ORAL JUDGMENT

(Per : HONOURABLE MR.JUSTICE M.S.SHAH)

1. This petition, under Article 226 of the Constitution, challenges the decision of the respondent authority i.e. ONGC as communicated through the letter dated 4th January, 2006 (Annexure-B) refusing to accept the petitioner's request for issuance of tender documents on the ground that the documents produced by the petitioner do not indicate eligibility of the petitioner for the contract in question.

2. The facts leading to this petition are as under:-

2.1 The respondent authority O.N.G.C. invited tenders for maintenance of developed area for lawn and garden in plant at HGPC, Hazira for two years. The estimated cost of the work is Rs.46.30 lacs. The tender notice is published in the news- paper dated 11th December, 2005. One of the eligibility criteria is “Satisfactory completion of at least one work of similar nature and magnitude of completed value of Rs.16.70 lakhs in any Government Department/ PSU during last three years.”

2.2. When Mr.Mukesh Patel, Proprietor of Demi Engineering approached the respondent authority for collecting the tender documents, the petitioner was called upon to satisfy the authority about his eligibility as per the above tender condition. The petitioner stated that he was a partner of firm called M/s. Demi Enterprises which was formed as per the partnership deed dated 1st December, 1997 and which came to be dissolved by Dissolution Deed dated 6th October, 2004 (Annexure-A). The partnership firm comprised of two partners viz. Thakorebhai R.Patel and the petitioner himself. The petitioner also pointed out that the said firm had carried out/ was in the process of carrying out large number of similar work the particulars whereof were given in the annexure which is to be found at Page-29 of the paper book. Out of the 10 contracts, at least six works were of the value of more than Rs.16.70 lacs each with Government Department/ PSU like Kribhco Plant and HAEPT.

2.3 The respondent authority, however, took the view that as per Clause-5 of the above dissolution deed, the credentials found in the name of dissolved firm were to be shared equally by the two partners at 50%, and , therefore, dividing the value of each contract indicated in the above annexure, the 50% share of the petitioner herein in none of those contracts worked out to Rs.16.70 lacs. The respondent authority, therefore, refused to give tender documents to the petitioner. Hence, this petition.

3. Mr.Mihir Joshi with Ms.Megha Jani learned counsel for the petitioner, have submitted that the respondent authority has misconstrued the contents of the dissolution deed by picking up one sentence in Clause-5 of the deed out of context and has not appreciated that the dissolution deed did intend to convey that both the partners were to get the credit for the contracts performed by the partnership firm in the past. The learned counsel invited the Court's attention to Clause-2 and 6 of the Dissolution deed over and above the contents of Clause-5 thereof.

4. On the other hand, Mr.Mehta, learned counsel for the respondent, has submitted that Clause-5 of the Dissolution Deed itself was clear enough to show that each of the partners was to get only 50% credit for the relevant work contract executed by the partnership firm, and, therefore, no fault can be found with the decision of the respondent authority. It is further submitted that the petitioner has no right to challenge the legality and validity of the terms and conditions of the tender and the qualification prescribed by the authority inviting the tenders.

5. Having heard the learned counsel for the respective parties, it is clear that the petitioner has not challenged the terms and conditions of the tender relating to the qualification prescribed by the respondent authority. There is no dispute about the fact that the relevant eligibility criterion reads as under:-

“ (1) Satisfactory completion of at least one work of similar nature and magnitude of complete