Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 540 (GAU)

Binod Kumar Malpani v. Bharat Sanchar Nigam Ltd.

2005-07-29

I.A.ANSARI

body2005
JUDGMENT Iqbal Ahmed Ansari, J. 1. By, a notice inviting tender (in short, NIT), published, on 14.08.2003, by the respondent No. 5, namely, Executive Engineer, Civil Division, Bharat Sanchar Nigam Ltd. Jorhat, on behalf of respondent No. 1, namely, Chairman cum Managing Director, Bharat Sanchar Nigam Ltd. New Delhi, (hereinafter referred to as the BSNL), tenders were invited from eligible contractors registered in the appropriate category in P&T/ DOT/DTS/BSNL, CPWD, MES, Railways, Assam State PWD (B&R) and other allied departments of the Assam State PWD eligible for submitting tenders in Assam State PWD (B&R) for similar works. The tenders, so invited, were in respect of work's covered by NIT Nos. 30/BSNL/CD-JRT/03-04 and 31/BSNL/CD-JRT/03-04 (hereinafter referred to as the NIT No. 30 and the NIT No. 31 respectively). While the NIT No. 30 aforementioned covered the construction work of 8 e numbers of Type IV Staff quarters at Lichubari, Jorhat, with estimated cost of Rs. 59,15,246.00 lakhs, the NIT No. 31 aforementioned covered the construction work of Inspection quarters (9 suites)-cum-4 numbers of Transit quarters in Lichubari Colony, Jorhat, with (estimated cost of Rs. 71,15,371.00 lakhs. For a person to be eligible to participate in the f tender process in respect of NIT No. 30 the NIT made it clear that those, who were not registered with P&T/DOT/DTS/BSNL, CPWD, MES, Railways, Assam State PWD (B&R) and other allied departments of Assam State PWD eligible for submitting tenders in Assam State PWD (B&R) for similar works, should have satisfactorily and successfully completed, at least, three works of similar nature each costing not less than rupees twenty lakhs. Similarly, the NIT No. 31 too made it clear that to be eligible to participate in the tender process in respect of the NIT No. 31, the intending tenderer should satisfy that the tenderer has satisfactorily and successfully completed, at least, during the last five years works of similar nature, each costing not less than rupees h twenty five lakhs. The NIT also made it clear that the value of the work completed under a single contract shall be considered for the purpose of determining the eligibility under the Central Government or State Government departments or Public Sector Undertakings or Autonomous bodies of the Central Government. 2. The NIT also made it clear that the value of the work completed under a single contract shall be considered for the purpose of determining the eligibility under the Central Government or State Government departments or Public Sector Undertakings or Autonomous bodies of the Central Government. 2. Pursuant to the NIT, the writ petitioner, who is a working partner of M/s. Malpani Construction Ltd., a partnership firm, and who was, admittedly, not registered with P&T/DOT/DTS/BSNL, but who claimed to have independently supervised, managed and completed satisfactorily the works of the nature as covered by the NIT No. 30 as well as the NIT No. 31, applied, on 2.9.2003, to the respondent No. 5, on the prescribed proforma annexing therewith some documents including the certificates of performance and experience, requesting the respondent No. 5 to issue tender papers/documents in his own name. The last date for making of the application seeking tender papers/ documents was 8.9.2003 and the last date for issuance of tender papers/documents to the eligible tenderers was 12.9.2003. 3. After examining the papers/documents submitted by the petitioner including the partnership deed of M/s Malpani Construction Company, the respondent No. 5 declined to issue tender papers/documents to the petitioner on the ground that the petitioner had not fulfilled the eligibility criteria. 4. Claiming that the petitioner is eligible under the terms and conditions of the NIT, in question, as he had independently supervised, managed and completed various works of his said firm, namely, M/s. Malpani Construction Company Ltd. of which he was a working partner, the petitioner came to this Court with the help of the present writ petition and on 16.9.2003, the Court, while issuing notice of motion, directed the respondents to, inter alia, supply to the petitioner the tender papers/documents and to let him submit the tender papers/documents accordingly with further direction to the respondents not to open the tender papers and in case the tender papers were open, the same shall be kept in sealed cover and shall be opened only with the leave of the Court. 5. 5. The respondents appeared in the writ petition and contested the same by filing their affidavit-in-opposition, their case being, briefly stated, thus in terms of the relevant partnership deed, which the petitioner had produced, the petitioner was merely one of the working partners of M/s. Malpani Construction Company Ltd. along with five other working partners, who included two female persons. The petitioner had not completed independently any construction works of the nature for which he was the applicant. Whatever works he has done was as one of the six working partners of the said firm. The writ petitioner was also not a graduate in Engineering nor a diploma holder qualified to do the job. The writ petitioner has not submitted a single experience certificate of having satisfactorily executed and completed in his name any work of the nature for which he was an applicant. The certificates of experience submitted by the petitioner, were in the name of M/s. Malpal Construction Company, which consisted of as, already indicated hereinbefore, six partners, all of whom were working partners, two of whom, being female persons. A mere recommendation made by the Executive Engineer, PWD, (Building Division), Jorhat, for registering the petitioner as class IA contractor did not fulfill the criteria required under the NIT, for in the BSNL, a contractor, desiring enlistment in class IA, should have a permanent engineering organisation having at least, one graduate engineer of 10 years experience, suitable complementary staff capable of dealing with large works at all stages, sufficient tools and also machinery at its disposal, details whereof shall be submitted by such applicant. The writ petitioner, thus not having aforementioned, was lawfully not issued the tender papers/documents. The writ petition has no merit and deserves dismissal. 6. I have heard Mr. G.N. Sahewalla, learned senior counsel, assisted by Mr. Md. Aslam, learned counsel for the respondents. 7. Presenting the case on behalf of the petitioner, Mr. The writ petitioner, thus not having aforementioned, was lawfully not issued the tender papers/documents. The writ petition has no merit and deserves dismissal. 6. I have heard Mr. G.N. Sahewalla, learned senior counsel, assisted by Mr. Md. Aslam, learned counsel for the respondents. 7. Presenting the case on behalf of the petitioner, Mr. Sahewalla has submitted that the petitioner is a working partner, of M/s. Malpani Construction Company, he independently supervised, executed and completed the various works of the nature in respect where of the petitioner is an applicant and in the face of the experience, which the petitioner has, the petitioner can be clearly seen to have satisfied the requisite experience, which is required under the NIT, in question, and the respondents including the respondent No. 5 ought to have treated the petitioner as a person eligible to participate in the tender process. The respondents, particularly, respondent No.5, contends Mr. Sahewalla, arbitrarily denied to issue to the petitioner the requisite tender papers/documents. The denial to issue tender documents/papers exhibits, further contends Mr. Sahewalla, non-application of mind by the respondents. In Such a situation, submits Mr. Sahewalla, the petitioner was left with no option, but to approach this Court and as a result of the interim directions passed in this Writ petition on 16.9.2003, the petitioner has already submitted his tender papers/documents and he shall accordingly be directed to be considered for allotment of the contract works alongwith other eligible tenderers. 8. Placing reliance on the decision in New Horizons Limited and another v. Union of India and other reported in (1995) 1 SCC 478 , Mr. Sahewalla submits that in order to determine whether a company, a partnership firm or any juristic person has the requisite experience of undertaking the works, the authorities concerned must resort to conventional from commercial point of view, which requires that the respondents shall look behind the juristic persons and examine the persons, who are in control of the work of the juristic person. Had such a method been resorted to by the respondents, it would have, according to Mr. Had such a method been resorted to by the respondents, it would have, according to Mr. Sahewalla, clearly transpired to the respondents that the petitioner had the experience of independently supervising, managing and executing the works of the nature for which he was an intending tenderer and in such a situation, the petitioner ought to have been issued tender documents/papers treating him as a person eligible for consideration of the award of the contract work. 9. Controverting the submissions made on behalf of the respondents, Mr. Barman has submitted that the denial by the respondents to issue tender papers/documents to the petitioner was on valid and just grounds inasmuch as the petitioner did not independently, in the past, contrary to what the NIT had required, satisfactorily and successfully completed works of the nature, which formed the' subject-matter of the present writ petition. It is also submitted by Mr. Barman that as the petitioner did not satisfy the essential criteria mentioned in the NIT, the respondents had ho option, but to deny him the issuance of tender papers/documents. Such a denial, according to Mr. Barman, is the result of application of mind, the decision, so taken was reasonable and non-arbitrary. Mr. Barman further submits that the interim directions passed in this case, on 16.9.2003, may be vacated and the tender papers/documents may be directed to be considered by the respondents concerned after excluding from the purview, of consideration the case of the petitioner and that the writ petition be accordingly dismissed. 10. While considering the rival submissions made before me, on behalf of the parties, what attracts my eyes, most prominently, is that the petitioner is, admittedly, not the only working partner of M/s. Malpani Construction Company Ltd. rather, the said partnership firm consists of as many as six working partners, two of whom were women, and that the petitioner is one of such six working partners. The contents of the partnership deed do not, therefore, indicate that the petitioner was the only competent person to have independently carried out the entire construction work undertaken and completed by the said firm nor does the partnership deed indicate that the work undertaken and completed by the said firm could have been actually completed by the petitioner on his own strength and resources, financial or otherwise. The partnership deed also does not show that independent of the strength and resources of the said firm, the petitioner had the means to undertake and complete any construction work. In a situation, such as this, a mere certificate issued by the concerned department/organisation, whose civil works had been undertaken and completed by M/s. Malpani Construction Company, stating to the effect that it was the petitioner, who had independently supervised, managed and completed the work, did not meet the eligibility criteria incorporated in the NIT, for, the NIT, in question, required that a tenderer, such as the petitioner, has himself successfully and satisfactorily completed the work of the nature for which he is an applicant. 11. What is also of utmost importance to note, in the present case, is that the NIT requires that the tenderer must have completed the works satisfactorily and successfully. The expression satisfactorily and successfully does not necessarily denote that a tenderer must have himself supervised, managed and/or completed the work. A tenderer, to be eligible under the NIT, in question, could have been a person, who has successfully and satisfactorily completed the work by employing persons for supervision, management and execution thereof. The expression satisfactorily and successfully completed the work reflects that the tenderer must not merely have the experience, but also the wherewithal and paraphernalia to undertake such work. This, in turn, means that the tenderer must be shown to have financial capacity to undertake such a work and also the wherewithal, such as, machinery, equipments, workers and qualified staff to undertake and complete the work on his own. 12. In the case at hand, the respondents specifically denied that the petitioner had satisfied the eligibility criteria under the NIT. The undoubted and clear stand of the respondents was that the petitioner had not satisfied the eligibility criteria. To meet this bold stand, the petitioner merely asserts that he has the experience of having independently supervised, managed and completed the work as a partner of the said firm. The petitioner did not, however, bring on record even an iota of material to show that he has, independent of his said partnership firm, financial capacity and possess the necessary machinery and equipments and/or means and resources to arrange machinery, equipments, workmen and other qualified staff to undertake such a work. 13. The petitioner did not, however, bring on record even an iota of material to show that he has, independent of his said partnership firm, financial capacity and possess the necessary machinery and equipments and/or means and resources to arrange machinery, equipments, workmen and other qualified staff to undertake such a work. 13. It is, at this stage, appropriate to recall that their Lordships laid down, in no uncertain words, in Bharat Singh v. the State of Haryana, reported in AIR 1988 SC 2181 , that there is a distinction between the pleadings under a writ petition/affidavit and a plaint and that while in a pleading, that is, in a plaint or a written statement, facts and not evidence are required to be pleaded, in a writ petition or a counter-affidavit, not only that facts; have to be pleaded, but also evidence in proof of such facts are to be annexed thereto. It is, thus, no longer res-integra that in the writ petition and/or counter affidavit, if the facts are not pleaded or the evidence in support of such facts is not annexed to the pleadings, the Court will not entertain the point. See also Zakir, Hussain v. State of Assam and other reported in 2003 (1) GJT 644. 14. In the present case, except making a bald statement that he is eligible, in terms of the NIT, in question, to participate in the tender process in respect of NIT No. 30 as well as NIT No. 31, the petitioner has not brought on record event a shred of material to show, if I may reiterate, that he is financially and otherwise capable of undertaking a projects covered by the said NITs. In a situation, such as the present one it was not wholly unreasonable and/or arbitrary for the respondents to conclude that the petitioner was not eligible to receive the tender papers/documents. 15. It also needs to be pointed out that in the case at hand, the certificates annexed to the writ petition merely indicate that the petitioner had independently supervised, managed and completed various works allotted to the said partnership firm but neither these certificates nor the letter of recommendation aforementioned give any indication that the petitioner is financially capable and has also the capacity to independently employ workers and/or arrange use of necessary machinery and equipments. The financial capacity of a partnership firm or the manpower, machinery and equipments available with such a firm cannot be treated to be the financial capacity, manpower and/or the equipments or the machinery of one of the partners of such a firm, especially when the partner is required to satisfy the authorities concerned that he is, independent of his partnership firm, financially capable as well as, in other respects, competent to undertake the work and satisfactorily and successfully complete the same on his own strength and by his own means and resources. 16. In the face of what have been pointed out above, it cannot be said that it was wholly unreasonable, on the part of the respondents, to take the view that the petitioner had not satisfied the requisite eligibility criteria nor can the decision of the respondents not to issue the tender papers/documents to the petitioner can be said to have suffered from non-application of mind or arbitrariness. 17. At any rate, in the complete absence of any material on record, that the petitioner had, in the past, on his own strength, financial or otherwise, successfully and satisfactorily completed the projects of the kind, which the NIT, in question, perceived, the respondents cannot be said to have acted unreasonably in concluding that the petitioner, had not satisfied the eligibility criteria mentioned in the NIT and was, therefore, not entitled to receive the tender papers/documents. The conclusion, so reached by the respondents, cannot, if I may reiterate, be termed as unreasonable, arbitrary or irrational. 18. In New Horizons Ltd. (supra), relied upon by Mr. Sahewalla, the h Apex Court has laid down as to how an authority floating a tender has to satisfy itself with regard to the past experience of an intending tenderer if the tenderer is a juristic person. It is, no doubt, true, as has been pointed out by Mr. Sahewalla, that in New Horizons Ltd. (supra), the Apex Court has made it clear that the terms and conditions, incorporated in an NIT and/or the tender documents, have to construed from the stand-point of a prudent businessman. It is, no doubt, true, as has been pointed out by Mr. Sahewalla, that in New Horizons Ltd. (supra), the Apex Court has made it clear that the terms and conditions, incorporated in an NIT and/or the tender documents, have to construed from the stand-point of a prudent businessman. When a businessman enters into a contract, whereunder some construction work is to be done, it a would but be natural for the businessman, who wishes to get the construction work executed, that he would seek to assure himself about the credentials of the person, who is to be entrusted with the execution of the work. It is also natural for such a businessman to examine from a commercial point of view, the credentials of the person, who seeks to obtain the work. This, in turn, means that if a company is to be entrusted b with a contract work, the person awarding the contract will look into the background of the company and the persons, who are in control of the same and their capacity to execute the work. A businessman, while awarding the contract, will not go by the name of the company alone, but would certainly examine as to who are the persons behind the c company. While keeping in view the past experience of such a company, which applies for the work, the person awarding the contract would also take note of the present state of affairs of the company and the equipments and resources at the disposal of the company. Such has to be the approach of the authorities of the Public Sector Units too, while considering a tender received in response to the advertisement issued. 19. It logically follows from the above discussion that in a commercial contract, while it is true that the terms and conditions incorporated in the NIT as well as in the tender papers/documents should be construed from the standpoint of a prudent businessman, it is also true to bear in e mind that a prudent businessman may not take the risk of allotting a contract to a person, who has himself not done any work in the past, but has completed the work, similar in nature to which the NIT relates, on the basis of the strength and resources of the partnership firm of which he is one of the partners. Such an approach by the authorities, concerned in dealing with an intending tenderer cannot be said to be wholly unreasonable. Viewed from this angle too, it cannot be said that the respondents acted without any reason whatsoever and/or contrary to what a prudent man would do in declining to treat the petitioner as a person eligible to participate in the tender process, particularly, when the petitioner had not, in the past, on his own strength and resources, as indicated hereinabove, undertaken and completed the construction work of the nature, which the NIT, in question, projected. In such circumstances, it is not really material as to whether such an intending tenderer had independently supervised, managed and completed the work of the partnership firm or not, for, the requirement under the NIT was that the intending tenderer, such as the petitioner, ought to have had not only the past experience, but also the capacity, independent of his firm, to undertake and execute the work. 19(A). What also needs to be pointed out is that the exercise of powers of judicial review under Article 226 is available not against the decision, but the decision-making process. When all the relevant factors are taken into account by an authority and no irrelevant; factor is shown to have been taken into account by the authorities concerned, the decision making process cannot be said to have suffered from arbitrariness and/or non-application of mind. 20. In the case at hand, respondent No. 5 did take into account the relevant factors, namely, as to whether the petitioner had the past experience of having executed the work on his own strength and also as to whether he had the capability to undertake the project. It was on consideration of these two relevant factors that the decision not to issue tender papers/documents to the petitioner, was reached. Such a decision cannot be said to be arbitrary, particularly, when the respondents are not shown to have taken into account any irrelevant factor or acted mala fide. 21. What crystallises from the above discussion is that the decision of the respondents, particularly, the respondent No. 5, not to issue tender documents/papers to the petitioner was wholly justified and cannot be interfered with. The logical conclusion, therefore, is that the writ petition is wholly without merit and the petitioner is not entitled to any relief. 22. 21. What crystallises from the above discussion is that the decision of the respondents, particularly, the respondent No. 5, not to issue tender documents/papers to the petitioner was wholly justified and cannot be interfered with. The logical conclusion, therefore, is that the writ petition is wholly without merit and the petitioner is not entitled to any relief. 22. Before parting with this case, it is pertinent to point out that since the NIT was published way back on 11.8.2003 and the tender process could not be completed on account of the legal wrangles to which the respondents were drawn to, the respondents deserve to be given the liberty of revising the NIT and/or of issuing afresh the NIT. This apart, the tenderers, who had participated in the tender process, might have quoted a rate, which may not have remained financially feasible for them to adhere to. The respondents, therefore, deserve to be given the liberty to cancel the tender process and issue afresh the NIT. 23. In no uncertain words made it clear the Apex Court in Raunaq International Ltd. v. IVR Construction Ltd. and other reported in AIR 1999 SC 393 , that a tenderer, who is not eligible to participate in a tender process, is not entitled; to challenge even the award of the contract. In the case at hand, however, the tender process was brought to a grinding halt on account of the fact that the petitioner impugned the process on the ground that he was one of the eligible tenderers, but had not been furnished with the tender documents/ papers. This Court, having found that the petitioner was not qualified and was not eligible to participate in the tender process, in question, has no option, but to saddle the petitioner with, at least, some cost for dragging the respondents to Court and for holding up a public project. 24. In the result and for the foregoing reasons, this writ petition fails and the same shall accordingly stand dismissed with cost of Rs. 10,000. The interim directions passed in this case, on 16.9.2003, shall accordingly stand vacated. Appeal dismissed.