V.K.JANARDHANAN NAIR v. THE CHIEF ENGINEER

W.P.(C) No. 3665 OF 2008- 6 -fresh maintenances great expense may be incurred tothe state.b) The Ministry of Road Transport and Highways(MORT&H) of the Central Government sanctioned thework under challenge vide letter numberRW/NH/12014/1058/2007-KL(P7) dated 30.11.2007with a financial allocation of Rs.433.28 lakhs. (A copyof the same dated 30.11.07 is produced herewith andmarked as Exhibit R2(b)). This Administrative Approvalwas issued by the Central Government with a conditionthat the Financial Sanction for the work will lapse after5 months from the ate of its issue in case the work isnot awarded within that period. Also there is anothercondition in the Financial Sanction that at least 10% ofthe allotted amount should be utilised before 31stMarch, 2008. So early completion of the work is highlyimperative to utilise maximum allotted funds before theclosure of the current financial year in order to getmaximum central assistance to the State.c) Moreover the technical analysis of the natureand exigencies of the work and local site conditionsshow that 4 months time is sufficiently large tocomplete the work. Hence the tenders were invited forthe work fixing time of completion as 4 monthskeeping the best interest of the public in mind.Therefore there is no substance in the contention of thepetitioner that the fixation of time factor for thecompletion of the work is arbitrary and arrived at toassist the fifth respondent.” 6.The Assessed Available Bid Capacity of the petitioner is298.6 lakhs as per paragraph 10 of the writ petition and this itselfshows that the petitioner is not having the required qualification, W.P.(C) No. 3665 OF 2008- 7 -even if time factor is rounded to 6 months as against the 4 monthsprescribed. It is stated that the period of completion cannot beenlarged according to the choice of the petitioner and that if hisplea is admitted other similar bidders also will come up with arequest for enlargement of time fixed for the period of completionto match their individual requirements. It is stated that in such anevent the tender system will become tentative rather thancompetitive. The allegation of malafides and discrimination, etc.raised by the petitioner are also denied.7. In the counter affidavit filed by the 5th respondent he toohas denied the allegations of malafides. It is stated that thepetitioner has suppressed material facts. According to the 5threspondent clause 4.1.5 being a condition of the tender cannot besubjected to judicial review. It is stated that the Chief Engineer'sTender Committee which was bound by the tender conditions hadapplied the norms uniformly. The 5th respondent is also relying onclause 4.2(n) of Ext. P2 which provides that all bidders shall includethe proposed methodology and programme of construction backedwith equipment planning and deployment, duly supported with W.P.(C) No. 3665 OF 2008- 8 -broad calculations and quality assurance procedures proposed tobe adopted, justifying their capability of execution and completionof the work as per technical specifications within the stipulatedperiod of completion as per milestones, along with tenderdocuments. It is stated that along with the application submittedby the petitioner for pre-qualification, he did give a programme ofcompletion in compliance with 4.2(n) and that having done so, it isnot open to the petitioner to challenge clause 4.1.5, after havingrealised that he did not get himself pre-qualified in the tender.8. Petitioner has filed a reply affidavit controverting thecontentions raised by the respondents in the counter affidavitsreferred to above.9. The main contention raised by the counsel for the petitioneris regarding the validity of clause 4.1.5 of Ext.P2 which has alreadybeen extracted in the earlier part of this judgment. As can be seenfrom the writ petition itself in paragraph 10 it is stated as follows:“Para 10. The Assessed Available Bid Capacity of the Petitioneris as follows:Assessed Available Bid Capacity = (A x N x 2 - B)A = 309 Lakhs W.P.(C) No. 3665 OF 2008- 9 -N = 4 months (rounded to 6 months)B = 10.4 Lakhs.”Going by the petitioner's own calculation, the Assessed Available BidCapacity of the petitioner is much less than what is prescribed in thetender conditions and even according to the petitioner, if the periodof completion of work is taken as 8 months, then only would thepetitioner qualify for the work, as per the criteria laid down.Therefore, admittedly the petitioner does not satisfy the tenderconditions. 10.It is true that the petitioner has a case that the period ofcompletion specified as 4 months is discriminatory and arbitrary.As I have already noticed, petitioner is referring to Ext. P8 and iscontending that for a similar work, 8 months period has beenspecified. But then, the fixation of the period of completion of thework will depend upon several factors such as the nature of thework, the quality of the work, urgency and such other relevantfactors. In the counter affidavit filed by the 2nd respondent, thefacts which have weighed with them while fixing this period havebeen explained by them. In my view, the 2nd respondent is the W.P.(C) No. 3665 OF 2008- 10 -competent person for fixing the period, he having the expertise forthe same. When applying relevant criteria the 2nd respondent hasfixed the period as 4 months and also has explained the reasons insupport of such fixation, this court, which lacks expertise in thematter shall not interfere with such fixation and invalidate the sameaccepting the uncorroborated and interested plea raised by thepetitioner. Once the fixation of the period of completion of thework tendered is so upheld, necessarily the petitioner has to be heldas one who does not satisfy the tender conditions to be pre-qualified. 11.I also find merit in the contention raised by the 5threspondent that the tender conditions are not subject to judicialreview as it falls within the realm of contract. See in this connectionthe judgment of the Supreme Court in Tata Cellular v. Union ofIndia {1994 (6) SCC 651}, Air India Ltd. v. Cochin InternationalAirport Ltd. {2000 (2) SCC 617}, and Monarch Infrastructure (P) Ltd.v. Commissioner, Ulhasnagar Municipal Corporation and others{2000 (5) SCC 287}. In any case when norms are fixed and areuniformly applied one tenderer cannot be allowed to impugn the W.P.(C) No. 3665 OF 2008- 11 -same as discriminatory or arbitrary. 12.The question would still arise as to whether it is open tothe petitioner to challenge clause 4.1.5. As already noticed, interms of Clause 4.2.(n), petitioner had given a programme ofcompletion which has been charted out applying the tenderconditions including clause 4.1.5. After giving such a programmeand finding that he is not pre-qualified, this writ petition has beenfiled challenging clause 4.1.5. In my view, petitioner has chosen tochallenge clause 4.1.5 after taking his chance in the tender processand thus the conduct of the petitioner is one to which the theory ofsitting on the fence applies. 13.For all these reasons, I do not find anything irregular orillegal in the respondents decision not to pre-qualify the petitioner.The writ petition is only to be dismissed and I do so. ANTONY DOMINICJUDGEjan/-