M/S. SHAPERS CONSTRUCTION (P) LTD. AND ANR.versusAIRPORT AUTHORITY OF INDIA AND ANR.

A          MIS. SHAPERS CONSTRUCTION (P) LTD. AND ANR.
                               v.
              AIRPORT AUTHORITY OF INDIA AND ANR.

                              SEPTEMBER 17, 1996

B              [K. RAMASWAMY AND G.B. PATTANAIK, JJ.)

            Tender Form-Condition enVisaging completion of particular type of
    work on the date of application-Party had done major part of such work but
    not completed on the date of application-Hence tender form refused-Party
C   filing a writ petition and High Court ordering issue of tender form-On appeal
    held since on the date of application admittedly such work was not completed,
    the pre-condition is not satisfied-Hence the High Court was right in finally
    dismissing the writ petition.

          New Horiwns Ltd. & Ors. v. Union of India & Ors., (1995] 1 SCC 478,
D distinguished.
         CIVIL APPELLATE JURISDICTION : Special Leave Petition (C)
    No. 181~1-22 of 1996.

         From the Judgment and Order dated 8.8.96 of the Madhya Pradesh
E   High Court in W.P. No. 2164/96 and L.PA. No. 138of1996.

          G.C. Gupta and Shiv Sagar Tiwari for the Petitioners.

          The following Order of the Court was delivered :

F       The petitioners have filed these special leave petitions against the
  order of the Division Bench of the High Court of M.P. at Jabalpur made
  on August 14, 1996 in LPA No. 138/96. The learned single Judge as well
  as the Division Bench dismissed the writ petitions in which the petitioners
  had sought direction to the respondents to give the tender form on the
G ground that they had satisfied Condition No. 2 of the Tender Conditions.
  Pursuant to the interim order passed by the High Court, the petitioner
  submitted their tender forms. But, at the final hearing, the writ petitions
  came to be dismissed. Thus, these special leave petitions.

          It is contended for the petitioners that they have past experience in
H execution of the national highway. They have two contracts of more than
                                        424
     SHAPERS CON1N. (P) LTD. v. AIRPORT AUUIORITY OF INDIA               425

required amount specified in the tender conditions, 42% of Rs. 4 crores A
and Rs. 6 crores respectively. The certificates issued by the competent
engineers, namely Executive Engineer and the Superintending Engineer
would show that the petitioners have been satisfactorily performing their
duties in execution of the work. The petitioners, after securing the con-
tracts, have executed major part of the work within the scheduled time
granted under. the contracts. Therefore, the failure to give tender form at
                                                                              B
the inception and consideration thereof after the interim direction is
violative of their fundamental right to compete in the tender for the further
contract. The question is : whether the view taken by the High Court is
wrong in law? Tender Condition No. 2 envisages as under:
                                                                                c
        "The tenderer who wish to apply shall have satisfactorily completed
        at least two runway/ National highway, preferably rigid pavement
        works involving considerable earth filling each of value Rs. 400
        lakhs or one work of Rs. 600 Ic.khs during the last five years and
        have annual turn over of Rs. 500 lakhs in each (1992-93, 1993-94 D
        & 1994-95) and should possess computerised hot mix plant and
        concrete batching plant for executing asphaltic and rigid pavement
        works."

      A reading of this condition would clearly indicate that the tenderers
who wish to apply shall have satisfactorily completed at least two run-         E
way/National highway, preferably rigid pavement works involving consider-
able earth filling, each valuing Rs. 400 lakhs and one work of Rs. 600 lakhs
during the last five years and have annual turn over of Rs. 500 lakhs in each
of the last three years {1992-93, 1993-94 and 1994-95). He should possess
computerised hot mix plant and concrete batching plant for executing            F
asphaltic and rigid pavement works.

      It is true, as contended by the petitioners, that the Tender Condition
would indicate that they had completed at least two runway/National
highway, preferably rigid pavement works. He contends that the comple-
tion of the work is different from tendering the contracts for execution of G
the work. They had two contracts as envisaged thereunder; though they
had not totally completed the same, major part of the work had been
completed. Therefore, they have fulfilled the conditions prescribed there-
under. The petitioners, thereby, could not be denied of their right to
compete in, apply for and be considered for assignment of the work under H
    426                   SUPREME COURT REPORTS [1996) SUPP. 6 S.C.R.

A   the tenders now in dispute. We find no force in the contention.

            The condition envisages that he shall have satisfactorily completed.
    The word 'completed' would indicate that as on the date of application for
    the tenders, he should have completed at least two runway/National high-
    way works, preferably rigid pavement works involving considerable earth
B   filling. In other words, the completion of the work of at least two run-
    way/National' highway is a pre-condition. On their own admission, they had
    not completed, though the major part of the work as professed by them is
    completed. Under these circumstances, the view taken by the High Court
    cannot be said to be unwarranted.
c          The learned counsel placed strong reliance on the judgment of this
    Court in New H01izons Ltd. & 01:f. v. Union of India & Ors., [1995] 1 SCC
    478, in particular, paragraphs, 21 and 22 in support thereof. This case
    relates to previous experience and the question therein was : whether the
    previous experience would be considered after submitting the tenders or
D   before submitting the tenders? This Court had held that the question would
    arise only after the submission of the tender. In support of consideration
    of the tender thereof, the previous experience would play an important role
    for awarding the -contract. In that case, this Court considered and held that
    at the inception, the tender forms cannot be refused on the ground that he
    had not proved the previous experience. That question has no relevance to
E   the facts in these petitions. Und<:;r these circumstances, as stated earlier,
    the completion of the work of at least two runway/National highway works
    is a pre-condition for submitting the application. On their own admission,
    since the petitioners had not completed the works in hand, we cannot find
    any illegality in respondents not giving the tender forms nor in non-con-
F   sideration of their cases pursuant to the interim direction given by the High
    Court.

           ·The petitions are accordingly dismissed.

    G.N.                                                     Petitions dismissed.