ORDER [ENTITY], J.
1. In this writ application, the petitioners have prayed for the following reliefs :
(a) Issuance of an appropriate writ, order or direction declaring that all action taken by Respondents 1 to 3 pursuant to Annexures 1, 2 and 3 are invalid, illegal, and not in accordance with law;
(b) Issuance of a writ, order or direction quashing the works order issued in favour of respondents 4 to 9 allotting works pursuant to tender notice/tender document (Annexures-1, 2 and 3);
(c) Issuance of a writ, order or direction commanding respondents 1 to 3 to call for a fresh tender in respect of the aforesaid works and to consider the tenders of those persons only who are eligible in accordance with the tender notice.
2. The petitioner allegedly primarily carry on transportation business. It is admitted that respondent 2 invited a tender for transportation of coal wherefor a notice was issued on the 13thMay, 1987. The said tender notice is contained in Annexure-1 to the writ application. By a corrigendum dt. 10/11-8-87 certain corrections were made in the aforementioned tender notice.
3. By reason of the said notice sealed tenders were invited from the experienced and reputed transporters for transportation of coal, picking-breaking and wagon loading by contractor's pay loader at KD Project in North Karanpura Area for a period of two years.
4. In terms of the said tender notice, prospective tendereis were asked to submit their tenders items wise except in relation to items 7, 8 and 9 thereof which were to be treated as a composite item.
5. In terms of the aforementioned tender, transportation of coal was to be made from one point to another as mentioned in items 1 to 6 thereof. The said notice contains general terms and conditions. The said terms and conditions are in two parts. [SECTION] comprises of Clauses 1 to 22, whereas [SECTION] comprises of Clauses 23 to the rest.
6. In terms of Clause 7 of the said terms and conditions, the tenderer was expected to inspect the site and make himself fully conversant with the work before submitting the tender and it shall be deemed that he has done so before submitting the tender.
7. The other relevant clauses which are important for the purpose of disposal of this writ application are as follows;
"12. The tender shall be submitted in two parts :
(a) The following documents/details should be submitted in an in valope marked "PART I",
(i) Money receipt towards purchase of tender document.
(ii) Demand draft/cash receipt towards deposit of earnest money.
(in) Certificate/s of experience of the tender.
(iv) Income-tax clearance certificate for the last three years.
(v) Photostat copy of the registered partnership deed in the case of partnership firm, Memorandum and Articles of Association in the case of private/public limited company and in the case of proprietary firm, a certificate to that effect from the proprietor.
(vi) Certificate/proof of registration of the firm/company with the registrar of firms/companies.
XXX XXX XXX
(ix) List of trucks/requirements owned by the tenderer and proposed to be deployed for the work, indicating their present place of deployment, registration No./machine No./year of manufacture, reference of fitness certificate/permit/Insurance cover etc.
(x) In case of trucks/equipments proposed to be taken on hire by the tenderer for the purpose of this work, a certificate to that effect from the owner from whom these trucks/equipments are proposed to be taken on hire, with the above details.
xxx xxx xxx
(e)"Part-II' envelope containing quotations shall be opened only if theTender Committee is satisfied, on first opening "Part-I" envelope referred to above, that the earnest money has been deposited, required documents, informations have been furnished the terms and conditions have been accepted unconditionally and tenderer has the requisite competence/experience/resources, to execute the work satisfactorily."
"22. The Company is not bound to accept the lowest tender and reserves the right to accept or reject any or all the tenders in whole or part or distribute the work between two or more contractors, without assigning any reason whatsoever."
"23. The contractor shall start the work in or within the date stipulated in the letter of intent. The dates stipulated shall be deemed to be the date of commencement of the contract for all purposes, irrespective of the date of actual commencement of the work by the contractor,"
"30(a) The contractor shall deploy adequate number of tipping trucks/equipments for the satisfactory execution of the work.
(b) Only tipping trucks with machanical unloading arrangements shall be deployed by the contractor andin no case "Dale" trucks shall be deployed or permitted to be deployed for the work.
(c) The contractor shall own himself at least l/3rd of the number of trucks required for the work."
8. According to the petitioners, in view of the fact that one of the terms contained in the aforementioned tender notice was that the successful tenderers must own at least l/3rd of the number of trucks required for the said truck and, as according to the petitioners, about 150 trucks would have been required for carrying out the contract job and as he did not own 1 /3rd thereof meaning thereby 50 trucks, he did not submit thetender therefor. The petitioners have alleged that the other persons including respondents 4 to 9 submitted their tenders in spite of the fact that they did not have sufficient number of trucks so as to comply with the aforementioned requirement of the tender notice. The petitioners have further contended that although the other persons did not fulfil the aforementioned conditions of the tender notice, various items of works were split up and respondents 4 to 9 were awarded the said job for different volume of works although the number of trucks allotted by them does not exceed 25. A statement snowing the details of transportation work allotted to respondents 4 to 9 has been filed by the petitioners which is contained in Annexure-6 in the reply/rejoinder filed on behalf of the petitioners to the counter-affidavit filed on behalf of the respondents. The said chart reads as follows :
"Statement showing details of transportation work allotted to respondents 4 to 9 :
Respondent No. Name No. of trucks owned Volume of work allotted
Vandana Enterprises 3 Lac matric tonnes.
5. A. K. Transport Contractor 1.3 Lac cum 2.5 Lac M.T. app.
6. [ENTITY], Traders 3 Lac M.T.
7. N. L. Singh and Co.
44 Lac M.T.
8. [ENTITY]
30 Lac M.T.
9. Rungta Project Ltd.
7 Lac M.T."
9. Mr. [ENTITY], learned senior counsel appearing on behalf of the petitioners, submitted that evidently there has been a deviation or departure from the norms laid down in the tender notice itself in awarding the contract in favour of respondents 4 to 9. The learned counsel further submitted that had the petitioners been aware that the respondents would not adhere to the norms proposed by them, the petitioners could have also submitted their tenders and could have been allotted the said contract job. According to the learned counsel, the action on the part of the respondents is wholly arbitrary and thus the same is violative of [SECTION] of the [ACT].
In this connection, strong reliance has been placed by the learned counsel for the petitioners in the case of [PRECEDENT] and in the case of [PRECEDENT].
10. In this case, two counter-affidavits have been filed one prior to the admission of this writ application and another after the admission of this writ application. The counter-affidavit filed on 18th Jan., 1988, is supported by an affidavit sworn by one [ENTITY], Deputy Chief Mining Engineer of North Karnapura Area. In the said counter-affidavit, inter alia, it has been contended that the said tender notice being divided into two parts, [SECTION] contains the eligibility clauses whereas [SECTION] contains such clauses which are required to be taken into consideration for working out the details.
It has further been contended that in terms of Clause 22 referred to hereinbefore, as the tenderers were required to submit their rates itemwise except Items Nos. 7, 8 and 9 referred to hereinbefore, there was no question for the petitioners not submitting any tender pursuant to the tender notice as contained in Annexure 1 to the writ application. It has also been contended in the counter-affidavit that the petitioners have all along been knowing that such procedure is adopted by the Central Coalfield Ltd. and for that purpose an instance has been cited where the petitioners themselves have obtained a contract from the respondents in Dakra Area. It has further been contended on behalf of the Respondents that it was open to them to distribute works amongst various successful tenderers.
11. Mr. [ENTITY], learned [ENTITY]ior Counsel appearing on behalf of the Respondents 1 to 3 submitted that, as the tender was invited from experienced and reputed transporters and further in view of the fact that the tenderer were required to inspect the site and make themselves fully conversant with the work before submitting the tender, there was absolutely no reason as to why the petitioners could not submit the said tender if not in respect of the entire job, at least in respect of a part whereof.
12. Mr. [ENTITY], learned counsel appearing for the petitioners, has drawn my attention to the fact that in respect of the same matter, two writ petitions were filed earlier one being [CASE NUMBER]) which petition was filed by Respondent 9 and the same was withdrawn on the 20th Oct., 1987. Mr. [ENTITY] has further submitted that another writ petition filed by M/s. [ENTITY] being [CASE NUMBER] was dismissed at the stage of admission itself. According to the learned counsel, the instant writ petition has been filed at the instance of the successful tenderers in view of the fact that the estimated sum of M/s. Central Coalfield Ltd. was about twelve crores of rupees, whereas upon the acceptance of the lowest rate submitted by the Respondents 4 to 9 for getting the job done would come to round about seven crores of rupees.
In this connection, my attention has been drawn to para 7 of the second counter-affidavit. It has further been contended by the learned counsel appearing on behalf of the respondents that, as a matter of fact, the petitioners have been set up by the Respondents 4 to 9 hereof as they themselves want a higher rate now. According to the learned counsel, therefore, this writ petition has been filed mala fide.
13. Before proceeding further with this case, it may be mentioned that in C.W.J.f.C. No. 1113 of 1987(R), the petitioners filed an intervention application but a Bench of this Court, by an order at. 24th Aug., 1987,' directed the petitioners to file a separate writ petition, if so advised. It may be further mentioned herein that admittedly M/s. [ENTITY] who filed [CASE NUMBER] is not a party in this writ petition.
14. Mr.[ENTITY], learned counsel for the respondents, has further submitted that the petitioners in the aforementioned two writ petitions submitted their tenders and as mentioned hereinbefore a part of the work has been allotted to respondent 9 but the petitioners in the instant case had not submitted the tender at all. Mr. [ENTITY] further submitted that the petitioners have absolutely no locus standi to maintain this writ application, as they have not submitted any tender contract has already been allotted in favour of respondents 4 to 9, this writ application has become infructuous.
15. Mr. [ENTITY], in reply to the aforementioned submissions contended that it was obligatory on the part of the tenderers to fulfil the terms and conditions mentioned in the tender notice irrespective of the fact as to whether they are contained in [SECTION] thereof. The learned counsel further contended that a tenderer can become successful only if he fulfils all the conditions and before submitting the tender, if he comes to the conclusion that he cannot compete with others because of the fact that he does not own one third of the requisite number of trucks which are required for the work, in that event, his efforts would have become fruitless. According to Mr. [ENTITY], no businessman would like to invest a huge amount by depositing the earnest money to the extent of six lags of rupees in spite of his knowledge that he, in any event will not be allotted the job at all. Mr, [ENTITY] further submitted that the grievance of the petitioners was not that their tender was rejected as a result of improper acceptance of the tender of respondents 4 to 9 but that they weredenied equality of opportunity with the said respondents in submitting a tender. Mr. [ENTITY] has further contended that para 7 of the counter affidavit filed on behalf of the respondents should not be taken into: consideration as the same has not been properly verified.
16. My attention has further been drawn to para 6 of the reply filed by the petitioners to the first counter-affidavit filed on behalf of respondents 1 to 3 which reads as fol lows ;
"6. That, in reply to para 4 of the counter-affidavit, it is stated that the statements made therein are not only erroneous but the same has been made with mala fide intention. The respondents deliberately have not specified the number of the trucks required for the work according to their calculations and, on the other hand, reasonable number of 150 trucks, mentioned by the petitioners has been arbitrarily described as imaginative creation of the petitioners. It is further stated that in para 4 of the counter-affidavit the respondents are trying to rewrite/to modify/to alter the provisions of Clause 12 and Clause 30 of the Tender document and they are now advancing a new plea which was not a part of the tender document. It is restated that the petitioners could not participate in the tender as they did not own 1 /3rd of the number of the trucks required under Clause 30(e) of the Tender document."
17. It has further been contended that so far as the contract of transportation undertaken by the petitioners in the North Karnapura Area in concerned, (wrongly mentioned as 'Dakra Colliery' therein) only 15 trucks were required to be deployed and the petitioners had more than one/third of the aforementioned number and, as such, they were eligible contractors.
18. There cannot be any dispute in law that the respondents being the 'State' within the meaning of [SECTION] of the [ACT], are bound to observe certain norms and procedures. It is a further wellsettled principle of law that the State cannot accept the tender of person who does not fulfil the requisite qualification and, as such, in the event a tender has been accepted from a person who does not have the requisite qualification thereby a discrimination is made by and between the person whose tender was accepted and the person who did not submit his tender in terms of the said tender notice. It is also well settled that the State whether by way of giving job or entering into contract or otherwise cannot act arbitrarily and enter into collusion with any person at its sweet will but its action must be in conformity with some principle which meets the test of reason and relevance.
Reference in this connection may bemade to the following decisions : [PRECEDENT]; [PRECEDENT]; [PRECEDENT] [PRECEDENT]; [PRECEDENT] ; [PRECEDENT] and [PRECEDENT].
19. In that view of the matter, there cannot be any doubt that the petitioners had the locus standi to maintain this writ application. In my opinion, this writ petition has not become infructuous as sought to be contended by Shri [ENTITY] only because the tenders of respondents 4 to 9 have been accepted and they have been distributed with Various items of contract works.
20. Taking into consideration the facts and circumstances of this case, I am further of the view that Clause 30(c) of the tender notice requires a person to become the owner of at least one/third of the number of trucks which are required to be deployed for the transportation job. The said condition is a mandatory one and any person who does not own the required number of trucks would, not have the requisite qualification for submitting the tender.
I am further of the view that the argument advanced on behalf of the respondents 1 to 3 that in view of Clause 22 of the terms and conditions of the tender, the respondents were entitled to divide the contract job amongst two or more contractors is not correct as it does not mean that a contractor shall proceed on the basis that the job would be divided amongst the contractors. Clause 22, as referred to hereinbefore, is merely an enabling provision as a result whereof the respondents' have reserved a right to themselves to distribute the job in favour of two or more persons if the contingencies, therefore, arise. 21. As noticed hereinbefore Clause 30(c) is a mandatory provision. It is now well known that where the word 'shall' is used normally it makes the provision imperative in nature. Further the disclosures about the ownership of the number of trucks and the number of trucks which are required to be hired by the tenderer as is required in terms of [SECTION] and [SECTION] of the terms and conditions of the contract are also relevant. The very fact that even under [SECTION] of the terms and conditions of the contract, the tenderer is required to give the number of the trucks which he owns and also the number of the trucks which he intends to deploy after taking the same on hire clearly shows that the respondents intended to know at the first hand, the capability of the tenderer to deploy sufficient number of trucks which in terms of Clause 30(e) thereof must be one/third of the total number of trucks required for the job. It is further worthwhile to mention that even in the counter-affidavit it has not been stated that as to what was the number of the trucks required for carrying out the contract job. From Annexure 6 which has been reproduced hereinbefore, it is evident that none of the successful tenderers, i.e., respondents 4 to 9 had more than 25 trucks. It further appears surprising that basis was adopted for awarding contract to the respondents 4 to 9 and how they were allotted different quantities of contract job which does not appear to have any nexus with the number of trucks owned by them. For example, the respondent [ENTITY] although owns merely 6 trucks, the volume of work allotted to them is 30 Lac M.T., whereas Rungta Project Ltd. although owns 25 trucks have been allotted only 7 Lac M.T., and whereas A. K. Transport Contractor although owns, 22 trucks have been allotted 3.8 Lac M.T.,
22. However, it must be held on the facts and in the circumstances of this case that it was open to the petitioner to submit a tender in relation to one or the other item of jobs as mentioned in the tender notice. In terms of the tender document as contained in Annexure 1 to the writ application the transportation job as noticed hereinbefore contains Items 1 to 6 thereof which are as follows :
Sl. No. Particulars of work Distance KM (Apprx.) Quantty (Lakh) Rate per tonne to be quotd
1. Transportation of coal from KD Quarry face to KD Siding.
4 to 5 24.0 Rs.
2. Transportation of coal from K.D. Quarry face to KD CHP.
1 to 1.5 20.0 Rs.
3. Transportation of coal from KD CHP Hopper to KD siding.
3.5 to 4.5 20.0 Rs.
4. Transportation of coal from KD Quarry face to Dakra Manual/CHP siding.
4 to 5 6.0 Rs.
5. Transportation of coal from KD Quarry face to Churi siding.
8 to O 5.0 Rs.
6. Transportationof coal fromKDQuarry face to stockyard.
1 to 1.5 5.0 Rs.
23. It is, therefore, clear that the petitioners were the owners of sufficient number of trucks to submit a tender. The petitioners in reply to the counter-affidavit have stated that in Dakra Project, the total quantity of coal to be transported was 17.32 LacM.T.agamst 70.1? Lac M.T. in thepresent contract. However, from the items of work as referred to hereinbefore, it appears that the approximate quantity in respect of some items was as much as 5, 6 or 7 tonnes. As noticed hereinbefore, therefore, the petitioners could have submitted a tender at least in respect of one or more items of works which according ; to them they would have been in a position to undertake. Further, from the fact that in Dakra Colliery, the petitioners were handling transportation job to the extent of 17.32 Lacs M.T. wherefor only 15 trucks were required to be deployed, as has been admitted by the petitioners and has been stated in Annexure 5 to the counter-affidavit, the maximum number of trucks which were required to be deployed taking into consideration the distance and other matters could have been in between 4 and 5 items thereof.
24. However, in any event, as noticed hereinbefore the petitioners at least were eligible to submit tenders in respect of more than one items of job. However, I must observe that Clause 30(e) of the tender document is vague and it is expected that in future the respondents would spell out the number of trucks which are estimated to be required for the deployment in course of transportation of coal from one place to another.
25. However, in the instant case, although the petitioners have the locus standi to maintain the writ application, in my opinion, regard being had to the facts and circumstances of this case, this Court should not exercise its discretionary power in its writ jurisdiction. Asnoticed herein before, in para 7 of the second counter-affidavit the respondents have clearly stated that the estimated value of the works involved in KD project was to the tune of 12 crores 16 lacs 66 thousand and whereas after the allotment of the work to the lowest tender itemwise the total amount of bills for the said works comes to Rs. 7 crores 12 lacs 28 thousand 300 only. Evidently, in public interest the works allotted to the tenderers should be allowed to continue in view of the fact that thereby the public exchequer shall benefit to a huge extent.
26. It is relevant to mention here that the respondents in their repply did not controvert the figures as mentioned in para 7 of the counter-affidavit referred to hereinbefore.
They merely in their reply made a bald denial in para 9 thereof by saying that the same are irrelevant and extraneous. Further a bald allegation has been made that the respondents are getting the work done at an exorbitant rate through outsiders. At this juncture, it may be mentioned that para 7 of the counter-
affidavit as referred to hereinbefore was earlier verified as true to the deponents' information derived from the records of the case buta clarification application has been filed on 8-2-88 wherein it has been stated as follows:-
"2. That sheer oversight and inadvertent, a part of the statement contained in paragraph 7 to the effect that the petitioners have been set up by the respondents 4 to 9 who really desire now to wriggle out of their contractual commitment by getting the tender invalidated at this distant date with an oblique motive of getting the works retendered which could naturally involve public exchequer/ respondents 1 to 3 a colossal loss has been erroneously shown as true to my information derived from records of the case."
"3. That the said part of the statements as contained in para 7 of the above referred post-counter-affidavit are really true to my belief, which 1 verily believe to be.true and the correctness of the same have been amply demonstrated before this Hon'ble Court by supporting submission made on behalf of the respective counsel for some of the said respondents."
27. In this view of the matter, in my opinion, as the things stand now, para 7 of the counter-affidavit has now been properly verified. Further, the statements made on behalf of the respondents in the aforementioned para 7 to the counter-affidavit appear to be true.
28. In this case, respondents 4 to 9 have been represented by different counsel. As noticed hereinbefore, one of the respondents, i.e., respondent 9 had earlier filed [CASE NUMBER] which was withdrawn bv the petitioners thereof. Mr. [ENTITY], learned counsel appearing for respondent 9 has categorically stated that the said respondent supports the petitioners and he has no objection if fresh tenders are invited in respect of the said job. Mr. [ENTITY], appearing for respondent 7. who was also one of the respondents in the aforementioned [CASE NUMBER], although stated that in the earlier case he supported respondent 9 but in this case also he is supporting the case of the petitioners. Similarly, Mr. [ENTITY], learned counsel appearing for respondents 4, 5, 6 and 8 has supported the case of the petitioners.
29. It is unthinkable that the persons who had invested a huge amount by becoming successful tenderers as their tenders had been accepted by the respondents would like to get their investments wasted. It is expected of any person who has become, a successful tenderer to express his willingness to continue the job undertaken by him under a contract. This is not the position here. The very fact that the respondents 4 to 9 who are successful tenderers have openly come out to support the case of the petitioners, in my opinion, is sufficiently indicative of the fact that the petitioners have been set up by them.
30. It is now well known that this Court does not interfere with in a given case only becacuse it would be lawful to do so. The High Court in exercise of its writ jurisdiction under [SECTION] and [SECTION] of the [ACT] may refuse to issue any writ in the event it is found that substantial justice has been done to the parties or in larger interest it would not be prudent to issue such a writ. It is also known that the right of an individual sometimes has got to give way to the right of the public at large. Under [SECTION] of the [ACT], a High Court may refuse to exercise its jurisdiction in favour of a party who has not approached the Court with clean hands.
31. In the case of [PRECEDENT], it has been held as follows :
"6. What are the options before us.
Obviously, as a logical corollary to our finding we have to interfere with the judgment of the High Court because the view taken by it is not in conformity with the law. It is at this stage that Mr. [ENTITY], learned counsel for the respondent invited us to consider the humanitarian aspect of the matter. The submission is that the jurisdiction of this Court under [SECTION] of the [ACT] is discretionary and, therefore, this Court is not bound to tilt at every approach found not in consonance or conformity with law but the interference may have a disastrous effect on the parties involved in the dispute. Laws cannot be interpreted and enforced divorced from their effect on human beings for whom the laws are meant. Undoubtedly, rule of law must prevail but as is often said rule of law must run akin to rules of life. And life of law is not logic but experience. By pointing out the errorwhich according to'us crept into the High Court judgments the legal position is restored and the rule of law has been ensured its prestine glory. Having performed that duty under [SECTION], is it obligatory on this Court to take the matter to its logical end so that while the law will affirm its element of certainty the equity may stand massacred. There comes in the element of discretion which this Court enjoys in exercise of its extraordinary jurisdiction under [SECTION]. In approaching the matter this way we are not charting a new course but follow the precedents of repute. In [PRECEDENT], this Court held that the order of dismissal made by the appellant in that case in contravention of [SECTION] of the [ACT] did not render the order void and inoperative, yet this Court did not set aside the order of the lower Court directing payment of wages under [SECTION] and affirmed that part of the order. While recording this conclusion this Court observed that in exercise of the extraordinary jurisdiction this Court was not bound to set aside every order found not in conformity or in consonance with the law unless the justice of the case so requires.,The Court further observed that demands of social justice are paramount while dealing with the industrial disputes and, therefore, even though the lower Court was not right in allowing the application of the respondent, the Court declined to exercise its overriding jurisdiction under [SECTION] to set aside the order of the Labour Court directing the appellant to pay certain amount to the workers. Following this trend in [PRECEDENT], this Court while holding that the High Court was in error in directing reinstatement of the respondent in service, took note of the fact that by passage of time the respondent superannuated. The Court paid him backwages till the day of superannuation in the round sum of Rs. 10,000/-. In other words, while formally setting aside the order of the High Court directing reinstatement, treated the respondent in that case in service and paid him backwages because physical reinstatement on account of passage of time was not possible. From the academic's point of view the later decision is the subject-matter of adverse comment but we feel reasonably certain that it stems from narrow constricted view of the jurisdiction of this Court under [SECTION]. We adhere to our view after meticulously examining the learned comment Having noted that criticism, we still adhere to the view that legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law it is to be tampered with equity and if the equitable situation demands after setting right the legal formulations not to take it to the logical end this Court would be failing in its duty if it does not notice equitable considerations and mould the final order in exercise of its extraordinary jurisdiction."
32. In my opinion, in view of the fact that the exercise of jurisdiction under [SECTION] of the [ACT] also being sometimes discretionary the said principle also applies to the facts and circumstances of this case.
33. In the result, this writ application is dismissed However, regard being had to the facts and circumstances of this case, there will be no order as to costs.