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2017 DIGILAW 465 (JK)

Kamla Hot Mix Plant v. State of J&K

2017-07-27

SANJEEV KUMAR

body2017
JUDGMENT : 1. Respondent No.2 floated e-tender vide E-NIT No.IDC/BB/02 of 2017-18 dated 21.04.2017, whereby tenders were invited by the Executive Engineer, Industrial Complex, Bari Brahmana/Samba for execution of “upgradation of roads by way of providing and laying 50 mm thick bituminous macadam, 25mm thick Semi Dense Bituminous Concrete and providing wet mix patches, wherever required to main BB-Smailpur Road from RD 900-3300 mtrs and connected internal roads of Ph-II Industrial Complex, Bari Brahmana.” The petitioner claims to be a registered Contractor in possession of Hot Mix Plant submitted its tender fulfilling all eligibility conditions. 2. The grievance of the petitioner is that after it submitted its tender for the work in question after fulfilling all eligibility conditions laid down in the tender notice dated 21.04.2017, respondent No.2 came up with a Corrigendum which was issued in reference to E-NIT dated 21.04.2017, whereby item No.5 of the uploaded B.O.Q. was recast and as a result of this corrigendum, the petitioner, who does not possess Pneumatic Tyre Roller, which requirement was prescribed for the first time by issuance of the corrigendum, was declared ineligible and its tender was not accepted by respondent No.2. The petitioner, therefore, assails the impugned corrigendum, which is placed on record as Annexure-C to the writ petition on the ground that the requirement of possessing pneumatic tyre roller indicated in the corrigendum is totally illegal and arbitrary. It is also submitted that besides being arbitrary, it is after thought and tailor-made to confer wrongful benefit on respondent No.3 and to exclude other contractors including the petitioner, who are not possessed of pneumatic tyre roller. 3. Learned counsel for the petitioner has vehemently argued that the corrigendum impugned is actuated by mala fide considerations and is per se arbitrary and therefore, the requirement as laid down in the corrigendum cannot be insisted upon. He, therefore, submits that in view of the settled legal position, allotment of government contracts is akin to distribution of state largesse and the same has to be distributed in a fair and equitable manner so as to eliminate the element of favourtism and nepotism. 4. Per contra, learned senior counsel appearing for respondent No.3, who has filed objections, submitted that the writ petition is not maintainable for the reasons that the petitioner has not participated in the tendering process initiated by E-NIT dated 21.04.2017. 4. Per contra, learned senior counsel appearing for respondent No.3, who has filed objections, submitted that the writ petition is not maintainable for the reasons that the petitioner has not participated in the tendering process initiated by E-NIT dated 21.04.2017. It is further submitted by the learned senior counsel that it is trite law that in the matters relating to contracts the government has absolute freedom to formulate the conditions of tender document and the same are prescribed by the Government bearing in mind numerous factors, like nature of contract and the nature of work to be executed. In such matters, argues learned counsel for respondent No.3, the Courts would not substitute their view in place of the view of the authority concerned. He, however, fairly submits that unless the terms of the contract are found to be per se arbitrary, mala fide, discriminatory or actuated by bias, the Courts would not interfere and strike down the terms and conditions of the tender documents, which are formulated by the authority in its wisdom keeping in view the nature of work to be executed. Learned senior counsel has further invited attention of this Court to the qualification criteria laid down in E-NIT dated 21.04.2017 in Clause 2(e), wherein besides others, in list of machineries required to be furnished and uploaded with the technical bid, hot mix plant, sensor paver finisher and Vibratory Rollers have been indicated. Similarly in item No.5 of B.O.Q., the aforesaid equipments find mention. He, therefore, contends that by issuance of corrigendum it was only specified that instead of Vibratory Roller the requirement could be pneumatic tyre roller, which the learned counsel for respondent No.3 submits is the latest technique in the field and has been adopted in the execution of the type of work, which is to be executed in the instant case. 5. Learned senior counsel for respondent No.3 also invited attention of this Court to the similar works tendered by the National Highway Authority of India wherein in the list of nature of equipments required to be possessed by the contractors, the type of roller i.e., pneumatic tyre roller has been indicated. 5. Learned senior counsel for respondent No.3 also invited attention of this Court to the similar works tendered by the National Highway Authority of India wherein in the list of nature of equipments required to be possessed by the contractors, the type of roller i.e., pneumatic tyre roller has been indicated. It is, thus, submitted by the learned senior counsel that keeping in view the requirement of equipments for the work in question, respondent No.2 in his wisdom and being otherwise expert in the field chose to specify type of roller to be used in the execution of the work as pneumatic tyre roller instead of vibratory roller, which was indicated in the initial E-NIT and therefore, the corrigendum issued was in larger public interest. 6. I have considered the submissions made by learned counsel for the parties and have gone through the records. 7. Undoubtedly, Article 14 of the Constitution of India prohibits the government from arbitrarily choosing the contractor at its will and pleasure. The Government being a model employer in distribution of public largesse is expected to act reasonably, fairly and in larger public interest but at the same time no citizen can claim a fundamental right to carry on business with the Government. The only right, a citizen has is that of competing for the contract and not to be treated unfairly or discriminated against. It is equally well settled that in the matter of laying down terms and conditions of tender document and awarding a contract, greater latitude is required to be conceded to the public authorities. What should be the terms and conditions of a particular contract, should be left to the expertise and wisdom of the state authorities. The State authority awarding contract is the best person to know the requirements of a particular contract. Similarly, what should be the equipment to be used in executing a particular nature of work is again something, which falls in the domain of such authorities and the contractor, who has only right to compete for such work cannot dictate his terms. 8. Similarly, what should be the equipment to be used in executing a particular nature of work is again something, which falls in the domain of such authorities and the contractor, who has only right to compete for such work cannot dictate his terms. 8. From perusal of the records and from the submissions made by the learned counsel for the petitioner, it cannot be said by any stretch of imagination that decision to issue corrigendum and providing for particular type of roller different from the one, which was prescribed in the original NIT is arbitrary, unfair or actuated by any malafide considerations. During the course of arguments, it was brought to the notice of this Court that in response to the NIT in question followed by the corrigendum impugned, in as many as four other contractors have submitted their bids and in that view of the matter it would not be fair to say that the corrigendum was tailor made to suit respondent No.3. The judgment of Hon’ble Supreme Court in the case of Association of Registration Plates v. Union of India and others, (2005) 1 SCC 679 supports the view this Court has expressed herein above. There is, thus, no material on record to infer any mala fide and the conditions prescribed in the impugned contract are apparently to ensure that the contractor uses the latest technology in the execution of work, which in turn would sub-serve the larger public interest. Needless to say that jurisdiction of this Court under Article 226 of the Constitution of India read with Section 103 of the Constitution of J&K in the matters of contract is very limited and this Court would not interfere in the contract only on the ground that certain terms and conditions laid down therein are not good and that better terms and conditions could have been laid down. This Court would not interfere in such matters, unless it is demonstrated that the impugned terms and conditions of the tender are per se arbitrary and violate the equality clause under Article 14 or encroach on the fundamental right of an intending tenderer under Article 19 of the Constitution. 9. Viewed thus, the petition which is devoid of any merit fails and is hereby dismissed.