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M/S.Arss Infrastructure Projects Ltd. and Another Vs. Rail Vikas Nigam Limited and Others - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
AppellantM/S.Arss Infrastructure Projects Ltd. and Another
RespondentRail Vikas Nigam Limited and Others
Excerpt:
orissa high court, cuttack w. p(c) nos.3996 and 9945 of 2012 in the matter of applications under articles 226 and 227 of the constitution of india. ---------------w.p.(c) nos.3996 & 9945 of 2012 m/s.arss infrastructure projects ltd. & another … petitioners versus rail vikas nigam limited & others … opposite parties for petitioners for opposite parties - m/s. ashok ku. parija, s.p.sarangi, p.p.mohanty, d.k.das & p.k.das. - m/s. s.k.padhi and a.k.mishra. ------------present: the honourable chief justice mr.v.gopala gowda and the honourable mr. justice s.k.mishra -----------------------------------------------------------------------------------------------------date of conclusion of hearing:30.8.2012:date of judgment:12.11.2012.....
Judgment:

ORISSA HIGH COURT, CUTTACK W. P(C) Nos.3996 and 9945 of 2012 In the matter of applications under Articles 226 and 227 of the Constitution of India. ---------------W.P.(C) Nos.3996 & 9945 of 2012 M/s.ARSS Infrastructure Projects Ltd. & another … Petitioners Versus Rail Vikas Nigam Limited & others … Opposite parties For Petitioners For Opposite Parties - M/s. Ashok Ku. Parija, S.P.Sarangi, P.P.Mohanty, D.K.Das & P.K.Das. - M/s. S.K.Padhi and A.K.Mishra. ------------PRESENT: THE HONOURABLE CHIEF JUSTICE MR.V.GOPALA GOWDA AND THE HONOURABLE MR. JUSTICE S.K.MISHRA -----------------------------------------------------------------------------------------------------Date of conclusion of hearing:30.8.2012:Date of judgment:12.11.2012 -----------------------------------------------------------------------------------------------------S.K.Mishra, J.In W.P.(C) No.3996/2012 the petitioners challenge the eligibility conditions imposed in the tender document, i.e. Clause No.(g) (ii) of Letter of Technical Bid of tender notice dated 31.1.2012 issued by Rail Vikas Nigam Limited(for short “RVNL”.), opposite party no.1, for execution of doubling of Sambalpur-Titlagarh Section in Sambalpur Division of East Coast Railway in the State of Odisha in three packages. 2 In W.P.(C) No.9945 of 2012 the petitioners challenge Clause No.4.4(a),(b),(c) and (g) of Bid Notice dated 23.4.2012 issued by the said RVNL for construction of Major Bridges in connection with the construction of new BG Rail Line from Haridaspur (0.00 Km) to Paradeep (81.200 Km) in Khurda Division of East Coast Railway in the State of Odisha.

2. The short facts giving rise to these writ petitions are that on 16.10.2005, RVNL issued a tender notice inviting bids from interested parties for “construction of road bed in connection with doubling of railway line between Barang-Rajatgarh (25 Km), Cuttack-Barang(12 Km) and 3rd line between Barang-Khurda Road (35 Km) in the state of Odisha”. and “Construction of Major Bridges in connection with doubling of Railway line between Barang-Rajatgarh (25 Km), Cuttack-Barang (12 Km) and 3rd line between Barang-Khurda Road (35 Km) in the state of Odisha”.. M/s. Harish Chandra (India) Limited, New Delhi formed a Joint Venture namely, “HCIL-ADHIKARYA-ARSS (JV)”. along with other two partners namely, M/s.PT ADHIKARYA, Indonesia and petitioner no.1 company, wherein M/s.HCIL was the lead partner having forty percent share. The Joint Venture submitted its bid and being the lowest bidder, RVNL awarded the work in favour of the same. M/s.HCIL being the lead partner of joint venture did not complete the work in time, even though, the time was extended from time to time by RVNL. While matter stood thus, petitioner no.1 company had tried to complete the balance work, but it was restrained by M/s.HCIL by way of freezing the bank account, withdrawing the machinery from the site. Withholding the payment of petty contractors and labourers. On 29.11.2011, opposite party no.1 terminated the contracts. On 23.4.2012, RVNL had issued tender notice inviting bids from interested parties for construction of Major Bridges in connection with the construction of new BG Rail Line from Haridaspur(0.00 Km) to 3 Paradeep (81.200 Km) in Khurda Division of East Coast Railway in the State of Odisha wherein Clause No.4.4 of Bid disqualification criteria of a bidder. Notice stipulates the Clause No.4.4(a),(b),(c) and (g) of the bid are quoted below: “4.4. The bidders shall be disqualified if: (a) The bidder or any of its constituents has been blacklisted/banned business dealing by any Government Department, Government Agency or public sector undertaking at any time, except in cases where such blacklisting/banning has been withdrawn by competent authority or ceased on the deadline for submission of the bid, for which satisfactory evidence is to be produced. (b) Any previous contract of the bidder or any of its constituents had been terminated/rescinded for contractor’s failure by Rail Vikas Nigam Ltd. during the period of last two years before the deadline for submission of the bid. Provided, however, there is no stay order or declaration by any Court against such termination of rescission of the contract by Rail Vikas Nigam Ltd. (c) The bidder or any of its constituents has been imposed delay damages of 5% or more of contract value by RVNL due to delay in the implementation of any previous contract within the period of last two years before the deadline for submission of bid, (period of two years shall be reckoned from the date on which the total accrued amount of 4 delay damages has reached 5% or more of the contract price) or such accrued delay damages has not been fully recovered before the deadline for submission of request for bid on account of contractor deferring recovery to maintain cash flow and RVNL has acceded to the same in the interest of the project or the work under the previous contract in question has not been completed before the deadline for submission of bid unless imposition of such delay damages has been set aside by the competent authority. (g) The bidder or any of its constituent (s) has been issued a show cause notice for poor performance/ banning/black listing or business or order for suspension authority of of business RVNL. by the competent However, if the bidder is exonerated of the default before completion of the technical evaluation of bids, his bid will be considered for evaluation.

3. The petitioners further submit that the aforesaid clause of Bid Notice stipulates that if any previous contract of one bidder or any of its constituents terminated/rescinded/blacklisted/banned for contractor’s or bidders failure by Government Department, Government Agency or public sector undertaking at any time or RVNL during last two years before the deadline of submission of bid, then the said bidder cannot be permitted to participate in the bid. It is submitted by the petitioners that the aforesaid disqualification clauses for first time adopted by opposite party no.1 on 18.6.2010 in its standard bidding documents. Hence, the aforesaid disqualification clauses cannot apply to contract or agreement signed prior to 18.6.2000 and the agreement dated 4.9.2006 signed 5 between RVNL and M/s. HCIL-ADHIKARYA-ARSS (JV) did not contain the aforesaid disqualification clause. It is further submitted that even though petitioner no.1 company had no fault either in delay of execution of work or in completion of balance work in respect of the aforesaid bid dated 16.10.2005 of RVNL, but the said contract was terminated on 29.11.2011 by the said opposite party without issuing show cause notice to petitioner no.1 company for which it has been debarred to participate in the tender. The aforesaid clause of bid notice amounts to debarring and blacklisting petitioner no.1 company to participate in the tender of opposite party no.1 for a period of two years without issuing show cause notice to it. It is, therefore, submitted by the petitioners that Clause No.4.4(a),(b),(c) and (g) of the Bid Notice are illegal, arbitrary, irrational, unreasonable, bad in law, inequitable, discriminatory and is liable to be quashed being hit by Articles 14 and 19(1)(g) of the Constitution of India and further petitioner no.1 company should be permitted to participate in the tender.

4. The RVNL has filed counter affidavit in these cases, inter alia, pleading that it was incorporated in the year 2003 with the object to implement rail infrastructure projects on fast track basis. After functioning it has completed 1590 Kms. of gauge conversion, 924 Kms doubling and 1514 Kms of railway electrification and at present the Company is executing 70 important projects involving construction of 4603 Kms. of rail lines and 2182 Kms. of railway electrification of rail lines, 66 Kms. of metro lines and three workshops etc. It is contended that the disqualification criteria is based on the standard bidding document of RVNL, which has undergone several changes since it started functioning based on the experience gained by it and several deliberations including seeking legal opinion wherever considered necessary with the sole objective to implement projects on fast 6 track basis without compromising the requirements of transparency, equality and fair play in dealing with matters related to tenders. As far as ITB Clause is concerned, RVNL submits that the decision of incorporating such provisions in the bidding documents was taken as early as in the year 2008, and not in 2010 as pointed by the petitioner, after taking clue from bidding documents adopted by reputed agencies such as Delhi Metro Rail Corporation and National Highway Authority of India. Before taking the said policy decision, the matter was duly deliberated in Corporation Office of RVNL and necessary legal opinion was also obtained. The improvement to bid document is a continuous process. Such conditions were incorporated for the first time in October, 2008 in the tenders floated for 3rd line Project of Bina-Bhopal of West Central Railway and Panskura-Kharagpur of South Eastern Railway. tenders Thereafter such clauses have been incorporated in all the invited by RVNL for similar works and accordingly, the same have also formed part of the standard bid document published on 18.6.2010. Thus, about four years have already elapsed since such clauses of disqualifications are being incorporated in all its tenders by RVNL and all tenders floated for similar works after October 2008 have been finalized with such disqualification criteria in their respective bidding documents which have not been challenged by any agency including the petitioner no.1 company. There are several contracts finalized using such bidding documents.

5. The RVNL further submits that the said ITB clauses are known and applicable to all bidders bidding in RVNL tenders since October 2008. In fact this disqualification clause is a part of all the tenders being floated by RVNL, agencies having track of tendering activities of RVNL are expected to be in the knowledge of the same. It is submitted that these provisions help in weeding out bidders of suspect credential and doubtful performance. Further, the provisions do not contravene any law and are meant for selecting capable and competent 7 contractor. The provisions serve a larger public interest. provisions of ITB 4.4 are lawful, reasonable, Therefore, the transparent, non- discriminatory, well considered and equitable.

6. The RVNL further submits that based on experience gained in finalization of various tenders the disqualification clauses and so also the eligibility criteria have changed from time to time and it has currently evolved to the form provided in the tender in question. The RVNL has carefully deliberated about the necessity as well as the lawfulness and reasonableness of these provisions while obtaining legal opinion wherever considered necessary by Corporate Office of RVNL with the sole objective to implement projects on fast track basis without compromising the requirements of transparency, equality and fair play in dealing with matters related to tenders. Likewise the requirements of past experience of a bidder to be eligible in a particular bid have also been modified to achieve the same objective.

7. Lastly, it is submitted that the objective of inviting bids for any work is to select a competent and capable contractor with proven track record. To do so, the bidding document is required to be devised to weed out contractors of suspect and inadequate capability and to select competent and capable contractor with proven track record without compromising the requirements of transparency, equality and fair play. Both qualification/disqualification criteria including ITB Clause No.4.4(a),(b),(c) and (g) have been incorporated in the bidding documents of RVNL, without being prejudiced to any particular bidder. Further, it has been done much before the two contracts entrusted to the JV, of which petitioner no.1 was a partner, were terminated. provisions Therefore, the are neither discriminatory not violating the principles of equality and fair play relating to tenders and are meant to achieve the sole objective of implementing projects on fast track basis in the national interest. 8 ` 8. On these facts, the following questions would arise for determination in these cases:(a) Whether the conditions as enumerated in Clause No.4.4(a),(b),(c) and (g) of the ITB and Clause No.(g)(ii) of letter of technical bid of tender dated 31.1.2012 and 23.4.2012 are unreasonable, unfair and arbitrary, malafide or is just and proper and have been incorporated with the objective of implementing projects in achieving target in the national interest ?. (b) Whether termination of the earlier contract awarded in favour of the joint venture and stipulating in the tender in question that in such cases of termination any of the constituent of the joint venture shall be ineligible to participate in the tender amounts to blacklisting of the petitioner no.1 company ?. and (c ) 9. To what relief the petitioners are entitled ?. The RVNL has pleaded that such conditions as enumerated in Clause No.4.4 of the bid document have been made a condition of the bids since 2008 in various other tenders and it is further submitted by the RVNL that such ineligibility condition has been made part of the contract in all other tenders issued by it. It is stoutly denied by the RVNL that such a contract has been introduced for the first time in the present tender call notices. It is further borne out from the record that all these conditions have been incorporated in their standard tender documents as a result due deliberation and improvement in the method of execution of work as they have gained experience in the meantime. 9 These facts have not been disputed by petitioner no.1 company by filing any rejoinder affidavit.

10. In Tata Cellular v. Union of India; (1994) 6 SCC 651.the Supreme Court emphasized the need to find a right balance between administrative discretion to decide the matters on the one hand, and the need to remedy any unfairness on the other. After taking into consideration various case laws, the Supreme Court has observed as follows: (1)The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. 10 (6) Quashing decisions may impost heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.

11. In Michigan Rubber (India) Ltd. Vs. The State of Karnataka and Ors.; Civil Appeal No.5898 of 2012 (Arising out of SLP (C) No.25802 of 2008), the Supreme Court has observed that certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work. Article 14 of the Constitution prohibits the Government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim a fundamental right to carry on business with the Government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated, to the detriment of public interest. Undisputedly, the legal position, which has been firmly established from various decisions of the Supreme Court, is that Government contracts are highly valuable assets and the court should be prepared to enforce standards of fairness on the Government in its dealings with tenderers and contractors.

12. Similar situation arose in the case of M/s. Patel Engineering Limited v. Union of India and Anr.; J.2012(5) SC 38.wherein the Supreme Court has observed that the decision of State or its instrumentalities not to deal with certain persons or class of persons on account of the undesirability of entering into contractual relationship with such persons is called blacklisting. State can decline to enter into a contractual relationship with a person or a class of persons for a legitimate purpose. The authority of State to blacklist a person is a necessary concomitant to the executive power of the State to carry on the trade or the business and making of contracts of any purpose etc. The 11 Supreme Court further held that there need not be any statutory grant of such power. The only legal limitation upon the exercise of such an authority is that State is to act fairly and rationally without in any way being arbitrary, thereby such a decision can be taken for some legitimate purpose. What is the legitimate purpose that is sought to be achieved by the State in a given case can vary depending upon various factors. Again at paragraph-17 of the said case, the Supreme Court has held that the bid document is not a statutory instrument. Therefore, the rules of interpretation, which are applicable to the interpretation of statutes and statutory instruments, are not applicable to the bid document. Therefore, according to the Supreme Court, the failure to mention blacklisting to be one of the probable actions that could be taken against the delinquent bidder does not, by itself, disable the 2nd respondent from blacklisting a delinquent bidder, if it is otherwise justified. Such power is inherent in every person legally capable of entering into contracts. Then again at paragraph-23 of the same judgment, the Supreme Court has held that the 2nd respondent came to the conclusion that the petitioner is not reliable and trustworthy in the context of a commercial transaction. Secondly, by virtue of the dereliction of the petitioner, the 2 nd respondent suffered a huge financial loss and thirdly the dereliction on the part of the petitioner warrants exemplary action to curb any practice of ‘pooling’ and ‘mala fide’ in future.”

. At paragraph-24, the Supreme Court has held that it did not find any illegality or irrationality in the conclusion reached by the 2nd respondent that the petitioner is No.(commercially) reliable and trustworthy in the light of its conduct in the context of the transaction in question. The Supreme Court could not find fault with the 2nd respondent’s conclusion because the petitioner chose to go back on its offer of paying a premium of Rs.190.53 crores per annum after realizing that the next bidder quoted a much lower amount. Whether the decision of the petitioner is bona fide or mala fide, requires a further probe into the matter, but, the explanation offered by the petitioner does not appear to be a rational explanation. The explanation of the 2nd 12 respondent was accepted which was fortified by sound reasoning.

13. In the case of Tejas Constructions and Infrastructure Pvt. Ltd. Vs. Municipal Council, Sendhwa and Anr.; (2012) 6 SCC 46.wherein the Supreme Court dealt with similar matters relating to contracts. In paragraphs-10,11,12,19,20 and 21 the Supreme Court has observed as follows:

“10. In Raunaq International Limited v. I.V.R. Construction Ltd. and Ors., (1991) 1 SCC 492.this Court reiterated the principle governing the process of judicial review and held that the Writ Court would not be justified in interfering with commercial transactions in which the State is one of the parties to the same except where there is substantial public interest involved and in cases where the transaction is made mala fide. The court observed:

10. What are these elements of public interest?.(1) Public money would be expended for the purpose of the contract. (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities.(3) The public would be directly interested in the timely fulfillment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work – thus involving larger outlays of public money and delaying the availability of services, facilities or 13 goods, e.g., a delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general pubic and substantial cost escalation.

11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenders, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenders may or may not be whether any public decisive in deciding interest is involved in intervening in such a commercial transaction. It is important to intervention, bear the in mind proposed that by project court may be considerably delayed thus escalating the cost for more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenders.

12. Reference may also be made to Sterling Computers Ltd. v. M & N Publication Ltd. (1993) 1 SCC 44.where this Court held that power of judicial review in respect of 14 contracts entered into on behalf of the State primarily involves examination of the question where there was any infirmity in the decision-making process if such process was reasonable, rational and non-arbitrary, the Court would not interfere with the decision. In Air India Ltd. v. Cochin International Airport Ltd. and Ors. MANU/SC/0055/2000 : (2002) 2 SCC 617.this Court held that award of contract was essential in commercial transactions which commercial decision. consideration and results in involves commercial While taking such decision the State can choose its own method on terms of invitation to tender and enter into negotiations. The following passage from the decision is apposite: The award of contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision consideration which are of paramount are commercial consideration. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporation, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that 15 decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. (Emphasis laid by the Court) Even when some defect is found in the decision making process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when overwhelming it comes public to a conclusion interest that requires interference, this Court should intervene.

19. It is also noteworthy that in the matter of evaluation of the bids and determination of the eligibility of the bidders Municipal Council had the advantage of the aid & advice of an empanelled consultant, a technical hand, who could well appreciate the significance of the tender conditions regarding the bidder executing the single integrated water supply scheme and fulfilling that condition of tender by reference to the work undertaken by them. We, therefore, see no reason to interfere with the view taken by the High Court of the allotment of work made in favour of Respondent No.2.

20. We may while parting point out that out of a total of Rs.19.5 crores representing the estimated value of the contract, respondent no.2 is certified to have already executed work worth Rs.11.50 crores and received a sum of Rs.8.79 crores towards the said work. More importantly the 16 work in question relates to a drinking water supply scheme for the residents of a scarcity stricken project is sponsored with the municipality. Central The Government assistance under its urban infrastructure scheme for small and middle towns. The completion target of the scheme is September 2012. Any interference with the award of the contract at this stage is bound to delay the execution of the work and put the inhabitants of the municipal area further hardship. to Interference with the on-going work is, therefore, not conducive to public interest which can be served only if the scheme is completed as expeditiously as possible giving relief to the thirsting residents of Sendhwa. This is particularly so when the allotment of work in favour of Respondent No.2 does not involve any extra cost in comparison to the cost that may be incurred if the contract was allotted to the Appellant-company.

21. In the light of the above settled legal position and in the absence of any mala fide or arbitrariness in the process of evaluation of bids and the determination of the eligibility of the bidders, we do not consider the present to be a fit case for interference of this Court. This appeal accordingly fails and is hereby dismissed with cost assessed at Rs.25,000/-.”

14. In the case of RAUNAQ INTERNATIONAL LTD. Vs. I.V.R. CONSTRUCITON LTD. AND OTHERS; (1999) 1 Supreme Court Cases 492, the Supreme Court at paragraphs-9 has laid down as follows:

“9. The award of contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, 17 considerations which are of paramount importance are commercial considerations. These would be : (1) the price at which the other side is willing to do the work; (2) whether the goods or services offered are of the requisite specifications; (3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow-up action, rectify defects or to give post-contract services.”

15. In applying the above principles to the case in hand, it is noted from the facts of the case that petitioner no.1 company had formed a joint venture with two other companies and has taken up the contract for doubling of railway lines in certain areas. In spite of enough opportunities, the joint venture could not complete the said project in time, as a result of which the RVNL has to face great and irreparable damages because of non-completion of the railways work in time. It may be noted that the work of broadening the railway lines or doubling the same are in the National interest. It is further borne out from the record 18 that the provisions in the bidding document, which are impugned in the case, have been incorporated in similar tenders as early as in the year 2008 and not in 2010 as pointed out by petitioner no.1 company. Thus, the contract issued by the joint venture company, for which petitioner no.1 company was constituent, was terminated in the year 2011, so petitioner no.1 company cannot claim that the conditions have been imposed for the first time only with a view to eliminate it for taking part in the tender process. Moreover, from the past experience, the RVNL has the right to gauge the ability of the tenderer to deliver service or to do the work of the requisite standard and quality. not if on earlier occasions bidders have been unsuccessful in completing the work in time or of the requisite standard and quality the RVNL, like a private party, can take a decision to exclude such bidders of doubtful and suspect capabilities from participating in the bidding process. That being the reason for engrafting Clause No.4.4 in the bid document and Clause No.(g)(ii) of letter of technical bid, these conditions appear on proper analysis to be reasonable, not arbitrary and bonafide. In that view of the matter this Court comes to the conclusion that the conditions enumerated in Clause No.4.4 (a),(b),(c) and (g) of the ITB and Clause No.(g)(ii) of the letter of technical bid dated 31.1.2012 and 23.4.2012 are reasonable, fair and are not arbitrary. It is just and proper and has been taken with a bona fide intention.

16. The next question comes for determination is whether petitioner no.1 company has been black listed?. petitioner no.1 company relied on reported In this connection, cases of ERUSIAN EQUIPMENT & CHEMICALS LTD. VS. STATE OF WEST BENGAL AND ANOTHER; (1975) 1 Supreme Court Cases 70, JOSEPH VILANGANDAN V. Executive Engineer (PWD), ERNAKULAM AND OTHERS; (1978) 3 Supreme Court Cases 36, and M/s. Southern Painters Vs. Fertilizers and Chemicals Travancore Ltd. and another; 1994 Supp (2) SCC 69.19 and contended that petitioner no.1 company has been blacklisted without following the principles of natural justice. However, from the materials available on records, we have been seen that petitioner no.1 company has not been blacklisted by the RVNL. The RVNL has simply stipulated certain conditions which lead to the conclusion that the person or persons having suspect capabilities in execution of contract, as is gathered from past experience, shall not be allowed to bid in the bidding process and that does not amount to blacklisting of petitioner no.1 company. It is only a commercial decision taken fairly by the RVNL and, therefore, the second question is answered in negative and we hold that petitioner no.1 company has not been blacklisted by the RVNL.

17. In that view of the matter, this Court comes to the conclusion that petitioner no.1 company is not entitled to any relief and, therefore, these writ petitions are devoid of any merit and, hence, the same are dismissed. .….…..………….. S.K.Mishra, J V.Gopala Gowda, C.J.I agree ...…..….…….…… Chief Justice Orissa High Court, Cuttack Dated 12th November, 2012/A.K.Behera 20


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