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                                                          REPORTABLE                             IN THE SUPREME COURT OF INDIA                               CIVIL APPELLATE JURISDICTION

                                 CIVIL APPEAL NO. 1826 OF 2009                             (Arising out of SLP(C.)No. 30615/2008)

                 ISOLUX-SOMA-OMAXE CONSORTIUM                                    .. APPELLA NT

                           vs.

                 M/S. MADHUCON PROJECTS PVT. LTD.                   & ORS.                                               .. RESPONDENT

                                                 WITH

                 CIVIL APPEAL NOS. 1827&1828 OF 2009          (Arising out of SLP(C)Nos. 30775/2008 & 2677/2009)

                                                            JUDGMENT

      Dr. ARIJIT PASAYAT

       Leave granted.

         These three appeals are directed against the judgment of the Delhi High Court

disposing of two writ petitions being W.P.(C) No. 6792/2008 and 6419/2008. The first writ

petition was filed by GMR Infrastructure Ltd. and another, and the latter writ petition was

filed by Madhucon Projects Pvt. Ltd. and another. The National Highway’s Authority of

India (in short ‘NHAI’) had indicated to the writ petitioners in each writ petition that the  writ

petitioner was not eligible to participate in the second stage of the bid process. The tende r in

question related to design, engineering, construction, development, finance operation and

maintenance of Hyderabad Vijaywada Section of the National Highway (NH-9) from KM

40.00 KM 221.500 in the State of A.P. under NHDP Phase IIA on Build, Operate and

Transfer basis.

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          Factual situation is almost undisputed. There were 19 bidders and two of them

were non-responsive leaving 17 bidders in the field. There are two stages in the evaluation

according to points scored method. The initial stress is on financial stability and technica l

competence and experience. The modalities for short listing of bidders is covered by clauses

2.21 and 3.5.2. The latter clause reads as follows:

                  "The Applicants shall then be ranked on the basis of their respective         Aggregate Experience Scores and short-listed for submission of Bids. The         Authority expects to short-list upto 5 (five) pre-qualified Applicants for         participation in the Bid Stage. The Authority, however, reserves the right to extend         the number f short-listed pre-qualified Applicants ("Bidders") upto 6 (six)."

          Placing reliance on clause 3.5.2 originally six persons were short listed. They

were as follows:

S.No.      Name of the Bidder                         Re-evaluated Score

1Maytas Infra Limited Nagarjuna Construction          22779.70   Company Limited China Railway 18 Bureau   Corporation Limited. 1Hindustan Construction company Limited-John 21657.26   Laing Investments Limited. 1GVK Power and infrastructure Limited Thiess          15722.52   Leighton India-Oriental Structural Engineers   India Private Limited.

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1Larsen Toubro Limited                                        15052.47   B.Seenaiah & Company Limited. 5.GMR Infrastructure Limited-Punj Lloyd Limited               8362.73 6.Madhuchon Projects Limited-Galfar Engineering and 2839.00   contracting S.A.O.G. sultanate of oman-Wade Adams (Middle East) Limited Dubai,   UAE-SREI Infrastructure Finance Limited.

         It appears that Central Government had in purported exercise of power under

Section 33 of the National Highways Authorities of India Act, 1986, (in short the ‘Act’)

imperated transparency in the process of evaluation and in fact re-evaluation was done in

which the following six bidders were short-listed:

S.No.     Name of the Bidder                         Re-evaluated Score

1.Maytas Infra Limited Nagarjuna Construction 24376.03

 Company Limited China Railway 18 Bureau   Corporation Limited.   2.Hindustan Construction company Limited-John 21657.26   Laing Investments Limited.   3.Cintra Concessions De Infraestructuas De           21247.98   Transporte, S.A. Shapoorji Pallonji and   Company Ltd.

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 4.Larsen Toubro Limited                                         16232.58   B.Seenaiah & Company Limited.   5.GVK Power and infrastructure Limited Thiess        15722.52   Leighton India-Oriental Structural Engineers   India Private Limited.   6.Isolux Corsan Concession-Soma Enterprise Ltd.- 9896.79   Omaxe Infrastructures and Constructions Private Ltd..

         Undisputedly a Committee was appointed to work out the modalities of the

evaluation process. Challenge in the writ petitions was to the permissibility to apply Secti on

33 of the Act to individual tender process, as according to the writ petitioners it was

exercisable only in respect of the policy matters and to that limited extent direction can b e

given by the Central Government. The High Court apparently has accepted this stand of

the writ petitioners.

         Learned counsel for the appellants in each case submitted that the materials,

which would have shown that the appellant in each of the appeals is eligible to be short-

listed, have been allegedly kept out of consideration thereby making them ineligible. It is

also submitted that two of the bidders (Maytas Infra Limited Nagarjuna Construction

Company Limited-China

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Railway 18 Bureau Corporation Limited and Madhucon Projects Limited-Galfar

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Engineering and contracting S.A.O.G. sutanate of oman-Wade Adams (Middle east)

Limited Dubai, UAE-SREI Infrastructure Finance Limited) do not have clean records and

therefore their bids ought not to have been accepted when the stress is on transparency. It

is pointed out that if these two are to be kept out of consideration, the appellants will ha ve

to be included amongst the six short-listed bidders.

         The learned counsel for the NHAI submitted that in terms of clause 3.5.2 the

choice has to be restricted to maximum six and cannot go beyond it. It is, however, stated

that action has been taken against one of the short-listed bidders, i.e. Madhucon Projects

Pvt.Ltd. Learned counsel appearing for the said party stated that the action initiated is th e

subject matter of challenge before the Delhi High court.

         We find that at the stage of short-listing the evaluation is on the basis of point s

score basis on financial stability and technical capabilities.

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         In the peculiar facts of the case let all the eight bidders be short-listed, i.e.

 1.Maytas Infra Limited Nagarjuna Construction   Company Limited China Railway 18 Bureau

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 Corporation Limited.   2.Hindustan Construction company Limited-John   Laing Investments Limited.   3.Cintra Concessions De ...Infraestructuas De   Transporte, S.A. Shapoorji Pallonji and   Company Ltd.   4.Larsen Toubro Limited   B.Seenaiah & Company Limited.   5.GVK Power and infrastructure Limited Thiess   Leighton India-Oriental Structural Engineers   India Private Limited.   6.Isolux Corsan Concession-Soma Enterprise Ltd.-   Omaxe Infrastructures and Constructions Private Ltd.   7.GMR Infrastructure Limited-Punj Lloyd Limited   8.Madhuchon Projects Limited-Galfar Engineering and   contracting S.A.O.G. sultanate of oman-Wade Adams (Middle East) Limited Dubai,   UAE-SREI Infrastructure Finance Limited.

         By increasing the number to eight practically no prejudice will be caused to any

parties. It is for the NHAI to select the best bidder for undertaking the project which is o f

great importance.   It is on record that expansion of the number was

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one of the recommendations of the Committee formed by the Government.

         We are told that clause 3.5.2 is not insisted upon in subsequent tenders, thereby

making it an open field. By mere inclusion in the list of short-listed bidders, no bidder ha s

only the right to be considered in respect of its financial and technical bids. Since the

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project is of some urgency it would be appropriate to make the number of the short-listed

bidders eight.

         Needless to say that if any circumstance regarding the credibility of any of the

bidders has come to the notice of the NHAI it is for it to take such action. Further if the

aggrieved bidder has any grievance it can be agitated before an appropriate Forum. In that

regard we express no opinion.

         The appeals are accordingly disposed of.

         In view of the aforesaid directions it is not necessary to go into the question as  to

the scope and ambit of Section 33 of the Act.

                                        ................ .J.                                                             (Dr. ARIJIT PASAYAT)

                                               ...................J.                             (ASOK KUMAR GANGULY)     New Delhi,     March 24, 2009.