G. P. Mathur, J. - (1.) This appeal, by special leave, has been preferred against the judgment and order dated 15-12-2004 of Delhi High Court, by which the writ petition filed by the first respondent, Metcalfe and Hodgkinson Pvt. Ltd was allowed and the contract of work of professional services given by second respondent, Container Corporation of India in favour of the appellant was quashed.
(2.) The second respondent, Container Corporation of India (for short CONCOR) floated a limited tender in December 2003 for hiring professional services for survey of containers and cargo at Inland Container Depot (for short ICD), Tughlakabad, Delhi, for a period of 24 months. The contract was to be awarded through a two bid process. The first part was to consist of "Pre-Qualification Bid", which was to be accompanied by various documents showing experience, constitution of the firm/company, turn over for past three years, a copy of the license to act as surveyor/loss assessor under the Insurance Act, 1938, besides other matters and earnest money in the form of bank draft/pay order. The second part was to consist of the ""Financial Bid". The technical bid was to be opened on 15-12-2003 and the financial bid was to be opened on 28-2-2004. After opening the technical bid, the CONCOR pre-qualified two bidders, viz., the appellant and the first respondent. Thereafter, the financial bid was opened. The bid of the appellant was Rs.3.00 per container while that of the first respondent it was Rs.3.75 per container and as the appellants bid was 25 per cent lower than that submitted by the first respondent, its bid was accepted and the work was awarded to it. The first respondent initially filed Writ Petition (C) No. 3687 of 2004 before the Delhi High Court challenging the eligibility of the appellants to participate in the tender process, mainly on the ground that the appellant did not have a license to act as a surveyor/loss accessor under the Insurance Act, 1938, and in support of this submission it was urged that on an earlier occasion, the bid submitted by the appellant had been rejected on the said ground. The High Court summarily dismissed the writ petition by observing that in the meanwhile the appellant might have obtained the requisite license and the court cannot be asked to undertake a roving or fishing enquiry as it is for the appropriate authority to consider and decide the matter in accordance with law. The special leave petition preferred by the first respondent against the said order was also dismissed by this Court on 5-5-2004.
(3.) Thereafter, the first respondent filed another writ petition on 27-5-2004 praying that the order passed by the second respondent awarding the contract of survey of containers and cargo at ICD, Tughlakabad, Delhi and ancillary facilities to the appellant pursuant to the tender notice dated 15-12-2003 be quashed and a writ of mandamus be issued to the second respondent to award the said contract to it (first respondent). The main plea taken in the writ petition was that the appellant did not meet the eligibility criteria as it did not have a licence to act as surveyor/loss assessor under the Insurance Act, 1938. In the counter affidavit filed by the CONCOR, it was pleaded that both the appellant and the first respondent did not fulfill the conditions mentioned in the eligibility criteria in the tender. However, clause 12 of the Instructions regarding submission of tender provided that the CONCOR had the power to relax the tender conditions and exercising power under the said clause, it had qualified both the bidders in public interest. It was further submitted that the appellant had submitted copy of license from the Insurance Regulatory and Development Authority (for short IRDA) in the name of Percy Meher Master. The appellant had clarified that the said license had been issued in the name of Capt. Percy Mehar Master in his capacity as proprietor of Master Marine Services. Subsequently, the said proprietorship concern had been converted into a private limited company, of which Capt. Percy Meher Master was appointed as Chairman. The Tender Evaluation Committee (for short TEC) had deliberated upon the said fact and after taking into consideration the fact that the appellant was known to be an established surveyor doing work of number of shipping lines and that Capt. Percy Meher Master had been appointed as Chairman of the Company by its Board, the tender committee took a decision that the financial bids of both the bidders be opened. The first respondent had enclosed two IICL certificates, but the same were not in conformity with the tender conditions. It was further pleaded that the major work (98%) under the contract is of data entry i.e. recording of container number, seal number, condition of seal and external condition of container on arrival and dispatch of containers from the ICD for which the appellant had quoted Rs.3.00 per container against Rs.3.75 of the first respondent and for such kind of work no license under IRDA is required. Having regard to the fact that the bid offered by the first respondent for external survey of a container, which is the main work, was 25 per cent higher than that of the appellant, the work was awarded to the appellant.;