Decided on July 02,2003



- (1.)By this writ petition filed under Article 226/227 of the Constitution of India the petitioner, a registered Partnership Firm registered under the Indian Partnership Act under Registration No. NGP/1441 / 90-91 and engaged in the work of manufacturing, supplying, marketing and distribution of materials for civil, mechanical and constructions, has challenged the decision and action of the respondents for inviting a tender for supply and installation of scraper conveyer and clinker venture for disposal of ash in the Thermal Power Plant through a Tender Document (Annexure P/3).
(2.)The main challenge in this writ petition is Clause (B) of the Qualifying Requirements by which the respondents among others has fixed the eligibility criteria for a tenderer that "the bidder must have executed a single contract of value not less than Rs. 72.00 Lakhs for supply and installation of scroper conveyer of capacity not less than 4 ton per hour each and clinker grinder of capacity not less than 10 ton per hour each, for boiler having capacity 50 MW or more during last five years preceding the date of NIT (Notice Inviting Tender)". The contention of the petitioner/Firm is that this qualifying requirement is arbitrary, unilateral and have been initially put to place the petitioner out of the run. It has been mentioned in the petition that the petitioner/ Firm is engaged in manufacturing the conveyer system, ash handling system, lime cutting system, water treatment system and also affluent treatment system accessories. The petitioner has annual turnover Rs.1,59,48,723/- and has till date supplied the materials to all measure companies. The list showing the measure areas executed by the petitioner has been filed in the petition marked as Annexure P/5. The petitioner qualified in every count and accordingly submitted the document. The only nonqualifying condition so put for by the respondents was execution of single contract worth more than Rs. 72/- lakhs. The petitioner/Firm declares that the petitioner has executed many contracts worth more than Rs. 45/- lakhs. The respondent so as to oust the petitioner of the competition has initially put this clause of executing single contract worth Rs. 72.00 Lakhs. Putting of such clause is not only unfair but is also arbitrary, unreasonable and does not come within the act for public good or under public interest. The intention of the respondent is writ large by such clause and therefore the said act is violative of the principles of equal opportunity and amounting abuse of power by putting the clause. The respondent authorities have committed a breach of rules of natural justice and thus reached to a conclusion of putting such clause without any justification, therefore, the same amounts to abuse of its power. The petitioner has sought for a relief that the clause so far as it relates to the execution of single contract worth Rs. 72.00 Lakhs be quashed.
(3.)The return has been filed on behalf of the respondents. It is submitted that apart from the petitioner, nine other contractors made requests for issuance of the tender form. Out of these nine requests, three requests were turned down on the ground that they are not fulfilling the qualifying require- ments. The request of other two contractors including the petitioner was allowed and tender form was issued with a specific stipulation that they will submit the papers pertaining to the qualifying requirements before ten days from the date of opening of the tenders, and thus tender forms were issued to them with the condition and four contractors were found fully eligible to compete the tender. The tender forms were issued to the contractors who have legal interests in the contract on the basis of doctrine of Legitimate Expectations. Not only that, if the qualifying requirement is reduced to the wishes and likings of the petitioner, then other contractors who are operating in the same field and have made requests for issuance of the tender forms because they are not fulfilling the qualifying requirement would be deprived of their legal rights to participate in the tender process. It is specifically denied that this qualifying requirement is with intend to advance some person or to deprive some person to participate in that tender process. The qualifying requirement is put only in order to ensure that the work to be allotted may be completed without hindrance by a best person on a rate which is most suited to the respondents. Therefore, the contents of paragraph 3 of the writ petition that the qualifying requirements has been made in the tender with an intend to monopolize or to prefer one contractor over others is wrong. The answering respondent is a Joint Venture of Steel Authority of India Limited and/National Thermal Power Corporation as stated by the petitioner and to follow the policy of NTPC with respect to the contract functions. It is also submitted that the amount of Rs. 72.00 Lakhs has been calculated by the answering respondent as 2/3rd of the total amount of the contract. The total amount is Rs. 1,08,000,00/p of which the 2/3rd is Rs. 72,00 lakhs. The petition is also liable to be dismissed on the ground that the petitioner is suppressing the material in the petition and the petitioner did not possess the eligibility qualifications. However, he represented that he can submit the same 10 days before the date of opening of the tender the requisite qualifications/documents. On this basis the conditional tender form was issued to him. It is specifically denied that clause of inclusion of qualifying requirement of Rs. 72.00/- Lakhs is with an intend to oust the petitioner of the competition. It is made clear that the answering respondent is a new Company recently incorporated as a Joint Venture Company comprising with National Thermal Power Corporation Limited and Steel Authority of India Limited. The petitioner has no contract with the answering respondent in the past. There is no material which shows that it is the petitioner to whom the answering respondent wanted to exclude and for that this clause is put. Rather this clause has been included by the answering respondent which is adhered by National Thermal Power Corporation Limited and it is an established policy that contract must be given to person who have experience of completing the work which is at the 2/3rd value of the contract.

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