Delhi High Court
Swami Saran Dass Sharma vs Govt. Of Nct Of Delhi & Another on 8 December, 2009
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11281/2006
CHAMPAL SINGH CHAUDHARY
+ W.P.(C) 11327/2006
SWAMI SARAN DASS SHARMA ..... Petitioners
Through Mr. Sunil K. Jha, Advocate.
versus
GOVT OF NCT & ANR ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 08.12.2009
This common order will dispose of the aforesaid two writ petitions,
which raise identical questions.
2. The petitioners herein were registered as class-II contractors with the
Department of Irrigation and Flood Control, Government of Delhi, under the
provisions of 'Enlistment Rules 2001'. The petitioners have challenged the
terms and conditions of the 'Enlistment Rules 2005' passed by the Review
Order dated 25.7.2005.
W.P.(C) No. 11281/2006
W.P.(C) No. 11327/2006 Page 1
3. The differences between terms and conditions of the 'Enlistment Rules
2001' and 'Enlistment Rules 2005' are as under:
Enlistment Rules, 2001 Enlistment Rules, 2005
1. Contractor should furnish 1. Contractor should furnish solvency
solvency certificate of Rs. 60 certificate of Rs. 2 crore from a
lacs from a notified bank. notified bank.
2. The contractor should have 2. Contractor should have completed
completed at least three works three works of Rs. 50 lacs each and at
of Rs. 25 lacs each and at least least two works should be building
one work should be of work of Rs. 0.75 crore each and one
building/bridge/masonry/ road building work of Rs. 1.5 crore.
work.
3. The contractor should have one 3. Contractor should have one
graduate engineer and one graduate engineer with minimum
diploma holder in his experience of 5 years and two diploma
establishment, with minimum holders, out of which, one should have
experience of three years. 5 years experience.
4. In the present case, the petitioners do not meet and satisfy the criteria
specified in the Enlistment Rules, 2005. Counsel for the petitioners submits that
the new conditions/criteria fixed in the Enlistment Rules, 2005, are arbitrary.
5. I do not find merit in the said contention. The Enlistment Rules, 2005,
have fixed higher tendering limit which stands enhanced from from Rs. 1 crore
to Rs. 2 crores. Modification in the eligibility norms was, therefore, required.
Further, the respondents are entitled to fix eligibility norms from time to time.
W.P.(C) No. 11281/2006
W.P.(C) No. 11327/2006 Page 2
Eligibility norms once fixed can be certainly amended by the respondents
depending upon their needs and requirements. Higher or more stringent norms
can be enacted if the respondents genuinely believe that it will ensure better
compliance and speedy work. The respondents are aware of the exigencies
necessitating such amendments. It is not for the Court to examine the norms
fixed as an appellate forum. The respondents in their affidavit have stated that
the Enlistment Rules, 2005, have been framed keeping in view the eligibility
requirements adopted as per the CPWD amendments and modifications. CPWD
pattern has been adopted. The norms fixed are not per se arbitrary or
oppressively stringent that requires interference while exercising power of
judicial review.
6. With a view to give time to the contractors to comply with the eligibility
norms specified in the Enlistment Rules, 2005, the respondents by office
memorandum dated 17th May, 2007, extended the time up to 31st October,
2007. Thus, the contractors including the petitioners were given time for
compliance.
7. Alternatively, in case the petitioners could not meet the eligibility norms
prescribed for class-II contractors in the 2005 Rules, they had the liberty to
enroll and register themselves as class-III contractors. The eligibility norms
W.P.(C) No. 11281/2006
W.P.(C) No. 11327/2006 Page 3
prescribed for class-III contractors was much lower as the said contractors
should have executed work up to Rs. 60 lacs and were required to furnish
banker's certificate of Rs. 60 lacs. They were required to have only one
graduate engineer with three years experience.
8. Counsel for the petitioner during the course of hearing submitted that
the respondents permit contractors registered with other establishments to
participate in tenders floated by the department of Irrigation and Flood
Control, Government of Delhi. If this is correct, the petitioners have liberty to
get themselves enrolled and registered with other departments and then
participate in the tenders floated by the respondents.
9. Counsel for the petitioner has relied upon two judgments of this Court in
Gharda Chemicals Limited Vs. Central Warehousing Corporation 118 (2005)
DLT 159 and Subash Chander Gupta & Others Vs. Municipal Corporation of
Delhi & Others 62 (1996) DLT 510 (DB). In Gharda Chemicals Limited, a Division
Bench of this Court struck down a tender condition, which stipulated that a
tenderer should have manufactured ISI marked chemicals at least for three
years. It was noticed that the said condition was applicable even in cases of
registered contractors on the pretext that it would ensure quality of product
and consistency in supplies. It was held that the said conditions had no nexus
W.P.(C) No. 11281/2006
W.P.(C) No. 11327/2006 Page 4
with either consistence in supplies or quality of product as each contractor was
required to supply ISI marked chemicals. It was observed that the conditions
imposed in case of registered contractors adversely affected and prevented fair
and competitive tender bids, as only one manufacturer could fulfill the
qualification criteria. This additional term had the effect of creating monopoly
and eliminating competition. The fixation of eligibility criteria was found
unreasonable on the ground that it had no nexus with the object sought to be
achieved i.e. quality assurance and consistency in supplies. In the case of
Subash Chander Gupta & Ors., the registered contractors were required to
fulfill an additional condition relating to magnitude and quantum of work
undertaken by them in the past. It was held that once registration was granted,
a further or a new condition was not justified. In fact in the said judgment, the
Division Bench has observed that the respondent authorities can revise their
policy of registration etc. and can impose qualifications/conditions for
registration.
10. The aforesaid decisions therefore do not support the contention of the
petitioners. Instead, autonomy and freedom of taking policy decisions of
concerned authorities is well recognized. Interference from the courts is
required only in cases of arbitrariness and discrimination.
W.P.(C) No. 11281/2006
W.P.(C) No. 11327/2006 Page 5
In view of the above, I do not find any merit in the present writ petitions
and the same are dismissed. No costs.
SANJIV KHANNA, J.
DECEMBER 08, 2009
NA/P
W.P.(C) No. 11281/2006
W.P.(C) No. 11327/2006 Page 6
