G.R. Infraprojects Ltd. vs Airports Authority Of India
2009 Latest Caselaw 1424 Del

*          HIGH COURT OF DELHI : NEW DELHI


+          Writ Petition (Civil) No.335 of 2009


                                 Judgment reserved on: April 13, 2008

%                                Judgment delivered on: April 16, 2009

G.R. Infraprojects Ltd.
G.R. House, Hiran Magri
Sector-11, Udaipur
Rajasthan                                             ...Petitioner

                      Through Mr. Dinesh Agnani, Advocate

                      Versus

Airports Authority of India
Rajiv Gandhi Bhawan
Safdarjung Airport
New Delhi-110003                                      ...Respondent

                      Through Mr. Parag P. Tripathi, ASG with
                              Ms. Anjana Gosain and
                              Mr. A. Nargolkar, Advocates

Coram:

HON'BLE MR. JUSTICE MADAN B. LOKUR
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                              Yes

2. To be referred to Reporter or not?                           Yes

3. Whether the judgment should be reported
   in the Digest?                                               Yes

WP (C) No.335/2009                                            Page 1 of 8
 MADAN B. LOKUR, J.

On or about 23rd July, 2008 the Respondent issued a notice

inviting applications for short-listing of contractors for the construction

of a new apron with link taxiway, expansion of existing apron and

associated electrical works at Raja Bhoj Airport in Bhopal.

2. The Petitioner is aggrieved by one of the eligibility criteria

mentioned in the notice inviting applications. The grievance of the

Petitioner is to the following criterion:

"Should have satisfactorily completed (Phase/Part completion of the scope of work in a contract shall not be considered) three pavements works, each of Rs.2184.00 lacs or two works, each of Rs.2729.00 lacs or one work of Rs.4367.00 lacs of Rigid Pavements or Rigid/Flexible combined pavements of Airfield Pavement or National Highways/Expressways (experience in State Highways/City roads/Town Roads etc could not be considered) during the last seven years ending on last day of month previous to the one in which applications are invited. Client certificate ... ... ..." (underlining supplied)

3. A reading of the above criterion shows that for being eligible

to participate in the bidding process, a contractor must fulfill two

conditions. The first condition, and one that we are really concerned

with, is that the bidder should have satisfactorily completed construction

of, inter alia, a National Highway/Expressway. It is specifically noted

(though parenthetically) that experience in State Highways/City

roads/Town roads etc. is not to be considered as relevant for this

purpose. There is, therefore, a clear distinction made out between a

National Highway and a State Highway.

4. The view of the Petitioner is that technically there is no

difference between the construction of a National Highway and the

construction of a State Highway and since the Petitioner has

successfully completed a project of the requisite value of a State

Highway, it is entitled to be considered for the grant of a tender.

However, since the Petitioner was not given the tender documents, it

approached this Court for appropriate relief.

5. The sole question that has been urged for our consideration is

whether, for the purposes of construction and technical specifications,

there is a distinction between a State Highway and a National Highway.

In our opinion, the answer must be in the affirmative.

6. Learned counsel for the Petitioner submitted that his client

had successfully completed a mega State Highway project and that by

virtue of Section 2 of the National Highways Act, 1956, a State

Highway could be converted into a National Highway by a notification

and vice-versa. It was submitted, therefore, that having successfully

completed a mega State Highway project the Petitioner should be

considered as eligible for bidding for the tender, subject matter of this

writ petition.

7. Learned counsel for the Petitioner as well as the learned

Additional Solicitor General have both accepted the fact that the

Specifications for Road and Bridge Works (Fourth Revision) published

by the Indian Road Congress under the auspices of the Ministry of

Shipping, Road Transport and Highways is the most authentic work on

road works. Section 902 of this book deals with the control of

alignment, level of surface regularity of all works. Section 902.4 deals

with Surface Regularity of Pavement Courses, and this reads as

follows:-

"902.4. Surface Regularity of Pavement Course

The longitudinal profile shall be checked with a 3 metre long straight edge/moving straight-edge as desired by the Engineer at the middle of each traffic lane along a line parallel to the centre line of the road.

The maximum permitted number of surface irregularities shall be as per Table 900-2."

8. Table 900-2 gives the maximum permissible surface

irregularities on a road surface. In the case of a National Highway for a

length of 300 meters, a maximum of 20 irregularities of 4 mm each is

permitted. For roads of a lower category, 40 irregularities of 4 mm each

is permitted. Ex-facie, there is a clear distinction between a National

Highway/Expressway and roads of other categories which would

include State Highways (since State Highways are not National

Highways). Table 900-2 reads as follows:

"Table 900-2. MAXIMUM PERTIMITTED NUMBER OF SURFACE IRRGULALRIIES

Surfaces of carriageways Surfaces of laybys, and paved shoulders service areas and all bituminous base courses

Irregularity 4 mm 7 mm 4 mm 7 mm

Length (m) 300 75 300 75 300 75 300 75

National 20 0 2 1 40 18 4 2 Highways/ Expressways Roads of 40 18 4 2 60 27 6 3 lower category*

*Category of each section of road as described in the Contract.

9. There being a clear and apparent distinction between a

National Highway and a State Highway, it is not correct on the part of

learned counsel for the Petitioner to contend that merely because his

client has successfully completed a work with regard to a State

Highway, he should ipso facto be deemed to have completed a work

with regard to a National Highway. With respect, he overlooks the

obvious, as also the tender document itself which specifically excludes

the construction of a State Highway from consideration.

10. In this background, if we look at the prayer made in the writ

petition, it is significant to note that the Petitioner has not actually

challenged the eligibility criterion, as orally argued. All that the

Petitioner has prayed for is that it should be issued the tender documents

to enable it to bid for the contract at Bhopal Airport. Since there is no

challenge to the tender condition as orally contended, strictly speaking

the writ petition ought to be dismissed on this ground alone but we are

not doing so. Even on merits, we do not find any substance in the

contentions urged by learned counsel for the Petitioner, as indicated

above.

11. It is now well settled law, through a series of decisions

rendered by the Supreme Court, that the conditions of a tender cannot be

challenged by a prospective bidder unless the conditions are totally

unreasonable or whimsical. [See, for example, Tata Cellular v. Union

of India, (1994) 6 SCC 651]. This view has also been taken by this

Court in Nagarjuna Construction v. Delhi Jal Board, 157 (2009) DLT

568 (DB).

12. In so far as the present case is concerned, nothing has been

shown to us to suggest that the eligibility requirement in the tender

document is unreasonable or arbitrary. What has been contended is

simply this: there is no technical distinction between a State Highway

and a National Highway. As we have already discussed above, we do

not agree with this contention of learned counsel for the Petitioner -

there is a clear distinction between a State Highway and a National

Highway. Merely because the Petitioner has some experience of

constructing a State Highway does not mean that it can match the

requirements of constructing a road having the same technical

specifications or qualities as a National Highway.

13. We have not been shown anything arbitrary or unreasonable

or irrational in the condition imposed in the tender documents excluding

the experience of construction of a State Highway from consideration.

14. There is no merit in the writ petition. It is dismissed with

costs of Rs.20,000/-. The Petitioner will deposit this amount by way of

a demand draft in favour of the Registrar General of this Court within

four weeks from today.

15. List for compliance on 20th May, 2009.

                                       MADAN B. LOKUR, J



April 16, 2009                         SIDDHARTH MRIDUL, J
ncg

Certified that the corrected copy
of the judgment has been
transmitted in the main Server.