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PETITIONER: M/S. SHAPERS CONSTRUCTION (P) LTD. & ANR.

       Vs.

RESPONDENT: AIRPORT AUTHORITY OF INDIA & ANR.

DATE OF JUDGMENT:       17/09/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT: O R D E R      The  petitioners   have  filed   these  special   leave petitions against  the order  of the  Division Bench  of the High Court  of M.P.  at Jabalpur  made on August 14, 1996 in LPA No.138/96.  The learned  single Judge  as  well  as  the Division Bench  dismissed the  writ petitions  in which  the petitioners had  sought direction to the respondents to give the tender  form on  the  ground  that  they  had  satisfied Condition No.2  of the  Tender Conditions.  Pursuant to  the interim order  passed by  the High  Court,  the  petitioners submitted their tender forms. But, at the final hearing, the writ petitions  came to  be dismissed.  Thus, these  special leave petitions.      It is contended for the petitioners that they have past experience in  execution of  the national highway. They have two contracts  of more than required amount specified in the tender conditions,  42%  of  Rs.4  crores  and  Rs.6  crores respectively.  The  certificates  issued  by  the  competent engineers,  namely  Executive  Engineer  and  Superintending Engineer  would   show  that   the  petitioners   have  been satisfactorily performing  their duties  in execution of the work. The  petitioners, after  securing the  contracts, have executed major  part of  the work  within the scheduled time granted under  the contracts. Therefore, the failure to give tender form at the inception and consideration thereof after the interim  direction is  violative  of  their  fundamental right to compete in the tender for the further contract. The question is:  whether the  view taken  by the  High Court is wrong in law? Tender Condition No.2 envisages as under:      "The tenderer  who  wish  to  apply      shall have satisfactorily completed      at   least    two   runway/National      highway, preferably  rigid pavement      works involving  considerable earth      filling each  of value Rs.400 lakhs      or one works of Rs.600 lakhs during      the last five years and have annual      turn over  of Rs.500  lakhs in each      [1992-93, 1993-94  &  1994-95]  and      should possess computerised hot mix

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    plant and  concrete batching  plant      for executing  asphaltic and  rigid      pavement works."      A reading of this condition would clearly indicate that the tenderers  who wish  to apply  shall have satisfactorily completed at  least two  runway/National highway, preferably rigid pavement  works involving  considerable earth filling, each valuing  Rs.400 lakhs  and one  work  of  Rs.600  lakhs during the  last five  years and  have annual  turn over  of Rs.500 lakhs in each of the last three years (1992-93, 1993- 94 and  1994-95). He  should possess  computerised  hot  mix plant and concrete bathing plant for executing asphaltic and rigid pavement works.      It is  true, as  contended by the petitioners, that the Tender Condition  would indicate  that they had completed at least two runway/National highway, preferably rigid pavement works. He  contends that  the  completion  of  the  work  is different from  tendering the contracts for execution of the work. They had two contracts as envisaged thereunder; though they had  not totally  completed the same, major part of the work had  been completed. Therefore, they have fulfilled the conditions prescribed  thereunder. The petitioners, thereby, could not  be denied of their right to compete in, apply for and be  considered for  assignment of  the  work  under  the tenders now in dispute. We find no force in the contention. The condition  envisages that  he shall  have satisfactorily completed. The  word ’completed’  would indicate  that as on the date  of application  for the  tenders, he  should  have completed  at   least  two  runway/National  highway  works, preferably rigid pavement works involving considerable earth filling. In  other words,  the completion  of the work of at least two  runway/National highway  is a  pre-condition.  On their own  admission, they  had not  completed,  though  the major part  of the  work as  professed by them is completed. Under these  circumstances, the view taken by the High Court cannot be said unwarranted.      The learned  counsel  placed  strong  reliance  on  the judgment of this Court in New Horizons Ltd. & Ors. Vs. Union of  India   &  Ors.  [(1995)  1  SCC  478],  in  particular, paragraphs 21  and 22  in support thereof, this case relates to previous experience and the question therein was: whether the previous experience would be considered after submitting the tenders or before submitting the tenders? This Court had held that the question would arise only after the submission of the  tender. In  support of  consideration of  the tender thereof, the previous the contract. In that case, this Court considered and  held that at the inception, the tender forms cannot be  refused on  the ground that he had not proved the previous experience.  That question  has no relevance to the facts in  these petitions.  Under  these  circumstances,  as stated earlier,  the completion  of the work of at least two runway /  National highway is a pre-condition for submitting the  application.   On  their   own  admission,   since  the petitioners had  not completed  the works in hand, we cannot find any  illegality in  respondents not  giving the  tender forms nor  in non-consideration  of their  cases pursuant to the interim direction given by the High Court.      The petitions are accordingly dismissed.