Valar and Co., Constructions vs The Divisional Engineer (Highways)

P. Sathasivam, J.—Valar & Co., Constructions, aggrieved by certain conditions in tender notification of the respondent dated 05.02.2003,

has filed the above writ petition.

On direction, learned Special Government Pleader takes notice for the respondent.

Heard the learned counsel for the petitioner as well as the learned Special Government Pleader.

According to the petitioner, he is a registered State First Class Contractor registered in the Highways Department. From the year 1999, the

petitioner has been awarded contract by the Highways Department and has done several works in the Highways Department, Water Board and

Railway. The respondent herein, by tender notice dated 05.02.2003, called upon the Class IV Contractors and upward classes to submit tenders

for the repairs in the roads in Salem District, prescribing certain conditions. As per the terms, the contractors have to fulfill the following conditions.

The contractors should use Central hot mix Plant, paver finisher and vibration roller.

The tenders of the tenderer who own and possess central hot mix plant, paver finisher and vibratory roller alone would be considered.

The tenders which do not accompany the certificates or the documents, to prove that the tenderer own the said plant machineries, paver finisher,

vibratory roller would not be considered at all and such tenders would be summarily rejected.

The eligibility for registration of Class IV contractor is that a contractor should has a property worth only Rs.5 lakhs and they can perform the

work, total value of which does not exceed Rs.6 lakhs. Therefore, there is no necessity for Class IV contractors to own and possess central hot

mix plant, paver finisher, vibratory roller. By imposing such onerous conditions, it is stated that the contractors, like the petitioner cannot participate

in the works notified.

The learned counsel appearing for the petitioner after pointing out those conditions and the eligibility conditions would contend that the

respondent is not justified in imposing such unreasonable conditions. After going through the various terms and conditions prescribed in the tender

notice dated 05.02.2003, I am unable to accept the said contention for the following reasons.

As rightly pointed out by the learned Special Government Pleader that in a matter like this, considering the nature of work to be performed and

urgency in execution of the work, the Government, particularly the concerned authorities are entitled to impose reasonable conditions. I have

already referred to the conditions prescribed in the tender notification, namely that the intending contractors should possess central hot mix plant,

paver finisher, vibratory roller. It is not the case of the petitioner that he was not aware of those conditions at the initial stage. All those conditions

have been specifically referred to in the tender notice itself and I am satisfied that the respondent and other Officers are well within their power to

prescribe such conditions, considering the volume of work and urgency in the matter.

The learned Special Government Pleader has also brought to my notice prescribing similar conditions, considering the volume of work and

urgency have been upheld by the Division Bench of this Court in the case of Swamidhas vs. The Chief Engineer, National Highways reported in

2001 (4) C.T.C. 257. The said decision is an answer to the question raised by the petitioner. Further, as rightly contended on the side of the

respondent, that when the prescribed authority / Government taking note of nature of work, urgency etc., prescribe certain conditions for early

execution and better quality of work, the same cannot be lightly interfered by this Court. It is to be noted that in the said decision the Division

Bench has observed that,

...... It is not the concern of the Court to examine. Whether the acceptance of work and execution thereof is feasible and viable, is the concern

of the party who makes a bid. The authority tendering the work is only concerned about the execution and the money payable therefor. In every

contract, there will be clauses for due execution of the work and the consequences in default thereof. The laying of public road is important and

urgent. Time schedule is three months from the date of awarding of contract. The authorities cannot and need not wait for the contractors like

appellants to acquire the machinery by way of lease from other owners. In fact, that is a contingent situation. Even after contract is struck, there is

no guarantee that machinery will be provided and if provided, as to the quality and working condition of the machinery. The public work cannot

wait, risking such contingencies. As such the authorities have rightly felt that there should be an imposition of ownership of the machinery, as if such

machinery is at the ready disposal of such successful contractor/s they can readily start the work and successfully complete the same within the

time schedule. ..

In the light of the Division Bench decision referred to above and in view of my conclusion, the grievance of the petitioner that he was unreasonably

deprived by imposing such conditions cannot be countenanced. Accordingly, the writ petition fails and the same is dismissed. No costs.

Consequently, connected WPMPs., are also dismissed.