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Judgment
B. Subhashan Ready, C.J.—The two writ petitions relate to the issuance of the tender applications. Advertisement was issued by the
Government of Tamil Nadu in daily newspapers on 11.7.2001 calling for tenders. There are contractors for 9 items of works relating to widening
of roads, construction of bridges etc. Condition No. 5 stipulates that the contractors, who own central mixing plant and payer alone will be issued
the tender schedule on production of documentary evidence of ownership of the said machinery, and those who do not produce the documentary
evidence of ownership of the said machinery will not be issued the tender schedule at any cost. The writ appellants, aggrieved by the same, have
challenged the said condition as arbitrary. But the learned single Judge has negatived their contentions. Hence, these two writ appeals.
Mr. V. Prakash, the learned Counsel leading the arguments, submits that the learned Judge erred in not acceding to the submission that the
imposition of such condition is arbitrary. Mr. P.S. Balasubramaniam, learned Counsel in the other writ appeal, has also supported the argument of
Mr. V. Prakash.
In contractual matters, the jurisdiction of the High Court under Article 226 of the Constitution of India is very limited. The learned Counsel for
the petitioners cited the judgment in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, in support of their argument
that in Governmental contracts, the power under Article 226 of the Constitution can be exercised if the action of the authorities is arbitrary, as such
arbitrary action violates the Fundamental Right of Equality guaranteed under Article 14 of the Constitution. There cannot be any dispute with
regard to the said legal proposition. In all the latter judgments of the Apex Court, the said ratio decidendi has been followed. But the question is
whether imposition of the above condition No. 5 is arbitrary. We are conscious of the fact that the appellants are being deprived of their right to
bid even at the threshold as they are denied the tender schedules. Keeping that in mind, we proceed further to test the arbitrariness or otherwise of
the above condition No. 5.
Technical report was filed by the second respondent pursuant to the requisition by this Court, and we perused the same. It is stated that there
are 100 central mixing plants and pavers owned by the individuals/ companies, and they are currently in use through out the State. This is not
denied. By this, it is made out that the imposition of condition is not made to suit only one or a few individuals. In so far as the technical aspects are
concerned, it is stated that this kind of machinery is being used all over India and that in fact, the State of Tamil Nadu is a forerunner in using this
machinery ever since early 1960''s in Madras city roads, and that the quality of the said works has been good and lasted long. Indisputably, the
laying of roads by using central mixing plants and pavers ensures long term durability and serviceability. It is also stated that by this process, the
recurring maintenance expenditure is minimised thereby reducing the financial burden to the Government. That apart, the technical specification
relating to this user of machinery for laying the superior quality of roads is followed through out India. This was pursuant to the specifications for
roads and bridge works issued by M.O.S.T. published by the Indian Roads Congress, which is an apex body in so far as standards and
specifications for roads and bridges are concerned. In Clause 504 of the Technical Specification, it has been stipulated that ''Bituminous macadam
shall be prepared in a Hot Mix Plant of adequate capacity and capable of yielding a mix of proper and uniform quality with thoroughly coated
aggregates''. When this was put to the learned Counsel for the appellant, they fairly agreed that the machinery which has been specified and which
is being used, certainly gives a superior quality of roads. Then, the limitation of this Court is narrowed down. Now, the point to be considered is as
to whether there is any nexus for imposition of condition of ownership or not.
Learned Counsel for the appellants submits that there is no nexus for imposition of condition for ownership of machinery even at the threshold,
at the time of furnishing the tender schedule and that it is suffice if the readiness and willingness of possession of machinery is shown at the time of
entering into contract if the bid is accepted. Mr. V. Prakash, learned Counsel, also submits that the length of the road to be laid is only 3 kms.
costing Rs. 39,000 and the cost of setting up the machinery will be more than the said tender work, and that it is not at all feasible and viable for
the contractors owning the machinery to execute the above work. That is not the concern of this 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 of 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. What is more, in view of numerous such contractors owning
machinery, by no stretch of imagination, can it be said that the imposition of condition No. 5 is a tailor-made to suit one or a few individuals. In the
circumstances, we find that the imposition of condition No. 5 has got a nexus with the object to be achieved, and that it is neither arbitrary nor
unreasonable and there is no infringement of any Fundamental Right of the appellants. In the circumstances, the complaint of the appellants that
they were unreasonably deprived of supply of tender schedules, cannot be countenanced and the writ appeals fail and are accordingly dismissed.
No costs. Consequently, C.M.Ps. are also dismissed.