DEEPAK BUILDERS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 19-10-1995, passed by the learned single Judge, by which the learned single Judge dismissed the writ petition filed by the petitioner-appellant and held that the decision taken by the respondents it only on the administrative side and involves technicalities of the matter and no vested rights of the petitioner stand infringed by the action of the respondents.

(2.) Bids for contract of pre-qualification were invited by the Irrigation Department of the Government of Rajasthan for earth-work of main Earthen Dam from RD 355 to 595-M including pitching and rock toe and the construction of Head out-let sluice of Mewara Minor Irrigation Project constructed across Majam river about 35 kilometres from Dungarpur near Mewara village (district Dungarpur). The parties interested in the contract were asked to apply for pre-qualification in the manner set-out in the Tender form. It was, also, mentioned in the Tender Form that the tender will be issued subsequently only to those parties selected by the competent authority as having necessary qualification / suitability to perform the contract(s) satisfactorily. The last date for submission of the pre-qualification tender documents was 7-10-1995 and 10-10-1995 was the date fixed for taking decision for short-listing the tenderers. 19 tenderers including the petitioner-appellant participated in the Pre-qualification bid for this Project and submitted their pre-qualification tender documents. The Committee constituted for the assessment of the pre-qualification of the tenderers and for short-listing the applications, in its meeting held on 10-10-1995, assessed the qualification of all the 19 tenderers taking into consideration their comparative statement and examining the relevant documents of the individual party and found only ten tenderers as qualified tenderers and rejected the cases of the other nine tenderers. The case of the appellant-petitioner was also considered and the petitioner-appellant was found disqualified for want of sufficient experience in the work of similar nature. Since the appellant-petitioner did not qualify the pre-tender offer and was not found eligible for submitting the tender for the work, it, therefore, preferred the writ petition before this Court challenging the action of the respondents not allowing it to participate in submitting the tender. The writ petition, filed by the petitioner-appellant, was contested by the respondents and the same was dismissed by the learned single Judge by his judgment dated 19-10-1995. It is against this judgment that the petitioner-appellant has preferred this special appeal.

(3.) It is contended by the learned counsel for the appellant that (i) while inviting pre-qualification tender documents, there was no condition in the notice that the applicant must have to its credit five years' experience of the work of similar nature and, therefore, later on this condition cannot be applied while shortlisting the applications; (ii) the principles of natural justice have been flouted and the appellant was not given any opportunity to plead its case at the time of short-listing the bids for contract; and (iii) the respondents acted arbitrarily while short-listing the bids for contract and the petitioner-appellant has been discriminated and has not been allowed to participate in submitting the tenders for the work while M/s. B.D.S. Associates, which, also had no experience of five years to its credit in the line and which was found ineligible at the initial stage, has been permitted to participate in submitting the tender. This clearly shows that there is complete non-application of mind by the Committee while short-listing the tenderers. It has also been contended by the learned counsel for the appellant that in the contractual matter, where the administrative authority acts arbitrarily and unreasonably then their decisions are amendable to judicial review and the writ jurisdiction in such matter is not barred. In support of his contention, learned counsel for the appellant has placed reliance over Mahabir Auto Stores, AIR 1990 SC 1031, Vencil Pushpraj v. State of Rajasthan, AIR 1991 SC 536, Mangalore Chemical and Fertilizers Ltd. v. Deputy Commissioner of Commercial Taxes, AIR 1992 SC 152, M/s. Bharat Construction and Co. v. State of Rajasthan 1993 WLR (Raj) 765 and Life Insurance Corporation v. Consumers Education and Research Centre (1995) 5 SCC 482 : (1995 AIR SCW 2834). Learned counsel for the respondents, on the other hand, have supported the judgment passed by the learned single Judge and submitted that the judicial review under Art. 226 of the Constitution of India cannot be converted into an appeal. Judicial review is not directed against the decision but is confined to the examination of the decision-making process. The decision making process, in the present case, cannot be said to be, in any way, arbitrary and the matter was decided on the basis of the information supplied by the appellant-petitioner and the other applicants. It is only on the basis of the information supplied by the tenderers in their pre-qualification tender documents that the matter has been considered and decided and the High Court, under Art. 226 of the Constitution of India is not expected to interfere in the matters based on economic criteria and commercial contracts. It is further submitted by the learned counsel for the respondents that no opportunity of hearing is required to be given to the tenderers while considering their eligibility for short-listing and as such no principle of natural justice has been flouted. It has, also, been contended by the learned counsel for the respondents that as the appellant was not found qualified in the pre-qualification assessment, it is not entitled to fill the tender form and the case of the appellant has rightly been rejected as it was not having the requisite experience of five years. It has, also, been contended by the learned counsel for the respondents that there is no discrimination in allowing M/s. B.D.S. Associates to submit the final tender as initially, due to over sight, the work experience of B.D.S. Associates could not be taken note-of and when a grievance was made by this firm, the work experience certificate enclosed with the pre- qualification tender documents filed by this firm, was considered and it was found having the requisite experience and, therefore, permitted to submit the tender form. In support of their contention, learned counsel for the respondents have placed reliance over State of Uttar Pradesh v. Maharaja Dharamander Prasad Singh, AIR 1989 SC 997 and Jagan Singh v. State Transport Appellate Tribunal, Rajasthan, AIR 1980 Raj 1 (FB).