ORDER
G.D. Sharma, J.
1. The petitioner is a partner-ship firm and engaged in executing various kinds of civil works including earth works. The firm is registered as “A” Class Contractor by the State Government; M.E.S. Department; Hindustan Petroleum Corporation and State Bank of India. Respondent No, 1 has sanctioned Rail link between Qazigund to Baramulla within the Kashmir Valley. The execution of the project has been entrusted to respondent No. 2 which is a Government of India undertaking. To start with the execution of the project respondent No. 2 published tender notice No. ircon/Co/ NR.Stn. Yard (E/W) 97061 dated : 20-1-2000. The tender notice provided three packages namely, package A-1, package A-2 and package A-3, these packages are reproduced hereunder ;
“(1) Package A-l ; Earth work etc. In embankment for the construction of Railway yard at KAKAPORA.
Estimated cost Rs. 4.00 Crores (Approx.)
Earnest money Rs. 2.00 Lacs.
Tender Cost Rs. 2.500/- Time of completion 14 (Fourteen) Months. (2) Package A-2. : Earth work etc. in embankment for the construction of Railway yard at PAMPORE. Estimated cost Rs. 5.50 Crores (Approx.) Earnest money Rs. 2.75 lacs, Tender cost Rs. 2.500/- Time of completion 14 (fourteen) months. (3) Package A-3 ; Earth work etc. in embankment for the construction of Railway yard at NOWGAM. Estimated cost Rs. 10.00 Crores (Approx.) Earnest money Rs. 5.00 Lacs Tender cost Rs. 2,500/- Time of completion 14 (fourteen) months."
2. As per terms of the tender notice a tender had to satisfy the eligibility criterion for technical capability and competence as well as financial capacity and organisational resources. Furthermore, a tenderer has to satisfy the conditions that he was a Kashmiri contractor. Any tender notice received without following documents could
be summarily rejected. Those conditions are reproduced below :–
“1.1 As a proof of technical capability and competence, you should have completed at least one work of nature similar to that of this tender costing not less than 1/3rd of the value of the cost of the respective tender in the preceding three years.
1.2. As a proof of sufficient financial capacity and organisational resources you should have an average turnover during the last three years of at least 50% of the respective tender value.
1.3. As a proof of being considered a Kashmiri contractor, the following both conditions are to be satisfied :–
a) the contractor/firm should have an office, in Kashmir Valley.
b) The contractor/firm should be operating in Kashmir Valley and their owner/ Partner or partners having majority share should be State subject of Kashmir Valley.
The documentary proof regarding (a) & (b) above should be submitted as part of the technical bid (Packet-I).
1.4. If the documents/Information submitted are found to be wrong/fraudulent at any stage, the contract may be terminated and the work executed at your risk and cost.”
3. The petitioner’s a technical capability as well as financial capacity and organisational resources as stated in conditions 1.1 and 1.2 were found lacking and as such the firm was not invited for the allotment of the contracts. The firm also filed a civil suit for declaration and mandatory injunction and the plaint was returned for presentation before the competent forum. The petitioner firm had given the tender notice in respect of package A2 and Package A-3, the estimated cost of Package A-2 was Rs. 5.50 crores and the earth works were to be executed at Pampore. As per condition 1.1, the petitioner was required to demonstrate that he had completed at least one work of nature similar to that of this tender costing not less than l/3rd of the value of the cost of the tender in the preceding three years, in other words, for complying condition of package A-2, the contractor was required to show that it had executed the works to the exeent of Rs. 1.03 crores within three preceding years. With regard to Package A-3 acontrac-tor was required to show that he executed
earth works worth Rs. 3.33 crores within last three years.
4. In the petition, the petitioner has contended that in the State of J & K within last three years no person has executed any earth work worth Rs. 3.33 crores. This condition is totally unrealistic and unreasonable. According to him, he fulfils the eligibility criterion for package A-2 as he had executed various earth works equal to the value of Rs. 2.33 crores. In proof of those executed work, he had submitted the documents in the form of annexures M.N. O. but they were not considered. The conditions Imposed in the tender notice excluded genuine contractors from Kashmir Valley because no development works could be executed here during the last ten years because of prominence of militancy. The technical capability as envisaged under condition 1.1 of the tender notices (NIT) has the tendentious effect of generating monopolies In favour of few big contractors and thereby excluding fair competitions from those genuine competitors who had executed different earth works of similar nature during the said prescribed period of the value equivalent to 1 /3rd cost of the respective contract. The reliefs prayed in this writ petition are that conditions 1.1 to 1,4 of the NIT In question may be declared ultra vires to the Constitution as offending Article 14, Writ of certiorari may be Issued to quash the decision of the respondents whereby the technical bid of the petitioner was rejected. Writ In the nature of mandamus may be issued to respondent No. 2 to consider the petitioner for the allotment of the contract under package A-2 and A-3 on its merit and till then respondents may be restrained not to allot the contracts to anybody.
5. Respondents 2 and 3 in their objections stated that respondent No. 2 Invited tenders for earth works etc. and the said tenders (NIT) clearly stipulated that the tender documents were required to be submitted in two packets, viz. packet -I called Technical Bid’ in order to prejudge the technical capability and the packet second was called as ‘Financial Bid. The technical bids of the petitioner were opened on February 21, 2000 and examined by the Committee consisting of three experts.
1. Sh. Surya Prakash Dy. G.M.
(Convenor of the Tender Committee)
2. Sh. S.N. Saha J.G.M/Accts.
(Finance Member)
3. Sh. R.K. Trivedi
Manager Civil (3rd Member)
The petitioner could satisfy only one condition of the NIT that he was Kashmir domiciled contractor and operating from the Kashmir Valley but could not satisfy the requirements In respect of technical capacity and competence as well as financial capacity and organizational resources. The petitioner firm had submitted the tenders for two works namely, earth work in Pampore Yard estimated at the cost of Rs. 5.5 crores and earth work in Nowgam Yard estimated at the price of Rs. 10 crores, For technical capability the petitioner firm should have executed the work of the value equal to the cost of Rs. 1,83 crores for Pampore Yard and Rs. 3.33 crores for Nowgam Yard earth works. On scrutiny of the credentials submitted by the petitioner accompanying the technical bids for Pampore and Nowgam Yard works it had crystallised that the firm had not completed any one work of the value equal to Rs. 1.83 crores for Pampore Yard and Rs. 3.33 crores for Nowgam Yard during the preceding three years. On this finding the petitioner was found lacking technical capability criterion.
6. On the aspect of financial capability, the average turnover should have been 50% of the cost of work during last three years, i.e. Rs. 2,75 crores for Nowgam Yard earth works and Rs. 5.00 crores for Nowgam Yard earth works. The petitioner had submitted the turnover recorded certificate by the Chartered Accountant showing average of Rs. 27449509,00 for the last three years. The petitioner was thus found lacking la financial capacity also. It can be said with certainty that it is the sole prerogative of the tendering authority to lay down reasonable terms and conditions in the notifications Inviting tenders and the purpose behind is efficient, smooth and timely completion of the work entrusted to a contractor. The petitioner on the one hand claims that he fulfils all the conditions laid’ down for the criteria of technical capability and financial capacity and eligible for consideration for the allotment of works while on the other hand challenges the criteria based on these conditions as ultra vires to the Constitution, The petitioner had also knocked the doors of a civil court and the trial court returned the plaint by observing:-
“. . . . .The plaintiffs have surprisingly valued the suit at Rs. 5101/- only is palpa-
bly, absurd and manifestly unfair manner to bring this suit within the pecuniary jurisdic-tion of this court which is not valid. , ”
7. Heard the arguments.
8. The counsel appearing for the petitioner has contended that the conditions imposed in the tender notice with regard to the technical capability and financial capacity have been Incorporated with a mala fide intention to allot the works in favour of blue-eyed contractors. The proof of technical capability and competence which is contained in condition 1.1 that a tenderer should have at least one work of nature similar to that of this tender costing not less than 1 /3rd of the value of the cost of the respective tender In the preceding three years is arbitrary and absurd in its nature because very few contractors in the Kashmir Valley can fulfil this condition of executing one work of the nature of the earth work. The petitioner had submitted his credentials to have completed different works of this nature during the preceding three years but they were not considered. The criterion which is followed is unreasonable and requires to be struck down. The decision making process is tainted with partisan attitude and requires to be reviewed by the Court as no reasonable person is expected to have executed a new work of such colossal expenditure. In support of his contention, the counsel has cited the case of Tata Cellular v. Union of India (1994) 6 SCC 651 : (AIR 1996 SC 11). In this case, the Apex Court has held that only the decision making process and not the merits of the decision itself is review able as appellate Court does not sit while exercising power of review. Court cannot interfere with Govt. ‘s freedom of contract, Invitation of tender and refusal of any tender pertains to policy matter, but when decision/action is visited by arbitrariness,, unfairness, illegality or irrationality it becomes open to challenge in a court of law.
9. The counsel has further contended that Court can lift the veil in order to see the purpose why such conditions have been imposed and only inference which can be drawn is that there is an attempt to monopolise the works by excluding the genuine native contractors and favour the blue eyed. insupport of this contention Ld, counsel has Cited the case of New Horizons Limited v. Union of India (1995) 1 SCC 478 : (1995 AIR SCW 275). In this case the Apex Court has
allowed the lifting of the veil but permitted the consideration of past experience along with present resources available to a tender.
10. The counsel appearing for the respondents has contended that the tenders were scrutinized by members of an expert committee who are men of eminence in their respective fields. In doing this exercise, they had the sole object that the proposed project may not be delayed thereby causing escalation of cost. The technical capability and financial capacity are relevant factors for the object that a tender should be in a position to carry out the works within the stipulated period. They had no personal animosity towards the petitioner. The tender in question was not acceptable on merits of the case. In support of these arguments, the counsel cited the case of Raunaq International Ltd. v. I.V.R. Construction Ltd. AIR 1999 SC.393 and Air India Ltd. v. Cochin International Airport Ltd. AIR 2000 SC 801. In the cases of Raunaq International Ltd. (supra) the Apex Court has held that unless the Court is satisfied that there is a substantial amount of public interest, or the transaction is entered with mala fide, the Court should not intervene under Article 226 in disputes between two rival tenderers. It is important to bear in mind that by Court intervention, the proposed project may be considerably delayed thus escalating the cost for more than any saving which the Court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Any judicial relief at the Instance of a party which does not fulfil the requisite criteria, would be misplaced. In the case of AIR India Ltd. (supra), the Apex Court has held that the acceptance of the tender was neither arbitrary nor illegal when the highest offer for awarding contract bid not accepted but the bid of tenderer Air India was accepted on the grounds that being an Airline and of a national carrier it would be In position to bring more traffic of Air India and other domestic airlines.
11. After considering the respective contentions of the counsel for the parties and perusing the relevant law having bearing on the controversy it is held that respondent No. 2 has not acted with any arbitrariness, unfairness, or in an Irrational manner when the tender of the petitioner was found not fulfilling the requisite criteria. The petitioner
cannot compel respondent No. 2 to consider its bid for the allotment of contracts. The petitioner cannot approbate and reprobate that his tender may be considered and the conditions laid therein may be struck down. The Court cannot substitute Its opinion against the expert opinion unless the maladies stated above are established from the record, in the instant case the welfare of general public is very much involved in the project in question as it will ameliorate the economy and facilitate the travelling. The petitioner has started the frivolous litigation like a cantankerous litigant and this practice requires to be discouraged. The petition is found baseless which is dismissed with costs quantified at rupees two thousands to be paid within two months in the Lawyers Welfare Fund.