WP(C) Nos. 7154/2008 1 of 4 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (C) Nos. 7154 of 2008 RESERVED ON : November 25th, 2008 % DATE OF DECISION : December 16th, 2008 LARSEN & TOUBRO LIMITED (ECC DIVISION) …….Appellant Through: Ms. Shweta Bharti, Advocate. Versus THE NATIONAL HIGHWAYS AUTHORITY OF INDIA (NHAI) & ORS. ……Respondents Through: Mr. Dushyant Dave and Mr. Ramji Srinivasan, Senior Advocates with Mr. Ravi Kini, Mr. Kishan Kumar, Mr. Sumit Gupta, Mr. Mukesh Kumar and Ms. Madhuri Diwan, Advocates for R/NHAI. Mr. Gaurav Duggal, CGSC, Advocate for Respondent UOI. CORAM: HON'BLE MR. JUSTICE MUKUL MUDGAL HON'BLE MR. JUSTICE MANMOHAN 1. Whether Reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the Reporter or not? Yes. 3. Whether the judgment should be reported in the digest? Yes. J U D G M E N T MANMOHAN, J. 1. The petitioner has filed the present writ petition under Article 226 of the Constitution of India seeking the following reliefs:- WP(C) Nos. 7154/2008 2 of 4 “(a) Issue a writ, order or direction in the nature of certiorari or any other writ, order or direction to quash impugned Clause Nos. 1.2.1 read with clause 3.5.2 of the RFQ document limiting the number of shortlisted eligible bidders to participate in bidding process in the 2nd stage upto a maximum of 7(seven) with retrospective effect for the request for qualification issued in respect of all projects of the Respondent No. 1 and; (b) Issue a writ, order or direction in the nature of mandamus or any such writ, order or direction to direct the Respondent No. 1 to delete Clause 3.5.2. with retrospective effect and to be considered deleted for all projects of Respondent No. 1. (c) Issue a writ, order or direction in the nature of mandamus directing the Respondents to amend Clause 2.2.2 read with Clause 3.5.1 of the RFQ document to provide that all members of the consortium, with regard to the minimum technical and financial threshold capacity, shall bring minimum threshold experience on pro-data basis of their equity contribution in the consortium; (d) Issue a writ, order or direction in the nature of mandamus directing the Respondent No. 1 to amend Clause 3.2.6 of the RFQ document to provide for 1.5 times weightage to projects done in India in any of the 4 categories as listed in Clause 3.2.1 vis-à-vis projects done overseas; & (e) Issue a writ, order or direction in the nature of certiorari or any such writ, order or direction to quash the letter issued by the Respondent No. 1 dated 28.08.2008 bearing reference no. RW/NH- 37011/59/2003-PIC regarding addition of additional eligibility condition as per para 2.1.18; (f) Issue a writ, order or direction in the nature of mandamus or any other writ, order or direction directing the Respondent No. 1 to allow the WP(C) Nos. 7154/2008 3 of 4 Petitioners to participate in all the 53 projects of the Respondent No. 1; (g) Pass any other order (s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 2. Thus, in essence, the petitioner is seeking to challenge the legality, validity and constitutionality of Clauses 3.5.2 and 2.1.18 of the Request for Qualification (hereinafter referred to as ‘RFQ’). But this issue is no longer res integra as after hearing the petitioner’s counsel along with other connected matters, we have already upheld the constitutionality and legality of the said Clauses vide our judgment and order dated 3rd November, 2008 delivered in WP(C) 566/2008 and reported as National Highways Builders Federation v. The National Highways Authority of India & Others. Consequently, the challenge to the said Clauses no longer survives. 3. As far as the prayer seeking amendment of Clauses 3.2.6 & 2.2.2. and 3.5.1. of the RFQ document is concerned, we are of the view that a writ Court has no jurisdiction or power to either devise or propound tender terms. It is for the experts and the party floating the tender to decide the terms on which a tender is to be floated. The Courts will only intervene to quash a tender term if the same is demonstrably capricious or arbitrary or not WP(C) Nos. 7154/2008 4 of 4 informed by any reason whatsoever or suffers from the vice of discrimination or infringe any Statute or provision of the Constitution. 4. Therefore, the said reliefs cannot be granted to the petitioner and, consequently, the present petition is dismissed but with no order as to costs. MANMOHAN, J MUKUL MUDGAL, J DECEMBER 16th, 2008 NG