Gauhati High Court
Rana Construction And Engineers ... vs The Union Of India And 3 Ors on 2 December, 2021
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GAHC010200962021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6266/2021
RANA CONSTRUCTION AND ENGINEERS PVT LTD
REP. BY ITS DIRECTOR MR. RANA ZAMAN, HAVING ITS REGISTERED
OFFICE A - SURAJ COMPLEX, ULUBARI CHARIALI, KAMRUP (METRO),
GUWAHATI-781007, ASSAM
VERSUS
THE UNION OF INDIA AND 3 ORS
REP. BY THE SECRETARY (RT AND H), TRANSPORT BHAWAN, 1
PARLIAMENT STREET, NEW DELHI-110001.
2:MINISTRY OF ROAD TRANSPORT AND HIGHWAY
GOVT. OF INDIA
REP. BY ITS SECRETARY (RT AND H)
TRANSPORT BHAWAN
1 PARLIAMENT STREET
NEW DELHI-110001.
3:NATIONAL HIGHWAY AUTHORITY OF INDIA
REP. BY THE ITS CHAIRMAN
G 5 AND 6
SECTOR 10
DWARKA
NEW DELHI-110075.
4:THE REGIONAL OFFICE (NE)
NATIONAL HIGHWAYS AUTHORITY OF INDIA
NEDFI HOUSE
4TH FLOOR
G.S. ROAD
GUWAHATI-78100
Advocate for the Petitioner : R SARMAH
Advocate for the Respondent : ASSTT.S.G.I.
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BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
02-12-2021
Heard Mr. R. Sarma, learned counsel for the petitioners and Mr. Kaustav Gogoi, learned CGC
for the respondent Nos. 1 and 2. Also heard Mr. Chandra Baruah, learned Standing counsel,
National Highway Authority of India for respondent Nos. 3 and 4.
2) The Regional Officer (North East) of the National Highway Authority of India, (Ministry of
Road Transport and Highways) vide NIT No.12/2021-22 (O&M) dated 02.11.2021, through
National Competitive bidding through e-Tendering mode issued short term Notice Inviting e-
Tender inviting bids from the experienced firms/organizations for short-term improved and routine
maintenance contracts for the National Highways Sections from Km. 163.895 to Km. 278.685
Khanapara to Uriagaon Section of National Highway No. 37 in the State of Assam (length equal to
114.790 Km) for Packages AS-03, AS-20, AS-19, AS-02 and AS-18 with the estimated cost of Rs.
19,53,00,543/-.
3) As per the said NIT last date and time of submission of online bid is 02.12.2021 upto
11:30 Hrs and the tender opening date and time is scheduled on 03.12.2021 at 11:30 Hrs. In the
said NIT dated 02.11.2021, it is specifically provided that - a Pre-Bid meeting shall be held at the
office of the Regional Officer, North East on 22.11.2021 at 15:00 Hrs to clarify the issues and to
answer the questions on any matter that may be raised at the stage as stated in the Bidding
documents. In the said NIT it is also specified that for any clarification, the Office of the Regional
Officer-North East, National Highway Authority of India at NEDFi House, 4 th floor, G. S. Road,
Guwahati - 781006, e-mail: [email protected], [email protected] may be contacted.
4) Section-II of the said NIT dated 02.11.2021 pertains to Instruction to Bidders (ITB), A.
General and Clause 4 of the said ITB relates 'Qualification of the Bidder'. Clause 4.4.A. of the said
ITB amongst others stipulates that -
To qualify for award of the contract each bidder in its name should have the
following :--
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(a) Achieved and average annual financial turnover (construction/maintenance of
4/6 laned NH works only equal to the amount indicated in NIT during last
three years ending 31st March, of the previous financial year duly certified by
Chartered Accountant. (Notwithstanding anything to the contrary contained
herein, in the event that the bid due date falls within three months of the
closing of the latest financial years, it shall ignore such financial year for the
purpose of the bid and furnish annual financial turnover with regard to three
years preceding in last financial year).
(b) ......
i. ........
ii. ........
iii. .......
(i) (The similar work constitutes experience in operation and
maintenance/construction of 4/6 laned highway).
5) The petitioner is a registered company under the Companies Act, 2013 and is a Class
I(A) Contractor under APWD Roads and Building, NH Division of APWD, Irrigation, Irrigation
(Mechanical), ATDC, PHE, Water Resources, Commerce and Industry Department, who is in
the business of civil construction work such as roads, highways etc. Petitioner stated that it
has installed modern Hot Mix Plant, Counter Mix, Re-cycling Plant, Milling Machine for various
contract works and has done many contracts successfully for the State Government.
Petitioner also stated that it is a company of repute and earned name in the business of civil
construction work, has sufficient man power and machineries to execute any civil construction
including road construction and maintenance.
6) Petitioner has given the list of works that it has executed and carried out with regard
to construction and maintenance of various National Highways, State Highways and/or other
Roads under the NHAI, State PWD, Border Road Organization, NEC etc.
7) Petitioner stated that it is otherwise eligible to participate in the said NIT dated
02.11.2021 issued by the Regional Officer, North East, NHAI but is aggrieved with the Clause
4.4.A. (a) and Clause 4.4.A. (b) (i) of Section II of the ITB of the said NIT dated 02.11.2021,
noted above, stating that Clause 4.4.A. (a) and Clause 4.4.A. (b) (i) of the said NIT are self
contradictory as at Clause 4.4.A. (a) the respondent NHAI sought for experience of executing
similar works restricting to 4/6 Lane National Highways works only.
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8) Petitioner stated that earlier on 02.05.2019 it wrote to the Regional Officer-North East,
National Highways Authority of India, NEDFi House, Guwahati-781006 seeking certain
clarification and the Deputy General Manager (T), Regional Office, NHAI, Guwahati by its
communication dated 26.07.2019 informed that "Similar Work" is interpreted differently by
different agencies and in NHAI, similar work means working experience in operation and
maintenance/construction of 2/4/6 lane in highway specially needed.
9) It is contended by the petitioner that there is no distinction between the technical
process for construction/maintenance of 4/6 lane highway and 2 lane highway and there is no
basis for restricting the experience of executing similar work and achieving average annual
financial turnover from only 4/6 lane highway as specified in the NIT dated 02.11.2021.
Petitioner also stated that the impugned criteria specified in Clause 4.4.A. (a) and Clause
4.4.A. (b) (i) of the NIT dated 02.11.2021 have no nexus with its object and scope.
10) Petitioner further stated that though the policy of the NHAI is to seek experience of
similar work from operation and maintenance of 2/4/6 lane highway but in the present case,
incorporating said Clause 4.4.A. (a) and Clause 4.4.A. (b) (i) in the NIT dated 02.11.2021, the
respondent NHAI has acted arbitrarily, without any basis, for a reason other than bonafide,
restricting the qualifying criteria to only 4/6 lane highway, leaving out the experience required
or the financial capability achieved by the bidder in respect of 2 lane highway and State
highways where the technical process involved in operation/maintenance/construction of 4/6
lane highway is similar to 2 lane highway.
11) As such, petitioner has filed this writ petition praying amongst others to set aside and
quash the impugned Clause 4.4.A. (a) and Clause 4.4.A. (b) (i) in the said NIT dated
02.11.2021, noted above and to direct the respondents in the NHAI to forthwith
cancel/recall/rescind/forebear from giving effect to those two impugned Clauses and/or to
issue appropriate Writ/direction/order to the respondents considering the fact that those
restrictive Clauses in the NIT dated 02.11.2021 are arbitrary, irrational and unreasonable
which denied a level plain field for many experienced and competitive and financially sound
bidders like that of the petitioner. Petitioner has also urged that experience contractor like it
and others will become ineligible due to such restrict competition in terms of such eligibility
criteria incorporated in the said NIT dated 02.11.2021, which reflect the malafide motive of
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the respondents in the NHAI of confining the work to few bid entities who are its blue eyed
boys.
12) The respondents in the NHAI on 30.11.2021 filed its affidavit in the matter clarifying
the stand with regard to its NIT dated 02.11.2021 to which the petitioner has filed its reply
on 01.12.2021.
13) The petitioner stated that affidavit of the respondent NHAI has been sworn by the
same officer of NHAI who on 26.07.2019 had communicated to it that " Similar Work" is
interpreted differently by different agencies and in NHAI, similar work means working
experience in operation and maintenance/construction of 2/4/6 lane in highway specially
needed. The petitioner specifically urged that there is no basis for the impugned Clause 4.4.A.
(a) and Clause 4.4.A. (b) (i) in the NIT dated 02.11.2021 and by inclusion of the same in the
said NIT the respondent NHAI has created class within class, which is restrictive in nature
that deprived the petitioner and others from participation in the said tender process, with the
intention to give benefit to interested party.
14) Petitioner has also placed a copy of the NIT for the work of 4/6 laning of Zirakpur-
Parwanoo Section of NH-5 (old NH-22) from Km 39.960 to Km 67.550 on BOT basis in the
States of Punjab, Haryana and Himachal Pradesh Repair and Maintenance of Project Highway
at risk and cost of concessionaire under Article 18.12 of Concession Agreement issued by the
Regional Office, Chandigarh, NHAI in November, 2021 where at Section II of the ITB of the
said NIT in Clause 4.4.A. (a) there was no restriction imposed regarding financial turnover
from the construction/maintenance of 4/6 lane highway works only and after Clause 4.4.A.
(b) (iii) it is specified that "the similar work constitutes experience in
Construction/Maintenance of 2/4/6 National Highways/State Highways". The petitioner stated
that there cannot be any difference of such eligibility criteria towards maintenance and
construction of 4/6 lane highways under the one and the same authority NHAI. Petitioner
stated that only to deprive the experienced and financially sound bidders like petitioner and
others, the Regional Officer, North East of the NHAI has included the impugned Clauses 4.4.A.
(a) and 4.4.A. (b) (i) in the NIT dated 02.11.2021, which need to be set aside and quashed.
15) In support of his submissions, Mr. R. Sarma, learned counsel for the petitioner relying
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on the decision of the Hon'ble Apex Court in the case of Monarch Infrastructure (P) Ltd. Vs.
Commissioner, Ulhasnagar Municipal Corporation and Ors., reported in (2000) 5 SCC 287
(para-11) submitted that the Courts would not interfere with the matter of administrative
action or changes made therein unless the Governments action is arbitrary or discriminatory
or the policy has no nexus with the object it seeks to achieve or is malafide.
16) Mr. C. Baruah, learned counsel for the NHAI submitted that the clarification regarding
'similar work' given by the Deputy General Manager (T), Regional Office, Guwahati, NHAI on
26.07.2019 was on his personal capacity. The said Deputy General Manager, Regional Office,
Guwahati, NHAI has sworn the affidavit on behalf of the NHAI on being authorized by the
said authority. Mr. Baruah stated that scope of work in terms of the impugned NIT dated
02.11.2021 is with regard to the experienced firms/ organization for short-term improved and
routine maintenance contracts for the National Highways Sections - from Km. 163.895 to Km.
278.685 Khanapara to Uriagaon Section of 4 (four) lane highway of National Highway No. 37
in the State of Assam for a length of about 115 Kms, for a period of 12 months, where the
work includes the routine maintenance of all assets, facilities and services created within right
of way on the said sections of the National Highway including bridges/ROBs, jungle clearing,
clearing of rubbish, maintenance of shoulders, clearing of drain & culverts, filling pot holes,
bituminous works, PQC works, maintenance of plantation, construction of drains, culverts,
value addition to the roads by way of providing cats-eye, signboards, solar-blinkers, etc., and
their maintenance etc.
17) Mr. Baruah also submitted that in the present case the maintenance and construction
is for about 115 Kms from Khanapara to Uriagaon on the 4 (four) lane NH-37 in the State of
Assam which in the North East Region of the Country, whereas the bid document of
November 2021 issued by the Regional Office, Chandigarh that is placed by the petitioner is
only for about 27.5 Kms in the State of Punjab, Haryana and Himachal Pradesh where
geographical conditions are totally different than that of the North East of India.
18) It is also stated on behalf of the respondent NHAI that the reason for incorporating
Clause 4.4.A of the ITB of said NIT dated 02.11.2021 is that " presently tolling of national
highways have been started. The Chief Secretary to the Government of Assam during
meeting directed to maintain the 4 lane road in good condition. After commencement of
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tolling the expectation of road users is very high from NHAI. The Supreme Court Road Safety
Committee (SCRSC) which was held on August, 2019 and State Road Safety Committee has
categorically emphasized to maintain the road in traffic worthy condition and reduce the
fatalities by way of improving road condition. Moreover, NHAI has introduced premium
service of incidental management like 1033 (Ambulance), Patrolling Vehicle, Crane in National
Highway for benefit of the road users. Considering the advice of SCRSC and State Road
Safety Committee, this office feel that qualified professional contractor is required to maintain
the highways in good condition and coordinate with the all the stakeholders. Therefore, the
Clause 4/6 lane has been incorporated in the RFP to get the experienced contractor for 4/6
lane construction/ maintenance/highway in the interest of public of Assam. Apart from that
as per Indian Road Congress (IRC-SP-73-2007) the geometric and specification of 4 lane
highway is completely different from 2 lane highway".
19) Mr. Baruah, learned counsel for NHAI stated that the impugned Clauses in the NIT
dated 02.11.2021 have been incorporated by the NHAI as an administrative order for public
interest since the concerned road are being used by public at large and the NHAI formulated
those conditions of Tender documents and awarding of contract in greater latitude not
misusing it's any such power. Mr. Baruah submitted that though in the said NIT dated
02.11.2021 it is specifically provided that there shall be Pre-Bid meeting on 22.11.2021 at
15:00 Hrs, the petitioner did not opt to attend the said meeting and seek any clarification
regarding the clauses mentioned in it nor did it write to the Regional Officer, North East of the
NHAI for any clarification as provided in the said NIT and approached the Court in the last
hour. Mr. Baruah, submitted that the said NIT dated 02.11.2021 incorporating the impugned
Clauses 4.4.A. (a) and 4.4.A. (b) (i) only for experienced firms/organization and purely for
public interest at large.
20) Mr. Baruah submitted that in the matter of formulating conditions of a tender
document and awarding a contract, greater latitude is required to be conceded to the State
authorities unless the action of the tendering authority is found to be malicious and a misuse
of its statutory powers, interference by Courts is not warranted. He also submitted that the
Hon'ble Apex Court have held that certain pre conditions or qualification have to be laid down
to ensure that the contractor has the capacity and the resources to successfully execute the
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work and if the State or its instrumentalities act reasonably, fairly and in public interest in
awarding contract, interference by Court is very restrictive since no person can claim a
fundamental right to carry on business with the Government.
21) Mr. Baruah in support of his submissions relied on the decisions of the Hon'ble
Supreme Court in the cases of Uflex Limited Vs. Government of Tamil Nadu and Ors. decided
on 17.09.2021 in Civil Appeal Nos. 4862-4863/2021, Michigan Rubber (India) Ltd. Vs. State of
Karnataka, (2012) 8 SCC 216; Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corpn. Ltd. (2016)
16 SCC 818 and Coking Coal Ltd. Vs. AMR Dev Prabha, (2020) 16 SCC 759
22) Considered the submissions made by the learned counsels for the
parties and judgments cited by them.
23) Only grievance of the petitioner with regard to the said NIT of the NHAI dated
02.11.2021 is regarding inclusion of the eligibility condition that the bidder to qualify for award
of the contract in its name should have achieved and average annual financial turnover from
construction/ maintenance of 4/6 laned NH works only equal to the amount indicated in the said
NIT during last three years ending 31st March of the previous financial year and the clarification
provided by the NHAI in the said NIT that - the similar work constitutes experience in operation
and maintenance/construction of 4/6 laned highway.
24) In the case of B.S.N. Joshi & Sons Ltd Vs. Nair Coal Services Ltd., reported in (2006) 11
SCC 548, the Hon'ble Apex Court have held that where a decision has been taken purely on public
interest, the court ordinarily should exercise judicial restraint.
25) The Hon'ble Supreme Court in the case of Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail
Corpn. Ltd., reported in (2016) 16 SCC 818 have held that the owner or the employer of a
project, having authored the tender documents, is the best person to understand and appreciate
its requirements and interpret its documents. The constitutional courts must defer to this
understanding and appreciation of the tender documents, unless there is mala fide or perversity
in the understanding or appreciation or in the application of the terms of the tender conditions. It
is possible that the owner or employer of a project may give an interpretation to the tender
documents that is not acceptable to the constitutional courts but that by itself is not a reason for
interfering with the interpretation given.
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26) From the explanations given by the NHAI with regard to inclusion of those conditions in
the impugned NIT dated 02.11.2021, the Court is of the opinion that those are not arbitrary or
perverse or without any basis or has been included with malafide motive or it restricted the
qualifying criteria to only 4/6 lane highway or intended to favour any selective bidders. It is an
admitted position that geographical conditions of the North East of our Country is different than
that of the States like Punjab, Haryana, Himachal Pradesh. What is the best requirement; it is
only the employer who can decide. Moreover, the entire work of construction/maintenance of 4
lane highway in the stress of 114.790 Km from Khanapara to Uriagaon Section of National
Highway No. 37 in the State of Assam is purely on public purpose, i.e., the use of road- the NH by
public for their commutation.
27) For the reasons above, this writ petition being devoid of merit, stands dismissed.
JUDGE
Comparing Assistant
