Full Judgment Text
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PETITIONER:
M/S. SHAPERS CONSTRUCTION (P) LTD. & ANR.
Vs.
RESPONDENT:
AIRPORT AUTHORITY OF INDIA & ANR.
DATE OF JUDGMENT: 17/09/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The petitioners have filed these special leave
petitions against the order of the Division Bench of the
High Court of M.P. at Jabalpur made on August 14, 1996 in
LPA No.138/96. The learned single Judge as well as the
Division Bench dismissed the writ petitions in which the
petitioners had sought direction to the respondents to give
the tender form on the ground that they had satisfied
Condition No.2 of the Tender Conditions. Pursuant to the
interim order passed by the High Court, the petitioners
submitted their tender forms. But, at the final hearing, the
writ petitions came to be dismissed. Thus, these special
leave petitions.
It is contended for the petitioners that they have past
experience in execution of the national highway. They have
two contracts of more than required amount specified in the
tender conditions, 42% of Rs.4 crores and Rs.6 crores
respectively. The certificates issued by the competent
engineers, namely Executive Engineer and Superintending
Engineer would show that the petitioners have been
satisfactorily performing their duties in execution of the
work. The petitioners, after securing the contracts, have
executed major part of the work within the scheduled time
granted under the contracts. Therefore, the failure to give
tender form at the inception and consideration thereof after
the interim direction is violative of their fundamental
right to compete in the tender for the further contract. The
question is: whether the view taken by the High Court is
wrong in law? Tender Condition No.2 envisages as under:
"The tenderer who wish to apply
shall have satisfactorily completed
at least two runway/National
highway, preferably rigid pavement
works involving considerable earth
filling each of value Rs.400 lakhs
or one works of Rs.600 lakhs during
the last five years and have annual
turn over of Rs.500 lakhs in each
[1992-93, 1993-94 & 1994-95] and
should possess computerised hot mix
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plant and concrete batching plant
for executing asphaltic and rigid
pavement works."
A reading of this condition would clearly indicate that
the tenderers who wish to apply shall have satisfactorily
completed at least two runway/National highway, preferably
rigid pavement works involving considerable earth filling,
each valuing Rs.400 lakhs and one work of Rs.600 lakhs
during the last five years and have annual turn over of
Rs.500 lakhs in each of the last three years (1992-93, 1993-
94 and 1994-95). He should possess computerised hot mix
plant and concrete bathing plant for executing asphaltic and
rigid pavement works.
It is true, as contended by the petitioners, that the
Tender Condition would indicate that they had completed at
least two runway/National highway, preferably rigid pavement
works. He contends that the completion of the work is
different from tendering the contracts for execution of the
work. They had two contracts as envisaged thereunder; though
they had not totally completed the same, major part of the
work had been completed. Therefore, they have fulfilled the
conditions prescribed thereunder. The petitioners, thereby,
could not be denied of their right to compete in, apply for
and be considered for assignment of the work under the
tenders now in dispute. We find no force in the contention.
The condition envisages that he shall have satisfactorily
completed. The word ’completed’ would indicate that as on
the date of application for the tenders, he should have
completed at least two runway/National highway works,
preferably rigid pavement works involving considerable earth
filling. In other words, the completion of the work of at
least two runway/National highway is a pre-condition. On
their own admission, they had not completed, though the
major part of the work as professed by them is completed.
Under these circumstances, the view taken by the High Court
cannot be said unwarranted.
The learned counsel placed strong reliance on the
judgment of this Court in New Horizons Ltd. & Ors. Vs. Union
of India & Ors. [(1995) 1 SCC 478], in particular,
paragraphs 21 and 22 in support thereof, this case relates
to previous experience and the question therein was: whether
the previous experience would be considered after submitting
the tenders or before submitting the tenders? This Court had
held that the question would arise only after the submission
of the tender. In support of consideration of the tender
thereof, the previous the contract. In that case, this Court
considered and held that at the inception, the tender forms
cannot be refused on the ground that he had not proved the
previous experience. That question has no relevance to the
facts in these petitions. Under these circumstances, as
stated earlier, the completion of the work of at least two
runway / National highway is a pre-condition for submitting
the application. On their own admission, since the
petitioners had not completed the works in hand, we cannot
find any illegality in respondents not giving the tender
forms nor in non-consideration of their cases pursuant to
the interim direction given by the High Court.
The petitions are accordingly dismissed.