Delhi High Court
M/S. Aanav Construction Company vs Oil And Natural Gas Corporation ... on 3 December, 2008
Author: Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) No. 7730/2008
Reserved on : November 21st, 2008
% Date of Decision: December 3rd, 2008
M/s. Aanav Construction Company ..... Petitioner
Through: Ms. Geeta Luthra,
Advocate
Versus
Oil and Natural Gas Corporation
Limited & Ors. ..... Respondents
Through: Mr. Rakesh Sawhney,
Advocate
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
JUDGMENT
MANMOHAN, J
1. The present writ petition has been filed under Article 226 of
the Constitution of India seeking a direction to the Respondents to
permit the Petitioner to participate in the subsequent September
2008 tender for excavation work at Plot Nos. 5A and 5B, Vasant
Kunj Shopping Mall, New Delhi. In the alternative, the Petitioner
has prayed for setting aside the fresh advertisement dated 16 th
September, 2008 and for a direction that only the parties
technically qualified in the initial Notice Inviting Tender
(hereinafter referred to as "NIT") dated July, 2007 be considered
for award of contract.
2. Briefly stated the facts of this case are that in July, 2007
Respondent No. 1 (hereinafter referred to as ONGC) issued a
notice inviting tender in The Economic Times, The Times of India
and Navbharat Times for excavation work at Plot Nos. 5A and 5B,
Vasant Kunj Shopping Mall, New Delhi. The tender was in two
parts, namely, technical and financial.
3. In response to the said NIT, the Petitioner filed its bid on 2nd
August, 2007. While the Petitioner‟s bid was being processed, the
Manager (ATC), Airport Authority of India addressed a letter dated
10th October, 2007 to the Regional Executive Director (NR), Airport
Authority of India, stating that he was authorised to issue an NOC
for height clearance in favour of ONGC, only upto a restricted
height of 20.74 mtr. AGL or 263.74 mtr. AMSL. Accordingly, ONGC
was directed to revise its sanctioned plan as ONGC‟s initial
application for NOC indicated the proposed height of its building
as 276 mtr. Though ONGC protested against the reduction in the
height of its building, it continued to process the bids filed in
response to its tender for excavation work. While on 5th December,
2007 ONGC opened the price bids of the Petitioners, on 27th
December, 2007 ONGC asked the Petitioner to extend its bank
guarantee till February, 2008. But as ONGC was unable to
persuade the Airport Authority of India to sanction 276 mtr. height
of its proposed building, ONGC decided on 29th December, 2007 to
cancel the tender for excavation work.
4. However, even after cancellation of tender for excavation,
ONGC continued to pursue the Airport Authority of India to
sanction its building with a height of 276 mtr. It pointed out that
in the neighbourhood, buildings with similar heights had already
been constructed and further lowering the height would prejudice
its interest as it would have to contend with a building three floors
less.
5. Ultimately, on 18th August, 2008 the Manager (ATC), Airport
Authority of India confirmed to the Regional Executive Director
(NR), Airport Authority of India that an NOC could be issued to
ONGC for a height clearance upto 281.50 mtr. Upon receipt of
said letter and whilst awaiting the formal NOC, ONGC issued a
fresh NIT on 16th September, 2008 for the same excavation work
at Plot Nos. 54A & 5B, Vasant Kunj Shopping Mall, New Delhi which
was advertised in Indian Express (Delhi edition), the Financial
Express (Delhi, Kolkata and Chennai editions), Jansata (Delhi
edition) and Asian Age (Mumbai edition).
6. Ms. Geeta Luthra, appearing for the Petitioner contended
that there was no change of circumstances between the floating of
the first NIT and its cancellation (July to December, 2007) as ONGC
never had an NOC for construction of building. She further
contended that the excavation work under both the NITs of July,
2007 and September, 2008 was absolutely identical and,
therefore, technically shortlisted bidders for the first NIT should
have been allowed to submit their price bids for the second NIT.
Ms. Luthra also stated that cancellation of the initial NIT and
floating of the new NIT was done at the instance of Respondent
No. 3 (Chief Engineer, ONGC) as he wanted to award the tender to
a particular bidder, namely, M/s. Star Construction. Though
Ms. Luthra did not urge yet we find that the primary ground taken
in the writ petition is that in a bid to restrict competition, the
subsequent NIT was not published in the same newspaper as the
original NIT, but was published in a newspaper which had a
comparatively smaller circulation.
7. Mr. Rakesh Sawhney, learned Counsel for ONGC submitted
that initially NIT had been issued in anticipation of receipt of
height clearance for ONGC‟s proposed building. He stated that
ONGC was optimistic that it would receive the height clearance as
buildings constructed in the neighbourhood had a similar height.
Mr. Sawhney stated that it was only when ONGC realised that
getting the height clearance certificate would take a long time, it
decided to cancel the initial NIT for excavation work. He further
pointed out that there was no attempt on the part of ONGC to
either restrict competition or prevent the previously shortlisted
tenderers from bidding under the new NIT. He stated that in the
initial NIT, Petitioner was not the lowest tenderer and in fact the
lowest tenderer had even participated in the subsequent NIT. He
pointed out that while the initial NIT was published on behalf of
ONGC by National Building Construction Corporation in
newspapers of its choice, the subsequent NIT had been published
by ONGC itself but that choice of newspapers had been made by
its Corporate Communication Group in which Mr. Sethi,
Respondent No. 3 had no role to play.
8. On hearing the parties, we are of the view that the
cancellation of the initial July, 2007 NIT has not been challenged
by the Petitioner in the present proceedings. In any event, we are
of the view that the cancellation of the initial NIT was neither
arbitrary nor done to favour some third party. The decision to
cancel was based on non-receipt of height clearance in October,
2007 from the Airport Authority of India and this, to our mind, was
a valid ground of cancellation specially when ONGC was uncertain
as to whether it would receive permission and if so at what time.
Moreover, from the record it is clear that ONGC wanted to further
pursue its permission for 276 mts. height building, as it did not
want to construct a building with three storeys less.
9. We are also not impressed with the Petitioner„s arguments
of malafide and restriction of competition as, firstly, M/s. Star
Construction, which is supposed to be the favoured party, has not
been added as respondent in the present proceedings. Secondly,
the bidder who had quoted the lowest price in the initial NIT has
participated in the subsequent NIT. Thirdly, there is no document
on record to indicate that there is such a vast difference between
the circulation of The Times of India and The Indian Express that
the subsequent NIT floated by the ONGC would go unnoticed. In
any event, we find that the subsequent NIT had been loaded on
the website of ONGC and if the Petitioner had been vigilant, it
would have been able to file its bid.
10. Consequently, the present writ petition being devoid of merits
is dismissed but with no order as to costs.
MANMOHAN, J
MUKUL MUDGAL, J
DECEMBER 3rd, 2008
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