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Judgment
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J.B.Pardiwala, J
We have heard Mr. Mihir Thakor, the learned Senior Counsel assisted by Ms. Delshad Kapadia, the learned advocate appearing for the writ
applicant and Mr. Kamal Trivedi, the learned Senior Counsel assisted by Mr. Kunan Naik, the learned advocate appearing for the respondents. Both
the learned Senior Counsel appearing for the respective parties have given us more than a fair idea as regards the litigation.
Prima facie, we are of the view that the presence of the Union of India is necessary in the present litigation. We permit Ms. Kapadia, the learned
advocate appearing for the writ applicant to join the Union of India through the Ministry of Petroleum and Natural Gas, New Delhi. The cause title be
amended accordingly.
Let Notice be issued to the newly impleaded respondent no.3-Union of India, returnable on 26.08.2021. In the meantime, as early as possible, Ms.
Kapadia shall furnish one set of her entire paper book to Mr. Devang Vyas, the learned Additional Solicitor General of India, so that by the next date
of hearing, Mr. Vyas is ready with the necessary instructions in the matter.
To make the task of Mr. Vyas a little easy so that he can take appropriate instructions on the core issue, we would like to observe something at this
stage.
The subject matter of this litigation is allocation of gas on fall back basis. The ONGC vide its tender notice dated 22.07.2020 invited for Expression
of Interest (EOI) for demand assessment. To put it in simple words, the ONGC has few field/ block at the place called Vadtal, District : Bhavnagar.
As we have understood, no pipeline network is available in these field/block so that the gas can be transmitted through such network. Any party
interested to collect the gas will have to undertake the entire exercise on his own.
The writ applicant herein offered to collect the gas from the field/block situated at a place called Vadtal, District : Bhavnagar, within a period of 75
days. It appears as pointed out by Mr. Trivedi, the learned Senior Counsel appearing for the Corporation that there are two other companies also
interested to collect the gas but their offer was to complete the collection within six months. In such a scenario, obviously, the writ applicant could be
said to be duly qualified or eligible to collect the gas in accordance with the invitation. However, before the contract could be finalized with the writ
applicant, one of the parties referred to above informed the Corporation that it is ready and willing to collect the gas within 65 days i.e. 10 days less
than the offer of the writ applicant of 75 days. This fresh offer of one of the parties at a belated stage has created the complications, as a result of
which, the writ applicant is here before this Court.
The pivotal question for us to consider is whether the Corporation should be permitted to enter into fresh negotiations with the company/party who
has offerred to collect the gas within 65 days. At one point of time during the course of the hearing, Mr. Thakor submitted that if such is the offer than
his client is also ready and willing to collect the gas within 65 days. It means that there are two parties in the fray who are willing to collect the gas
within 65 days but the offer of the writ applicant was first in point of time i.e. way back in the 2020 whereas the fresh offer has come very recently.
Mr. Thakor, seeks to rely on a circular No.01/01/10 dated 20.01.2010 issued by the Government of India, Central Vigilance Commission, which
says that normally there should not be any post tender negotiations. The circular clarifies that if at all negotiations are warranted under exceptional
circumstances than it can be with L1 (lowest tenderer) only if the tender pertains to award of work/supply orders etc. where the Government or the
Government Company has to make the payment. However, if the tender is for sale of material by the Government or the Government Company, the
post tender negotiations should not be held except with H1(highest tenderer) if required.
In the aforesaid context, Mr. Thakor also invited the attention of this Court to the guidelines issued by the Ministry of Petroleum and Natural Gas,
dated 28.06.2010 more particularly, clause 7.4(d), which reads thus:
“(d) The priority for supply of gas from a particular source would be applicable only amongst those customers who are connected to existing and
available pipeline network connected to the source. So if there is a marginal or small field that is not connected to a big pipeline network, then the
Contractor would be allowed to sell the gas to consumers who are connected or can be connected to the field in a relatively short period (of say three
to six months).â€
The principle argument of Mr. Thakor is that the Corporation should not be permitted to undertake any fresh negotiations as the offer of the writ
applicant to collect the gas within 75 days is of last year i.e. 2020. Later in point of time, if fresh offers are to be entertained than the sanctity of the
first offer would not remain. In other words, there is always some sanctity attached to the first offer and which is in consonance within the guidelines
or the policy of the Corporation. It is also the case of the writ applicant that the Ministry of Petroleum and Natural Gas, Government of India vide
letter dated 07.04.2021 has informed the Corporation that it should act in accordance with the letter issued by the Ministry dated 07.01.2021
(Annexure â€" R4, Page: 125).
On the other hand, Mr. Trivedi, the learned Senior Counsel appearing for the Corporation would submit that although the offer made by the writ
applicant to collect the gas within a period of 75 days was made last year, yet the contract cannot be said to have concluded in any manner. It just
remains an offer. Mr. Trivedi would submit that it is within the domain or discretion of the Corporation ofcourse subject to certain guidelines framed
by the Government of India to consider any fresh offer even it has come at a belated stage more particularly, if such offer is in larger public interest.
According to Mr. Trivedi, the circular upon which the writ applicant seeks to rely upon is not absolute. The circular does provide some discretion to
the Corporation. According to Mr. Trivedi, there are exceptional circumstances which necessitated the Corporation to atleast look into the fresh offer
made by one of the parties. The fresh offer as referred to above is to collect the gas within a period of 65 days.
At this stage, we may again state that even if the writ applicant as on date has offerred to collect the gas within 65 days, as there are two offers;
one by the writ applicant and the another by the different party to collect the gas within 65 days, it is now for the Corporation to take a final call in
accordance with the guidelines and as may be guided by the Government of India.
In the aforesaid set of circumstances, we want the presence of the Government of India, Ministry of Petroleum and Natural Gas. We are saying
so because ultimately the Corporation will have to get guided by what the Government of India says in this regard; subject to the further contentions
that may be canvased on behalf of the writ applicant.
We want Mr. Vyas, the learned ASG to assist us so far as the letter of 07.04.2021 (Annexuer -R6, Page -127 of the paper book) is concerned.
When the Government of India informs the Corporation that it is reitreating its earlier letter of even number dated 07.01.2021 what is exactly sought to
be conveyed to the Corporation and what does the Government of India expect the Corporation to do now at this point of time in the wake of such
development which we have talked about.
Post this matter for further hearing on 26.08.2021.
One copy of this order Mr. Devang Vyas, the communication. shall be furnished at the earliest to learned ASG for its onward
communication