WP/26734/2006 of B.S.N. Joshi AND Sons Limited, Vs The Executive Director (MM), on 26 December 2006

ORAL ORDER:

The 1[st] respondent herein issued open tendernotification dated 27.9.2006 inviting tenders for appointmentof agents for participation in joint sampling analysis, loadingsupervision jobs of boiler coal supplies from M/s Mahanadi CoalFields Ltd., to Visakhapatnam Steel Plant. Pursuant to the same, thepetitioner had submitted its tender on 26.10.2006 within the timeprescribed. It is not in dispute that as per the schedule notified, thepre-qualification bids were opened on 27.10.2006. However, thepetitioner was found to be not qualified on the ground that it failed tosatisfy Clause 2(c) of the tender notification, which reads as under:

“Experience in joint sampling and analysis of coal for a minimumperiod of one year during the last ten years ending March 2006 to any PSU/Power House of Government Department Certificate fromthe client(s) regarding joint sampling and analysis must besubmitted”

Aggrieved by the said action, this writ petition is filedcontending inter alia, that Clause 2(c) of the tender notification ishighly unreasonable, arbitrary, illegal and the same has beenincorporated by the 1[st] respondent to accommodate the existingcontractor. It is pleaded that the petitioner is engaged in the work ofcoal trading, coal handling etc., for more than five decades and that thepetitioner has got good experience in the field of monitoring andsupervising the quality and quantity of the coal and the coal handlingof the petitioner is 9.98 million tons per annum for the last five years. However, the petitioner could not satisfy the conditions under Clause2(c) of the impugned tender notification under which the experience injoint sampling and analysis of coal is required for a minimum period ofone year during the last ten years ending with March, 2006. It iscontended that there is absolutely no justifiable reason to restrict theexperience only up to March, 2006, whereas the tender notificationwas published in the month of October, 2006. Alleging that the saidrestriction has illegally deprived the petitioner of its right to participatein the tender, this writ petition is filed.

I have heard the learned counsel for both the parties in detail andperused the material on record.

Learned counsel for the petitioner vehemently contended that theimpugned condition has no nexus to the object sought to be achievedand at any rate since the petitioner had substantially satisfied theeligibility prescribed, there is absolutely no reason to disqualify thepetitioner. In support of his contention, the learned counsel for thepetitioner has placed reliance upon the decisions in D.S. Nakara andothers v. Union of India[[1]]and Noble Resources Ltd., v. State ofOrissa and another[[2]].

There can be absolutely no dispute about the ratio laid down in

the above decisions. However, the law is well settled that the tenderinviting authority can choose their own terms, including thequalification and experience in respect of the work for which tendersare invited. When the specifications so prescribed do not suffer fromthe vice of arbitrariness or unreasonableness, this Court in exercise ofthe jurisdiction under Article 226 of the Constitution of India will not sitin appeal and substitute its own opinion. In the case on hand, on thebasis of the averments made in the affidavit filed in support of the writpetition it cannot be said that by virtue of Clause 2(c), the petitionerwas deliberately eliminated from participating in the tender process. Asa matter of fact, there is no allegation of any mala fides.

It is also relevant to note that the writ petitioner is admittedly, adisqualified tenderer, who could not satisfy the eligibility criteria. Norelief under Article 226 of the Constitution of India can be granted atthe instance of such party, who has participated in the tender processwithout raising any objection and subsequently found to be ineligible.

The learned counsel appearing for the 1[st] respondent, underinstructions, stated that as a matter of fact, the price bids of thequalified tenderers were also opened on 6.12.2006 and the letter ofacceptance was already issued to the successful bidder on19.12.2006.

Having regard to the settled principles of law and particularly inview of the fact that the letter of acceptance has already been issued tothe successful bidder, the interference by this Court is not at allwarranted.The writ petition is devoid of merits and is accordinglydismissed. No costs.

26.12.2006.

mrr/kgr

[1]AIR 1983 SC 130;[2]2006 (9) SCALE 181.