Case: New Horizons Ltd.  Vs. Union Of India

should possess such experience" would mean the experience of the tenderer itself and not that of its collaborator. It has been pointed out that SLP(C) No. 1484 of 1994 filed against the said judgment has been dismissed by this court by order dated January 28, 1994. It has been urged that on the same logic the experience of a shareholder would not be included within the expression "experience of the tenderer". We fail to appreciate the relevance of this judgment. There can be no comparison between a collaborator who has no stake in the business of the company and a constituent of a company, such as NHL, constituted as a joint venture, wherein the constituents in the joint venture have a substantial stake in the success of the venture. 45. Thus the approach from the legal standpoint also leads to the conclusion that for the purpose of considering whether NHL has the experience as contemplated by the advertisement for inviting tenders dated April 22, 1993, the experience of the constituents of NHL, i.e., the Indian group of companies (TPI, LMI and WML) and the Singapore---based company, (IIPL) has to be taken into consideration. As per the tender of NHL, one of its Indian constituents (LMI) had printed and bound the telephone directories of Delhi and Bombay for the years 1992 and its Singapore---based constituent (IIPL) has 25 years experience in printing the telephone directories with "yellow pages" in Singapore. The said experience has been ignored by the tender evaluation committee on an erroneous view that the said experience was not in the name of NHL and that NHL did not fulfil the conditions about eligibility for the award of the contract. In proceeding on that basis the tender evaluation committee has misguided itself about the true legal position as well as the terms and conditions prescribed for submission of tenders contained in the notice for inviting tenders dated April 26, 1993. The non-consideration of the tender submitted by NHL has resulted in acceptance of the tender of respondent No. 4. The total amount of royalty offered by respondent No. 4 for three years was Rs. 95 lakhs whereas NHL had offered Rs. 459.90 lakhs, i.e., nearly five times the amount offered by respondent No. 4. Having regard to this large margin in the amount of royalty offered by NHL and that offered by respondent No. 4, it must be held that the decision of the tender evaluation committee to refuse to consider the tender of NHL and to accept the tender of respondent No. 4 suffers from the vice of arbitrariness and irrationality and is liable to be quashed. 46.In the reWe have been informed that while the matter was pending in the High Court and in this court the telephone directory for the year 1993 has been printed and supplied to the department by respondent No. 4 as per terms of the contract. In so far as the directory for the year 1994 is concerned we find that, as per the terms of the contract, the process for preparation of the telephone directory has already commenced. We cannot lose sight of the fact that as a result of quashing of the contract in respect of the directory for 1994 fresh steps will have to be taken to award a fresh contract and the said process would take some time and thereafter the contractor will require time to print and publish the telephone directory. It would, therefore, not be feasible to bring out the directory for 1994 before the close of the year. As a result, the department would suffer loss of revenue which it would otherwise earn by way of royalty from respondent No. 4 for the directory for the year 1994. In so far as the contract in respect of the year 1995 is concerned there is sufficient time for the department to award a fresh contract if the contract awarded to respondent No. 4 is cancelled and the new contractor will have sufficient time at his disposal to print and deliver the directory as per the time schedule. Moreover, in respect of the directory for the year 1995 the amount of royalty that is payable by respondent No. 4 is Rs. 45 lakhs and the amount of royalty offered by NHL for the directory for the said year was Rs. 291.6 lakhs. Keeping in view the circumstances referred to above, the course that commends itself to us is that, while maintaining the contract awarded to respondent No. 4 in respect of the directories for the years 1993 and 1994, the said contract may be set aside insofar as it relates to the directory for the year 1995 and fresh tenders may be invited for award of the contract for the directory for the year 1995. The appeal filed against the judgment and order of the Delhi High Court dismissing the writ petition of the appellants must, therefore, be allowed in the above terms. The other appeal has been filed by the appellants against the order of the Delhi High Court dismissing C. M. No. 6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition, the application for interim relief has become infructuous and the appeal against the order dismissing C. M. No. 6120 of 1993 must, therefore, be dismissed as infructuous. 47.In the result, the appeal against the judgment and order of the Delhi High Court dated October 15, 1993, in C. W. P. No. 3837 of 1993 is allowed, the said judgment is set aside and Writ Petition No. 3837 of 1993 filed by the appellant is disposed of with the direction that the award of the contract for printing and publishing the telephone directories for Hyderabad for the years 1993, 1994 and 1995 is set aside to the extent it relates to the directory for the year 1995. 48.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Having regard to this large margin in the amount of royalty offered by NHL and that offered by respondent No. 4, it must be held that the decision of the tender evaluation committee to refuse to consider the tender of NHL and to accept the tender of respondent No. 4 suffers from the vice of arbitrariness and irrationality and is liable to behave been informed that while the matter was pending in the High Court and in this court the telephone directory for the year 1993 has been printed and supplied to the department by respondent No. 4 as per terms of the contract. In so far as the directory for the year 1994 is concerned we find that, as per the terms of the contract, the process for preparation of the telephone directory has already commenced. We cannot lose sight of the fact that as a result of quashing of the contract in respect of the directory for 1994 fresh steps will have to be taken to award a fresh contract and the said process would take some time and thereafter the contractor will require time to print and publish the telephone directory. It would, therefore, not be feasible to bring out the directory for 1994 before the close of the year. As a result, the department would suffer loss of revenue which it would otherwise earn by way of royalty from respondent No. 4 for the directory for the year 1994. In so far as the contract in respect of the year 1995 is concerned there is sufficient time for the department to award a fresh contract if the contract awarded to respondent No. 4 is cancelled and the new contractor will have sufficient time at his disposal to print and deliver the directory as per the time schedule. Moreover, in respect of the directory for the year 1995 the amount of royalty that is payable by respondent No. 4 is Rs. 45 lakhs and the amount of royalty offered by NHL for the directory for the said year was Rs. 291.6 lakhs. Keeping in view the circumstances referred to above, the course that commends itself to us is that, while maintaining the contract awarded to respondent No. 4 in respect of the directories for the years 1993 and 1994, the said contract may be set aside insofar as it relates to the directory for the year 1995 and fresh tenders may be invited for award of the contract for the directory for the year 1995. The appeal filed against the judgment and order of the Delhi High Court dismissing the writ petition of the appellants must, therefore, be allowed in the above terms. The other appeal has been filed by the appellants against the order of the Delhi High Court dismissing C. M. No. 6120 of 1993 which was an application for an interim relief during the pendency of the writ petition in the High Court. In view of the final order that is being passed in the writ petition, the application for interim relief has become infructuous and the appeal against the order dismissing C. M. No. 6120 of 1993 must, therefore, be dismissed asthe result, the appeal against the judgment and order of the Delhi High Court dated October 15, 1993, in C. W. P. No. 3837 of 1993 is allowed, the said judgment is set aside and Writ Petition No. 3837 of 1993 filed by the appellant is disposed of with the direction that the award of the contract for printing and publishing the telephone directories for Hyderabad for the years 1993, 1994 and 1995 is set aside to the extent it relates to the directory for the year 1995.