The Court emphasized the importance of commercial considerations in contract awards and exercised judicial restraint in reviewing administrative decisions.

S.S.SARON, J. - CMs 17352 and 15823 of 2006

The rejoinder filed by the petitioner to the written statement of respondents-1, 2 and 4 and the written statement filed on behalf of respondent5 are taken on record.

The CMs stand disposed of.

CWP 11706 OF 2006

2. The petitioner firm – M/s Rajindra & Company, it is submitted, is engaged in executing huge works including roads, buildings, etc. It has earlier done work for the respondent-PWD B&R Department and executed their works for over Rs 5.00 crores during the period 2002-03. In the following year of 2003-04, the works are stated to be of much higher amount. The works were completed to the complete satisfaction of the respondent department who CWP 11706 of 2006 (O&M) even issued certificates (Annexures P1 and P2) in this regard. Notice inviting tenders (Annexure P3) was issued by the respondent department for strengthening of the Mamoon-Madhopur road KM No.0.00 to 16.30 in district Gurdaspur under the RIDF-NABARD-XI scheme. The petitioner being eligible, completed the necessary formalities and applied for the same. During the tender process he came to know that with a view to oust his claim as a successful tenderer, some terms and conditions of the tender notice were being changed by respondents-1 and 2. Besides, inspite of the fact that the project was a NABARD sponsored/financed project and the terms and conditions had been settled by it, the respondents-1 and 2 for reasons and considerations best known were changing the terms and conditions to suit a particular category. Accordingly, the petitioner-firm served a legal notice dated 14.7.2006 (Annexure P4) on respondents-2 and 3. It expressed its apprehension that the terms and conditions were being changed not only after the tenders had been invited but had been duly accepted by the department. The petitioner received a letter dated 19.7.2006 (Annexure P5) from the Executive Engineer, Construction Division, PWD B&R Branch, Pathankot (respondent-4). He was informed about opening of the financial bid on 21.7.2006. The petitioner was present at the time of opening the financial bid on 21.7.2006 and his apprehension was confirmed. A contractor namely R.K. Mahajan and Company (respondent-5) who was not eligible was made eligible by diluting the terms and conditions that were earlier specified. The said contractor – RK Mahajan and Company (respondent-5) was in fact required to have and was asked whether it had executed any work of Rs 10.00 crores or two works of Rs 5.00 crores each during the last three years. However, no certificate could be produced by the said contractor. Till date, no allotment of the work has been done but the petitioner-firm believes that the allotment was now being made in favour of the said contractor (respondent-5) who was ineligible even to apply for the tender. It is stated that the petitioner believes that the terms of the tender have been diluted on account of political, extraneous and arbitrary considerations without publication of any change in the terms and conditions. The petitioner, by way of the present petition under Articles 226/227 of the Constitution of India, seeks a mandamus directing respondents-1 and 2 to strictly adhere to the terms and conditions of the notice inviting tender and to allot the work to lowest tenderer without diluting or tailor-making the same to favour a party; besides, not to allot the work to respondent-5.

3. On notice of motion, written statement has been filed by Mr Madan Bansal, Executive Engineer, Construction Division, Pathankot on behalf of respondents-1, 2 and 4. It is stated that the financial bid was opened by the Tender Processing Committee on 21.7.2000 in the presence of the petitioner as well as other contracting agencies. Since the rates of the financial bid of the petitioner were not the lowest, he has no right to file the present petition. It is, however, admitted that the petitioner-firm applied for issuance of tender documents which were issued