Punjab-Haryana High Court
M/S. Gautam Builders Vs. Respondent: ... vs Union Territory Chandigarh on 8 October, 1999
Author: Amar Dutt
Bench: Amar Dutt
JUDGMENT G.S. Singhvi, J.
1. Whether pre-qualification conditions laid down by the Chandigarh Administration for award of contract of building works of Government Medical College and Hospital, Sector 32, Chandigarh are ultra vires to the doctrine of equality and whether non-consideration/rejection of the applications submitted by the petitioners in C.W.P. No. 13956 of 1998 in response to the notices Annexures P.2 to P.4 is vitiated by arbitrariness and is violative of their fundamental right to equality guaranteed under Article 14 of the Constitution of India are the questions which arise for determination in these petitions, one of which has been filed by the contractors and the other has been filed by Shri Rajiv Sharma in the name of Public Interest Litigation.
2. The facts:
C.W.P. No. 13956 of 1998 Petitioners-M/s Gutam Builders, M/s Abhinandan Constructions, M/s Sandeep and Company, M/s Ram Lal Garg and Company, M/s Surindera Builders, M/s Mounton Fabricators and Engineers. M/s Forward Builders, M/s Hans Raj Kohli and Company and M/s Sant Builders and Engineers who have jointly filed this petition are registered as 'A' class contractors with the Civil Wing of Capital Project, Union Territory, Chandigarh. Most of them gave pre- qualification bids in response to the notices Annexures P.2 to P.4 issued by the Executive Engineer, C.P. Division No. 5, Chandigarh for execution of different works for Blocks 'C and 'D' of Government Medical College and Hospital, Chandigarh. A number of other contractors also gave their bids for award of different contracts. All the applications were considered by a Committee constituted by the Adviser to the Administrator, Union Territory, Chandigarh and after taking into consideration the financial capability of the applicants, past performance, experience of executing similar works and'the factors like pendency of vigilance enquiries etc., the Committee finalised the list of contractors who were pre-qualified for participating in the tenders. The particulars of the works for which pre-qualification bids were invited, the number of the contractors who filed their bids and the number of those who pre-qualified are as under:
S. No. Annexure Name of work No. of No. of contractors who pre-qualified filed theirbids.
1.
P.2 Block C (Phase IV) Finishing items 22 9
2. P.3
i) Block D (RCC frame structure Phase-1, 11) 14 4
ii) Block D (RCC frame structure Phase-111& IV) 14 4
3. P.4
i) Block C (Phase-1) 22 11
ii) Block C (Phase-11) Finishing items 22 12
iii) Block C (Phase-111) Tinishing items 22 13
3. Two of the petitioners, namely, M/s. Forward Builders and M/s Sant Builders and Engineers did not, at alt, apply for pre-qualification in pursuance of the notices issued by the Executive Engineer and the petitioner No. 6-M/s Mounton Fabricators applied for three works of Block 'C only. Out of the remaining 6 petitioners, M/s Abhinandan Construction and M/s Ram Lal Garg and Company were declared as pre-qualified for all the works in relation to Block 'C' and petitioner No. 8-M/s Hans Raj Kohli and Company was declared qualified for all the six works.
4. The petitioners have challenged the conditions of pre-qualification and the exercise undertaken by the Committee constituted by the Chandigarh Administration on the ground that the conditions laid down by the Administration are highly irrational and arbitrary and that a deliberate attempt has been made to reduce the number of the applicants with the avowed object of awarding contracts only to those whom the Administration wanted to favour. In the replication filed by them, it has been averred that in the advertisement/notice issued inviting prc-qualification bids for construction of Block 'C' (finishing items), Phases I, II, III and IV, the estimated cost was mentioned as Rs. 1,56,00,000/-, Rs. 2,16,00,000/-, Rs. 2,28,00,000/-and Rs. 2,41,00,000/- respectively with a condition that the prospective contractors should have completed two works of simitar nature having magnitude of Rs. 63,00,000/-, Rs. 87,00,000/-, Rs 92,00,0007-and Rs. 99,66,000/-, but in the main tender notices the amount of costs were reduced to Rs. 1,35,00,000/-, Rs. 1,58,00,000/- Rs. 1,65,00,000/- and Rs. 1,60,00,000/-with the sole object of excluding a large number of contractors at the stage of pre-qualification. They have further averred that very high estimated costs were showm in the pre-qualification notices with a view to exclude genuine contractors. Still further, they have averred that those who were recommended by the Executive Engineer were ignored/disqualified by the Committee without assigning any reason and those who were not recommended by the Executive Engineer were declared as pre-qualified due to extraneous reasons. According to the petitioners, some of t hem could not apply for pre-qualification on account of the arbitrary conditions incorporated in the notices Annexures P.2 to P.4 and this should be treated as sufficient for quashing of the impugned notices.
5. In the written statement filed on behalf of the respondents, it has been averred that practice of pre-qualification is being followed by various government departments and organisations with a view to ensure that genuine bidders participate in the award of contract. According to the respondents, the applications received in pursuance of the impugned notices were scrutinised by the Committee and suitable contractors were declared as pre- qualified by uniformly applying a rational criteria. The respondents have averred that the reasons for disqualification were either lack of experience in executing works of similar nature or poor performance in the past or involvement in the vigi-lance enquiries.
6. C.W.P. No. 15791 of 1998Pe titioner Rajiv Sharma has averred that he is a social worker and has invoked jurisdiction of this Court in public interest because the pre-qualification conditions enshrined in the notices issued by the department for award of contractors (Contracts ?) in relation to the bui Iding of Government Medical College and Hospital are arbitrary and against the interest of the revenue of the State.
7. The respondents have challenged the locus standi of the petitioner by stating that he has filed the petition for extraneous reasons.
8. Shri P.S. Patwalia argued that pre-qualification conditions laid down by the Chandigarh Administration should be declared ultra vires to Article 14 of the Constitution because a deliberate attempt has been made to exclude eligible 'A' class contractors from giving their bids for pre-qualification. He submitted that the conditions regarding execution of the works of a particular nature was tailored to restrict the zone of consideration to a few applicants and those who has sufficient experience were arbitrarily excluded. Learned counsel then argued that a number of contractors who had given bids were disqualified on the ground of lack of experience ignoring the fact that they had sufficient experience of executing similar works. Learned counsel heavily relied on the recommendations made by the Executive Engineer vide letter dated 15.6.1998 and argued that the decision taken by the Committee constituted by the Adviser is vitiated by arbitrariness and mala fides. Shri Pawan Bansal adopted the arguments of Shri Patwalia and further submitted that the system of pre-qualification is being exercised by the Administration for favouring a few contractors and this has led to unhealthy competition among the contractors. Learned counsel submitted that there is no transparency in the award of contract by the Chandigarh Administration and, therefore, the Court should issue guide-lines in this respect.
9. Shri Rajan Gupta and Shri Vivek Bhandari questioned the locus stemdi of the petitioners of C. W.P. No. 15791 of 1998 and argued that those who had participated in the pre-qualiflcation bids have no right to challenge the procedure adopted by the Administration for award of contract. Learned counsel laid emphasis on the fact that 7 of the 9 petitioners had given bids in response to the pre-qualification notices and argued that they are estopped from challenging the conditions of pre-qualification. As regards M/s Surindera Builders and M/s Sant Builders and Engineers, learned counsel submitted that they too cannot challenge the procedure adopted by the Chandigarh Administration because they had never protested against the conditions embodied in the pre-qualification notices. Shri Gupta submitted that the recommendations made by the Executive Engineer are not binding on the Chandigarh Administration and the Committee has taken independent decision after considering the competitive bids given by the eligible applicants. Shri Vivek Bhandari referred to the averments made in the written statement of respondent No. 4 to show that the said respondent was declared qualified keeping in view its financial capability and past experience of executing works of similar nature. Learned counsel also challenged the standing of petitioner-Rajiv Sharma by arguing that he does not have any interest in the matter. They pointed out that he has filed the writ petition in the name of public interest litigation after the Court had vacated the ad interim order passed in favour of petitioners-M/s Gautam Builders and others.
10. We have thoughtfully considered the respective arguments and are of the opinion that the writ petitions deserve to be dismissed. It is not in dispute that 7 of the 9 petitioners who have filed C.W.P. No. 13956 of 1998 had taken active part in the procedure adopted by the Chandigarh Administration for pre-qualification for award on contract and neither they nor the remaining two petitioners had lodged any protest or expressed any reservation about the nature of conditions enshrined in the notices Annexures P.2 to P.4 issued by the Executive Engineer. Those who had not given pre-qualification bids did not make representation to the concerned authorities pointing out that they were unable to give bids due to onerous conditions imposed by the Administration. This shows that the petitioners have approached the Court after the finalisation of the pre-qualification bids with the sole object of frustrating the award of contract to those who were declared successful and in our considered view, they are estopped from challenging the procedure adopted by the official respondent for pre-qualification.
11. A look at the minutes of the meeting of the Tender Committee constituted by the Adviser to the Administrator which consisted of Secretary Engineering, Chandigarh Administration; Chief Engineer, Chandigarh Administration: Superintending Engineer, Planning Circle, Union Territory, Chandigarh and Superintending Engineer, Construction Circle No. 1, Chandigarh Administration shows that while evaluating the bids given by the eligible applicants, the Committee had taken into consideration their past performance, experience of having executed similar works, the quality of works undertaken by them and the vigilance enquiries. The petitioners have not made any allegation of mala fide or bias or ill-will against the members of the Committee'or any other officer of the Chandigarh Administration. Therefore, we are unable to entertain their plea that the decision taken by the Committee is actuated by ulterior motive or that its decision is founded on extraneous reasons.
12. We are also not impressed with the argument of the learned counsel that some of the petitioners have been disqualified due to misrepresentation of facts in relation to the works executed by them in the past. We have gone through the details of the works executed by the petitioners, as given in paragraph 6 of the replication, and the additional affidavit dated 26.10.1998, filed by Shri R.K. Jain, Superintending Engineer, Construction Circle No. 1, Union Territory, Chandigarh and are of the opinion that the complaint made by the petitioners is not well-founded. For the sake of reference, the averments made in paragraph 6 of the replication and paragraphs 4 to 7 of the affidavit of Shri R.K. Jain are reproduced below:
"Paragraph 6 of the replication
6. That the contents of para No. 6 of the written statement are wrong and hence denied. As far as the performance and experience of the petitioners is concerned, some of the examples of the same are given below:
PETITIONER NO. 1 M/s GAUTAM BUILDERS a. Construction of 72 Nos. MIG(P) in Sector 61 Chandigarh amounting to Rs. 1.32 crores which was completed on 30.5.1997.
b. Construction of 64 Nos. Houses Type HI/11 in Sector 33-B, Chandigarh amounting to Rs. 1.12 crores which was completed on 9.1.1997.
c. In January/February, 1998 was pre-qualified for Consumer Forum Building Sector 19, amounting to Rs. 12.38 crores.
d. Pre-qualified for a job of finishing items in the Phase I and II of Nurses Hostel amounting to Rs.
1.50 crores.
PETITIONER NO. 2 M/S ABH1NANDAN CONSTRUCTIONS a. Completed RCC Framed Structure building of Extension High Court building including finishing amounting to Rs. 1.47 crores.
b. Completed building of Nurses Hostel, Medical College Sector 32, amounting to Rs. 80 lacs.
c. Construction of Four Storeyed 48 houses, category, I in Modem Housing Complex Manimajra amounting to Rs. 1.12 crores, present value 2.25 crores.
PETITIONER NO. 3 M/S SANDEEP AND COMPANY a. Construction of Block C of Medical College Sector 32, Phase-Ill amounting to Rs. 1.00 crore and which was completed in Feb. 1998.
b. Building Block 'C' of Medical College Sector 32, amounting to Rs. 2.23 crore which was completed on Jan, 1998.
PETITIONER NO. 4 M/S RAM LAL GARG AND COMPANY a. Construction of 132 Nos. Houses of MIG, in Sector 64-A, SAS Nagar amounting to Rs. 180 lacs which was completed in December, 1997.
b. Construction of 48 Nos. category flats group IV at Manimajra amounting to Rs.89,23,578/-and was completed on 30.12.1993.
PETITIONER NO. 5 M/S SURINDERA BUILDERS a. 32 houses type V in Sector 19 in Part I amounting to Rs. 90 lacs in 1995, present value Rs. 1.50 crores.
b. Part II of the above said amounting to Rs. 1.28 crore completed in 1997.
PETITIONER NO. 8 M/S HANS RAJ KOHLI AND SONS a. Approved for construction of six storeyed building in block D in phase I and II Govt. Medical College, Sector 32, Chandigarh.
As far as the recommendations of pre-qualifications by the Executive Engineer is concerned, it is the Executive Engineer who is signatory to the agreement, under whose supervision the work is done and he is the officer who makes the payment to the contractors. Therefore, the Executive Engineer is the officer who knows about the working of all the contractors and he is the official who scrutinizes the applications of all the contractors. Therefore, it is wrong to say that the recommendation for pre-qualifications or rejections by the Executive Engineer carry no significance.
Paragraphs 4 to 7 of the affidavit of Shri R.K. Jain A. That the pre-qualification bids were duly considered by a committee constituted with the approval of Adviser to the Administrator, U.T., Chandigarh which includes the following members as per orders annexed as Annexure R. 1 :
1. Chief Engineer& Secretary Engineering, Chandi garh Administration. .....Chairman
2. Joint Secretary (Finance), Union Territory, Chandigarh, .....Member
3. Superintending Engineer, Planning Circle, Chandigarh, .....".Member
4. Superintending Engineer of the concerned Wing., .....Member/Convenor The Committee met on 6.7.1998 for considering pre-qualification of the contractors in respect of all the six works listed in the advertisements.
The Committee deliberated on the bids of each contractor and based on criteria as laid down in the Annexure P.2 to P.4, financial capability, past performance, experience on similar nature of works, any vigilance enquiry pending against any contractor etc. finalised the list of contractors for all the six works and pre-qualified them for participating in the tenders.
5. That in respect of finishing works of C Block out of the total 9 petitioners, the petitioner No. 2, 4 and 8 have been qualified, petitioner No. 1, 3 and 5 have applied but not qualified, petitioner No. 6 has applied for 3 works but not qualified whereas petitioner Nos. 7 and 9 have not applied for the pre-qualification of any of the 4 works and thus nave no locus standi in this case.
6. That for both the works of 'D' Block the petitioner No. 8 has been prequalified, petitioners No. 1, 2, 3 and 5 have applied but have not pre- qualified whereas petitioners No. 4, 6, 7 and 9 have not applied for pre- qualification and thus have no locus standi in this case as far as 'D' Block is concerned.
7. That the reason(s) for not considering the petitioners who have put in their pre-qualification bids for either 'C' Block or 'D' Block or for both are discussed below against each;
Petitioner No. 1 - M/s Gautam Builders The contractor has not been qualified both for 'C' and 'D' Blocks because of his past performance not being satisfactory. In fact for the poor quality of work carried out in Sector-24 by M/s Gautam Builders, three officers have been charge-sheeted i.e. Executive Engineer, Sub-Divisional Engineer and Junior Engineer. This aspect came to the notice of the committee only during July, 1998 and thus could not be ignored. It was felt that a contractor who cannot even give proper slops in the bathrooms, can in no way maintain the workmanship and quality for the structure work in the prestigious Medical College Works.
Petitioner No. 2 - M/s Abhinandan Construction The petitioner has been pre-qualified for all the four finishing works of 'C' Block. However, he has not been qualified for RCC frame structure works for 'D' Block of the Govt Medical College & Hospital, Sector 32 since the list of works submitted by him of having carried out similar works does not include two works of RCC frame structure of the prescribed value as stipulated under condition No. 1 of the Notice inviting pre-qualification bids.
Petitioner No. 3 - M/S Sandeep & Company The contractor has not been qualified for either 'C' Block or 'D' Block works as this agency in involved in a Vigilance case being investigated by the Vigilance Cell of the Chandigarh Admn. Since a Vigilance case is pending against the agency, the Committee has not considered it appropriate to qualify the said contractor.
Petitioner No. 4 - M/S Ram Lal Garg & Company The Committee has qualified this agency for all the four finishing item works of C' Block. The said contractor has also applied for pre- qualification of one work of RCC frame structure of 'D' Block, but has no experience of frame structure works as per list of works submitted by him and has thus not been prequalified for the said work.
Petitioner No. 5 - M/s Surindera Builders The Superintending Engineer, Construction Circle No. 1, Chandigarh had inspected the work of construction of 42 Nos. Houses of Type-I for government employees in Sector46, Chandigarh carried out by M/s Surindera Builders on 13.11,97 and has made serious observations as mentioned in letter No. 8927 dated 13.11.1997, which is annexed as Annexure R-IV. As a consequence of the inspection, the second flight of two columns were dismantled because of poor workman-ship. Moreover, the contractor has no experience in specialised RCC frame structure work which is pre-requisite condition for pre-qualification for the two works of 'D' Block.
Since the committee is competent to ignore the recommendations of an individual in the light of above, the Committee considered and found that the petitioner was not fit for pre-qualification -neither for 'C' Block works nor for 'D' Block.
Petitioner No. 6 - M/s Mounton Feb & Engg.
The said contractor has limited past experience of finishing works i.e. only of aluminium glazing which was a pre-requisite condition for pre-qualification and thus was not pre-qualified for 3 finishing works of 'C' Block for which he had put in his bid.
Petitioner No. 7 & Petitioner No. 9Did not apply for pre-qualification for works of 'C' & 'D' Block and thus have no locus standi in this case.
Petitioner No. 8The said petitioner has been pre-qualified for all the four finishing works of 'C' Block and both the works of 'D' Block and thus his filing this petition is misplaced."
A perusal of the above quoted averments makes it clear that the Committee had taken decision on the issue of pre-qualification after examining each case on its own merits. Therefore, there is no scope for Court's intervention in the matter like the present one.
For the reasons mentioned above, the writ petitions are dismissed.
13. Petitions dismissed.