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Judgment
Heard Mr. A.C. Dharmadhikari, learned counsel for the petitioner and Mr. M.A. Kadu, learned counsel for respondent No.1.
A short question which is required to be answered in this petition is whether the technical bid of the petitioner could have been rejected by the respondent No.1.
Shorn of unnecessary details, it is stated that a tender notice was published by respondent No. 1 for “Arak L.M.I. Tank Tq. Mangrulpir Dist Washim, Construction of Oggy type spillway @ (Left Side) RD. 45 M to 361 M & Excavation of Approach and tail channel”. In pursuance with the said tender, the petitioner participated but his technical bid was rejected.
Learned counsel for petitioner Mr. A.C. Dharmadhikari has invited our attention to page No. 1211, which gives table of the name of bidders, and reasons for disqualification. The petitioner’s name appears at serial 5 and reason for disqualification is given as under:
1.In similar type of work 2. works are attached
A) both work are less in magnitute and oggy is not mention in certificate. Disqualify.
According to learned counsel for petitioner, the respondent ought not to have disqualified the petitioner on the aforesaid two grounds since he fulfills both the criterias. In order to take his contention to the logical end, he has invited our attention to pages 383 and 384. Page 383 is the details of similar type and magnitute with civil engineering work carried out by the tenderer in past. It further shows name of work as “Ampati (Storage) M.I. Project, Tq. Chikhaldara, Dist. Amravati Balance Work for Construction of Earthwork, Spillway and Head Regulator of Ampati Storage Tank”.
Per contra, Mr. Kadu, learned counsel for respondent No.1 submits that the petitioner was rightly disqualified by the authorities as he was not satisfying the requirements as per the tender notice. He submits that if the nature of work which is subject matter of present tender is seen, it would reveal that what is required is ‘construction of oggy type spillway’ whereas the document produced by the petitioner which is at page 384, nowhere shows that the spillway was of oggy type. He further submits that the said document which is at page 384 shows that it pertains to work for ‘construction of earthwork, spillway and head regulator of Ampiti Storage Tank’, which work has been done by the petitioner and it does not speak about oggy type spillway.
In rebuttal, learned counsel for petitioner submits that he is duly qualified. He further states that document at page 384 also shows that he has experience of completing one similar type of work i.e. construction of oggy type spillway and excavation of approach and tail channel amounting at least Rs. 1253 lakhs. In short, he submits that non mentioning of “oggy type spillway” in document produced by him at page 384, will not make much difference, as what is relevant is having experience of construction of earthwork and spillway.
In the aforesaid background, we have tested the contentions on the basis of documents produced. At the outset, it is necessary to observe that while dealing with the tender matter, Court cannot dictate the authorities to change the terms and conditions of the contract. The Court, while exercising power of judicial review under Article 226 of the Constitution of India, cannot interpret the terms and conditions of the documents. Perusal of tender notice, more particularly, page 69, relevant portion of which is already stated supra, would clearly reveal that what was required was experience in successful completing at least one similar type of work i.e. construction of oggy type spillway and excavation of approach and tail channel, amounting to at least Rs. 1523 lakhs, whereas what has been submitted by the petitioner is the document showing completion of work of construction of Earthwork, Spillway and Head Regulator of Ambiti Storage Tank. Said document (page 384), nowhere shows that construction of oggy type spillway. Thus, neither nature of work nor amount of work (mentioned at page 384) satisfies condition (3-B) of the tender document at page 69. At the cost of repetition, we are saying that interpreting the nature of work mentioned at page 384 to suit the condition (3-B) is not permissible while exercising the power of judicial review.
There is one more aspect which is required to be taken into consideration. Along with the petition, the petitioner has produced PWD Handbook at page 1219, Part 1 – Spillways. Chapter 23 (pages 1228 and 1229) speaks about spillway of dams and similar other structures. Clause 3.3 of the said Handbook which is at page 1229 speaks about classification based on features which further clarifies that the spillways can also be classified according to their most prominent feature as under:
“3. Classification based on features.
The spillways can also be classified according to their most prominent feature, as under:
1.Free overfall (Straight Drop)
2.Ogee (overflow)
3.Chute (Open channel or Trough)
4.Side channel
5.Conduit and Tunnel
6.Drop Inlet (Shaft or Morning glory)
7.Culvert
8.Siphon (Volute Siphon)
This clearly shows that there is a classification of spillways and praying the Court to interpret the work completed by the petitioner mentioned at page 384 to be treated as a work required to be completed under tender document clause 3-B, would not be permissible.
We would further like to quote the following paragraph from Handbook, which would clearly show that oggy spillway has totally different design than other spillways.
“The object of the spillway’s design is to provide a safe and adequate spillway structure for the least combined cost of spillway and the dam and other appurtenant protective work etc., as the type of design of spillway affects the design of the dam through the necessity of providing adequate free board and temporary flood storage capacity”. The largest single cause of failure of dams is the inadequacy of spillway’s capacity. The Handbook clearly shows that there is totally different design for overflow spillway, oggy creast spillway, side channel spillway etc.
Considering the fact that the Court cannot substitute its wisdom, we are of the opinion that since the petitioner did not submit the relevant document, his technical bid was rightly rejected, and therefore, we have no other option but to dismiss the petition. Accordingly, petition is dismissed.