JUDGMENT M. Jagannadha Rao, C.J.
(1) The writ petition is filed by the petitioner V.K. Dewan & Co. questioning the grant of tender forms to the 4th respondent (Ch. Chatter Singh Saini & Co.). The grant of the tender forms to the 4th respondent is objected on the ground that he does not have the necessary experience in particular type of work - viz. construction of water retaining structure, the cost of construction of which is estimated at about Rs. 3 crores. The contesting respondents are the Municipal Corporation of Delhi and the 4th respondent. The 4th respondent became the lowest bidder after he made his offer on the basis of the tender forms given to him earlier, the petitioner is the next lowest, the difference between the offers being 61,703 only out of the total value of about Rs. 3 crores. In fact, the petitioner who at the relevant time was black-listed by the Mcd made his offer on the basis of certain interim orders of this Court in another writ petition which was later allowed by this Court.
(2) The point in the petition was raised by Shri P.N. Lekhi for the petitioner in the following manner. The advertisement (Ex. P1 dated 8.3.1994) Times of India required tenders to be submitted by Contractors: "having experience of execution of the similar nature of works successfully. They may apply Along with the list of similar works executed."
(3) PETITIONER'S counsel contends, on the basis of the file-nothings of the MCD's officers (produced by the respondents as Ex. R7). These nothings are made by three officers during the period 28.3.94 and 29.3.94. From these nothings, petitioner's counsel wants to make out a case that the 4th respondent did not have, even according to the Mcd, the necessary experience in carrying out similar works and that it was only because the 4th respondent agreed to have the services of Mr. Harbans Singh (Retd. Superintending Engineer) utilised for the work, the respondents have accepted to give 'tender forms' to the 4th respondent and otherwise, the 4th respondent would have got eliminated even at the threshold, i.e. even before the tender forms were issued. If the 4th respondent would thus get eliminated the petitioner's tender being the next lowest, the petitioner should be declared to be entitled to the grant of the contract.
(4) It is therefore necessary to refer to the office nothings of the three officers on the basis of which the arguments on both sides proceeded. These nothings made at the stage of grant of tender forms can now be conveniently referred to.
(5) Initially the Executive Engineer on 28.3.94 stated as follows: "CH.Chatter Singh & co. who is a registered contractor of undertaking in Class I eligible to tender up to any amount has requested for issue of tender for UGR/BPS at Lawrence Road. Firms qualifies all conditions of Nit except execution of similar work. Firm has already been issued tenders for such works for various works but remains unable to get the work and same can be seen from the request attached. For the Healthy competition in the interest of undertaking, tender may kindly be issued"
sd/- 28.3.94 EE(U) CI" Then, the Superintending Engineer (who is also Director, Projects) stated as follows on 29.3.94: "MAY kindly peruse the request for issue of tenders for the work of construction of UGR/BPS at Lawrence road from Ch. Chatter Singh Saini & Co. He is a Class I contractor registered with the Undertaking and is eligible to tender up to any limit. His turn over of the last year as per Itcc is more than 2 crore (may refer to copy of Itcc certificate enclosed). He is fulfillling all the conditions but for the fact that he has not constructed any water retaining structure. However, he has hired the services of Mr. Harbans Singh (Retd. S.E. of Delhi W/S) for carrying out supervise and execute this work. He was issued tenders for similar works earlier by the Department".
Director (Project) Finally, the Engineer-in-chief stated as follows on 29.3.94: "ISSUE of tender is recommended with the condition that in case the work is awarded, the work will be supervised by Shri Harbans Singh, Engineer, who has adequate experience of water retaining works. Engineer-in-Chief"
(6) We shall first deal with a subsidiary issue raised for the first time before us and which is not based on any pleadings. An argument was built up for the petitioner that the name of 'Mr. Harbans Singh, retd. S.E., whose services the 4th respondent agreed to utilise, was brought into the picture by "smuggling" a letter now available in the record. The letter is addressed by the 4th respondent to the Executive Engineer (copy of which is produced by the respondents as Ex. R5). It is pointed out that the original does not bear any date and it is also pointed out that when it refers to a demand draft dated 29.3.94,it could not have been received on 28th, so as to be processed by the Executive Engineer. This is because the noting of the Executive Engineer (with reference to the 4th respondents' letter for grant of tender forms), is dated 28.3.94 and refers to this letter which bears reference to the Dd dated 29.3.94.
(7) Learned counsel for the Mcd & 4th respondent contended that no such plea of 'smuggling' documents into the Mcd record could be permitted to be raised by the petitioner at this stage without any amendment of pleadings and without opportunity being granted to the concerned officials to explain the facts and file their personal affidavits.
(8) After examining the original file and the nothings and the letter of the 4th respondent, we are satisfied that there is no 'smuggling' of any new documents into the file. In fact, as per the advertisement, the tender forms with specifications could be had from the office of the Executive Engineer on any working day, on or before 31.3.94. Now the nothings dated 29.3.94 of the Director and of the Engineer-in-chief refer by name to Mr. Harbans Singh (Retd) S.E. and as a person being employed by the 4th respondent. It is clear therefore that the letter referring to the utilisation of the services of Mr. Harbans Singh, retd. S.E., written by the 4th respondent, was, in any event, received by the respondent 1 well before 31st. So far as the reference to the demand draft dated 29.3.94 for Rs. 20,000.00 on Canara Bank, inserted in ink, in the letter of the petitioner is concerned, (which according to respondent 1 was received by 28.3.94 as per the EE's nothings), it was explained that initially the letter with blanks was given on/before 28.3.94 seeking grant of tender forms and after the E.E" Director & Engineer-in-chief, gave a favorable decision on 28th, 29th March regarding the eligibility of the 4th respondent, then the Dd was obtained on 29th and the relevant particulars were inserted in the letter already given to the 1 st respondent. It is said that in situations wherein a question of eligibility arises, this procedure is normally adopted so that DD's are not obtained unnecessarily and which may require to be cancelled later on. We are inclined to accept this explanation of the respondents particularly when these are new points orally raised by the petitioner for the first time before us without any amendment of the writ petition. In any event, the letter and Dd were there well before 31.3.94. We shall now proceed to take up the main point.
(9) Learned counsel for petitioner points out that, as per the advertisement, the tenders papers can be granted in favor of a contractor only, if the applicant has "experience of execution of the similar nature of works successfully. They may apply Along with the list of similar works executed". The advertisement also says "the contractors should apply for the issue of tender documents along with details of similar works executed by them duly supported by performance certificate from the concerned departments". It is argued that the nature of the work is: "CONSTRUCTION of Under-Ground Reservoir and Booster pumping station at Lawrence Road, New Delhi"
and that the words "similar nature''of works must relate to 'Construction of Under-ground Reservoirs and Booster pumping Stations"
(10) Now, so far the nothings in the file of the 1st respondent are concerned, we have set them out earlier. The Executive Engineer stated that the 4th respondent has qualified in respect of all conditions and that he is a registered contractor undertaking Class-1 works and is eligible. No doubt he also said that the 4th respondent has qualified in respect of all conditions, "except execution of similar works". He also pointed out that tenders for "such works" were previously issued to the 4th respondent. May be, the rates quoted by the 4th respondent were not lowest and he did not get those contracts. So far as the Superintending Engineer (Director) is concerned, he stated that 4th respondent is a Class-1 contractor and was eligible to tender up to any limit. His turn - over of the last year was more than 2 crores. He had fulfillled all the conditions but for the tact that he had not constructed any water retaining structure. However, 4th respondent had hired the services of Mr. Harbans Singh for carrying out/supervise and execute the work and hence the tenders forms could be issued. It was also stated that he was issued tenders for similar works earlier by the department. The Engineer-in-Chief opined that issue of tender form is recommended with the condition that in case the work is awarded, the same will be supervised by Sh. Harbans Singh,Retd. Engineer who has adequate experience of water retaining works.
(11) Relying on the above nothings of the officers, petitioner's counsel contends that there is an admission that the 4th respondent does not have experience in similar works nor is there any evidence of successful completion of similar works and hence the very grant of tender papers is illegal.
(12) Learned counsel for the 4th respondent while contending that there is no such admission by the 1st respondent, argues that the 4th respondent is a Class I Contractor registered with the respondents and had completed various other works running into crores of rupees earlier and that this fact was within the knowledge of the 1st respondent's officers. He placed before us, by way of an additional affidavit dated 13th July,1994, the list of works (Annexure A.B,C,D,E,F,G,H,I,J,K) earlier completed by the 4th respondent turn the MCD. As these facts were obviously within the personal knowledge of the officers of the Department, they were fully satisfied about the experience in "similar" works. According to counsel similar work does not mean "identical works". He contends that it is not for this Court to go into the correctness of the opinion of the 1st respondent's officers on the question as to the 4th respondent's experience. The works successfully completed by the 4th respondent were to the tune of crores of rupees and they involved various types of civil works similar to the present work. This additional counter shows that 4th respondent had done works for the Mcd involved "digging up to a depth of 35', dewatering, laying foundation in concrete, R.C.C, brick work, installing pipes, encasing pipes with concrete, centering and shuttering, curing and then filling back trenches with excavated earth". The Uttam Nagar Column extended to stretches of 3 Km, the Mangolpuri works extended to 6 KM. The details of various works are appended to the additional affidavit dated 13.7.94. On that basis, it was pointed out that the 4th respondent has experience in successful completion of several works which were of similar nature. The 4th respondent contended in his counter that: "similar work is involved in laying trunk distribution works except that the digging is for lesser depth, but it includes welding, casting of thrust blocks in concrete/reinforced concrete."
(13) It is also submitted in para 7 that the present work involves: "Nothing else but digging, dewatering, laying concrete, Rcc work, brickwork, dewatering, laying concrete, Rcc work, brick work, centering and shuttering and laying pipes for construction of underground reservoir and booster pumping station".
(14) It is also said in para 8 that "the works involved in the construction of underground reservoir and booster pumping station are of similar nature to the works aforesaid awarded to me and successfully carried out". The volume of each of those works carried out was also in crores of rupees.
(15) Again, in the counter filed by the 1st respondent, it is stated that respondent 4 has executed a large number of similar contracts awarded by respondents I and 2 and has executed them successfully to the satisfaction of the respondents. In para 6 of the counter it is clarified that the 'experience required was in the construction of cement concrete structures._ It is said that the respondent No.4 has vast experience in the construction of this type of structures and has already executed more than 20 contracts of "similar nature." It is reiterated in para 13 of the counter that tender papers were issued to 4th respondent "on the basis of the works already executed with respondent 2" and he has "plain record for the due performance and proper execution of all contracts and the experience based on the works already executed of similar type". It is also contended in the counter that the petitioner has been blacklisted and, in fact, has no experience in similar works.
(16) A large number of rulings have been cited by the petitioner's counsel not only on the question of grant of tenders but as to what is to be treated as a 'reasonable' exercise of discretionary powers.
(17) Learned counsel for the respondent 4 has also placed before us a large number of rulings to say that the power of judicial review in the matter relating to grant of tender forms or acceptance of tenders should be used with great circumspection and we should not interfere in this case as no malafides are attributed and further the decision of respondents 1 and 2 as to the "experience" of the 4th respondent in "similar works" is mostly a matter for respondents 1and 2 and not for this Court. It is argued that as long as there is material either produced before the officers or which was within the personal knowledge of respondents 1and 2 - the 4th respondent having done at least 20 contracts for there worth several crores of rupees, - this Court should not interfere.
(18) The scope of exercise of the power of judicial review under Article 226 and, in particular, in case of acceptance of tenders or grant of tender forms is well settled today and we do not think it necessary to set out the principles laid down by the Supreme Court or by this Court, in the various cases cited at the Bar.
(19) We are satisfied that there is no improper exercise of discretionary power by the authorities in issuing tender forms to the 4th respondent. As pointed out in the additional counter-affidavit of respondent 4 dated 13.7.94 (read with Annexures A to K) and the counter affidavit of respondents 1 and 2 it is was within the Knowledge of the officers of the Department that the 4th respondent had successfully completed 20 contracts running into crores and these were all basically cement concrete works. The details of these works are set out in Annexure A to K of the 4th respondent's affidavit. These works having been executed for the respondents 1 and 2, the concerned officers were, in fact, personally aware of these works. As pointed out in the 4th respondent's counter, these works did involve digging up to a depth of about 35 feet, dewatering, laying concrete, Rcc, brick work, installing pipes, encasing pipes with concrete centering and shuttering, curing and then filling back the trenches with the excavated earth (see para 3 of additional counter of 4th respondent). The said works involved huge sewer constructions running up to 6 Km and crores of rupees. Here we are concerned with yet another type of cement concrete work relating to underground reservoir and pumping station. The experience of the 4th respondent in the works completed by him has been adjudged to be work of a 'similar' nature. As pointed out by the learned counsel for 4th respondent, what is necessary to consider is whether it is 'similar' work and not whether it is 'same kind' of work. In our view, it is not for this Court to say that the opinion of the technical authorities like the Director and the Engineer-in-chief is either faulty or based on no material. We have referred to the material available. In addition, they thought that the help of a retired Engineer, Mr. Harbans Singh, would help the 4th respondent in executing the present work with ease. The Director in his noting on the file clearly stated that the 4th respondent was, in fact, earlier issued tenders for similar work by this very department.
(20) We are,therefore, unable to hold that the decision, in the overall facts and circumstances of this case, is vitiated by any favoritism. In fact, there is neither any plea nor argument that the act of the respondents 1 and 2 in issuing tender forms to the 4th respondent was malafide.
(21) There is yet another reason as to why we should not interfere. This Court must be careful in interfering with grant of tender papers in works like construction of underground water tanks of public utility. These are urgent matters relating to civic amenities in a growing metropolis and unless we find something palpably wrong, illegal or malafide, we should not intervene for that would delay the drinking water facility for lakhs of people here.
(22) We therefore do not find anything illegal in the grant of tender papers, to the 4th respondent. The writ petition is dismissed. The stay granted on 11.7.94 is vacated.