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J U D G M E N T G.P. MATHUR, J.

1. This appeal, by special leave, has been preferred against the judgment and order dated 15.12.2004 of Delhi High Court, by which the writ petition filed by the first respondent, Metcalfe & Hodgkinson Pvt. Ltd. was allowed and the contract of work of professional services given by second respondent, Container Corporation of India in favour of the appellant was quashed.

2. The second respondent, Container Corporation of India (for short 'CONCOR') floated a limited tender in December 2003 for hiring professional services for survey of containers and cargo at Inland Container Depot (for short 'ICD'), Tughlakabad, Delhi, for a period of 24 months. The contract was to be awarded through a two bid process. The first part was to consist of "Pre-Qualification Bid", which was to be accompanied by various documents showing experience, constitution of the firm/company, turn over for past three years, a copy of the license to act as surveyor/loss assessor under the Insurance Act, 1938, besides other matters and earnest money in the form of bank draft/pay order. The second part was to consist of the "Financial Bid". The technical bid was to be opened on 15.12.2003 and the financial bid was to be opened on 28.2.2004. After opening the technical bid, the CONCOR pre-qualified two bidders, viz., the appellant and the first respondent. Thereafter, the financial bid was opened. The bid of the appellant was Rs.3.00 per container while that of the first respondent it was Rs.3.75 per container and as the appellant's bid was 25 per cent lower than that submitted by the first respondent, its bid was accepted and the work was awarded to it. The fist respondent initially filed Writ Petition (C) No.3687 of 2004 before the Delhi High Court challenging the eligibility of the appellant to participate in the tender process, mainly on the ground that the appellant did not have a license to act as a surveyor/loss assessor under the Insurance Act, 1938, and in support of this submission it was urged that on an earlier occasion, the bid submitted by the appellant had been rejected on the said ground. The High Court summarily dismissed the writ petition by observing that in the meanwhile the appellant might have obtained the requisite license and the court cannot be asked to undertake a roving or fishing enquiry as it is for the appropriate authority to consider and decide the matter in accordance with law. The special leave petition preferred by the first respondent against the said order was also dismissed by this Court on 5.5.2004.

3. Thereafter, the first respondent filed another writ petition on 27.5.2004 praying that the order passed by the second respondent awarding the contract of survey of containers and cargo at ICD, Tughlakabad, Delhi and ancillary facilities to the appellant pursuant to the tender notice dated 15.12.2003 be quashed and a writ of mandamus be issued to the second respondent to award the said contract to it (first respondent). The main plea taken in the writ petition was that the appellant did not meet the eligibility criteria as it did not have a liecence to act as surveyor/ loss assessor under the Insurance Act, 1938. In the counter affidavit filed by the CONCOR, it was pleaded that both the appellant and the first respondent did not fulfill the conditions mentioned in the eligibility criteria in the tender. However, clause 12 of the Instructions regarding submission of tender provided that the CONCOR had the power to relax the tender conditions and exercising power under the said clause, it had qualified both the bidders in public interest. It was further submitted that the appellant had submitted copy of license from the Insurance Regulatory and Development Authority (for short 'IRDA') in the name of Percy Meher Master. The appellant had clarified that the said license had been issued in the name of Capt. Percy Meher Master in his capacity as proprietor of Master Marine Services. Subsequently, the said proprietorship concern had been converted into a private limited company, of which Capt. Percy Meher Master was appointed as Chairman. The Tender Evaluation Committee (for short 'TEC') had deliberated upon the said fact and after taking into consideration the fact that the appellant was known to be an established surveyor doing work of number of shipping lines and that Capt. Percy Meher Master had been appointed as Chairman of the Company by its Board, the tender committee took a decision that the financial bids of both the bidders be opened. The first respondent had enclosed two IICL certificates, but the same were not in conformity with the tender conditions. It was further pleaded that the major work (98%) under the contract is of data entry i.e. recording of container number, seal number, condition of seal and external condition of container on arrival and dispatch of containers from the ICD for which the appellant had quoted Rs.3.00 per container against Rs.3.75 of the first respondent and for such kind of work no license under IRDA is required. Having regard to the fact that the bid offered by the first respondent for external survey of a container, which is the main work, was 25 per cent higher than that of the appellant, the work was awarded to the appellant.

4. The appellant also filed a counter affidavit stating that Capt. Percy Meher Master started a sole proprietorship business of marine and cargo surveyors by the name of Master Marine Services in February, 1983. He had in his name a license to act as a surveyor/loss assessor under the Insurance Act, 1938. As over the years the business had considerably increased, a private limited company by the name of Master Marine Services Pvt. Ltd. was formed on 6.10.1997, which took over the entire business of the proprietorship concern. The main object of the company is to carry out ship, cargo and marine surveys and to act as loss assessors and technical consultants. In the company 40.02 per cent shares are held by Capt. Percy Meher Master and the remaining shares are held by his wife, son and daughter and all four of them are directors in the company. It was also stated that an agreement was entered into on 15.10.1997, whereunder Capt. Percy Meher Master who is the Chairman and Managing Director of the company, would be employed as a consultant with the company and he will sign all survey reports on behalf of the company. Besides this, several other pleas were also taken including a plea that the second writ petition was barred by the principles of res judicata and Order 2 Rule 2 CPC as an earlier writ petition filed by the first respondent had already been dismissed by the High Court and the special leave petition preferred against the said order had also been dismissed.

6. Learned counsel for the appellant has submitted that the only ground on which the High Court has set aside the award of contract to the appellant is that it does not possess a license to act as surveyor/loss assessor under the Insurance Act, 1938. Initially in the year 1983, Capt. Percy Meher Master, who had a license to act as surveyor/loss assessor under the Insurance Act, had started a sole proprietorship business in the name of Master Marine Services. Subsequently, on account of increase in business, he formed a private limited company in 1997 by the name of Master Marine Services Pvt. Ltd. (appellant herein), which took over the entire business of Master Marine Services (the sole proprietorship concern). Capt. Percy Meher Master holds 40.02 per cent share holding in the said company and the remaining is held by his wife, son and daughter who are all directors of the company. The company had also entered into an agreement whereunder Capt. Percy Meher Master, who is also the Chairman and Managing Director of the company, will be employed as consultant. Having regard to these facts, it could not be said that the appellant did not hold a license to act as surveyor/loss assessor. Learned counsel has further submitted that the tender document contained a clause that the CONCOR had a right to relax the tender conditions. The TEC after careful examination of the entire matter had approved the technical bid of the appellant and in view of the fact that the bid made by the appellant was 25 per cent lower than that of the first respondent, the contract was awarded to it. It has thus been submitted that the High Court, while hearing a writ petition under Article 226 of the Constitution, has not acted under the well-defined parameters of judicial review of administrative action in setting aside the order of the CONCOR in awarding the contract to the appellant. The learned counsel for the first respondent has, on the other hand, submitted that the condition regarding holding of a license to act as surveyor/loss assessor under the Insurance Act was an essential condition which could not be relaxed. Section 64-UM of the Insurance Act mandates that no person shall act as surveyor or loss assessor in respect of general insurance business unless he holds a valid license issued to him by Insurance Regulatory and Development Authority. Sub-section (D) of this Section lays down that no license to act as a surveyor or loss assessor shall be issued unless the applicant, where he is an individual, satisfies the Authority that he possesses the qualification enumerated in sub-clauses (a) to (g) and where the applicant is a company or firm, it satisfies the Authority that all its directors and partners, as the case may be, possess one or more qualifications as aforesaid and none of such directors or partners suffer from any of the disqualifications mentioned in sub-section (4) of Section