JUDGMENT
Ranjan Gogoi, J.
1. A preliminary work order dated 29.11.2001 issued in favour of the respondent No. 4 pursuant to a Notice Inviting Tender (NIT) is the subject-matter of the challenge in the Instant writ petition.
2. The brief facts necessary for adjudication of the controversy that has arisen in the instant case may be conveniently set out hereunder :
A NIT dated 7.9.2001 was issued by the Respondent No. 2 -the Chief Engineer National Highway and Research) Public Works Department (Roads), Meghalaya, Shillong, inviting tenders for the work relating to improvement of riding quality for Km 60.00 to 68.00 (length 8.00 Km.) of NH-40 under NH Division, Shillong, Meghalaya. The petitioner along with others participated in the tender process and by communication dated 31.10.2001 the petitioner was informed that the technical bid submitted by him has been accepted and the financial bid will be opened on 2.11.2001 at 2 PM in the office of the Respondent No. 2. The NIT dated 7.9.2001 contemplated submission of tenders in two cover system, i.e., technical bids and financial bids separately. Along with the petitioner three other persons were also found to have qualified in the technical bid. On 2.11.2001 the financial bids of the pro qualified tenderers were opened and the amount quoted by the petitioner was found to be the lowest. However, the respondent-authority issued the preliminary work order dated 29.11.2001 in favour of the respondent No. 4. Aggrieved, the instant writ application has been filed.
3. An Affidavit-in-opposition has been filed in the present case by Respondent No. 2 as well as Respondent No. 4. Insofar as the affidavit filed by the Respondent No. 2 is concerned, it has been averred in the said affidavit that in terms of Clause 11 of the Additional Terms and Conditions a non-tribal contractor firm or joint venture selected
for the execution of the work was required to produce Trading License/Exemption Certificate from the Competent Authority on allotment of the preliminary work order. Under the aforesaid Clause 11 only upon production of such trading license/exemption certificate the final order for commencement of the work was to be issued after signing of the formal tender agreement in the prescribed form. According to the respondent-authority under the provisions of United Khasi Jaintia Hills District (Trading by Non-tribals) Regulation, 1954 it was mandatory for a non-tribal to obtain a trading licence from the Licensing Authority of Khasi Hills Autonomous District Council for carrying on any form of business within the East Khasi Hills District of Meghalaya. In the affidavit it has been further averred that the writ petitioner has earlier been allotted a preliminary work order on 12.6.2001 in respect of work relating to “improvement of riding quality from KM 0.00 to KM 10.275 of NH 40”. However, because of the failure on the part of the petitioner to obtain and furnish necessary trading licence the final work order could not be issued and the aforesaid work allotted to the petitioner is yet to commence thereby adversely affecting the public interest. According to the Respondent No. 2 the Tender Committee in its meeting held on 15.11.2001 deliberated over the issue and decided that as the trading licence in respect of the earlier work allotted to the petitioner was not yet furnished as a result of which the said work was yet to commence, insofar as the present works are concerned, the same be allotted to the Respondent No. 4, who was the third lowest bidder. The second lowest bidder one M/s Jaichandlal Singhi was also not considered for allotment of the work order on similar grounds. It is also averred in the affidavit filed by the Respondent No. 2 that for the aforesaid reasons the Tender Committee took the decision to grant the work in question to the Respondent No. 4 who accepted the same at the lowest offer and there was no negotiation in the matter of acceptance of such lowest offer by Respondent No. 4 as alleged in the writ petition.
4. Mr. P. Pathak, learned Sr. counsel appearing for the writ petitioner has argued that the petitioner being the lowest tenderer and his technical bid having been found satisfactory, was, in the absence of special reasons, entitled to grant of the contract in question. Mr. Pathak while conceding that the lowest price offered by the tenderer does not create any indefeasible right for award of the contract has however submitted that it is only for good and sufficient reasons that the lowest price offered can be ignored. In the instant case the learned counsel has argued, Clause 11 of the Additional terms and conditions requires production of trading licence/exemption
certificate only after the preliminary work order is issued. In the instant case the authority has proceeded as if such requirement is a pre-condition to a valid tender. The tender of the petitioner has not been accepted for the failure of the petitioner to furnish the trading licence/exemption certificate as required under Clause 11, whereas under the aforesaid Clause 11 the obligation of a tender to furnish such trading licence/exemption certificate arises only after the preliminary work order is issued in his favour. On the aforesaid basis, the learned senior counsel has contended that the preliminary work order dated 29.11.2001 issued in favour of the Respondent No. 4is patently illegal and is liable to be interfered with in exercise of the power under Article 226 of the Constitution of India.
5. Mr. N.M. Lahiri, learned Advocate General, Meghalaya, appearing for the State Respondents has at the outset contended that the works for which the tenders were invited by NIT dated 7.9.2001 is a time bound scheme, sponsored and funded by the Central Government. Any delay in the commencement and execution of the work may entail withdrawal of the sanction and the funds allotted which may adversely affect the public interest. Mr. Lahiri has further submitted that while it is true that under Clause 11 of the Additional terms and conditions the requirement of furnishing trading licence/ exemption certificate is only after the preliminary work order is issued, the fact that in respect of a similar work allotted on 12.6.2001 the petitioner had not been able to furnish necessary trading licence, on account of which the aforesaid work had not yet been commenced thereby adversely affecting public interest, is a relevant and reasonable consideration which could have been legitimately taken into account by the Tender Committee while deciding the suitability of the writ petitioner for the grant of the instant contract. Mr. Lahiri has further submitted that in the light of the experience the Department had gathered in the matter of furnishing of trading Hence by non-tribal contractors. Clause 11 of the Additional terms and conditions needs suitable amendment which is engaging the attention of the Department at present. However, the instant tender notice was issued on 7.9.2001 on which date the problems created by the inability of the writ petitioner to furnish such trading licence had not assumed the present proportions, and therefore the Clause 11 was incorporated in the aforesaid NIT dated 7,9.2001 as it had stood all along, Mr. Lahiri has also argued that in any case in the instant case Clause 11 has not been invoked to make the tender submitted by the petitioner invalid and the tender submitted by the writ petitioner was duly considered, However, the same was not accepted for the reasons already stated, which reasons being reasonable and bona fide, this
Court ought not interfere with the work order allotted in favour of the respondent No. 4. Learned Advocate General has additionally submitted that pursuant to the said work order a huge amount of money has already been paid to the Respondent No. 4 on account of mobilisation advance and it is in public interest that the work in question be executed without any delay leaving the petitioner to seek appropriate remedy for compensation and damages in the Civil Court.
6. The power under Article 226 of the Constitution in matters relating to grant or refusal of contracts is to be exercised primarily to oversee the fairness of the process by which the eventual decision is reached by the authority. The writs of the decision do not ordinarily concern the writ court if the decision has been otherwise arrived at fairly and reasonably. It is an equally well accepted principle of law that the price offered by a tenderer is only one of the factors which go to determine his suitability for the grant of the contract, and the question of suitability of any particular tenderer has to be judged on a consideration of a wide variety of factors. Such factors which may be considered by the authority need not be confined within the four corners of any well defined limit. A certain amount of leverage has to be allowed to the authority in this regard. Keeping in view the fact that grant of a contract is primarily a commercial transaction, in deciding the suitability of a tenderer, commercial considerations are paramount. In the instant case, notwithstanding the lowest offer quoted by the writ petitioner the contract has been awarded to the respondent No. 4 by taking into account the adverse consequences that had fallen in respect of a similar work for which preliminary work order was issued in favour of the writ petitioner on account of failure of the writ petitioner to furnish necessary trad-ing licence/ exemption certificate, and the possibility of similar adverse consequences affecting the instant works in the event of award of the same to the writ petitioner. The above consideration which prompted the authority to recommend the case of the respondent No. 4 in preference to the writ petitioner, therefore, cannot be said to be irrelevant, unreasonable or extraneous. The aforesaid consideration was founded in the interest of the work and to ensure that the work in question can be commenced and concluded at an early date. The materials on record particularly the Judgment and order dated 12.2.2002 of this Court passed in WP(C)237(SH)/01 would go to show that in respect or the work allotted to the writ petitioner earlier, i.e., on 12.6.2001, trading licence had been refused and such refusal had resulted in the institution of a writ proceeding registered as WP(C) 237(SH)/01 wherein this court by order dated 12.2.2002 directed the authority of the District Council to grant trading licence to the
writ petitioner. The said facts would clearly demonstrate that the preliminary work order issued in favour of the writ petitioner in respect of another similar work order as far back on 12.6.2001 continue to remain unexecuted. The aforesaid events though subsequent to the date of decision of the Tender Committee, which is stated to have been taken on 15.11.2001 are relevant subsequent facts which can be taken note of by this Court in determining the entitlement of the petitioner to the relief prayed for in the present writ application.
7. The further question that has to be answered in view of the arguments advanced by the respective parties to the present proceeding is whether in view of Clause 11 of the Additional Terms and Conditions the authorities could not have taken note of the fact that in respect of another similar work allotted to the writ petitioner, the petitioner was yet to furnish a copy of the trading licence thereby adversely affecting the interest of the said work. Clause 11 of the Additional Terms and Conditions as already noted require non-tribal contractors to furnish a trading licence/ exemption certificate after allotment of the preliminary work order. In the instant case the stage of allotment of the preliminary work order had not been reached. The stand of the authority in the instant case is not that such trading licence/exemption certificate is a precondition to a valid tender. The tender of the writ petitioner was accepted for consideration but while the suitability of the petitioner was being adjudged, the fact that a similar work allotted to the petitioner had suffered on account of the, failure of the petitioner to furnish the necessary trading licence and the possibility of such an event occurring in respect of the instant works in the event of allotment of the same to the petitioner was considered by the Tender Committee which after due deliberations came to the conclusion that in the interest of the work, the same be allotted to the Respondent No. 4. In the considered view of the Court Clause 11 of the Additional Terms and Conditions does not impose an embargo on the authority from taking the aforesaid facts into consideration in the process of arriving at its decision in the matter. The eventual decision taken therefore, cannot be faulted with.
8. This Court has also noticed that the writ petitioner has not brought on record any valid trading licence/exemption certificate issued to him by the competent authority of the District Council. The ability of the writ petitioner to execute the works on an immediate basis, therefore, continues to remain in doubt. Consequently and for the aforesaid reasons, this Court is not inclined to issue its high prerogative writ in the facts and circumstances of the case. The writ
petition, therefore, has to fail and is accordingly dismissed, but without any costs.