SCA/3262/2008 5/ 5 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3262 of 2008 ========================================== SHREE DECORATORS - Petitioner(s) Versus UNION OF INDIA THRO' CHIEF WORKS MANAGER & 1 - Respondent(s) ========================================== Appearance : MR KISHOR M PAUL for Petitioner(s) : 1, MR BIPIN I MEHTA for Respondent(s) : 1, MS KJ BRAHMBHATT for Respondent(s) : 2, MS VARSHA BRAHMBHATT for Respondent(s) : 2, ========================================== CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA Date : 20/06/2008 ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE M.S.SHAH)
What
is challenged in this petition under Article 226 of the Constitution
is the decision of the Western Railway, Dahod awarding contract for
painting 31 railway locomotives to respondent No.2 for the amount of
Rs.53,31,781/- as against the estimated cost of Rs.49,53,955/-. The
railways had issued a tender notice in August, 2007 inviting tenders
from parties fulfilling the eligibility criteria indicated in para
3.11 of the tender notice. The following eligibility criteria are
relevant for the purpose of present petition:
“3.11.00
Eligibility Criteria/Credential:
02. Should
have completed at At least one similar single
the
time of opening of tender, work for a minimum value of
in
the last 3 financial years, 35% of advertised tender
(
i.e. current year & three value of work.”
previous
financial years)
2. The
railways found that the present petitioner was not eligible and that
the price quoted by the other party, i.e. respondent No.2 herein,
being Rs.59,48,900/- was too high. The railways, therefore, issued a
second tender notice with the following eligibility criteria:
“3.11.00
Eligibility Criteria/Credentials:
(A)
Eligibility Criteria:-
1)
Tenderer should have completed at least one similar single work for
a minimum value of 35% of advertised tender value of work at the time
of opening of tender, in the last three financial years (i.e. current
year & three previous financial years).
Note:
Similar work – “Polyurethane painting of Locomotives/ EMUs/
MEMUs/DEMUs/Rilway coaches”>
2)
Total contract amount received by tender during the last 03 years
should be a minimum of 150% of advertised tender value of work. For
this, tenderer should submit attested copy of audited balance sheet
duly certified by Chartered Accountant or Certificate issued from
employer/client.”
3. On
the second occasion also, the petitioner was considered to be
ineligible and the price quoted by respondent No.2 being
Rs.53,37,721/- was found to be within reasonable limits. Accordingly,
the railways decided to award the contract to respondent No.2.
4. Mr.Kishor
Paul, learned counsel for the petitioner, submits that the petitioner
is an experienced party in this field and that the certificate dated
27.6.2007 of the Gujarat Energy Transmission Corporation Ltd. also
indicates that the party had satisfactorily carried out the work of
painting special towers of 123 meters height applying polysulphide
base apoxy paint. It is also submitted that the price quoted by the
petitioner was Rs.39,62,164/- and, therefore, the decision of the
respondent authority awarding the contract to respondent No.2 is
arbitrary and contrary to public interest.
5. Mr.Bipin
Mehta, learned Standing Counsel for the Railways, has opposed the
petition and submitted that, when the petitioner was ineligible, the
petitioner has no right to challenge the decision of the authority
awarding the contract to respondent No.2. It is submitted that the
work of painting locomotives and railway coaches is a specialized job
and, therefore, the petitioner cannot be considered to be eligible
for the contract work when he has admittedly not done such work. It
is submitted that the petitioner was not eligible even under the
first tender notice because he had not done such painting work of
government controlled vehicles.
6. Ms.Kalpana
Brahmbhatt, learned counsel for respondent No.2, has also supported
the decision of the authority and submitted that the contract was
awarded on 15.03.2008 and respondent No.2 has already started
executing the work. It is submitted that any intervention by this
Court at this stage would create innumerable complications for the
second respondent who has already employed labour and material for
carrying out the contract work.
7. In
the rejoinder, Mr.Paul, for the petitioner, submits that, if those
who have experience of painting locomotives and railway coaches are
to be given such contract, only the existing contractors with the
railways would continue to have the monopoly and other experienced
parties, like the petitioner, would never be able to enter the
competition.
8. Apropos
the above submissions, Mr.Bipin Mehta, learned Standing Counsel for
the Railways, points out from page 139 that the eligibility criteria
prescribed in the tender notices are only applicable to the tenders
costing above Rs.10 lakhs and that such conditions are not prescribed
for tenders costing upto Rs.10 lakhs. It is submitted that it is open
to the petitioner to submit tenders in response to notices for
tenders costing upto Rs.10 lakhs.
9. Having
heard learned counsel for the parties and considering the rival
submissions, admittedly, the petitioner does not possess the
experience as prescribed either in the first tender notice or in the
second tender notice. This court is ordinarily not to sit in appeal
over the decision of the authority in prescribing eligibility
criteria and this Court would not interfere with such decision,
except where prescription of eligibility criteria is shown to be
actuated by mala fides and arbitrariness. In the facts and
circumstances of the case, it is not possible to attribute any such
vice to the impugned decision of the respondent authority. The
contention that prescription of such eligibility criteria would only
perpetrate the monopoly of existing contractors cannot be accepted
because, as pointed out by learned Standing Counsel for Railways, the
parties desiring to submit tenders for such work costing upto Rs.10
lakhs are not required to fulfill the eligibility criteria prescribed
for the tender works above Rs.10 lakhs.
10. In
view of the above discussion and considering the fact that execution
of the contract work awarded to respondent No.2 is already commenced
and looking to importance and nature of the work involved where
time-bound execution of contract is necessary in public interest, we
do not consider this to be a fit case to make any further probe into
the decision making process under challenge in this petition.
Petition is, therefore, dismissed. Notice is discharged with no
order as to cost. It is clarified that dismissal of this petition
may not be construed as approval of the stand of respondent authority
in prescribing the eligibility criteria and it is open for the
petitioner to make suitable representation to the competent authority
in this behalf.
Sd/- Sd/- ( M.S.Shah, J.) ( D.H.Waghela, J.) (KMG Thilake)