications, he submits that the respondent No.2 has not manufactured Rail Steel (Steel Blooms) at M/s. EVRAZ ZSMK for supply to DMRC, rather, the respondent No.2 has manufactured Rail Steel (Steel Booms) at M/s. Evraj NTMK. The Hydrogen content is achieved as per IRS-T-12-2009 specifications during the stage of manufacturing i.e. at the time of casting of Rail Steel (Steel Blooms).

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Mr. Sandeep Sethi submits, without prejudice that the DMRC had appointed a third-party independent agency of world repute namely M/s. Bureau Veritas for the purpose of carrying out the inspection at the manufacturer’s plant in accordance with the prescribed inspection and test plan to make sure that the Head Hardened Rails which are to be supplied by

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the respondent No.2 were in accordance with the parameters of IRS-T-122009. He submits that after a detailed inspection of the rails, the independent agency has given its report to the answering respondent, which clearly evidences that the rails are in complete compliance of the technical specifications of the Contract Agreement executed between the DMRC and the respondent No.2. He also states that the DMRC has also appointed a different third-party independent agency of world repute namely M/s SGS for the purpose of carrying out the inspection of further quantity of the HH rails in contract at manufacturer’s plant in accordance with the prescribed inspection and test plan to make sure that the Head Hardened Rails which are to be supplied by the respondent No.2 were in accordance with the parameters of IRS-T-12-2009. He submits that after a detailed inspection of the rails, this independent agency has given its report to the DMRC which clearly points out that the rails are in complete compliance of the technical specifications of the Contract Agreement.

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Mr. Sandeep Sethi has drawn our attention to the various inspection reports filed by the respondent DMRC to contend that the Hydrogen content can be measured while the rails are being manufactured. According to him, after the rails had been manufactured and laid down by the DMRC and the

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rails having been commissioned, it is too late in the day for the petitioner to file the present petition seeking an inquiry. In fact, it is the submission of Mr. Sandeep Sethi that the petitioner has approached the Court after almost three years from the date of the contract. In other words, it is not possible after the rails have been laid down to check whether the rails meet the Hydrogen content.

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Having heard the learned counsel for the parties, the question which arises for consideration is whether the petitioner is entitled to the relief as prayed for. We find that the contract tenders were issued in the year 2014. The contracts were awarded in the year 2015 and the present petition has been filed in the year 2018 which is almost after three years. In the interregnum, the respondent No.2 has supplied the rails, the same have been used by the DMRC in Phase-III of the Delhi Metro and the Metro has also been commissioned successfully.

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Mr. Sandeep Sethi is right in contending that it is quite late in the day for the petitioner to challenge the supplies made.

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The plea of the petitioner is only limited to the extent that the M/s. EVRAZ ZSMK from which the respondent No.2 has taken supplies, has so far achieved a minimum Hydrogen content of 2.0 ppm(max) using HYDRIS

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technology which is at variance with the requirements of the tender issued by the DMRC, inasmuch as the rails should have achieved a minimum Hydrogen content of 1.6 ppm(max) using HYDRIS technology. What is important in this case is, the plea taken by the respondent and as contended by Mr. Sandeep Sethi that the respondent No.2 has not manufactured Rails Steel (Steel Blooms) at M/s. EVRAZ ZSMK for supply to DMRC, rather, the respondent No.2 has manufactured Rails Steel (Steel Blooms) at M/s. Evraj NTMK which means that the place, where they were manufactured was different from the place referred to by the petitioner. If that be so, the reliance placed by the learned counsel for the petitioner on a representation made by M/s. EVRAZ ZSMK, in the tender issued by the Railways that it has achieved a Hydrogen content of minimum 2.0 ppm(max) using HYDRIS technology shall have no bearing on the tenders / contracts in issue. Further, it is the categorical stand of the DMRC that the Hydrogen content in the rails has been achieved as per the IRS-T-12-2009 specifications during the stage of manufacturing.

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That apart, during the submissions, Mr. Sandeep Sethi has drawn our attention to pages 318 to 321 to contend that the Hydrogen content which was achieved, was much less than 1.6. That apart, we are of the view, the

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plea of the learned counsel for the petitioner to send the reports for the analysis to different institutions is without any basis for the reason that the Hydrogen content can be seen and noted while the rails are in manufacturing process. Since, the stage has passed by, same cannot be ascertained now.

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The present petition appears to have been filed, without ascertaining

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the facts . We dismiss the same being without any merit.

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CM. No. 22695/2018 (for interim direction)

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Dismissed as infructuous.

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CHIEF JUSTICE

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V. KAMESWAR RAO, J

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OCTOBER 09, 2018 /aky

Dhirendra Krishna v. Delhi Metro Rail Corporation and Anr.

Case brief

What is this about?

What did the court decide?

Dhirendra Krishna v. Delhi Metro Rail Corporation and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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