HEGH CDURT OF CHHATTI$GARH AT BILASPUR DB. HON’BLE SHRI DHIRENDRA Mi8HRA, & HON’BLE SHRI RN. CHANDRAKAR, JJ WRIT PETITION (G) N0. M=3812009 : Karamjit Singh & Company Limited, Corporate Office at Fuliar Complex, Darri Road, Korba (CG) through Prashant Kumar Dhiri, S/o Shri SD Dhiri, aged about 37 years, working as Manager in petitioner Company, R/o Om agar, Jarhabhath, Near New Littie Fiower School, Biiaspur, Tahsii & District Bilaspur (CG) 1. State of Chhattisgarh. Through Secretary. Water Resources Department, DKS Bhawan, Raipur (CG) Chhattisgarh infotech & Biotech Pmotion Society (CHIPS) Government of Chhattisgarh, RDA Buiing Raipur (CG) 3. Executive gine, Water Resources Divieion, Jarijgir-Champa, District Janjgir-Champa (CG) 4. ro ed nsorum h Next Tenders (ine) Pv Ltd 2- Ratan Sedan Bung, afah Rpur (CG) through the Mana rectO cdi ai gir'g Dii Present: M Pteek Sharma oounseiforthe pene i ra titior M nay Ha D Advocate Geerai h M hr Panel Lawyer for t State ORAL ORDER (Passed on 13““ January, 2010) Per Dhirendra Mishra, J Heard on application dated 11‘“ January, 2010. The apptioation is allowed. Documents are taken on record. 3. The petitioner by the instantpetition has impugned the Notice inviting Tender dated 19.11.2009 (Annexure P/1) and 30.10.2009 (Ahnexure P12) floated by respondent No.3. 4. Grievance of the petitioner is that by vittue of Clauee 4.1 of the tender notices of Annexure Pl1 & Pl2, the respondenta have created monopoty lU PETmONERS N Versug RESPONDENTS ro ld Ener Wip Limit In Coti Wit di t Priir ddi r Vi rit y n Wit r SK Misa he 01 in favour of particular coniractors and no new contractor is allowed to participate. Mr. Prateek Sharma‘ learned ccunsel for the petitioner, vehemently argues that the eQigibiIity qualifica’tion of successfulw executing Ban‘ageih'rigation Project across big rivers costing Rs.7500 lacs at price ievei of 2008-09 is too onerous as only two barrage construction work of the aforesaid valuation have been done in the State of Chhattisgarh and thusx only chosen contractorsere eligible for participating in the tender. Referring to copy of the tender notices filed along with the application for taking documents on record, it is argued that such eiigibility criteria waa never prescribed for in any of their tender work. Reiyihg upon the judgment in the matter of Noble Resources Ltd. ifs. State of Grissa arid anotherj it is argued that a writ petition would be maintainable even in the contractual held where an action on the part of the State is violative of the equality clause contained in Article 14 of the Constitution of lndia, particularly when the contract matter is at the threshold. On the other hand, Mr. Vinay Harit, teamed Dy. Advocate General with Mr. SK. Mishra, Panel Lawyer appearing on advance copy on behalf of the State. woutd argue that the Courts would not interfere in the contractual matters at the stage of Notice Inviting Tender unless it is arbitrary and discriminatory. We have heard learned counsel for the petitioner. By document of Annexure P/1, offers have been invited for construction of Kairna Barrage Scheme and Sheorinarayan Barrage scheme in Janigir—Champa valued at Rs.17074.00 lacs and Rs.11534.3’l lacs respectively. Apart from the condition that the contractors should be registered in A-5 Class in Water Resources Department and enrolled and empanelled on GoC-e-Procurement System, the participants should also confirm to the eligibiiity and qualification requirement as detailed in para-4 of ore—qualification document Part-ll. Clause 4.1 of the tender notice reads as under-1 \ “4.1 Tenderer shouio' be a Civil Engineer contractor \‘ having experience of Civii Engineering construction works or having sen/ices of graduate Civil Engineer. Should have successfully executed or executing \ x barrage/irrigafion project across big rivers cosfing Rs.7500,oo Lakhs at price level of 08—09 and shou/d have designed, planned barrages comprising of river diversion works, Diaphgm wail, Vedicai lift gates, Gantry crane with stop/0g arrangements operative on moaorails, D/s Bridge & river proiection works along wifh experience of opation and mainfenance of suc sytems is also required. Tenderer shouid furnish the deiaiis z‘hereof duiy ceriified by competeni aufhorify, 9. n the matter of Directorate of Education Vs, Ee'ucafioh and efher i s Vs. afucomp Datematics Lia’. and eihers2 while considering the extent of iudieiai review permissible in exercise of powers undr An‘icie 226 of the Constiiution of India to ihe terms of the tender escribing eiigibiiity criteria, he Heri’bie Supreme Court reiying upon its eariier iudgments in Tate Ceiléiler Vs. Unfair ei‘ indie, {19%) 6 SCC r351 and Air indie L Vs. Cechin inerneiionei African Ltd. (2096) 2 SOC 61, aiiewed the appeai by settin aside the oreer of the High Court, by wisich the offending ceuse that the eiierei's sheuici have turn eve of Rs d n t i '. r 7 g i r thus: 20 crates er more, was struck own. In para-12 it hes bee heid “12. if hes cieeriy been held in these ecisions ihet the terms of te invitation to tender ere net open to judiciai scruny, the same‘being in the reeim of contract That the Government must have a free hand in setting ihe temis of the tender, it must have reasonebie play in its ’bedv ieinz‘s as ii; a an necessary administrative concomitant sphere for The an administrativ courts wouid inteiferer with the administrative polio decision only if it is b d d rt arbitrary, discriminatory, maia fide or actuated by ias. it is entitle to pragrnatie apiiustrnents which may be calle for by the paicuiar circumstances. The coaits cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The cours can interfere only if the policy decision is arbitrary discriminatory or mala tie. 0. n the instant case, the tenders hae been invited for-construction of barrage across Mahnadi river and the estimated ost is Rs 17074]— iaos and R 1534.31 iacs. Keeping in View the estimated cost f the project and particuiar nature of the work, we are of the opinion that the respondents are the best judge to prescribe the terms and conditions and eiigi’oiiity oriteria for the participants. It is not for us to say whether the conditions prescribed in the tender under consideration were better than the ones prescribed in eariier tender invitations. The petitioner has ‘~. made ailegation in the oetition, without giving any details and without 20 ra er h s ” E e pr d h ti e y t d " i i v a c si o VL§ arr-J foundation, that the respondents are creating monopoly in favour of partiouiar contr‘aotors. Therefore, in our considered opinion, the terms of the Notice inviting Tender impugned by the petitioner are not open to ’ jadieiai review, the Same being in the reaim of contract, the Government muet have a free hand in setting the terms of the tender. We find no substance in this petition, the same deserves to be dismissed and is, aceordingiv, dismissed. W » e Sd/— 7 SdF i ‘ ‘ t 7 s Dhirendra Misi‘ta RN. CHANDRAKAR. Judge Judge