M/S.
Shapers Construction (P) Ltd. & Anr Vs. Airport Authority of India & Anr
[1996] INSC 1146 (17
September 1996)
K. Ramaswamy,
G.B. Pattanaik
ACT:
HEAD NOTE:
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 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 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.
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