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2010 Supreme(Bom) 263
In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE NARESH H. PATIL & THE HONOURABLE MR. JUSTICE N.A. BRITTO
James Electricals, Sole proprietorship concern of Mr. James Andrade
Versus
State of Goa, through its Chief Secretary & Others
WRIT PETITION NO. 710 of 2009
Decided on : 18-02-2010
For the Petitioner:Amey Kakodkar, Advocate.
For the Respondents:S. Bandodkar, Addl. Govt. Advocate.
Headnote:Constitution of India - Article 226 - CPWD Manual, Section 17 - Condition of work experience and solvency certificate - Validity thereof - In tender - Held -Entire work is required to be considered and which is a specialised one - Considering the limitation on the power of judicial review, in the fact of this case, the condition put up by the respondents, looking the nature of the work, could not be termed as arbitrary - Court cannot sit over the judgment of the respondents in respect of the nature of work to be of ordinary nature or specialised one - Petitioner has not pleaded mala fides or alleged favouritism against the respondents - Petition fails.
Constitution of India - Article 226 - Judicial review - Power thereof - Award of Contract - Held - If the decision relating to award of contract is bona fide and is in public interest, Court will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer is made out.
CPWD Manual - Sections 17.2.1 and 17.3.1 - Tender - Work conditions - Petitioner seeks declaration that conditions of notice of tender, requiring work experience and submission of solvency certificate arbitrary, unreasonable and contrary to mandate of CPWD Works Manual, 2003 - Writ of certiorari sought to quash and set aside notice of tender dated, 12.10.2003 - Held - Condition 9 of production of solvency certificate to extent of Rs. 35 lacs from Scheduled Bank neither erroneous nor arbitrary - Court finds substance in submission of respondents that entire work being specialised one required to be considered - No plea of any mala fide in this case - Conditions not against public interest - Petition dismissed. - Court heard the parties extensively on the conditions stipulated in the tender notice. The major thrust of the contesting party was on condition No. 10, requiring an experience certificate of the capacity of work done by the proposed applicant. Section 17.2 refers to sale of tender documents for specialised jobs. Section 17.2.1 provides for list of specialized items/jobs for civil works. For the purpose of this petition, Annexure II is relevant. In the submission of the Counsel, reference to item No. 3 which refers to High Tension and Low Tension Switchgears and the nature of the work to be carried out under the tender would not fall under category "specialized items/jobs for electrical works". According to the learned Counsel, the petitioner had undertaken such works in past, in normal course, by participating in other tender bids, which did not have such clauses of requiring him to submit certificates of such nature as per condition Nos. 9 and 10 of the tender notice.
Court finds substance in the submission of the learned Counsel for the respondents that the entire nature of the work is required to be considered and which is a specialized one. Considering the limitation on the power of judicial review, in the facts of this case, Court’s of the view that the conditions put up by the respondents, looking to the nature of the work, could not be termed as arbitrary. In para 10 of the affidavit in reply, the nature of work to be carried out by a tenderer is clearly mentioned. The respondents require a person having professional skill, proper planning, technical expertise to complete the work under the tender within the stipulated time frame and accordingly, the respondents obtained special permission from the Chief Engineer II, PWD, (Head of the Building and Electrical/ Mechanical Wing), as per Circular dated 30.7.2002 issued by the Chief Engineer, PWD for inclusion of the special conditions of solvency and experience certificates, as indicated in Clauses 9 and 10 of the tender notice.
Keeping in view these principles and applying the same to the facts of the case, Court does not find that conditions stipulated in the tender notice were against public interest. In the facts of the case, the Court cannot sit over the judgment of the respondents in respect of the nature of work to be of ordinary nature or specialized one. The petitioner has not pleaded mala fides or alleged favouritism against the respondents.
Court, therefore, does not find that in exercise of extra-ordinary jurisdiction under Article 226 of the Constitution of India, this Court is required to interfere into the matter by quashing the tender notice. The petitioner’s contention that in case the main conditions are deleted, there would be wider participation, which would benefit the respondents, does not make out a ground for setting aside the tender notice. The contention that the respondents are making out micro-classification amongst a class, is also unsustainable.
Court is unable to accept the contention that the Government would be bound by the assurance given on 25.2.1993 before this Court in Writ Petition No. 44/1993 for all times and, moreso, after the Government published the Enlistment Rules, 2004, making it clear that the enlistment of a contractor will only entitle him to be considered for issue of tender papers subject to the conditions laid down in individual notices inviting tenders.
For the reasons stated above, Court is not inclined to allow the prayers made by the petitioner. The petition is dismissed with costs. Rules discharged.
Naresh H. Patil, J.
Rule. Rule returnable forthwith by consent.
2. The petitioner seeks a declaration to the effect that the conditions of the notice of tender, requiring work experience and submission of solvency certificate, are arbitrary, unreasonable, bad in law and contrary to the mandate of CPWD Works Manual, 2003. A writ of certiorari is sought to quash and set aside the notice of tender dated 12/10/2003.
3. The facts, in brief, are that the petitioner is a proprietor of M/s. James Electricals, and a qualified electrical engineer and is enlisted by the respondents as a Class I Contractor in the category “Electrical” since last 10 years. The Executive Engineer, Works Division XXII (M&E), Public Works Department, Fatorda, Margao, Goa issued a tender notice dated 12.10.2009 for upgradation of electrical distribution work of Goa Engineering College, Farmagudi. The estimated cost of the work was Rs.92,24,564/-. The time limit, including monsoon was 150 days. Conditions No.9 and 10 of the tender notice read thus :
“9) The Agency should produce solvency Certificate of Rs.35 lakhs from a schedule bank in the prescribed form B of CPWD Manual 2007.
10) The Agency should have successfully completed at least one work of similar nature costing over 73.75 lakhs each (80 % of estimated cost put to tender) OR two works of similar nature costing over Rs.55.25 lakhs each (60 % of estimated cost put to tender) during the last seven years (ending last day of the month previous to the one in which applications are invited) for Central/State Government or Central/State Government Public Sector undertakings or Central/State Government Autonomous bodies (“Similar works shall mean works of HT/LT Cable Laying, Area Lighting, Street Lighting, Internal Electrification including Panels & Sub Stations”).
The completion certificate for the work should be issued by an officer of a rank not below Executive Engineer or equivalent who has issued the work order. The value of executed work shall be brought to current costing level by enhancing the actual value of work at simple rate of 7 % per annum calculated from date of completion to last date of issue of tender papers.”.
In substance, the petitioner avers in the petition that CPWD Manual does not apply to the respondents. The notice of tender contravenes the mandate of CPWD Works Manual, 2003 and 2007 (for short `CPWD Manual'). The Conditions No.9 and 10 under the tender notice are erroneous. The respondents do not have powers to impose such conditions. The Conditions being not in public interest are required to be quashed and set aside, being arbitrary in nature.
4. The respondents filed affidavit-in-reply through the Executive Engineer, Works Division XXII (M&E), P.W.D., Margao. In para 9 of the reply, it is contended that the work involves upgradation of electrical distribution network of the entire electrical installation of Goa Engineering Complex (GEC) consisting of 60 Blocks/Buildings having transformer sub-station, various sophisticated laboratories, workshops, library and other administrative and residential buildings scattered over the GEC complex.
5. Further in para 10 of the reply, it is stated that the tender work consists of :
i) Shifting of Main Low Tension (LT) supply from the transformer Sub-Station to new main cubicle panel to switchover to underground cable system.
ii) Replacement as well as additions of cubicle panels which houses LT switchgears worth Rs.15 lakhs.
iii) Replacement of various existing overhead transmission lines in the GEC with underground cabling system.
iv) Proper handling (while laying) of various sizes of power cables ranging from 16 sq.mm. to 400 sq.mm. The total worth of cables is Rs.27.50 lakhs and also proper termination of neutral to avoid adverse effect on electrical gadgets already connected in various blocks of G.E.C. campus.
v) Shifting of individual electrical connections of various GEC blocks/buildings in the complex on underground sys
