Delhi High Court
Larsen & Toubro Limited (Ecc ... vs The National Highways Authority ... on 16 December, 2008
Author: Manmohan
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C) Nos. 7154 of 2008
RESERVED ON : November 25th, 2008
% DATE OF DECISION : December 16th, 2008
LARSEN & TOUBRO LIMITED
(ECC DIVISION) .......Appellant
Through: Ms. Shweta Bharti,
Advocate.
Versus
THE NATIONAL HIGHWAYS AUTHORITY
OF INDIA (NHAI) & ORS. ......Respondents
Through: Mr. Dushyant Dave and
Mr. Ramji Srinivasan,
Senior Advocates with
Mr. Ravi Kini, Mr.
Kishan Kumar, Mr.
Sumit Gupta, Mr.
Mukesh Kumar and
Ms. Madhuri Diwan,
Advocates for R/NHAI.
Mr. Gaurav Duggal,
CGSC, Advocate for
Respondent UOI.
CORAM:
HON'BLE MR. JUSTICE MUKUL MUDGAL
HON'BLE MR. JUSTICE MANMOHAN
1. Whether Reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in the digest? Yes.
JUDGMENT
MANMOHAN, J.
1. The petitioner has filed the present writ petition under
Article 226 of the Constitution of India seeking the following
reliefs:-
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"(a) Issue a writ, order or direction in the nature of
certiorari or any other writ, order or direction to
quash impugned Clause Nos. 1.2.1 read with clause
3.5.2 of the RFQ document limiting the number of
shortlisted eligible bidders to participate in bidding
process in the 2nd stage upto a maximum of 7(seven)
with retrospective effect for the request for
qualification issued in respect of all projects of the
Respondent No. 1 and;
(b) Issue a writ, order or direction in the nature of
mandamus or any such writ, order or direction to
direct the Respondent No. 1 to delete Clause 3.5.2.
with retrospective effect and to be considered
deleted for all projects of Respondent No. 1.
(c) Issue a writ, order or direction in the nature of
mandamus directing the Respondents to amend
Clause 2.2.2 read with Clause 3.5.1 of the RFQ
document to provide that all members of the
consortium, with regard to the minimum technical
and financial threshold capacity, shall bring minimum
threshold experience on pro-data basis of their
equity contribution in the consortium;
(d) Issue a writ, order or direction in the nature of
mandamus directing the Respondent No. 1 to amend
Clause 3.2.6 of the RFQ document to provide for 1.5
times weightage to projects done in India in any of
the 4 categories as listed in Clause 3.2.1 vis-à-vis
projects done overseas; &
(e) Issue a writ, order or direction in the nature of
certiorari or any such writ, order or direction to quash
the letter issued by the Respondent No. 1 dated
28.08.2008 bearing reference no. RW/NH-
37011/59/2003-PIC regarding addition of additional
eligibility condition as per para 2.1.18;
(f) Issue a writ, order or direction in the nature of
mandamus or any other writ, order or direction
directing the Respondent No. 1 to allow the
WP(C) Nos. 7154/2008 2 of 4
Petitioners to participate in all the 53 projects of the
Respondent No. 1;
(g) Pass any other order (s) as this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case."
2. Thus, in essence, the petitioner is seeking to challenge the
legality, validity and constitutionality of Clauses 3.5.2 and 2.1.18
of the Request for Qualification (hereinafter referred to as 'RFQ').
But this issue is no longer res integra as after hearing the
petitioner's counsel along with other connected matters, we
have already upheld the constitutionality and legality of the said
Clauses vide our judgment and order dated 3rd November, 2008
delivered in WP(C) 566/2008 and reported as National
Highways Builders Federation v. The National Highways
Authority of India & Others. Consequently, the challenge to
the said Clauses no longer survives.
3. As far as the prayer seeking amendment of Clauses 3.2.6 &
2.2.2. and 3.5.1. of the RFQ document is concerned, we are of
the view that a writ Court has no jurisdiction or power to either
devise or propound tender terms. It is for the experts and the
party floating the tender to decide the terms on which a tender is
to be floated. The Courts will only intervene to quash a tender
term if the same is demonstrably capricious or arbitrary or not
WP(C) Nos. 7154/2008 3 of 4
informed by any reason whatsoever or suffers from the vice of
discrimination or infringe any Statute or provision of the
Constitution.
4. Therefore, the said reliefs cannot be granted to the
petitioner and, consequently, the present petition is dismissed
but with no order as to costs.
MANMOHAN, J
MUKUL MUDGAL, J
DECEMBER 16th, 2008
NG
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