GANA KOUL AND SON Vs. STATE
LAWS(J&K)-2006-9-14
HIGH COURT OF JAMMU AND KASHMIR
Decided on September 08,2006

Gana Koul And Son Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) THE petitioner is aggrieved of the corrigendum dated 22.04.2006 issued to tender notice no.3 of 2006 whereby the condition that tenderer should, among other things, furnish certificate from chattered accountant that he has annual turn over of above rupees 5 corers was added and impugns the same on the ground that it could not extend to dental chairs as being restricted to medicines only, and as such the tender for that item was illegal and seeks quashment thereof.
(2.) IN their reply the respondent -state that aforesaid condition was applicable and they were within their rights to prescribe suitable conditions for tendering for ensuring soundness of tenderers. During course of submissions the counsel appearing for parties have reiterated the contents of their pleadings.
(3.) I have heard learned counsel and considered the matter. The simple question that is agitated by petitioner in so many words is whether a tendering authority could be bound down to keep or omit a particular condition in the tender notice which he feels to be necessary for successful execution of tendered works including one to assure soundness of tendering parties etc. The answer has to be in negative for the simple reason that a tendering authority including government has always a liberty to seek tenders on such terms and conditions as it thinks proper for testing the soundness of the tendering parties and successful execution of tendered work if allotted to such party. Merely because particularly a tenderer found himself excluded from the zone of consideration for want of conforming to the requisite standard under a particular condition, the same cannot be discarded on his asking, unless of course the condition imposed appears to be un -reasonable, malafide, tailored to suit a particular design aimed at depriving the petitioner from being a successful tenderer or lack of competence on behalf of the tendering authority which does not appear to be the case instantly. Support for holding that view may be drawn from apex court judgment passed in "Association of Registration Plates vs. Union of India" reported as (2005 SCC 679), wherein their lordships, while considering the question were pleased to observe as under: - "Taking up first the challenge to the impugned conditions in the notices inviting tenders issued by various State authorities, we find sufficient force in submission advanced on behalf of the Union and the State authorities and the contesting manufacturers. The State as the implementing authority has to ensure that the scheme of high security plates is effectively implemented. Keeping in view the enormous work involved in switching over to new plates within two years for existing vehicles of such large numbers in each State, resort to 'trial -and -error method would prove hazardous. Its concern to get the right and most competent person cannot be questioned. It has to eliminate manufacturers who have developed recently just to enter into the new field. The insistence of the State to search for an experienced manufacturer with sound financial and technical capacity cannot be misunderstood. The relevant terms and conditions quoted above are so formulated to enable the State to adjudge the capability of a particular tenderer who can provide a fail -safe and sustainable delivery capacity. Only such tenderer has to be selected who can take responsibility for marketing, servicing and providing continuously the specified plates for vehicles in large numbers, firstly in the initial two years, and annually in the next 13 years. The manufacturer chosen would, in fact, be a sort of an agent or medium of the RTOs concerned for fulfillment of the statutory obligations of them of providing high security plates to vehicles in accordance with Rule 50. Capacity and capability are the two most relevant criteria for framing suitable conditions of any notice inviting tenders. The impugned clauses by which it is stipulated that the tenderer individually or as a member of a joint venture must have an experience in the field of registration plates in at least three countries, a common minimum net worth of Rs. 40 crores and either joint venture partner having a minimum annual turnover of at least Rs. 50 crores and a minimum of 15% turnover of registration plates business have been, as stated, incorporated as essential conditions to ensure that the manufacturer selected would be technically and financially competent to fulfill the contractual obligations, which , looking to the magnitude of the job, requires huge investment qualitatively and quantitatively". As is clear from factual matrix of the case as narrated in the beginning, the present case also seem to be governed by the above quoted observation of Honble court. With the result, that petitioners challenge to incorporate in the impugned tender notice does not appear to hold water rendering the petition unworthy of consideration. Accordingly, the petition is dismissed in limini along all connected CMPs.;


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