OMFURN INDIA LTD vs STATE OF GUJARAT & ORS.

By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ, direction and order quashing and setting aside the action of the respondents - State authorities rejecting the pre-qualification bid of the petitioner and accepting the pre-qualification bid as well as price bid of the respondent No.5. The petitioner has also prayed for an appropriate writ, direction and order directing the respondent - State authorities to accept the pre-qualification bid of the petitioner as according to the petitioner it has fulfilled all requisite criterias and qualifications for pre-qualification bid and to direct the respondents - State Authorities to open and consider the price bid of the petitioner alongwith other qualified bidders.

That the respondent No.4 herein - Executive Engineer, Capital Project, Division-IV, Gandhinagar invited the tenders online for providing and fixing modular furniture, canteen, conference and committee room, mobile storage (compactor) and Civil Works for Block No.1-2, Karmyogi Bhavan in Sector-10A, at Gandhinagar. That estimated cost as per the tender notice was Rs.13,78,87,724.24 paise. Clauses 9.7, 9.8 and 9.9 of the tender notice provided for eligibility of the bidder. Clause 9.10 of the tender notice provided for qualification criteria. Clause 9.10 of the tender notice which is relevant for deciding the present petition reads as under:

"9.10 (A) Annual Turnover:- (i) Annual turnover of any one year of the last five Financial year (i.e. 2012-13 to 2016-17) should not be less than Rs.1378.87 lakh of Prime Bidder. (ii) For arriving at updated value, turnover of any financial year shall be multiplied by the enhancement factor corresponding to that year. These enhancement factors shall be as given in Para 9.11 (B) Below.

(B) Successful experience:-

Bidder must have as prime contractor (Modular Furniture Work) or as nominated (approved by employer) subcontractor successful experience as follow:

i. At least one similar work of Modular Furniture work of Govt. / Semi Govt. / Private Modular Furniture work having updated completion cost not less than Rs.372.07 lakh (40% of the amount of Modular Furniture work put to tender of the proposed work) as a Prime Bidder.

ii. Such work must have been completed within last five financial years i.e. from 01.04.2012 to till the due date of bid for the proposed work.

iii. A work would qualify as similar work only if it meets with definitions given in Appendix-A.

iv. For updating completion cost of the work to the current financial year, procedure narrated in 9.10(a)(ii) shall mutatis mutandis apply."

The similar work referred to in the aforesaid clause 9.10 as per the definition mentioned at Appendix A to the tender document which reads as under:

APPENDIX - A

DEFINITION OF SIMILAR WORK The agency primarily into business of Modular Furniture work and has carried out activities such as mentioned in the scope of the work of Modular Furniture in the tender document.

Experience of executing Government / Semi Government / Private Work of Providing Modular Furniture Work shall only be counted if bidder established experience through submission of documents Para 9.10(B) / 9.11(A)(b)(i)(2) issued by the employer.

Any work which does not fall in above categories definition of nature of similar work shall be approved from competent authority.

2.1 It is required to be noted that approximately 100 items were required to be supplied. The tender notice / document provided the required specifications for each item minutely (Pages 602 to 672 of the compilation of the petition). That the petitioner alongwith the

other bidders submitted the bids online. It appears that alongwith the bid the petitioner submitted the documents with respect to the work orders / furniture supplied by the petitioner to BAPS Girls School at Gandhinagar and furniture supplied to the Government for Sarva Shiksha Abhiyan Mission (SSAM). Alongwith the same the petitioner also produced the photographs of the furniture supplied to the aforesaid two agencies (Pages 291 to 304 of the petition). That vide communication dated 11.07.2017, the petitioner was called upon to clarify whether the work carried out by the petitioner for the aforesaid two agencies was the work of modular furniture or not and other two queries were raised. The petitioner answered the aforesaid queries and produced the certificate issued by Swaminarayan Vidyapith and the State Project Engineer, SSA, Gandhinagar confirming that the work which was carried out by the petitioner was of modular furniture. It appears that thereafter having found that the petitioner does not fulfill the requisite eligibility criteria as contained in Clause 9.10(B), the Screening Committee consisting of 4 members took a decision to disqualify the petitioner at the technical bid stage (pre-qualification stage) by specifically observing that the petitioner does not fulfill the eligibility criteria of carrying out and/or experience of similar nature of work. That thereafter being L-1 the respondent No.5 herein is declared to be successful bidder. At that stage the petitioner has preferred the present Special Civil Application.

Shri D.K. Puj, learned Advocate has appeared on behalf of the petitioner. Shri Dhawan Jayswal, learned Assistant Government Pleader has appeared on behalf of the respondent - State Authorities and Shri Rashesh Sanjanwala, learned Senior Advocate has appeared with Shri Hardik Modh, learned Advocate appearing on behalf of the respondent No.5.

Shri Puj, learned Advocate appearing on behalf of the petitioner has vehemently submitted that the impugned action of the respondent - State Authorities in disqualifying the petitioner at pre-qualification bid stage and thereby in not opening the financial bid of the petitioner is absolutely illegal, most arbitrary. It is vehemently submitted by Shri Puj, learned Advocate appearing on behalf of the petitioner that as such the petitioner has fulfilled all the eligibility criteria contained in clause 9.9. It is submitted that the petitioner is having the requisite experience as in similar nature of work - modular furniture, as required. It is vehemently submitted that as such the petitioner produced all the necessary documents in support of its case that the petitioner is having more than required experience in the field / work of modular furniture.

4.1 Shri Puj, learned Advocate appearing on behalf of the petitioner has heavily relied upon the documents produced alongwith petition at pages 291 to 304 as well as other documents produced alongwith affidavit in rejoinder dated 02.09.2017 (Pages 442 to 547). It is the case on behalf of the petitioner that though alongwith the tender document / bid the petitioner did produce the catalogue which contained the entire company profile which comprises of contract details & location map, organizational chart, key personnel, dedicated strength, company assets, company structure and products & services. It is submitted that it also contained various pictures and photographs of plant and machinery, production services and the actual work performed by the petitioner in various fields which conclusively established that the petitioner is also engaged in similar type of work.

4.2 It is further submitted by Shri Puj, learned Advocate appearing on behalf of the petitioner that the petitioner''s project portfolio establishes that the office furniture done by the petitioner

is in respect of work - station, tables, conference / meeting tables, director / CEO, executive tables, storage units, filing cabinets and partition systems. It is further submitted that the petitioner has also undertaken star hotel rooms wherein, bed and side tables, wardrobe, bar unit, luggage rack, centre table and curtain pelmets are being made by the petitioner. It is further submitted by Shri Puj, learned Advocate appearing on behalf of the petitioner that the petitioner has number of valuable customers for whom the petitioner has carried out the similar nature of work. It is submitted that the petitioner enjoys a prestigious reputation as one of the finest interior - fit out and furniture manuracturers in India. It is submitted that the petitioner''s corporate office is located in Mumbai and manufacturing facilities are located with more than 1,00,000 sq. ft. at GIDC Umargam and divided into three major activities such as furniture and joinery, metal and finishing section. It is submitted that the petitioner is an ISO certified organization. It is submitted that the petitioner''s main projects are in the field of hotels, offices and commercial establishments, residential and prefinished doors / FRD doors. It is submitted that the projects of the petitioner are ranging from Hotels, Palaces, Residential, Offices, Shopping Malls, Hospitals, I.T. Parks, International Schools etc. It is submitted that therefore the action of the respondents - State Authorities in disqualifying the petitioner at pre-qualification bid stage on the ground that the petitioner does not fulfill the eligibility criteria as contained in clause 9.9 is absolutely illegal and most arbitrary which deserves to be quashed and set aside.

4.3 It is further submitted by Shri Puj, learned Advocate appearing on behalf of the petitioner that as such the respondent No.4 by his communication dated 11.07.2017 raised only 3 queries and sought certain clarification from the petitioner. It is submitted that the petitioner was asked to inform whether the work done by the petitioner was the work of modular furniture and how much was the amount of modular furniture. It is submitted that the petitioner was also asked to clarify as to whether the invoices (R.A. Bills) submitted by the petitioner also include the final bill and if it is so, the petitioner should furnish the details of each invoice of the work done and copy of the final bid. It is submitted by Shri Puj, learned Advocate appearing on behalf of the petitioner that whether the tax was deducted at source while making payment by the said two parties to the petitioner for the work done by the petitioner and if such TDS certificates were issued, the petitioner was asked to furnish the said certificates. It is submitted that the petitioner gave satisfactory reply to the said letter alongwith all requisite details on 12.07.2017. It is submitted that in the communication dated 11.07.2017, it was nowhere referred to as to whether the work done by the petitioner was similar work or not. It is submitted that therefore the petitioner''s clarification was not sought for on the aspect of similar nature of work. It is submitted that therefore without giving any opportunity to the petitioner, the petitioner ought not to have been disqualified at pre-qualification bid stage on the ground that the petitioner has not complied with the eligibility criteria contained in clause 9.9.

4.4 It is further submitted by Shri Puj, learned Advocate appearing on behalf of the petitioner that the petitioner infact had offered a price bid of Rs.10.67 Crore as against the estimated tender value of Rs.13,78,87,724/- and as against Rs.13,72,88,420/- offered by the respondent No.5. It is submitted that therefore there would be loss of approximately 3 Crores to the public exchequer. It is submitted that even the price bid offered by the respondent No.5 is only Rs.6 lakh less than the estimated tender value. It is submitted that therefore the action of the respondents - State Authorities in disqualifying the petitioner at pre-qualification bid stage and consequently not to open the price bid of the petitioner and to accept the price bid of the respondent No.5 is arbitrary and malafide with a view to favour the respondent No.5.

Making above submissions it is requested to allow the present petition.

Present petition is vehemently opposed by Shri Dhawan Jayswal, learned Assistant Government Pleader appearing on behalf of the respondents - State Authorities and Shri R.S. Sanjanwala, learned Senior Advocate appearing on behalf of the respondent No.5. Affidavit in reply is filed on behalf of the respondents - State Authorities as well as on behalf of the respondent No.5.

5.1 Shri Jayswal, learned Assistant Government Pleader appearing on behalf of the respondents - State Authorities more particularly respondent No.4 has vehemently submitted that a conscious decision has been taken by the respondent No.4 on the basis of the decision taken by the Screening Committee to disqualify the petitioner at pre-bid stage on the ground that the petitioner does not fulfill the required eligibility criteria as contained in clause 9.9.

5.2 It is submitted that whatever the documents were produced by the petitioner alongwith the bid, the same came to be considered by the respondent No.4 as well as the Screening Committee while considering eligibility criteria contained in clause 9.9. It is vehemently submitted that as such the documents which are now sought to be relied upon produced alongwith affidavit in rejoinder relied upon by the petitioner now were never part of the tender document and were never submitted by the petitioner

alongwith bid. It is submitted that at the time of submitting the bid the petitioner submitted the documents with respect to only two works done by the petitioner and supply of furniture by the petitioner to the school and Sarva Shikhsha Abhiyan Mission. It is submitted that on the basis of the material supplied by the petitioner and photographs produced by the petitioner, as it was found that the petitioner had not carried out the work as per the specification provided in the tender document and the work done by the petitioner cannot be said to be of similar nature of work as required and therefore, the petitioner is rightly declared disqualified at pre-bid stage. It is submitted that as such a conscious decision has been taken by the Screening Committee consisting of 4 members.

5.3 It is submitted that as the petitioner produced the documents with respect to two works only i.e. supply of furniture by the petitioner to the school and Sarva Shikhsha Abhiyan Mission, only those documents and for those work only and those work only were required to be considered while considering the eligibility criteria contained in clause 9.9 and therefore, the respondent No.4 asked for the explanation with respect to only those works which were put for consideration by the petitioner alongwith the bid. It is submitted that as no other work done by the petitioner was placed for consideration alongwith the bid, there was no question of asking any queries with respect to the work for which there was no reference alongwith the bid. It is submitted that after considering the designs of the required similar work with the designs submitted by the petitioner, the Screening Committee / Evaluating Committee had found the petitioner as not eligible after observing that the work carried out by the petitioner cannot be said to be of similar nature of work as required. It is submitted that therefore the impugned decision disqualifying the petitioner at pre-bid stage is absolutely just and proper.

5.4 It is submitted that once the petitioner is found to be ineligible and/or disqualified at the pre-bid stage, there is no question of considering the price bid submitted by it. It is submitted that as it was found that the respondent No.5 was L-1 having sufficient and requisite experience in the similar nature of work and as per the requirement of the furniture as per the specifications attached with the tender document, bonafide and conscious decision has been taken to accept the bid of the respondent No.5.

Present petition is also vehemently opposed by Shri R.S. Sanjanwala, learned Senior Advocate appearing on behalf of the respondent No.5. An affidavit in reply is filed on behalf of the respondent No.5.

6.1 Shri Sanjanwala, learned Counsel appearing on behalf of the respondent No.5 has vehemently submitted that as such present petition deserves to be dismissed on the ground of suppression of material facts and not producing the entire tender document which contains the Appendix-A - definition of similar work and PQ Forms

- specifications with photographs with respect to each item to be supplied. It is submitted that the petitioner ought ot have come with clean hands and as such ought to have produced the entire tender document.

6.2 It is further submitted by Shri Sanjanwala, learned Counsel appearing on behalf of the respondent No.5 that the experience of similar nature work of modular furniture work was required to be taken into consideration for deciding the successful experience of the bidder. It is submitted that the petitioner while participating in

bidding process provided the details of the carpenter, furniture work like beds, wardrobe, Benches, Fixed Cupboards etc. performed at Swaminarayan Vidhyapith and Sarva Shiksha Abhiyan Mission. It is submitted that work claimed to be undertaken by the petitioner thus was not in anyway similar to the modular furniture work required to be undertaken in the present case. It is submitted that since the petitioner failed to provide any details showing the relevant experience of providing similar nature work of Modular Furniture work, the respondent No.4 has rightly rejected the pre-qualification bid of the petitioner.

6.3 It is further submitted by Shri Sanjanwala, learned Counsel appearing on behalf of the respondent No.5 that except the work carried out for Swaminarayan Vidhyapith and Sarva Shiksha Abhiyan Mission, no other documents and/or work done by the petitioner were produced and/or put for consideration by the petitioner alongwith the bid. It is submitted that all those documents which are now produced alongwith affidavit in rejoinder were not part of the bid document and the aforesaid is nothing but an afterthought. It is submitted that whatever the documents and/or work carried out by the petitioner were placed for consideration alongwith bid have been considered. It is submitted that therefore considering the material on record produced alongwith the bid / tender document as it was found that the petitioner had no experience in the similar nature of work of modular furniture and as per the specifications mentioned alongwith the tender document and as it was found that the petitioner does not fulfill the requisite eligibility criteria contained in clause 9.9, the petitioner is rightly declared disqualified at pre- bid stage.

6.4 It is further submitted by Shri Sanjanwala, learned Counsel appearing on behalf of the respondent No.5 that even otherwise as per the tender requirements, the petitioner was required to produce successful completion certificate of similar work of modular furniture work having updated completion cost of not less than Rs.372.07 lakh but the petitioner failed to produce any evidence / certificate showing successful completion of single work contract having value of more than Rs.372.07 lakh. It is submitted that therefore the respondent No.4 has rightly rejected the pre- qualification bid of the petitioner.

Making above submissions and relying upon the decision of the Hon''ble Supreme Court in the case of Central Coalfields Limited and Anr. vs. SLL-SMT (Joint Venture Consortium) and Others reported in (2016) 8 SCC 622, it is requested to dismiss the present petition.

Heard learned Counsel appearing on behalf of the respective parties at length.

At the outset it is required to be noted that the petitioner has been disqualified at pre-qualification stage on the ground that the petitioner does not fulfill the required eligibility criteria contained in clause 9.9.

7.1 At the outset it is required to be noted that as such the petitioner has not produced the entire tender document and has produced only part of tender documents. The petitioner has not produced the relevant part of the tender document which contained Appendix-A - definition of similar work and also which contained the detailed specifications of each item - modular furniture for which tenders were invited. The aforesaid documents which are not produced are as such relevant documents which ought to have been produced by the petitioner. Thus, it appears that the petitioner has withheld the relevant documents which ought to have been produced by the petitioner. The entire relevant documents are produced by the respondent Nos.4 and 5 alongwith their affidavit in reply.

7.2 Even on merits also, for the reasons stated hereinbelow the petitioner has no case and the petitioner is rightly declared disqualified at pre-qualification stage on the ground that the petitioner has not fulfilled the eligibility criteria contained in clause 9.9 viz. not having the requisite experience in the field of modular furniture i.e. in the similar nature of work required.

7.3 It is not in dispute that as per the clause 9.9, the bidder must have as prime contractor (modular furniture work) successful experience of atleast one similar work of modular furniture work of government / semi-government / private modular furniture work having updated completion cost of not less than Rs.372.07 lakh (40% of the amount of Modular Furniture work put to tender of the proposed work) as a prime bidder. It also further provided that a work would clarify as similar work only if it meets with the definition given in Appendix-A. As per the Appendix-A similar work is defined and it means the agency primarily into business of modular furniture work and has carried out activities such as mentioned in the scope of the work of modular furniture in the tender document. Alongwith the tender document / form the detailed minute specifications are provided with photographs of each item required to be supplied. It is required to be noted that approximately 100 items are required to be supplied for which tenders are invited. It appears that in support of its case that the petitioner is having a requisite experience as contained in clause 9.10(B) i.e. experience in the similar nature of work of modular furniture, the petitioner produced in support of the work carried out with Swaminarayan Vidhyapith and Sarva Shiksha Abhiyan

Mission. The petitioner also produced the photographs of the furnitures supplied to the aforesaid two agencies (Pages 291 to 304). However, it is the case on behalf of the petitioner that alongwith bid the petitioner also produced other documents with the name of other clients having supplied the modular furniture which are produced alongwith the affidavit in rejoinder (Pages 442 to 547). However, it is specifically denied and disputed by the respondents that except the work carried out for Swaminarayan Vidhyapith and Sarva Shiksha Abhiyan Mission and the photographs produced at Pages 291 to 304, no other documents were produced by the petitioner alongwith bid. At this stage it is required to be noted that as such those documents which are produced alongwith affdavit in rejoinder and which are now sought to be relied upon by the petitioner were as such not produced alongwith the petition. If petitioner had supplied all those documents alongwith the bid, in that case the petitioner would have produced all those documents alongwith the petition when the petitioner has produced the documents with respect to the work done with the aforesaid two agencies. It is also required to be noted that neither in the petition nor in the affidavit in rejoinder the petitioner has categorically stated that all those documents which are now produced alongwith affidavit in rejoinder were produced alongwith the bid while submitting the tender form. Only those documents are required to be considered which were produced alongwith bid / tender form. The petitioner now wants to rely upon and/or consider those documents which were not part of the bid / tender form. Therefore, considering the documents which were produced alongwith the bid and the work carried out by the petitioner for aforesaid two agencies viz. Swaminarayan Vidhyapith and Sarva Shiksha Abhiyan Mission and the photographs of the furniture supplied by the petitioner (Pages 291 to 304), it cannot be said that the petitioner is having the requisite experience in the field of similar nature of work of modular furniture.

7.4 Now, so far as the submission on behalf of the petitioner that vide communication dated 11.07.2017 the respondent No.4 raised only 3 queries and no query was raised in the communication dated 11.07.2017 with respect to the similar nature of work - modular furniture, therefore, it is the case on behalf of the petitioner that thereafter it would not be open for the respondent No.4 to raise the objection of not having the requisite experience in the similar nature of work - modular furniture, the aforesaid cannot be accepted. The terms and conditions of the tender notice are very clear. Clause 9.10(B) is very clear. It is specifically provided that the required experience in the filed of similar work of modular furniture. "Similar work" is defined in Appendix-A. Specification with photographs of each item are also produced alongwith tender document which is a part of the tender document. Therefore, it was for the petitioner to supply the necessary documents in support of their case that they are fulfilling the required eligibility criteria and are having the requisite experience as required of similar nature of work - modular furniture.

7.5 Thus, having found on the basis of the material on record produced alongwith the tender form / bid that the petitioner does not possess the requisite eligibility criteria / experience in the similar nature of work - modular furniture work and thereafter a conscious decision has been taken by the Screening Committee / Evaluating Committee to disqualify the petitioner at the pre-bid stage on non-fulfilling the eligibility criteria contained in clause 9.9 and consequently the price bid of the petitioner is not opened, it cannot be said that the same is in anyway illegal and/or arbitrary.

7.6 At this stage the decision of the Hon''ble Supreme Court in the case of Central Coalfields Limited (Supra) is required to be referred to. Considering various decisions of the Hon''ble Supreme Court on the judicial review and/or exercising the power of judicial review in tender or contractual matters, in paras 43 and 47, the Hon''ble Supreme Court has observed and held as under:

"43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and reintroducing the privilege-of- participation principle and the level playing field concept, this Court laid emphasis on the decision-making process, particularly in respect of a commercial contract. One of the more significant cases on the subject is the three-Judge decision in Tata Cellular v. Union of India8 which gave importance to the lawfulness of a decision and not its soundness. If an administrative decision, such as a deviation in the terms of NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the courts will not judicially review the decision taken. Similarly, the courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation. This was quite clearly stated by this Court (following Tata Cellular8) in Jagdish Mandal v. State of Orissa9 in the following words: (SCC p. 531, para 22)

"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The powre of judicial review will not be permitted to be invoked to protect private interest

at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands to thousands and millions and may increase the project cost manifold."

This Court then laid down the questions that ought to be asked in such a situation. It was said: (Jagdish Mandal case9, SCC p. 531, para 22) "22. ... Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone;

OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached":

(ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226."

The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty5 the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular8 there must be judicial restraint in interfering with

administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision-making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision "that no responsible authority acting reasonably and in accordance with relevant law could have reached" as held in Jagdish Mandal9 followed in Michigan Rubber13."

7.7 On asking these questions in the present case it is more than apparent that the decision taken by the respondent No.4 to adhere to the terms and conditions of the tender document and the decision to disqualify the petitioner at pre-qualification stage and not to open the price bid of the petitioner on the ground that the petitioner does not fulfill the requisite eligibility criteria as contained in clause 9.9 cannot be said to be irrational. The decision is absolutely lawful and not unsound.

7.8 Now, so far as the submission on behalf of the petitioner that the petitioner submitted the bid of Rs.10.67 Crores against which the respondent No.5 has submitted the bid of Rs.13,72,88,420/-, which has been accepted and therefore, there would be a difference of approximately 3 Crores, which would be a loss to the public exchequer is concerned, first of all it is required to be noted that as such the price bid of the petitioner is not opened at all. The price bid of the petitioner is required to be considered only in a case where the petitioner is found to be eligible and/or having fulfilled all the eligibility criteria contained in the tender notice. Therefore, once having held that the petitioner is rightly declared disqualified at pre-qualification stage on the ground that the petitioner has not fulfilled the eligibility criteria as contained in clause 9.9, the price bid of the petitioner is not required to be considered at all.

7.9 In view of the above and for the reasons stated above and

applying the law laid down by the Hon''ble Supreme Court in the case of Central Coalfields Limited (Supra) referred to hereinabove, it cannot be said that the action of the respondent No.4 in disqualifying the petitioner at pre-qualification stage and not opening the price bid of the petitioner is in anyway illegal and/or unlawful which calls for interference of this Court in exercise of powers under Article 226 of the Constitution of India.

In view of the above and for the reasons stated above, present Special Civil Application fails and the same deserves to be dismissed and is, accordingly, dismissed. Notice is discharged. costs.