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2012 DIGILAW 227 (JK)

Hassan Road Construction Ltd. v. State & Ors.

2012-05-08

MANSOOR AHMAD MIR

body2012
1. Petitioner has called in question Order No. C-85014/CEAFU-16/324/E8 dated 12thMarch, 2012 passed by respondent No. 2. A relief of mandamus to issue the tender documents for the work CA No. CEAFU-16/2011-12 (Resurfacing of Runway at Awantipur Airport) to the petitioner and also to allot work, to it, if found successful tenderer on the grounds taken in the writ petition. 2. Precisely put, edifice of the case is being tried to be built on the documents annexed with the writ petition, particularly Annexure C. It is pleaded that respondents had raised some objections firstly about petitioner's eligibility to execute the work of similar nature, but had thereafter, granted relaxation. And the work in question being similar deserves to be dealt with by the respondents while having regard to Annexure C, and issued the tender in favour of the petitioner. 3. Respondents have filed the reply and resisted the same on the ground that petitioner is not eligible in view of the eligibility clause contained in tender notice as provided by CVC guidelines contained in Para 3.5.5.1 and 3.5.5.2 at Page 7 of the Manuals of the Contract, 2007. It is apt to reproduce Para 2 to 4 herein:- "2. The limit of prequalification criteria as per CVC guidelines given in Para 3.5.5.1 and 3.5.5.2 on Page 57 of Manual of contracts 2007 has been enhanced from Rs. 5.00 Crores to Rs. 30.00 Crores for Runway works vide Engineer-in-Chief's Branch letter No. 36073/MES BAI/Gen/446/E8 dated 17 Feb. 2011 (copy enclosed) as Annexure-2. 3. That the estimated cost of the subject work is Rs. 95.00 Crores. 4. That prequalification criteria fixed for the subject work as approved by Engineer-in-Chief's Branch vide their letter No. 66546/PQC/NC/24/E8 dated 21 Mar. 2011 is as under:- a. One work of Runway costing not less than Rs. 30.00 Crores completed in past 07 (Seven) years. AND b. (i) One work costing not less than Rs. 60.00 Crores completed in past 07 (seven) years. OR (ii) Two works costing not less than Rs. 37.50 Crores completed in past 07 (Seven) years. OR (iii) Three works not less than Rs. 25.00 Crores completed in past 07 (Seven) years. Since the firm has not completed any single work of Runway costing not less than Rs. 30.00 Crores during past 07 (Seven) years, tenders for the subject work has not been issued to the petitioner contractor." 4. OR (iii) Three works not less than Rs. 25.00 Crores completed in past 07 (Seven) years. Since the firm has not completed any single work of Runway costing not less than Rs. 30.00 Crores during past 07 (Seven) years, tenders for the subject work has not been issued to the petitioner contractor." 4. Perusal of the reproduced text makes it clear as to what the eligibility criterion is, and how petitioner is disentitled to the relief sought. Further it is stated that petitioner along with other candidates who are falling in SS Class have not been considered and were not enlisted and details of whom are given in the writ petition. 5. Admittedly petitioner is a contractor in SS Class, applied for the tender documents and deposited the requisite amount, his tender document was rejected by the respondents vide impugned order, which is subject matter of the writ petition. 6. It is further contended that petitioner is not fulfilling the eligibility criteria and has based his case solely on Annexure C and has prayed that criteria for allotment of work be relaxed in his case. 7. The moot question for consideration is, as to whether the recommendation for relaxation in eligibility criteria in terms of Annexure C can be a ground for the petitioner to apply and seek consideration for allotment of tenders while being ineligible for the same? And whether the petitioner can invoke writ jurisdiction of this court seeking command against respondents to relax criteria and issue tender documents? 8. The answer, in my view, is emphatic no, for, the indulgence of the court is but a necessity, only if the person before it has been deprived or infringed of a significant right, therefore is seeking protection. The discretion to exercise the writ jurisdiction is generally aimed at for the public good. Here, in the instant case, the petitioner has neither been deprived nor infringed of any of his rights not to speak of a substantial right. The power of fixing or re-fixing the criteria for allotment of works is for the respondents to administer in terms of CVC Manual, and it is expected of the contractors-construction companies to comply with the requisite criteria, in order to fulfill the requirements of the tenderer, and prove its eligibility. The power of fixing or re-fixing the criteria for allotment of works is for the respondents to administer in terms of CVC Manual, and it is expected of the contractors-construction companies to comply with the requisite criteria, in order to fulfill the requirements of the tenderer, and prove its eligibility. If any contractor is not fulfilling the requisite demand, which is not unjustified either but based on the guidelines, is because of being ineligible excluded automatically from the zone of consideration. 9. A similar question arose before this court in a writ petition titled M/s Abdul Salam Mir Const. Co. Ltd. v. U.O.I. & Ors, bearing OWP No. 850/2010. This court after hearing the learned counsel for the parties held that writ petition is not maintainable. It is apt to reproduce last three paragraphs of the said judgment herein:- "Learned counsel for the petitioner has referred to pre-qualif ication criteria as laid down in the two NITs and sought quashment of the same on the ground that the same is arbitrary and unreasonable. Respondents have on the other hand stated that the conditions put in the two NITs as pre-qualification criteria based on CVC guidelines. That the conditions put in the pre-qualification criteria is based on the CVC guidelines is not denied. The CVC guidelines have not been challenged by the petitioners only the conditions put in the NIT as pre-qualification criteria have been challenged on the ground it being unreasonable. Since the conditions are based on CVC guidelines and the said guidelines have not been challenged I find the present petition cannot sustain. In the circumstances the petitioner cannot plead any ground to challenge pre-qualification criteria as prescribed in the two NITs. Accordingly, I find no ground for admission of this petition. Dismissed." 10. Applying the test, laid down by this court read with the guidelines contained in CVC Manual, no relief can be granted to the petitioner. 11. The writ petition, therefore, being without any merit is dismissed as such